Analysing the Implications of Environmental Exigencies in the Protection of Mining Contracts: The Cameroon Mining Law Explanation.
Keywords:
Analyses, Exigencies, Environmental protection, Mining contracts, Cameroon.Abstract
Just like many other African countries, since independence, efforts have been directed towards attaining development through industrialisation and exploitation of the rich mineral resources the country is endowed with. To ensure that revenue from resource exploitation effectively propel the much needed development, measures have been taken to attract and maintain mining companies. Today, Cameroon is host to a wide number of mining companies with whom mining contracts have been concluded and mining concessions granted. It is no surprise that in the early days of the strife to achieve economic development, little consideration was given to the environmental effects of mining activities. As a result, when environmental problems arose from mining activities, they were traditionally considered to be “in the public interest” and the government assumed principal responsibility for ensuring environmental safety, and generally bore the obligation of mitigating any damage. As a result, environmental protection never occupied any priority position on the agenda of the state as well as the companies. Conscious however of the fact that the much needed development cannot be sustainably guaranteed without the environment given a priority position, the state of Cameroon has taken measures through legislations and now incorporates the exigencies of environmental protection in mining contracts. While acknowledging the initiative in these laws and mining contracts the question as to whether they are sufficient to effectively guarantee environmental protection is a big debate. This is especially so as sanctions previewed through the repressive technique have not been stringent enough to effectively deter mining companies from violating environmental law. This is justified by the increase in the number of non-rehabilitated abandoned mining sites in violation of the law. We therefore recommend the total commitment of contracting parties (the state and mining companies) and the imposition of more stringent sanctions on violators of mining laws.
References
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5. It is worth stating that French Cameroon got independence in 1960, under the name La République du Cameroun while Cameroon on the other side of the Mongo (West Cameroon) under British colon ial rule, gained independence on October 1 st 1961, by joining La République du Cameroun.
6. To attract and facilitate industrial sector, the government through the State institution MAGZI calved out industrial zones in certain areas of the country. Of all th e industrial zones, the one hosting the highest number of industries is the Douala-Bassa industrial zone.
7. Cameroon is identified to have one of the richest sub soils in sub -Saharan Africa, a rich potential which is not yet fully developed.
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11. The 2001 Mining Code revo ked any other existing law that regulated the mining sector before then, notably Law No. 64/LF/3 of April 1964 Governing Mineral Substances and Law No. 78/24 of December 1978 Fixing the Fiscal Regime for Collecting Mining Revenue.
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13. Law No. 96/12 of 5 th August 1996 on the Framework Law on Environmental Management in Cameroon, hereinafter referred to as Environmental Code.
14. Law No. 001 of 16 April 2001 instituting the Mining Code.
15. Prime Ministerial Decree No. 2005/0577/PM of February 2005, enacting the Pro cess and Procedural Framework Governing EIA in Cameroon and Decree No. 2002/648/PM of 26 March 2002, fixing the modalities for the application of Law No. 001 of 16 April 2001 instituting the Mining Code.
16. The different mining classes include artisanal, quarry, industrial, etc.
17. These are ore minerals, quarry products etc.
18. Geothermal deposits are made up of spring waters, mineral and thermo-mineral water.
19. Chapter V of this law is entitled “Protection of the Environment”
20. See Article 85(1) of the Mining Code.
21. Article 118 of the Mining Decree. This is the author’s translation. The original French text provides that: “Toute activité d'exploitation minière et de carrière doit se conformer à la réglementation en vigueur relative à la protection et à la gestion de l'environnement.”
22. See Article 85 (2) of the Mining Code.
23. Article 87 of the Mining Code. For detail information on this, see Article 119 of the Mining Decree.
24. See Article 87 of the Mining Code. The authorities in this regard are the Divisional or Sub divisional representatives of the Ministry of Environment, the Protection of Nature and Sustainable Development (MINEPDED) and that of the Ministry of Mines, Water and Energy Resources (MINMEE)
25. Article 91(1), (2) & (3) makes provision on the form an d content of the application for mining or quarry permits. It equally lists the documents that must accompany the filled application form that is provided by the relevant administrative authority.
26. Article 120 of the Mining Decree.
27. See Article 120 (2) of the Mining Decree.
28. Author’s translation. See generally Article 124 (1) & (2), of the Mining Decree.
29. Article 141 (1) & (2), of the Mining Decree.
30. Section 37(1) of the Environmental Code.
31. Section 37(2), of the Environmental Code. It is worth noting that where the permit holders decide to pay the relevant charges, the amount and the terms and conditions for paying the relevant charges shall be laid down by an enabling decree of this law.
32. Article 87 of the Mining Code.
33. Article 122 of the Mining Decree.
34. Hereinafter referred to as EIA.
35. Law No. 96/12 of 5 th August 1996 on the Framework Law on Environmental Management in Cameroon.
36. Section 17(1) of the 1996 Environmental Code.
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39. Alemagi Dieudonne [38], p. 34.
40. Article 2 of the 1992 United Nations Convention on Biological Diversity.
41. Section 4 Paragraph 0 of the 1996 Environmental Code.
42. Article 2 of Decree No . 96/0577/PM of February 2005, Fixing the Modalities for the Realisation of Environmental Impact Assessment in Cameroon.
43. Alemagi Dieudonne [38], p. 65.
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45. Examples include: Decree No. 84 –797 of 17July 1984, Organising the then Ministry of Planning and Territorial Administration. The first indented line of article 53 assigns to the Sub -Department of Human Settlements and Environment the duty of drawing up the state of the environment throughout the territory and conducting EIA for development projects. Unfortunately, though, this decree did not give a list of projects submitted to EIA nor the leg al conditions and procedures under which they should be undertaken; The 1972 Constitution of Cameroon which recognised the right of populations to a sound environment. It also considered environmental protection as a collective responsibility to name a few.
46. Article 6 (1) provides that “the list of projects (activities) that must be submitted of either categories of Environmental Impact Assessment referred to in Articles 4 and 5 above shall be fixed by the Minister in charge of the Environment”. It should be noted that the categories referred to here is the Summary and Detailed environmental Impact Assessment.
47. Section 19(1) of the Code stipulates that “the list of the various categories of operations whose implementation is subject to an impact assessment as well as the conditions under which the impact assessment is published shall be laid down by an enabling decree of this law”.
48. Prime Ministerial Decree No. 2005/0577/PM of February 2005, enacting the Process and Procedural Framework Governing EIA in Cameroon, Ministerial Order No. 0069/MINEP (Arrete No. 0069/MINEP) and Ministerial Order No. 0070/MINEP (Arrette No. 0070/MINEP) respectively.
49. Article 5 of the Mining contract between the State of Cameroon and GEOVIC.
50. Section 16 of the Mining Code stipulates inter alia that (1) “The Mining Titles Registry shall receive and examine all mining titles or reconnaissance permit applications and forward to the Minister in charge of mines within 15 working days, it’s reasoned technical opinion and a draft instrument granting the mining title, the reconnaissance permit or the transaction agreement; 16 (2) the draft instrument referred to in section 16(1) above shall undergo prior coordinated review by all stakeholders, in accordance with the conditions laid down by reg ulation; 16(3) in case of competing applications with equal proposals regarding work to be carried out, and technical and financial capacity, priority shall be given to the first applicant, the date and time of submission serving as evidence; ……. (6) the conditions for keeping registers and managing mining title files shall be laid down by regulation”.
51. Section 46 (1) of the Mining Code states that: “A non-industrial or industrial mining permit shall be granted by right to any holder of an exploration permit who has provided evidence of a deposit within his perimeter. 46(2) the grant of non -industrial or industrial mining permit shall entail cancellation of the exploration permit within the perimeter covered by the mining permit. However, mining related explo ration shall be allowed to continue therein. 46(3) . As part of the exploration referred to in section 46(1) above, where a mineral substance other than that for which the mining permit was granted is discovered, the permit holder shall enjoy the preferential right to mine it. The preferential right period shall not exceed 18 months with effect from the date of notification of the discovery to the State.
52. Section 21 of the Environmental Code.
53. Section 21, paragraph 2 of the Environmental Code.
54. Article 87 of the Mining Code.
55. See Decree No. 2011/2585/PM of 23 August 2011, fixing the List of Nocive or Dangerous Substance and the Regime of their Discharge into Continental Waters. This text is translated by the author of this article.
56. These substances include: Chlordane, Aldrine, Dieldrine, Endrine, Helptachlore, Hexachlorobenzene, Mirex, Toxaphene, Chlordecone, Lindane, Polychlorobiphenyles, and DDT. See Chapter II, Article 3, Paragraph 2.
57. The latter category include substances such as ammonium (NH4), ammonium (NH14), antimoine, antrazine, silver, arsenic, barium, beryllium, bore, cadmium and its components, chrome, cobalt, mercury, nickel, uranium, sulphate etc. See Chapter III, Article 6 Paragraph 2 for complete list of these substances.
58. The Codes here refer to the Environmental Code and the Mining Code.
59. Prime Ministerial Decree No. 2005/0577/PM of February 2005, enacting the Process and Procedural Framework Governing EIA in Cameroon and Decree No. 2002/648/PM of 26 March 2002, fixing the modalities for the application of Law No. 001 of 16 April 2001 instituting the Mining Code.
60. Article 6 of the mining contract between the State of Cameroon and GEOVIC.
61. Section 44 of the Environmental Code.
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63. For example, emission levels, waste and the amount of energy used.
64. For example, the level of toxicity of water courses affected by resource exploitation and corporate pollution.
65. Section 57 (1) of the Environmental Code.
66. Decree No. 2005/0577/PM of 23 February 2007, fix ing the Modalities for the Realisation of Environmental Impact Assessment.
67. Article 5 , Decree No. 2005/0577/PM of 23 February 2007, fixing the Modalities for the Realisation of Environmental Impact Assessment.
68. See Article 7(1) of the mining contract between the State of Cameroon and GEOVIC.
69. Article 7(2), of the mining contract between the State of Cameroon and GEOVIC.
70. See Article 7(3), of the mining contract between the State of Cameroon and GEOVIC.
71. Article 8, of the mining contract between the State of Cameroon and GEOVIC.
72. Under this principle, States are enjoined to take actions necessary to ensure that polluters and users of nature resources bear the full environmental and social costs of their activities. The principle integrates environmental prot ection and economic activities, by ensuring that the full environmental and social costs including cost associated with pollution, resource degradation and environmental harm are reflected in the ultimate market price for a good or service. Environmentally, harm or unsustainable goods will turn to cost more and consumers will switch to less polluting substitutes.
73. Section 9 of the 1996 Environmental Code.
74. See Section 9 paragraph (d), of the 1996 Environmental Code.
75. Section 37 (1) of the 1996 Environmental Code.
76. Section 37 (2) of the 1996 Environmental Code.
77. Article 136(2) of the Mining Code.
78. See Article 36(5), of the Mining Code.
79. See Article 6(3) of the mining contract between State of Cameroon and GEOVIC.
80. See Article 86 of the Mining Code and Articles 122 and 130 of Decree No. 2002/648/PM du 26 mars 2002, fixing the modalities for the application of Law No. 001 of 16 April 2001 instituting the Mining Code.
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82. Sections 8 and 9, Noise Act 1996. The fixed penalty is currently £100.
83. Article 45 of Law No. 1 of 16 April 2001, laying down the Mining Code.
84. Article 161 of the Mining Decree. This is the author’s translation.
85. See Article 25(2) of the Mining Decree.
86. Article 25(3) of the Mining Decree.
87. Article 25(1) of the mining agreement between the State of Cameroon and GEOVIC.
88. Article 25(5), of the mining agreement between the State of Cameroon and GEOVIC.
89. Article 25(7), of the mining agreement between the State of Cameroon and GEOVIC.
90. See Articles 25(8) & (9) of the mining agreement between the State of Cameroon and GEOVIC.
