Following the above analysis, the theory is therefore that where a right or interest is likely or in danger of being affected by the action of another, then the holders of that endangered right or interest should be engaged, consulted and be given an opportunity to participate meaningfully and to contribute in the decision-making process and to also share in the benefits accruing from such an activity. In other words, the CDA process acknowledges or recognizes rights or interests which an individual or a group has by virtue of some special or historical connection to a place or territory and the peculiar adverse impacts which they are likely to suffer by reason of their proximity to the project location.
Resource development projects such as in mining and petroleum come with certain adverse impacts for the society, particularly those members of society that are resident or work within or around project areas. Some of the common adverse impacts of mining and petroleum operations include the degradation of the marine and land surfaces by polluting agents. One of the immediate consequences of resource-extraction-induced environmental degradation is the entrenchment and/or exacerbation of poverty in the area affected. This happens where land and marine resources, the primary sources of local sustenance, become polluted or are rendered unsuitable or unfit to perform their natural functions.
Another adverse effect often experienced by host communities is the impairment of pre-existing social and cultural life style. Also, problems such as the lack of social and economic amenities or other basic infrastructures and the perceived neglect of the host communities tend to exacerbate existing adverse situation prevalent in most communities. The feeling of resentment (resulting from the above factors) against the project and the proponents often serves as the incubator for obstructive behaviours and community conflicts.
Furthermore, the clash of cultures often occasioned by limited cultural awareness of the local environment by migrant workers sometimes evokes the resentment of the adversely impacted members of the host communities against the project, the proponent and the State. Similarly, the inability (real or perceived) of governments to address these concerns through the normal apparatuses of the State together with the problem of limited access to legal remedies, further fuel local resentment and exacerbate conflict between local communities and the minerals sector operators. Additionally, without careful planning, energy projects characteristically do not produce or generate enough positive impacts to significantly improve the social and economic conditions of rural communities. This scenario creates situations in which the adverse effects of resources development projects outweigh or diminish the minimal positive effects that community derive from extractive industry projects.
The NMMA names “the host community” as the other party to a CDA which lease holders have been mandated to negotiate with prior to the commencement of any development activity. The crucial question is who is the host community? An answer to this question is important because the phrase “the host community” does not possess or refer any distinct juristic personality which can be easily ascertained or identified for the purposes a CDA. Another relevant issue relating the community party to a CDA is the capacity to contract since “the host community” is not a juristic person. Section 116 (1) of NMMA and the Minerals and Mining Regulations 2011 tried to provide some guide to how to identify who the host community is in a particular case but failed to fully address the issue of the host community’s capacity to contract. Furthermore, a cumulative reading of the NMMA and the Regulations shows that there is a distinction between the host community and a community located adjacent or around the project area but which does not qualify as a host community to a project. The import of this to the CDA process on each of these two groups is telling and will be the subject for another article.
It has earlier been established that the central focus of the CDA process instituted by the NMMA is to secure the transfer of social and economic benefits to the community through certain “undertakings” which the CDAs are expected to contain. What are these undertaking? Section 116 (3) stipulates that the CDA shall contain or address all or some of the items therein listed subject to their relevance to the circumstances of each host communities. Some of the items which a CDA should contain include education, scholarship, apprenticeship, technical training and employment opportunities for indigenes of the communities, financial or other forms of contributory support for infrastructural development and the maintenance of related community services.
Additionally, CDAs shall provide for how to assist the benefiting community to establish and grow small scale and micro enterprises, agricultural product marketing, and methods and procedures for environmental and socio-economic management and local governance enhancement. Furthermore, CDAs must provide for a participatory consultative and monitory framework and shall be reviewed every five (5) years.
From the foregoing, the point is well established that the imposition of a mandatory CDA process by the NMMA is both strategic and well intended. By this provision, the two most important issues bothering communities which are the acknowledgement of specific land-based rights and interest within their community, and the institution of systematic process of community benefit sharing have been potentially addressed. The adequacy of the remedy contemplated by the Act and the institutional framework instituted for CDA implementation are discussions which shall be had as the CDA process unfolds. Also, it has already been stated that while this provision conforms to the new thinking in the extractive industries, urgent and pragmatic steps should be taken by all stakeholders towards a firm understanding of the complex requirements of a functional CDA process as well as to equip them with the necessary tools for the effective implementation of the CDA process. For instance, it is important that the State recognizes that community sustainability through the CDA process requires active participation and partnership of strategic Federal and State institution. Also, there will be need for the State to leverage the CDA process so as to deepen and expand the scope of beneficiation. Furthermore, Ministry of Solid Minerals Development and the Mining Cadastre Office should organize CDA summits to sensitize critical stakeholder as well as build consensus on the implementation of the CDA regime. Importantly, host communities’ need to be educated on the essence of the CDA policy, and what is expected of them in order to maximize CDA- based benefits rather than using the CDA process to frustrate business activities of project proponents in the mining sector. These are crucial steps and the time to begin is now.
Obinna Dike, PhD
Dr. Dike is the leading authority on Community Agreements Law and Policy in extractive industry context and works as a Managing Associate, Energy, Infrastructure and Projects at Alliance Law firm. He can be reached on obinna.dike@alliancelf.com
