Allow customary owners of natural resource have control, SAN urges FG

Allow customary owners of natural resource have control, SAN urges FG

By Ebere Agozie

A Senior A Senior Advocate of Nigeria (SAN) Mohammed Ndarani says the Nigerian constitution should allow all the customary owners of natural resources to have over-riding control with regard to those assets.

Ndarani said this in an interview with the News Agency of Nigeria (NAN) on Sunday in Abuja.

He said that one of the hindrances to the realisation of the full taxing potentials of the country is the restrictive and usurping provisions of Section 44 (3) of the Constitution.

"This section alienates the customary owners of the land and bestows on the Federal Government all rights to exploit, produce and dispose of all mineral deposits under the soil, land, waters and air in Nigeria.

“This has led to numerous growing and unrestrained agitation by the oil-producing areas, and therefore, all legal and political restraints to the oil and sundry minerals host communities to exploit their minerals should be removed.

"I urge the abrogation, repeal and nullification of Section 44 (3) of the Constitution, the Land Use Act, 1978 and the Petroleum Act, 1969, to make allowance for and give room for resource control, so that the owners of the natural resource within their enclave have over-riding control of these resources’’.

“According to him, ‘It is absolutely an unfair deal to continue to deny and deprive the oil-bearing areas as well as those other areas that are endowed with commercial mineral deposits of the to exploit these minerals within their environment’.

“It is more so now that oil deposits have been found in other areas of Nigeria, in that it would be justified and preferable for the federal government to partner with the States and Regional Governments to exploit, produce, sell and share in the resources, like what obtains between the International Oil Companies (IOCs).

"I think the present case where the federal government arrogates to itself, the exclusive right to own and manage the “entire property in, and control of minerals, mineral oils and natural gas in, under or upon any land in Nigeria or in, under or upon the territorial waters and the Exclusive Economic Zone of Nigeria” is vexatious, offensive and disruptive.

“This is why the modalities for oil exploration have been a major source of conflict and militancy in the Niger Delta Area.

"Taking the owners of the crude oil and sundry natural resources and minerals shareholders and partners will go a long way towards helping the federal government surmount most of the problems and difficulties surrounding oil and minerals extraction and processing’’.

He said that the owners should exploit the benefits of their natural resources and pay stipulated taxes to the federal government, as it was during the First Republic.

“This is what is obtains in other political climes all over the world, hence I want this corrected during the amendment, or enactment, of the (new) constitution’’.

“The Supreme Court in the case of AG OF OGUN STATE v. ABERUAGBA (1985) 1 NWLR [Pt. 3] 395 @ 415, per BELLO, JSC, paras A — C did decide thus that the control of the economy is not within the exclusive power of the federation.

“Each government (Federal, State and Local) has a share in the control,’’ he added.

Ndarani noted that while the constitution requires the federal government to control the national economy, it also empowers the state and local government in the development of the economy within its area of jurisdiction.

“In adopting the above views of the apex court, we should broadly and massively do a total overhaul of the revenue generation machinery and re-order the taxing powers.

“That was why we recommended Regional Governments so that the fiscal policy would devolve to the Regional and State Governments, who shall pay taxes and agreed percentages of the proceeds to the federal coffers, the same way that the NNPC Limited has been re-strategised to operate.

“Let the regions and state be given the power to generate, exploit and sell the minerals and through that, generate the needed revenue, superintended by the federal government, to ensure that the process is flawless and transparent’’.

The senior lawyer suggested that in the alternative, the revenue allocation formula should be redesigned and altered in line with the Louis Chick Commission of 1954 which recommended as follows:

Mining Rents, Royalties and Derivation from crude oil and minerals: i) Regions of origin = 50% ii) Federal Government = 20%, and iii) Distributive Pool = 30%

He said that the distribution pool should be based on population, responsibilities placed on each regional government, the need for continuity in regional public services and the need for balanced development of the country.