EIA Regime under the Mining Act, 1998

It is perhaps under the newly enacted Mining Act, 1998¹, that a much more serious attempt has been made to incorporate EIA requirements into planning and decision-making processes in the mining sector which has assumed a prominent place in the Government's drive to attract investors in the country. This legislation makes extensive provisions for environmental matters in relation to mining activities, introducing - for the first time - mandatory EIA requirements as a condition for granting various categories of mining licenses. Under section 38(4)(c), every application for a special mining license must include or be accompanied by the applicant's environmental management plan (EMP), including his proposals for the prevention of pollution, waste treatment, protection and reclamation of land and water resources and for eliminating or minimizing adverse effects on the environment of mining operations. This requirement is also applicable in cases of application for renewals of the special mining license (op. cit., §42(2)(d).

In addition, the Act requires every applicant for the special mining license to commission and produce to the Minister responsible for mining an environmental impact assessment on proposed mining operations from independent consultants of international standing short-listed by the applicant and approved by the Government (op. cit., §38(5). Applications under this section are required to be submitted to the Mining Advisory Committee (MAC) created under section 20 of the Act to advise the Minister (op. cit., §38(6). This applies to applications for renewals as well (op. cit., §42(3). A special mining license has a maximum life span of twenty five years or may be granted for the estimated life span of the mineral ores to be mined whichever is the shorter (op. cit., §40(a).

Failure to comply with these requirements is apparently fatal, for the Minister shall grant the special mining license to the entitled applicant only if "… the applicant's environmental management plan takes proper account of the environmental impact assessment commissioned under section 38(5) and conforms to the Regulations and to established international standards and practice and meets reasonable standards established by the Government for the management of mining operations" (op. cit., §39(1)(d). An application for the renewal of a special mining license may also be rejected if the EMP does not satisfy the requirements of section 39(1)(d). This applies to application for renewals of the gemstone mining license as well (op. cit., §55(3)(d). It is not sufficient that applicants for mining licenses must submit EMPs and EIAs alone. They must also comply with those plans and EIAs. It is a condition under the Act that a holder of a special mining license must develop the mining area and carry on mining operations in substantial compliance with his environmental management plan (op. cit., §44(a); or else provide for the posting of a rehabilitation bond to finance the costs of rehabilitating and making safe the mining area on termination of the mining operations where the holder of the license has failed to meet his obligations in this respect (op. cit., §44(d)².

The stringent requirements that we have seen above in relation to special mining licenses apply as well to the shorter duration concessions such as the mining license and the gemstone mining license, whose maximum life span is ten years. For example, applicants for these licenses must include a feasibility study which would set out measures the applicants propose to take in relation to any adverse impacts on the environment (op. cit., §47(2)(e)(i) and 51(3)(e). If the application for any of these licenses falls under section 64 it must include the EIA on the proposed mining operations by independent consultants of international standing as well as an EMP (op. cit., ss. 47(2)(h) and 51(3)(f). Section 64 requires applicants for licenses to commission and submit EIAs and EMPs as set out in the Regulations where mining operations to be carried out fall within the scale of mining operations set out in the Regulations³.

In the event the environmental management plan fails to take proper account of the environmental impact assessment or the Regulations as per section 64(1) established by international standards and practice or reasonable standards established by the Government, the Minister shall not grant the application for the license (op. cit., §48(e) and 52(1)(g). Holders of these licenses have a further duty to take all appropriate measures for environmental protection (op. cit., §49(2)(c) and 53(2)(c). And although holders of the various categories of licenses under this Act have the option to surrender their licenses to avoid being bound by the strict rigours of these provisions, the Minister is nevertheless empowered to refuse the surrender of the license if he is satisfied that the applicant will not leave the land to be surrendered in a condition which is safe and conforms to the requirements of the EMP or of the applicable Regulations relating to the safety and environmental management (op. cit., §56(3)(c).

The Mining Act further grants the Minister considerable law-making powers to make regulations for the avoidance of the pollution of air, surface and ground waters and soils and for regulation of all matters relating to the protection of the environment and for minimization of all adverse impacts to environment including the restoration of land on which mining operations have been conducted (op. cit., §110(2)(j)⁴.

1. Act No. 5 of 1998.
2. See also section 49(2)(d) ibid
3. See Schedule 1 of the proposed Mining (Environmental Management and Protection) Regulations, 1999.
4. Pursuant to these powers, in late 1998 the Minister made proposals for the promulgation of Mining (Environmental Management and Protection) Regulations, 1999, among a string of other proposed bylaws under this Act. These proposed Regulations provide a comprehensive mechanism for putting into effect the provisions of the Act relating to environmental matters that I have examined above. However, up to the writing of this paper the proposed regulations had not been approved as law and it was not clear indication from the Ministry of Energy and Minerals as to when they be thus approved.