Ownership And Control Of Mineral Resources Under The Shariah Law

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ABSTRACT

CHAPTER ONE

INTRODUCTION

Minerals are natural chemical substances, which makeup rocks of the earth’s crust. They have certain physical and chemical properties that differentiate them from one another. There are well over 200 known minerals scattered throughout the earth, together they make up a very important branch of economic geography, the mining industry.[1]

Ownership of mineral resources is therefore classified into three regimes, the state ownership, private ownership and communal ownership. The state ownership appears to be dominant and universal phenomenon in mineral development with most countries vesting minerals in the state. Under the state ownership regime, ownership and control over use rest with the state and nothing can be done without the agreement of the state. Ownership and control can be exercised either directly or through government agencies established to carry out such purpose.[2]

The prevalence of private ownership is limited to few jurisdiction notable the united state of America. While the community property regime is clouded with confusion and misunderstanding and is virtually extinct, particularly in its applicability to the regime of mineral ownership and development.[3]

Under Islamic law, minerals can be owned in three different ways. First, all minerals belong to the state; secondly, the land owner or occupier of land owns the minerals found on the land; and thirdly all minerals may be owned by one who finds them.

However, according to these notable Muslim jurists, though they differ on this classification. In the view of the Hanafi School of law, minerals ownership follows land ownership. The Shafii and Hambalis are of the view that subsoil and surface minerals are not the subject of private ownership with some exceptions. In Maliki School they are of the view that all kinds of mineral resources are owned by the state.[4]

1.1.0.  BACKGROUND OF STUDY

Since the commencement of oil and gas operation in Nigeria, the issue of ownership and control of the resources has been a sore point between the federal Government of Nigeria, the oil producing state and the oil producing communities.

Different approaches have been adopted overtime to address the issue, but non appears to have succeeded in solving the problem of agitation for resource control leading to sundry deadlocks in erstwhile attempt to address the problem. Even though the law on government ownership of mineral resources is not unique to Nigeria, the application of this law in practice has been a source of controversy, this project tries to examine the origins and content of this controversy, and by drawing on the Islamic law provision on ownership of mineral resources with similar laws on ownership of resources in Nigeria, although, Nigeria is a multi religious sovereign nation but the principal legal instrument adopted for the stearing of affairs of the country recognizes the shariah justice administration.4 this makes it imperative to research in this topic with a view to seeing how the relevance of shariah provisions on ownership and control of mineral resources applies and can be adopted towards solving this age-long crises. The outcome of this research provides insight into how the issue has been dealt with, and whether the shariah rule can be applies to the issue of resources control in Nigeria.

1.2.0.  OBJECTIVE OF STUDY

This long essay is aimed at examining the origin, concept and scope of mineral resources in Nigeria in trying to do this it aim to;

  1. Identify the problem of agitation of resource control between the federal government, the oil producing state and the oil producing community.
  2. To see the applicability of the existing laws under the Nigeria statute on the issue.
  3. To examine the Shariah provisions on the ownership and control of mineral resources
  4. To compare the Shariah provisions and Nigeria statute in relation to the resource control and ownership.
  5. Suggestion and recommendation shall be made at the end of the work to better the application of the existing laws relating to the control and ownership of mineral resources in Nigeria.

1.3.0.  FOCUS OF STUDY

The focus of this project is on resources control and mineral ownership rules under the shariah and Nigeria statute. This work will therefore focus on the nature and scope of the laws regulating the ownership and control of mineral resources under the shariah and Nigerian statute making Comparative analysis of both laws and bringing out the similarity and dissimilarities between them.

1.4.0.  SCOPE OF STUDY

The title of this long essay covers a wide areas of study and as such it shall be limited to the ownership of subsoil minerals. it shall concentrate on the history, nature and its managements bringing out the significance and the applicability of both laws in Nigeria.

1.5.0.  METHODOLOGY

Majorly, for the purpose of this long essay library materials will be widely consulted., both primary and secondary sources of information shall be used.

The primary sources of information shall include the Quran and sunnah of the prophet, the Nigerian constitution and other enacted laws relating to mineral resources in Nigeria such as oil and gas Act.

The secondary sources shall include text books written by scholars on the fied, journals and articles on both legal system, and also the views of various Islamic schools of thought shall be considered. Case law will be consulted where necessary and materials from the internet will be of great help to this work in order to make the research easy and a successful one.

1.6.0.  LITERATURE REVIEW

The concept of mineral resources in which the topic of this project has been selected from is a wide area of law which although different scholars have written on the field. Scope of which shall be reviewed. In the work of CLEMENT IKPAH and N.H IBANGA[5] both writers discuss extensively on the problem of resource control in Nigeria. The writers identified five major issues as bottleneck of problem of resource control in Nigeria. One of it is Notorious Derivation principles which is said to have become aberrations that continue to generate perpetual conflict between federal government and states. The issue of non – diversification of the economy is identified as the second bottleneck. explain to have been the ban against every government since crude oil was first stuck at Oloibiri, Rivers State. The third issue as identified by the writer as cause of agitation for resource control is the retrogressive and repugnant laws that gives the federal government absolute rights over land and mineral resources in Nigeria. This include the land use Act of 1978, the petroleum Act of1969, and the National Waterways Decree of 1997. He further identifies what he called an overbearing federal government. The issues of general ignorance concerning what minerals abound and what economic potentials such as minerals have. At the end of the paper, the writer gave a suggestion that states should control local resources whereby every states should control wholly or partially over a set period of time. At the end, the writer suggest that Nigeria does not need any derivation principles what is needed is the evolution of powers in a diversified economy such that state can for a start have partial ownership and control of the resources.

MADAKI O. AMEH[6] in his articles trace the origin of resource control agitation in Nigeria to the independence of Nigeria in 1960 where the constitution in 1960 and 1963 made provision for distribution of 50% of the revenue accruing from the resources of each region of the federation to that region.

He went further to state the provision of the constitution which provide for payment of not less than 13% of the revenue from such resources to the state in which the minerals are found. This provision takes no account of other interests in the mineral, such as the local government where the actual operation takes place this has been said to have led to increasing problems in the oil and gas industry in Nigeria.

The writer further identified the concern of oil producing community that their interest and that of the occupiers of the land have been relegated to the background, as the controversy has been between the federal and the state governments. He went further more, to identify the government measures to address the agitation. He identifies it as what he called a mixed ‘carrot and stick’ approach to address the problem of resources control agitation in the Niger Delta area. He said during the military era the approach was more dragoman, as the agitators of resources control were rounded up and prosecuted, an example being the execution of MR KEN SARO WIWA, the ogoni rights activist in November 1995.

The writer tries to see whether the Brazilians method of mineral resources control can be used in Nigeria to solve problem, in advocating this approach he identifies a number of bottlenecks and challenged in the terrain in Nigeria which need to be highlighted and addressed.1st the provision of the land use Act which rests title to lands in a state in the governor of that state and reduces individuals on the land to the status of occupiers.

2nd, the complex land tenure law system in most of the Niger Delta area where land is owned by individual, families, and communities.

Finally, there is an urgent need to diversify the revenue base of Nigeria from its current mono cultural state, to ensure that undue attention is not paid to oil and gas revenue which increase the argument around how the revenue is to be distributed.

DR. F. E. ONAH.[7] Suggest another method of controlling the problem of resource control; he suggested a concurrent list of both the central and government. He suggested Nigeria should borrow from the experience of the United States of America after which our political system has been modeled. Mineral resources found in central government lands are the exclusive property of the federal government of the U.S. The U.S government surrenders only a certain percentage of the proceed to minerals mined from its land to the state within which such lands are located. Whatever mineral resources that are found in land, outside the central government territories belong to the respective state. This arrangement serves the interest of the central and state government and resource the squabbles over resources ownership and control. He suggested that to give effect to dua ownership of land, the federal government should carve out parcels of land in each state for various purposes similar to those listed in respect of the United State. State ownershipand control of mineral resources within their territories would encourage increased exploitation of minerals.

ABDUL AZEEZ MARUF OLAYEMI[8] in his article said mineral resources are a subject of Zakat. The zakat of that substance is said to be 20% of its produce or the substance itself. This was the practice of the prophet S.A.W down to caliphate period. The substance is no more a private property. It is now a public property and public property is not a subject of Zakat in the opinion of the jurists. In his paper he suggested that, although mineral resources may not remain as a subject of zakat, yet the ratio of its zakat can be adopted has the quantum of fair compensation to the dwellers of the land of mineral resources. the people are lawfully entitled to the zakat and they are not satisfied with the method of compensation. The satisfaction is a cause of conflict across the world. It is however believed that adoption of the principle of zakat of mineral resources as quantum of compensation will constitute an equitable and judicious method of compensation to the people. He further argues that the harmonization of the shariah doctrine of zakat of mineral resources to the positive law, as the quantum of compensation on mineral resources will resolve the disputes and the conflicts on the matter.

IBRAHIM, RIDWAN OLAGUNJU[9] takes another step in identifying the problem of mineral resources and antidote he stated by tracing the origin resource control to the 18th and early 19th centuries, was understood as a struggle by indigenous people of the Niger Delta to participate in trade and in the politics of self government in the region. He further identify the Niger Delta struggle and the hindrance. One of the hindrances as Identified as the Nigerian federalism, the dynamics of our peculiar branch of federalism Nigeria. The worry of the people of Niger Delta is caused majorly by departure of successive Nigerian governments from keeping in tune with the dictates of federalism. The contention is that the control government in Nigeria is so powerful while the federating states have become relegated and subordinated, on like the soviet federalism of old, “mere administrative units of the central government”.

The second hindrance as identified by the author is the constitutional hindrance . Nigeria is a country where written constitution is in vogue. Provision of any reigning constitution is Supreme and shall have binding force on all authorities and persons throughout the federation. The major concern of the agitations in the Niger Delta is to own and control the mineral resources, especially oil, found in their land. Whereas, a careful reading ofthe constitution reviews that exclusive ownership, management and control of these mineral resources have been vested in the government of the federation.[10]

At the end the writer, in attempting to solve the Niger Delta problem through shariah, examine the principles of Islamic law guiding the rules of ownership and control of mineral resources as it exist in the four juristic schools and suggest the view of Maliki juristic school which vest the ownership and control of mineral resources in the government of the state who in turn held same in trust for the people. He said this principle is in line with the present practice in Nigeria.

In all the works of this scholars none of them have try to make a comparative analysis of the principle of shariah in relation to ownership and control of mineral resources and the Nigerian statute regulating the resource control, this i intend to do in these research.

1.7.0.  DEFINATION OF TERMS

OWNERSHIP: Right of possession, the legal right of possessing something.

CONTROL: Ability or authority to manage or direct something.

SHARIAH: It is the divine law which regulates the affairs of mankind.

MA’ADIN: It denotes what is granted inside the earth among the minerals by the will of Allah without any act of mankind.

KANZ: (ore) a naturally occurring mineral which constituted especially metals can be profitably extracted.

MILKIYYAH: It is a relationship between a person and property established by law in which he exercise exclusive control of the property in default of shariah restraint.

1.8.0.  CONCLUSION

In conclusion, the chapter has introduced the concept of mineral resources by giving the various definition of the concept. It gave background knowledge to the problem of resource control in Nigeria, then the objective of the project was spelt out. Further state the methods used in carrying out the research work. And finally the work of scholars in the field is reviewed.


[1] Human Geography pg 268

[2]Aminu Kabir: resource control and ownership under shariah chp 20 ontemporary issues in Islamic Jurisprudence, Rawel fortune resources 1st edition, April 2009

[3] Ibid

[4] Ibid

[5] Nigeria mineral resources: a case for resource control This is Available at http://ww.nigerdeltacongress.com accessed on 20 /10 /2010.

[6] Ownership and control of mineral resources: can the Brazilian model be used to douse resource control agitation in nigeria oil producing state? Available at http://www.dundee.ac.uk accessed on 12/12/2010.

[7] Promotion of economic activities through the development of solid minerals potentials in the state. Available at http://www.cenbank.org/out/publication accessed on 17/09/2010.

[8] “fair compensation” to the dwellers of mineral land : whether zakat al-ma’adin can form the quantum? accessed on 12/12/2010.available at http://paper.ssrn.com

[9] Niger delta problem and the shariah antidote http://www.unilorin.edu.ng/ejournals. accessed on 12/12/2010

[10] Constitution of the federal republic of Nigeria 1999 section44, paragraph 3.

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