6.1 Sand Mining Versus Environmental Restrictions
Placing restriction or limits on mining activities in environmentally sensitive or
vulnerable areas is one of the tools employed in the Mining Act for environmental
protection. In general, the rights conferred by a mineral right are required to be
exercised reasonably and in such a manner as not to adversely affect the interests of
any owner or occupier of the land on which the rights are exercised.
Specifically, restrictions have been placed on the exercise of mineral rights within
specified parameters of land described as including “land beneath any water, the
seabed and subsoil of such land.”
41
For example, in terms of the Act, the holder of a mineral right shall not exercise
any of his or her rights under that mineral right in a number of places including an
area within at least five meters or a greater distance as may be prescribed, of land
which has been cleared or ploughed or otherwise prepared in good faith for the
growing of, or upon which there are growing agricultural crops.
42 This means that
holder of commercial or industrial sand mining right duly conferred on him under the
Act cannot exercise that right of mining, all things being equal, in an area within at
least five meters of a piece of land on which agricultural crops are growing or a piece
of land prepared for the growing of agricultural product. The same applies to a piece
of land which is the site of or which is within the perimeters of a hundred meters, or
such greater distance as may be prescribed, of any cattle dip, tank, or similar body of
water, except with the written consent of the owner or lawful occupier or the duly
authorized agent of the owner or lawful occupier of that piece of land.
43
Where industrial or commercial sand-mining activity is to be carried out within
two hundred meters from a lake or within one hundred meters from any rivers, it
must be pursuant to a permit issued under the National Environment Act.
44 This
means that industrial or commercial sand mining activities in lakes and rivers as well
as on river banks and lake shores require a permit from the National Environmental
Management Authority (NEMA).This is line with the mandate of NEMA to take
measures, in consultation with relevant agency, for the protection of river banks and
lake shores from human activities that will adversely affect these water bodies.
45 As
a general rule excavation or drilling of rivers and lakes whether for sand or otherwise
is prohibited except with the permission of NEMA and relevant agency.
46 A person
who intends to carry out excavation or drilling of a river bank or lake shore shall seek
permission by way of application to the Executive Director of NEMA.
47
41 Sec. 2 Mining Act.
42 Sec. 72(b)(i) Mining Act.
43 Sec. 78 (1)(b)(ii) Mining Act.
44 This is in terms of the implication of Section 78(1)e) Mining Act.
45 See sec 35(i) National Environment Act (NEA).
46 Sec. 34(1)(b) and 34(2) NEA.
47 See Regulation 23(1)(b) of The National Environment (Wetland, Riverbanks and Lake Shores)
Management Regulations (2000). The application must be done using the form set out in the First
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T. Sanni
Placing restriction or limits on mining activities in environmentally sensitive or
vulnerable areas is one of the tools employed in the Mining Act for environmental
protection. In general, the rights conferred by a mineral right are required to be
exercised reasonably and in such a manner as not to adversely affect the interests of
any owner or occupier of the land on which the rights are exercised.
Specifically, restrictions have been placed on the exercise of mineral rights within
specified parameters of land described as including “land beneath any water, the
seabed and subsoil of such land.”
41
For example, in terms of the Act, the holder of a mineral right shall not exercise
any of his or her rights under that mineral right in a number of places including an
area within at least five meters or a greater distance as may be prescribed, of land
which has been cleared or ploughed or otherwise prepared in good faith for the
growing of, or upon which there are growing agricultural crops.
42 This means that
holder of commercial or industrial sand mining right duly conferred on him under the
Act cannot exercise that right of mining, all things being equal, in an area within at
least five meters of a piece of land on which agricultural crops are growing or a piece
of land prepared for the growing of agricultural product. The same applies to a piece
of land which is the site of or which is within the perimeters of a hundred meters, or
such greater distance as may be prescribed, of any cattle dip, tank, or similar body of
water, except with the written consent of the owner or lawful occupier or the duly
authorized agent of the owner or lawful occupier of that piece of land.
43
Where industrial or commercial sand-mining activity is to be carried out within
two hundred meters from a lake or within one hundred meters from any rivers, it
must be pursuant to a permit issued under the National Environment Act.
44 This
means that industrial or commercial sand mining activities in lakes and rivers as well
as on river banks and lake shores require a permit from the National Environmental
Management Authority (NEMA).This is line with the mandate of NEMA to take
measures, in consultation with relevant agency, for the protection of river banks and
lake shores from human activities that will adversely affect these water bodies.
45 As
a general rule excavation or drilling of rivers and lakes whether for sand or otherwise
is prohibited except with the permission of NEMA and relevant agency.
46 A person
who intends to carry out excavation or drilling of a river bank or lake shore shall seek
permission by way of application to the Executive Director of NEMA.
47
41 Sec. 2 Mining Act.
42 Sec. 72(b)(i) Mining Act.
43 Sec. 78 (1)(b)(ii) Mining Act.
44 This is in terms of the implication of Section 78(1)e) Mining Act.
45 See sec 35(i) National Environment Act (NEA).
46 Sec. 34(1)(b) and 34(2) NEA.
47 See Regulation 23(1)(b) of The National Environment (Wetland, Riverbanks and Lake Shores)
Management Regulations (2000). The application must be done using the form set out in the First
110
T. Sanni