REALISING THE AFRICA MINING VISION: THE ROLE OF GOVERNMENT-INITIATED INTERNATIONAL DEVELOPMENT THINK-TANKS

Chilenye Nwapi*

INTRODUCTION

In 2008, the United Nations Economic Commission for Africa (UNECA) and the African Union (AU) established a joint technical taskforce to articulate a mining vision for Africa. The resulting Africa Mining Vision (AMV), which was adopted by African Heads of State and Government in February 2009, was informed by the continent’s recognition of its enormous mineral potential, the importance of mineral resources to Africa’s industrialisation and socioeconomic development, and the fact that in most African countries only very little progress has been made to maximise the opportunities.1

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* Senior Fellow, Institute for Oil, Gas, Energy, Environment and Sustainable Development Afe Babalola University, Nigeria. This article is a revised version of a paper presented at the Southern African Institute of Mining and Metallurgy’s “Mining, Environment and Society” Conference: Beyond Sustainability – Building Resilience, held in Johannesburg from 12-13 May 2015. The Institute reserved the right to publish that earlier version in its journal.

1 African Union (AU), Africa Mining Vision, February 2009, accessed 8 December 2015.

THE CIVIL SOCIETY AND THE REGULATION OF THE EXTRACTIVE INDUSTRY IN NIGERIA

Rhuks Ako* and Eghosa O. Ekhator**

ABSTRACT

This article focuses on the role of civil society organisations (CSOs) in impacting on trends and developments in the extractive industry in Nigeria. For example, CSOs take on the government to promote accountability and probity in the management of the sector that is beset by ineffectual regulation; alleged collusion with multinational corporations having as consequences environmental degradation and human rights abuses; and, ineffective judicial processes, among other things. On the other hand, CSOs are increasingly beginning to play prominent roles in collaborations with extractive corporations in the initiation and management of development programmes. In a nutshell, this paper aims to engage with both theoretical (based on the Hood et al conceptualisation of a regulatory regime, which encompasses information gathering, standard setting and behaviour modification activities) and practical frameworks (such as litigation, collaboration and pressure by CSOs) that explain the evolution of CSOs and their “regulatory” roles in Nigeria’s extractive industry. Civil society and civil society organisation are used interchangeably.

Keywords: Nigeria, CSOs, extractive industry, regulatory framework.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i2.9

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* Senior Fellow, Institute for Oil, Gas, Energy, Environment and Sustainable Development, Afe Babalola University, Nigeria. Email: rako@ogeesinstitute.edu.ng

** University of Hull Law School, UK. Corresponding author: Email: eghosaekhator@gmail.com

THE FEASIBILITY OF IMPLEMENTING THE UNITED NATIONS GUIDING PRINCIPLES ON BUSINESS AND HUMAN RIGHTS IN THE EXTRACTIVE INDUSTRY IN NIGERIA

Oyeniyi Abe*

ABSTRACT

Extractive resource governance has been a challenging task for resource-rich countries in Africa. It has fuelled civil wars, ethnic clashes and underdevelopment in this region. This has turned the so-called resource wealth into resource curse. To address this particularly nauseating challenge, the international community came together to adopt the UN Guiding Principles on Business and Human Rights (GPs). Polarised debate on whether the GPs should be binding or voluntary has slowed down the effective implementation of the Principles. This article argues that while the GPs have been the latest attempt at regulating multinational companies (MNCs), greater emphasis should be placed on the readiness of states to domesticate the Principles. To achieve this, the paper explores various approaches through which the GPs can be crafted into national legislation. It also investigates the different methods through which states can ensure that corporations systemically respect human rights obligations in their areas of operation. In order to restore faith in the whole process, it is necessary to examine how human rights principles can be mainstreamed into corporate practice locally. No doubt, rights-based frameworks, such as the GPs, are needed to ensure that human rights are streamlined in business’ projects, policies, and agreements throughout the various stages, including preparation, funding, implementation and monitoring. The issue of corporate liability under international law has had its troubled history, thus, this article argues that MNCs have a heightened responsibility to respect the human rights of the local communities in resourcerich, war-torn zones, particularly in sub-Saharan African, using Nigeria as focal point.

Keywords: Guiding principles, business, human rights, multinational companies (MNCs).

Doi: http://dx.doi.org/10.4314/jsdlp.v6i2.7

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* Doctoral Candidate, Centre for Comparative Law, Faculty of Law, University of Cape Town, South Africa, currently Fulbright Visiting Scholar at Loyola University, Chicago School of Law. oabe@luc.edu.

THE JUDICIARY AND SUSTAINABLE DEVELOPMENT: PERSPECTIVES OF A BRAZILIAN FEDERAL JUDGE

Gabriel Wedy*

ABSTRACT

The approval of 17 goals and 169 targets for sustainable development by the United Nations Conference on Post-2015 Development Agenda is unquestionably an advancement for humanity. Economic development alone is however unsatisfactory: it must be paired with human development, respect for the environment and sound governance. Drawing from litigation and jurisprudential development from the Brazilian judiciary, this short legal commentary evaluates the role of the judiciary in promoting sustainable development, especially the attainment of the United Nations Sustainable Development Goals (SDGs). Keywords: Brazil, Sustainable Development, Judiciary.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i2.10

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* Federal Judge in Brazil, an Environmental Law Professor at ESMAFE/RS (the Federal Judiciary Superior School) and a Visiting Scholar at Columbia Law School(Sabin Center for Climate Change Law).

NEW DIRECTIONS IN AFRICAN DEVELOPMENTALISM: THE EMERGING DEVELOPMENTAL STATE IN RESOURCE-RICH AFRICA

Sara Ghebremusse*

ABSTRACT

African states are reclaiming a greater role in natural resource extraction that is generating significant scholarly interest and debate. This paper contributes to the debate by considering how these measures fit into the developmental state paradigm first used to study East Asian countries following World War II, and the “new” development state framework that currently dominates law and development scholarship. This paper argues that recent policy reforms by African states – including enhanced local participation, increased linkages between extractive industries and other sectors, and broader resource nationalist measures that seek to generate more revenue for national governments – are characteristic of the developmental state and “new” developmental state, neither have fully taken shape in resource-rich Africa as it is unclear how these new measures address “good governance” and democracy concerns. Keywords: Developmentalism, Africa, oil, state.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i2.1

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* Ph.D. Student, Osgoode Hall Law School at York University, Toronto, Canada.

WHEN POLICY IS NOT ENOUGH: PROSPECTS AND CHALLENGES OF ARTISANAL AND SMALL-SCALE MINING IN SOUTH AFRICA

Pontsho Ledwaba* and Kgothatso Nhlengetwa**

ABSTRACT

As in most countries, artisanal and small-scale mining (ASM) activities are recognised in South Africa. ASM activities first became part of the socioeconomic development agenda of the country in 1994 after the change in government. ASM was identified as an important platform where disadvantaged South Africans can participate and benefit from the mining industry. This is because of the potential benefits that government has sought to support the sub-sector. In the past two decades, several programmes and initiatives have been introduced to promote and advance the sub-sector. In the majority of cases, these interventions failed to facilitate the development of the sub-sector and, to a large extent, its contribution to local economies. This is attributed to a myriad of challenges still facing the sub-sector today. The objective of this paper is to map all the critical developments that took place in the sub-sector in an attempt to develop and deploy appropriate assistance to the sub-sector. The paper assesses their impact, if any, on the growth of ASM in South Africa. With the country into its second decade of democracy, it has become crucial to reflect on past experiences and use them as learning curve to create a new thriving economy.

Keywords: artisanal and small scale mining (ASM), timeline, poverty alleviation, sustainable development, South African mining policy.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i2.2

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* Corresponding author, Pontsho Ledwaba, Research Engineer, Small-Scale Mining and Beneficiation (SSMB) Division, MINTEK, 200 Malibongwe Drive Randburg, 2125, Republic of South Africa, Tel: +27 11 709 4337, email: pontshol@ mintek.co.za.

** Ph.D Candidate, School of Geosciences, University of the Witwatersrand, Johannesburg, Private Bag 3, WITS, 2050, Republic of South Africa, Tel: +27 11 717 6623, E-mail: kgothatso.nhlengetwa@students. wits.ac.za.

EMERGING PRACTICES IN COMMUNITY DEVELOPMENT AGREEMENTS

Jennifer Loutit*, Jacqueline Mandelbaum**, and Sam Szoke-Burke***

ABSTRACT

Community Development Agreements (CDAs) have the potential to facilitate the delivery of tangible benefits from large-scale investment projects, such as mines or forestry concessions, to affected persons and communities. To be effective, however, CDAs must be adapted to the local context, meaning that no single model agreement or process will be appropriate in every situation. Nonetheless, leading practices are emerging which can be required by governments, voluntarily adopted by companies, and demanded by communities. These practices are grounded in ensuring that all parties are sufficiently informed, capacitated, and prepared to engage in meaningful negotiations regarding how the investor’s operations should benefit local stakeholders. This article reviews existing research on CDAs, as well as available agreements from the extractive sector in Australia, Canada, Laos, Papua New Guinea, Ghana and Greenland. It articulates seven broad leading practices and how different stakeholders could work to achieve more effective agreements.

Keywords: Community development agreement, extractive, investment, leading practices.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i2.4

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* Attorney, Latham & Watkins LLP, New York, United States.

** Special Counsel, Corrs Chambers Westgarth; former Legal Researcher, Columbia Centre on Sustainable Investment, New York.

*** Legal Researcher, Columbia Centre on Sustainable Investment, Columbia University, New York.

PERIODIC REVIEW IN NATURAL RESOURCE CONTRACTS

Jacky Mandelbaum*, Salli Anne Swartz*, and John Hauert***

ABSTRACT

Periodic contract review mechanisms, which are provisions in contracts that formally require parties to meet at particular intervals to review the terms of the contract, are mechanisms that may facilitate the process of negotiating contractual changes to accommodate changing circumstances over the term of extractive industries contracts. Through the review of existing extractive industries agreements, this article considers how such review mechanisms have been incorporated into existing contracts and the use of such mechanisms as a tool for maintaining good relationships between the parties. In addition, the article suggests a new approach to the drafting of these mechanisms by negotiating objective criteria to be incorporated into the contract at the commencement of the contractual relationship in order to facilitate the timing and parameters of contract renegotiation when certain triggers occur.

Keywords: Periodic review, natural resources, extractive industries contracts, renegotiation, sustainable development, long-term contracts; hardship.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i2.6

THE CLASH OF PROPERTY AND ENVIRONMENTAL RIGHTS IN THE NIGER DELTA REGION OF NIGERIA

Sunday Bontur Lugard*

ABSTRACT

The Niger Delta region of Nigeria, home to about 30 million people, is one of the world’s most prominent deltas. Petroleum exploration in this region has been ongoing for over fifty years and revenue from this activity is at present the mainstay of the Nigerian economy. Granted that it is impracticable to undertake petroleum operations without some negative impact on the environment, a good deal of this pollution can be mitigated. The International Oil Companies (IOCs) are complacent about pollution reduction to a sustainable level; regulatory agencies are either compromised or lack the required expertise or equipment to monitor and enforce compliance with extant environmental protection laws and regulations. The pursuit of the IOCs’ property right over petroleum resources has set them against the other stakeholders’ right to a healthy environment. The clash of these rights can best be addressed by ascribing “collective property” and not “private property” right to the acreage over which they have been granted licence to prospect for, explore or mine petroleum resources.

Keywords: Property rights, natural resource exploration, environmental law.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i2.3

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* Lecturer, Department of International Law and Jurisprudence, Faculty of Law, University of Jos, Nigeria; lugards@unijos.edu.ng.

THE EFFECTS OF LEGISLATION ON CORPORATE SOCIAL RESPONSIBILITY IN THE MINERALS AND MINES SECTOR OF NIGERIA

Adedoyin Akinsulore*

ABSTRACT

This paper examines the effect of legislation on the corporate social responsibility in the minerals and mines sector of the Nigerian economy. Observing that the extractive industry sector in the country is populated by enclave industries that give little priority to CSR, the paper analyses the Nigerian Minerals and Mines Act, 2007. The Act obligates contracting a Community Development Agreement (CDA) between the mineral title holder and the community where the mining company is to operate. Linking CSR and the CDA through the stakeholder theory, the paper observes that corporate actors in the solid minerals sector of the country can no longer deprioritise CSR in their corporate planning as hitherto. It concludes that the effect of this law is to empower the community as an important stakeholder thereby validating the stakeholder thesis herein espoused.

Keywords: Corporate social responsibility (CSR), minerals, mines, agreement, human rights.

doi: http://dx.doi.org/10.4314/jsdlp.v6i2.5

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* Department of Public Law, Obafemi Awolowo University, Ile-Ife, Nigeria e-mail: adedoyinakinsulore@gmail.com or adakinsulore@oauife.edu.ng