Placing free, prior, and informed consent at the center of extractive industry’s regulatory reform in The Gambia

INTRODUCTION

The extractive industry regulatory agenda constantly attracts debate and demands for reform. This is mainly due to its intrinsic social and environmental impacts. Almost, always, the mines and quarries that host mineral exploration activities would be found in lands situate around inhabited or farming communities. It is not uncommon therefore to have members of those communities displaced or conflicts brewing within such catchment areas or both. There is little need for debate on the amount of Africa’s mineral reserves, except perhaps the rate of its diminishing returns. However, the mineral codes of many mineral-rich African countries that were mainly promulgated in the ’70s to ’90s were, at the turn of the millennium subjected to enormous criticism and reviews. Many countries were urged to not only revised their mineral codes, but also renegotiate the investment contracts, and promulgate stricter environmental and remedial measures in the industry.

The role of the private sector companies and sometimes specifically identified corporations, bilateral and multilateral financial agencies, remains critical to establishing mineral exploration regulatory regimes that are responsive to the social and environmental development needs of concerned communities. Many have written to question who’s benefit those the mining laws and relevant regulations seek to benefit. Arguably, the immediate post-independent African legal frameworks and regulatory reform meant to harmonize and stabilize the sector led to the creation of a more favorable business environment for foreign direct investments albeit with little impact on development. The reforms of the 80s reduced the role of the state to a mere setting of the stage. These reforms largely reduced the institutional capacity and drove down the standards in key areas for socio-economic development, and the protection of the environment in many mining countries on the continent.[1]

Arguably, new African mineral sources are going into production, and resource-rich African nations continue to earn remarkable or supposed profits. But profits are not the premise of regulation, these are always contained in separate complex web of legal documents carefully crafted to serve the peculiarity of each of those investment agreements. For every lawyer around such a table, the peculiarity of each such agreement is largely dependent on the terms of risk-sharing and insuring or hedging against the same or more of the same. This article is not intended to review any such investment contracts or propose appropriate terms for developing country investment contract negotiation.

The principal legal framework for the extractives industry in The Gambia is the Mines and Quarries Act of 2005, Petroleum (Exploration, Development, and Production) Act 2007, the Gambia Maritime Administration Act 2006, Petroleum Commission Bill 2021 (pending completion of the parliamentary process at the time of writing), and regulations relating to trading in precious minerals and stones.

Let me state that whilst the extractives industry concerns both mineral and hydrocarbon resources, the focus of this article is on the regulation of mineral resources despite the difficulty in separating them in the discourse of relevant legal and regulatory frameworks. Certainly, there are more regulations for hydrocarbons for both downstream and upstream, including Health and Safety and Environmental Regulations, in addition to the National Environment Management Act and Environment Impact Assessment (EIA) Regulations 2014, requiring EIA’s for a host of projects including explorations for hydrocarbons and mineral resources.

This article attempts a regulatory diagnosis of the country’s extractive industry and argues the central role that concerned communities must play in discussions regarding prospecting for minerals, the carrying out of mining and quarrying operations, and related social and environmental impact evaluation and remedial measures.

2. THE EXTRACTIVES INDUSTRY IN GAMBIA

2.1 Industry background and context

The Gambia might be the smallest mainland African country. It is, however, acclaimed to be host to varying mineral resources including liquefied gas (LPG), clay, silica, sand, titanium tin, and zircon, amongst others, with an estimated reserve of recoverable minerals yield a conservative total of about 995, 000 tonnes.[2] The 2005 Minerals Year Book[3] which published United States Geological Survey into Mineral Industries of The Gambia, Senegal, and Guinea Bissau, described mining in The Gambia to have initially been limited to clay, laterite, sand and gravel, silica sand, and zircon, albeit they didn’t make any significant contribution to the economy of the country. The country has provided mining license to the Australian company, Carnegie Mineral, and at least two local companies, Alhamdullillah Petroleum and Mining Company (APAM), Gambia Africa Mining Company GAMICO, and more recently, GATCH. Mainly along with the coastal states of Sanyang, Batukunku, Karton, Bafuluto, and in the far-away remote village of Badari in the Upper River Region.

According to the 2005 Mineral’s Year Book:

Carnegie Corporation Ltd (CCL) of Australia (50%) in joint venture with Astron Ltd of China (50%) held exclusive prospecting license from the Batukunku, the Kartong, and the Sanyang mineral sand deposits in Brufut. In 2005 the joint venture completed a second-round trial dredge program at the Sanyang deposit following the completion of this dredge program and of an environmental impact assessment study, the company submitted an application to convert its prospecting license to a mining lease. As of year-end, CCL continued to wait for government approval. Total measured, indicated and inferred resources at Batukunku, the Kartong and Sanyang deposits were estimated to be 18.8million metric tons (Mt) that contained about 1 Mt of heavy mineral at cut-off grade of 1%. The heavy minerals assemblage for these deposits was estimated to be about 71% imenite, 15% zircon, 3% rutile, and 11% others…

The involvement of Carnegie is perhaps the most publicized. In 2008 the Gambia Government unilaterally terminated the Carnegie mining license. Both the company and its manager Mr. Charlie Northfield were prosecuted and convicted for economic and financial crimes against the state, who was accused of illegally mining for titanium, iron ore, and uranium. The Special Criminal Court of the Gambia fined the company a staggering $200 000 000 and forfeited the assets and HMC stockpiles left by the company to the State. Carnegie refuted the allegations of illegal mining pointing out that titanium and iron oxide were components of ilmenite, while uranium was an inseparable trace elements within the zircon it was licensed to mine. Carnegie initiated an arbitration before the International Centre for Settlement Investment Disputes (ICSID. The arbitral tribunal awarded $31 million Australian Dollars to Astron Corporation Limited, the parent company of Carnegie Mineral.

Interestingly, the HMC stockpiles and assets later came to be managed and explorations carried on by APAM and GAMICO, companies believed to be associated with the country’s former President. It was not until 2017 with the establishment of the Janneh Commission Financial Inquiry into the financial carnage of the President that the country’s mineral and mineral industry came under even closer scrutiny when the Commission heard and received evidence, including site visits to the affected communities. These visits brought to the fore the immense environmental degradation that the mining activities have resulted in. There is no evidence of any direct benefit to the community from the proceeds of these exploration activities.

Beyond the few known cases of precious metals and stones mining that is reported in the country, mining of general construction sand and gravel takes place across the country.

2.2 National Mining Legal and Regulatory Framework

The Mines and Quarries Act is the country’s major legal instrument for the regulation of its mining industry. It makes provision for prospecting for minerals, for carrying out mining and quarrying operations, and for connected matters.[4] The Act has 123 sections, making provision for the ownership and control of minerals. And the rights and responsibilities of mining and quarrying license. Petroleum exploration and production is excluded from the application of this Act.[5]

The Act emphatically states that “for the avoidance of doubt, it is hereby declared that the entire property in and control of all minerals, in, under on the sea-bed and sub-soil of the continental shelf of The Gambia resides in the state.”[6] The authority to issue a mining or quarrying licence resides in the Minister on the advice of the Chief Geologist. Applications are received by the Chief Geologist, who is obliged to consult with government departments, each government agency, and the relevant local government authority.[7] The Mineral right conferred by the issued license shall be exercised reasonably and its enjoyment shall not injuriously affect the interests of an owner or occupier of the land over which the right extends.[8] The authority may confer an exclusive right to prospect, mine, or quarry the specified mineral or minerals within the period specified.[9] The holder may subject to informing the Chief Geologist, and the payment of royalties, respectively build necessary structures and dispose of the recovered minerals.[10]

The Act further provides, subject to general capacity to contract, persons otherwise not permanently resident or incorporated in The Gambia shall not be granted a mining or quarrying license.[11] It also allows for the refusal, cancellation, or approval subject to conditions. The grant of a license shall take stock of the States mineral interests; protect the environment[12] and the lawful interests of other mining rights holders. [13] in respect of landowners, it states:

A Lawful occupier of land specified in a mining license, mining permit or quarrying license shall not erect a building or structure on the land without the consent of the holder of the license or permit;[14]

If the Chief Geologist considers that the consent is being unreasonably withheld, he or she may consent to the erection of the building or structure.

The Act makes provision for payment to fair and reasonable compensation to the lawful occupier of land, described in the Act as the person in actual occupation of the land. The accountable and transparent mechanism through legislative frameworks supported by governments, multinational corporations, political and civil society organizations continue to widen the poverty gap for the people who ought to be the primary beneficiaries of these natural resources.[15] Domestic mining or petroleum laws specify and regulate the granting of concessions and other operational rights for exploitation, royalties, taxes, and other incentives in the extractive industry.[16] Other legal instruments establish procedural requirements for human rights-based approaches and the conduct of the social and environmental impact assessments. Whilst these regulatory requirements focus mainly on the grant of concession and exploration and/or mining rights, attention ought to also be paid to the people who are disposed of their lands in favor of investors. It’s worthy to note that although the decisions of the African Commission on Human and People’s Rights on access to land, natural resources, and to development, generally, based on articles of the African Charter, including, articles 21(2), “in case of spoliation, the dispossessed people shall have the right to the lawful recovery of its property as well as to adequate compensation.”[17] Indeed, under section 22 of the 1997 Constitution of the Republic of The Gambia, every expropriated property shall entitle the owner to receipt of payment of prompt, effective, and immediate payment of compensation. The case that has come before the African Commission regarding the right to land, natural resources, as a human rights issue, concerned mainly indigenous people. This article is not intended to underscore whether the Gambian has ‘indigenous people’ or not. Notwithstanding, the emergence of development as a human right, and its associated requirement of “free, prior, and informed consent” requires that every community that has its lands become the subject of allocation for development of extractives purposes, shall be accorded an “active, free and meaningful participation” in the entire process of such determination and not merely be consulate. The question is whether the Gambians regulatory framework for its extractives industry has placed the members or people of the relevant communities at the heart of this natural resources development.

Decisions of the Chief Geologist and Minister are subject to Appeal at the High Court within 30 days of the decision. The Chief Geologist may also hear disputes concerning involving private persons with interests in the prospecting, mining, or quarrying operations. [18] Certified copies of the orders of the Chief Geologist are enforceable by a Civil Court with territorial jurisdiction over the subject matter.[19]

The Act further creates offences. It criminalizes, subject to public information and the disclosure relevant for the administration of the Act, to disclose any information received from a person concerning his/her affairs and the mining business without the consent of the person concerned and to falsify minerals.

The holder of a mining or quarrying license is obliged to maintain an insurance cover as customarily or prudently insured in the international mining or quarrying industry. He/she shall indemnify the State against any claim for loss, injury, or death.

3. The human rights of free prior and informed consent

Various standard-setting international institutions and organizations exist that promulgate various regional and multilateral principles as benchmarks of standard regulatory governance of the extractive industry. This includes the Extractive Industry Transparency Initiative (EITI), which is a global standard that ensures transparency of revenue from natural resources; Publish What You Pay, Revenue Watch Institute; Oxfam; Transparency International; Global Witness; Global Reporting Initiative; Alliance for Responsible Mining; Natural Resource Charter; and Transparency and Accountability Initiative[20] and the World Bank’s Extractive Industries Review. The incorporation of international human rights in business regulation imposes on state parties the obligation to inculcate terms and conditions in their contracts with investors. These terms seek the objective realization of environmental and climate conditions and the right of the people to development and freedom from exploitative business practices. The Gambia is a party and has international obligations to allow the participation of local communities in the process of issuance of a mining license and ensure that the exploration of its extractive resources is in the best interest of the communities concerned.

The African Charter on Human and People’s Rights obliges state parties to ensure respect for human rights in all matters of natural resources exploitation, extraction, toxic waste management, and governance in international cooperation, investment agreements, and trade regulations. Member states, like The Gambia, are further required to promote natural resources legislation that respects human rights of all and requires transparent, maximum, and effective community participation in decision making in the prioritization, scale of and benefits from any development and on the land and other resources that affect them in any substantial way. The state parties are further required to ensure independent social, human rights, accountability, and transparency monitoring in the entirety of the process regarding natural resources exploration. [21]

The Charter imposes a duty on contracting states to ensure that human rights are justiciable and extractive industries and investors held legally accountable in the country hosting and sending state. It guarantees for the people the right to pursue their economic and social development and to dispose of their wealth and natural resources in general.

The extractive industry of any country has a primary relationship with its land law regimes. The Gambia has different land law regimes including leasehold over state lands and customary tenure.[22] Consequently, whilst the Land Region’s Act places people at the mercy of the state on sites that are the subject of the extractive industry. This has implications on their socio-economic rights as discussed above. This section discusses the efforts that are undertaken at the international level aimed at ensuring that the people do not only benefit from these extractive resources but also partake in making decisions and are protected from the adverse effects that often characterize the extractive industry.

The Rio Declaration on Environment and Development recognizes the sovereignty of States over natural resources and places people as the centerpiece of sustainable development.[23] It recognizes that human beings are entitled to a healthy and productive life in harmony with nature. It adds that local communities have a vital role in environmental management and development and therefore their interests must be protected.[24]

Special protections also exist for indigenous people in international human rights legal frameworks. This includes groups of individuals with cultures and ways of life considerably different from the dominant society.[25] They have historical ties handed down from generations, magnified by language, social organization, religion, and spiritual values, modes of production, laws, and institutions, and usually victims of subjugation and/or discrimination.[26] participation of locals in matters regarding the use of their ancestral lands in general, and the exploitation of the natural resources on those lands, is relevant to the enjoyment of their right to self-determination.[27]

The international definition of Indigenous people may remain problematic, however, the Principle of Free Prior and Informed Consent (PFIC)[28] is material in protecting the rights of locals to self-determination.[29] Considered to be developing into an international customary law[30], PFIC creates the “the duty of States to obtain Indigenous Peoples’ FPIC, entitles Indigenous people to effectively determine the outcome of decision-making that affects them, not merely a right to be involved.”[31]

The state in the issuing mining license is required in good faith to consult with the aboriginal groups or communities asserting title to land.[32] The degree of consultation and negotiation with aboriginal rights holders and accommodation required varies depending on the group’s claims to the land and severity of potential adverse effects upon the interests claimed.[33] It is not clear whether the aboriginal title as obtained in Canada is the same as the customary title to land as obtained in The Gambia. Within the West African Sub-regional framework, the ECOWAS Directive on the Harmonization of Guiding Principles and Policies and Policies in the Mining Sector (DHGPP),[34] sets the standard on the requisite regulatory principles that should guide exploitation of the mining resources. It doesn’t only put the locals and their interests at the core of mining regulation but as well seeks civil society participation. Most importantly, it makes provision for the need to obtain the free and informed consent of communities that are privy to the mining sites.

DHGPP expects the acquisition of land for the development of mineral resources to be according to domestic laws. It requires the payment of adequate compensation to be paid to the lawful occupiers of the land(s) in question. In considering what is adequate as compensation the following considerations need to be made;

1. The loss to be suffered user/occupier of the land.

2. The inconvenience which can be assessed according to legal principles in monetary terms caused to the landowner or lawful occupier.

3. The losses and damages suffered by the immovable assets and appurtenances including loss of revenue, expected losses of agricultural income and the reasonable proven losses by providing compensation.[35]

This is in consonance with the Constitution of the Republic of The Gambia, which allows compulsory land acquisition in the interest of defense, public safety, public order, public morality, public health, town and country planning, or the development of property in order to promote public benefit and that the hardship of the compulsory acquisition is reasonably justified in accordance with the law coupled with prompt and adequate payment of compensation.[36]

DHGPP mandates the State to designate certain areas as “no mining zones” for environmental, social, and culturally sensitive to mining operations. It imposes on the holder of mining license the adoption of necessary measures to protect forests, water resources, the environment, other natural resources, and public health in its mining and to operations and operated with due regard to the environment, public health, and safety in accordance with domestic laws and international agreements.[37] In fact, Corporate Social Responsibility (CSR) and Alternative Livelihoods Programme (ALP) and required to be conditioned for grant of mining rights.[38]

It is certainly not unusual to find in Bilateral Investment Treaties (BITs) what is often called local content requirements. The DHGPP seeks the same content in asking mining rights holders to submit a detailed programme for recruitment, technological transfer, and training local personnel.[39] The State parties are required to promulgate laws that will provide artisanal and small-scale mining rights to citizens that are environmentally sustainable. [40]

Perhaps the most important regulation demand of the DHGPP is the democratization of governance and the demand for transparency. It makes a case for member countries to achieve this transparency by subscribing to EITI and were not available, pass the freedom of information law in that regard.[41]

4. Conclusion

Respect for human rights and most importantly the right of the locals whose communities are the subject of mining and other extractive industry operations should form the crux of the framework for the extractive industry in The Gambia. The DHGPP in this light recognizes the economic, social, cultural, and right to the political development of these communities and the most effective participatory approach of “obtaining free, prior and informed consent of local communities before the exploration and ensure continuous consultation involving civil society organizations. Indeed, sporadic conflict within communities associated with and relating to mining and quarrying activities ought to be a wakeup call for role players to ensure at all times that the free prior and informed consent of the people that would be directly affected by the explorative of license holders in the grant and management of extractives and other industries. Including the fishing industry.

SUGGESTED CITATION: Saho, Abdou Aziz, Placing ‘free prior” and ‘’informed consent’’ at the center of extractive industry’s regulatory reform in The Gambia, Law Hub Gambia Blog, May 12, 2021. https://www.lawhubgambia.com/lawhug-net/extractive-regulatory-reform-gambia.

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About the author

Abdou Aziz Saho is a State Counsel at the Attorney General’s Chamber and Ministry of Justice. The former Magistrate is a University of Pretoria trained international trade and investment lawyer. His practice and research interests include hydrocarbons and energy law, international trade law, and financial services regulation and arbitration. The views and opinions expressed in these articles are those of the author and do not reflect the views of the Gambia Government or the Chambers.

[1] B Campbell, “Regulating Mining in Africa: For whose Benefit?”, Discussion Paper 26, Uppsala (Sweden) (2004)

[2] Fortune of Africa, Natural Resources of Gambia, http://fortuneofafrica.com/gambia/2014/02/05/natural-resources-of-gambia/ last accessed 21 June 2020

[3] O. Bermundez-Lugo, THE MINERAL INDUSTRIES OF THE GAMBIA, GUINEA BISSAU, AND SENEGAL, 2005 MINERALS YEAR BOOK, https://minerals.usgs.gov/minerals/pubs/country/2005/gapusgmyb05.pdf Last accessed 21 June 2020

[4] See the Preamble to the Mining and Quarries Act, Cap. 64: 01, Vol. 10 Laws of the Gambia, 2009.

[5] The legal regime for the exploration and production of petroleum products is regulated by the Petroleum (Exploration and production Act) Cap. 64:02 Vol 10 Laws of The Gambia 2009

[6] S. 4(2) of the Mines and Quarries Act, supra

[7] S. 14 Mines and Minerals Act, supra

[8] S.81 of the Mines

[9] See sections 61,62 and 79 of the Mines and Minerals Act, supra

[10] Ibid

[11] S. 50, ibd

[12] S. 113 of the Mines and Minerals Act requires compliance with the National Environment Management Act (NEMA).

[13]

[14] S. 84(1), Mines and Acts, supra

[15] Shari Bryan and Barrie Hofman (Eds.) , Transparency and Accountability in Africa’s Extractive Industries: THE ROLE OF THE LEGISLATURE, National Democratic Institute for International Affairs, (2007) available at https://www.ndi.org/sites/default/files/2191_extractive_080807.pdfl; last accessed 21 June 2020

[16] Ibid

[17] E Ashamu, “Centre for Minority Rights Development (Kenya) and Minority Right Group International on behalf of Endorois Welfare Council V. Kenya: A Landmark Decision from the African Commission,” Journal of African Law, Vol. 55 No.2 (2011) pp. 300-313

[18] S. 110 of the Minerals and Mining Act, supra

[19] S. 91 of the Mines and Quarries Act, supra

[20] J.O. Adeumi, “GOVERNANCE IN THE NIGERIA EXTRACTIVE INDUSTRY: FROM HUMAN DEVELOPMENT PERSPECTIVE”,https://www.luc.edu/media/lucedu/prolaw/documents/volume4/D.%20GOVERNANCE%20IN%20THE%20NIGERIAN%20EXTRACTIVE%20INDUSTRIES.pdf Last accessed 21 June 2020

[21] See articles 20, 21 and 24 of the African Charter on Human and People’s Rights, 1969,

[22] See State Lands Act and Land Regions Act

[23] Rio Declaration on Environment;

[24] See Principles 2&22 of Rio Declaration on Environment and Development

[25] African Commission Work on Indigenous Peoples in Africa, “INDIGENOUS PEOPLES IN AFRICA: THE FORGOTTEN PEOPLES?” (2006) available at http://www.achpr.org/files/special-mechanisms/indigenous-populations/achpr_wgip_report_summary_version_eng.pdf last accessed 28th June 2020

[26] Food and Agricultural Organization (FA0) “Free and Informed Consent, An Indigenous People’s Right and a Good Practice for Local Communities” Manual for Practitioners, available at http://www.fao.org/3/a-i6190e.pdf last accessed 28th June 2020

[27] See art. 1 of International Covenant on Civil and Political Rights and Covenant on Economic, Cultural and Social Rights; see also n25

[28] See United Nations Declaration on the Rights of Indigenous People; International Labour Organization 169; and the Convention on Biological Diversity

[29] Ibd

[30] Cultural Survival Quarterly, “Free, Prior and Informed Consent: Protecting Indigenous People’s Rights to Self-Determination, Participating and Decision-Making” available https://www.culturalsurvival.org/publications/cultural-survival-quarterly/free-prior-and-informed-consent-protecting-indigenous

[31]

[32] Tsilhgot’in Nation Vs. British Columbia

[33] Ibd

[34]

[35] Article 4, ECOWAS Directive on the Harmonization of Guiding Principles and Policies in the Mining Sector,

[36] S.22 of the Constitution of The Republic of The Gambia, 1994

[37] Art. 6, (n34)

[38] Art. 11 (n34)

[39] Ibd

[40] Ibd