Artisanal and Small-Scale Gold Mining in Nigeria Recommendations to Address Mercury and Lead Exposure DATE (and any other info you want to add) November 2014 Acknowledgements This report was prepared by the Environmental Law Institute (ELI) with funding from the U.S. Department of State. The contents of this report do not necessarily represent the views of the State Department, and no official endorsement of the report or its findings by the State Department may be inferred. Principal ELI staff contributing to the project were Lisa Goldman, John Pendergrass, David Roche, Narayan Subramanian, and Judy Amsalem. Any errors and omissions are solely the responsibility of ELI. The authors welcome additions, corrections, and clarifications for purposes of future updates to this report. About ELI Publications— ELI publishes Research Reports that present the analysis and conclusions of the policy studies ELI undertakes to improve environmental law and policy. In addition, ELI publishes several periodicals—including the Environmental Law Reporter®, The Environmental Forum®, and the National Wetlands Newsletter—and books, which contribute to education of the profession and disseminate diverse points of view and opinions to stimulate a robust and creative exchange of ideas. Those publications, which express opinions of the authors and not necessarily those of the Institute, its Board of Directors, or funding organizations, exemplify ELI’s commitment to dialogue with all sectors. ELI welcomes suggestions for article and book topics and encourages the submission of draft manuscripts and book proposals. Artisanal and Small-Scale Gold Mining in Nigeria: Recommendations to Address Mercury and Lead Exposure Copyright © 2014 Environmental Law Institute®, Washington, D.C. All rights reserved. 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Cover Photos: Top: Gold miners in Bagega, Zamfara State. © 2013 Lisa Goldman/ELI Bottom: Gold miners in Dareta, Zamfara State. © 2012 Lisa Goldman/ELI TABLE OF CONTENTS Introduction ..................................................................................................................................... 1 Part 1: Health, Environmental, and Gender Impacts of ASGM Activities ..................................... 3 Health Impacts ............................................................................................................................ 3 Environmental Impacts ............................................................................................................... 4 Gender Impacts ........................................................................................................................... 5 Part 2: Overview of Safer Mining Technologies ............................................................................ 9 Part 3: Addressing Mercury and Lead Exposure: A Formalization Approach ............................. 14 Part 4: The Legal, Policy, and Institutional Framework Governing ASGM in Nigeria ............... 16 Overview of Key Institutions .................................................................................................... 16 Mining Law, Policy, and Regulations....................................................................................... 17 Federal Environmental Laws, Policies, and Regulations .......................................................... 21 International Law ...................................................................................................................... 22 State Environmental Laws and Policies .................................................................................... 25 Part 5: Recommendations for Strengthening Nigeria’s Legal, Policy, and Institutional Frameworks Governing ASGM .................................................................................................... 28 Legal and Policy Recommendations ......................................................................................... 29 Priority 1: Address the Cooperative Barrier ........................................................................ 30 Priority 2: Strengthen Access to Land .................................................................................. 33 Priority 3: Improve the ASGM Licensing Process ............................................................... 37 Priority 4: Ensure Environmental Protection ....................................................................... 40 Institutional Recommendations ................................................................................................ 42 Priority 5: Collect Royalties from Artisanal Mining Activities ............................................ 42 Priority 6: Strengthen Extension Services and the Dissemination of Improved Mining Technologies ......................................................................................................................... 44 Priority 7: Strengthen Community Education and Outreach ............................................... 46 Priority 8: Improve Coordination Among Institutions and Stakeholders ............................. 48 Financial Recommendations ..................................................................................................... 50 Priority 9: Improve Access to Markets ................................................................................. 50 Priority 10: Strengthen Access to Credit .............................................................................. 54 Part 6: Approaches for Implementation ........................................................................................ 57 Notes ............................................................................................................................................. 62 Introduction Artisanal and small-scale gold mining (ASGM) has long been practiced in Nigeria and around the world. Bolstered by historically high gold prices, a lack of viable alternative livelihoods, and a ready – if expensive – supply of mercury, there has been a resurgence of ASGM activities in northern Nigeria in recent years. This resurgence, however, has come at a price – namely, devastating lead poisoning of children and others from lead-contaminated gold ore, in addition to extensive mercury exposure (whose effects have not yet fully materialized) and significant emissions of mercury into the air and soil. In 2010, unregulated small-scale mining in the northern state of Zamfara gave rise to an epidemic of childhood lead poisoning, with at least four hundred children under the age of five dying within a six-month period (a number that rose to over 700 by 2013). Despite the efforts of development, medical, and environmental experts both nationally and globally, lead contamination continues to afflict large numbers of children. The practice of mercury amalgamation at mining sites has also resulted in widespread contamination of miners and others working near the mines. The use of mercury in ASGM has been identified as the single largest intentional-use source of mercury pollution in the world. In most cases, nearly all of the mercury from the processing of gold ore is either emitted into the air or dumped into the surrounding environment and waterways, where it can be absorbed by living organisms. Mercury is released into the atmosphere when miners heat the mercury-gold amalgam, driving off the mercury as a gas that is easily inhaled and poses a grave threat to human health. This exposure to mercury can cause serious damage to the central nervous system, including respiratory failure, nausea, vomiting, diarrhea, increases in blood pressure or heart rate, skin rashes, eye irritation, and kidney damage. In addition to these health impacts, ASGM is associated with significant environmental degradation, including toxic pollution of air, land, and water; destruction of flora and fauna; geological instability leading to landslides, flooding, erosion, and tremors; landscape degradation; and radiation hazards. Unlike countries such as Ghana and Burkina Faso, Nigeria does not have a well-developed large- scale mining sector, and the majority of gold mining in the country is carried out by artisanal and small-scale miners. Artisanal mining activities in Nigeria are almost by definition informal – that is, operating outside current laws and regulations. While the current mining law and regulations do address artisanal and small-mining activities – mainly by focusing on the provision of extension services – they do not provide meaningful incentives and assistance for ―formalizing‖ miners. For example, the requirement that artisanal miners form cooperatives in order to receive any technical assistance from the Ministry of Mines and Steel Development (MMSD) is a substantial obstacle for many miners, and means that most will continue to operate informally. It also means that these miners, in practice, are unable to seek a small-scale mining license -- the only license available to them under the mining law. And even where miners have formed cooperatives, it is not clear that they are currently receiving technical assistance from the Ministry. Much research has been conducted on the factors contributing to the poor performance of the artisanal and small-scale mining sector. These include: the lack of simple and transparent legal 1 and fiscal frameworks, weak institutional structures, a lack of capacity to implement existing regulations, and a lack of political will.1 In Nigeria, identified challenges include: 1) a lack of organization and stability among miners; 2) improper mining regulations; 3) illiteracy; and 4) the need for technical and financial assistance (particularly in the remote regions where miners work).2 Perhaps most fundamentally, it is the lack of livelihood support for the artisanal gold mining sector that has driven the growth of unregulated mining activities in the region.3 While the pressing need to help miners move away from the use of mercury (as well as practices that expose people to lead) is clear, the solution is not. Any meaningful approach must address the economic motivations underpinning ASGM activities and present a viable alternative to mercury use. Appealing to public health concerns alone – especially when this appeal is directed at young men – is not sufficient to induce behavioral changes. In short, the current incentive structure must be altered. As such, this paper addresses fundamental legal and policy constraints that are hindering the ability of miners to strengthen and scale up their operations (and in the process, transition toward safer mining technologies and practices that do not require the use of mercury). Without addressing miners' need to access land, obtain permits, secure credit, form cooperatives or other associations, and obtain a better price for their gold, there is little chance of helping them transition away from the use of mercury during gold processing. The paper focuses on formalization of the ASGM sector as the framework for instituting these more fundamental changes, and presents recommendations that span a range of legal and policy reform measures. While new authority at the legal and regulatory level would certainly be useful – and this assessment does include suggestions for strengthening the legal framework – the recommendations also focus on how to make the best use of Nigeria‘s existing authorities to address lead and mercury contamination, understanding that the process to change the law might be too onerous for timely action. In light of the challenges posed by Nigeria‘s deeply troubled petroleum sector, attention is turning to the potentially large role of solid minerals extraction in national (and local) economic development. Given the lack of large-scale mine operators and the prevalence of artisanal and small-scale miners, the time is ripe to ensure that ASGM operators are integrated into the formal economy. Such formalization of ASGM miners can benefit practically all actors in the gold mining sector – including the miners (by giving them the security and tools to invest in safer and more productive mining practices, which should increase their revenue while protecting their health), their communities (by reducing exposure to lead and mercury), medium- and large-scale operators (by reducing conflicts over access to mining lands), and the government (by capturing a portion of mining revenue in the form of royalties and taxes that is currently being lost). The government‘s stated interest in promoting mining as an alternative to oil production and in incorporating lessons learned from the petroleum sector about transparent natural resource extraction makes this a key opportunity to improve the legal and policy framework. The recent signing of the Minamata Convention on Mercury by Nigeria, the U.S., and 92 other countries further reinforces the urgency and timeliness of addressing ASGM right now. And given that artisanal miners are also extracting other solid minerals including wolframite, columbite, and tantalite, which may also expose them to other toxic chemicals, a strengthened legal and regulatory framework will help an even greater number of artisanal miners develop safer and more productive mining practices. 2 Part 1: Health, Environmental, and Gender Impacts of ASGM Activities Since the 2010 lead poisoning outbreak in Zamfara, much attention has been given to the collateral health and environmental impacts that arise from ASGM. While the Zamfara outbreak shifted much of the focus of the impacts of ASGM to lead, mercury poisoning is an equally important concern. ASGM is currently the largest contributor towards global anthropogenic mercury emissions, responsible for 37% of all such emissions.4 These emissions are also rapidly growing; from 2005-2013, ASGM mercury emissions doubled, causing total land and water emissions to exceed 800 tons per year. Factoring in air emissions, some estimates place the total figure as high as 1600 tons per year, although this may simply reflect more accurate reporting.5 The very serious (even deadly) impacts of lead and mercury exposure are compounded by the widespread poverty and general lack of access to health services in many ASGM regions. Adding to this are particular impacts on women and children as well as toxic releases to soils, water, and air. Addressing these health impacts is and will be quite expensive – current treatment for lead poisoning victims can run up to $1500/child. Health Impacts The health impacts of both lead and mercury are not immediately noticeable and manifest themselves over time. A comprehensive review of scientific studies indicates that ASGM communities experience neurologic and kidney effects, as well as possible immunotoxic/autoimmune effects from mercury exposure.6 The most common effects of mercury exposure are mental retardation, delayed development, seizures, and vision and hearing loss,7 with the cardiovascular and central nervous systems the most vulnerable. Many of these same effects occur with lead poisoning, in addition to nerve damage, reproductive problems, liver and kidney damage, and muscle coordination.8 For both mercury and lead poisoning, the health effects are more pronounced in young children. Extreme exposure can lead to coma or even death.9 For women, exposure to mercury positively correlates with an increase in malformations and miscarriages during pregnancy.10 Many women have also reported menstrual cycle disorders.11 Although they both derive from artisanal mining practices, it is important to consider lead and mercury exposure pathways separately. Concentrated lead in the soil from which the gold is mined is the exclusive source of lead poisoning. Lead concentrations in the soil at some locations have been measured to be greater than 100,000 ppm (or an astonishing 10 percent by weight), vastly exceeding US EPA‘s standards of 400 ppm.12 As the mined ores are mechanically ground and processed, lead dust is released into the air. Dry milling, which is commonly employed during the processing stage, tends to magnify the level of dust produced.13 In many areas, lead processing was typically done within housing compounds, with women using the same mortars and pestles used to prepare food. Even where this processing occurs outside of the village, miners often return home with clothes contaminated with lead. Children who traveled to the 3 mines to sell food during the day are also exposed to lead and mercury contamination, and similarly facilitate cross-contamination by bringing unsold exposed food back into the village. Aside from the airborne transport of lead, the grinding and sluicing process often occurs near village water sources, contaminating surface water with lead. Mercury is used in ASGM to amalgamate the gold and separate it from the fine-grained material. The residual mercury attached to the gold is later burned off and released in vapor form, which can be easily inhaled by people in the vicinity.14 This pathway can be particularly harmful,15 especially since more mercury is absorbed through inhalation than through ingestion or dermal exposure. Some of the mercury runoff also enters waterways, where it is converted into methylmercury by anaerobic organisms. This methylmercury is absorbed by phytoplankton and makes its way up the food chain before it is ingested by downstream residents through contaminated fish. Methylmercury is known to be far more toxic than pure mercury.16 Environmental Impacts In addition to the health impacts described above, mercury and lead also impose detrimental environmental impacts. Up to 95% of mercury used in ASGM is released into the environment.17 Since mercury air emissions are globally transported, ASGM practices have a global impact.18 Dredging and sluicing during mining also cause severe land degradation and river siltation. The increases in suspended sediment from river siltation hinder the penetration of light into the water and greatly affect the supply of nutrients.19 The suspended sediment also tends to carry high concentrations of mercury. A recent UNEP report predicted that warmer temperatures induced by global climate change would increase rates of organic productivity and bacterial activity in water that could trigger a more rapid conversion of mercury to methylmercury, its more potent form.20 Unlike mercury, lead dust does not travel very far, but dust that settles out on the ground can easily contaminate the soil. During periods of heavy rain, the lead can leach into groundwater systems, contaminating them in the process.21 Lead dust can also affect animals grazing nearby in many of the same ways it affects humans.22 And, while not the focus of this paper, artisanal mining activities cause other environmental harms, such as the destruction of natural habitats at mining and waste disposal sites. Efforts to minimize the health and environmental impacts of ASGM have mainly focused on lead exposure due to the 2010 lead poisoning outbreak in Zamfara. Basic improvements in ASGM practices, such as moving operations outside of household areas and villages, have already reduced lead exposure for children and others. Miners are also being encouraged to wash their hands and clothing before returning to their communities from the processing sites. The Nigerian government has recently been promoting the use of wet milling machines over dry machines to minimize the production of lead dust. In September 2013, the federal government received a delivery of iGoli and wet milling machines from the South African government for the Safer Mining Programme in Zamfara (these technologies are discussed further in Part 2).23 However, many areas are still using dry milling machines and other unsafe practices (including mercury amalgamation) which are continuing to expose miners, their families, and their communities to harm. 4 Gender Impacts Around 30 percent of the global workforce of artisanal miners is composed of women, with the highest percentage (40 to 100 percent) found in Africa.24 Studies have shown that the smaller the size of the mining operation and the greater the degree of mechanization, the larger the role played by women. Women‘s roles and responsibilities within gold mining communities vary greatly. While women may dig and carry ore, they are more commonly involved in the processing stage, which includes crushing, grinding, sieving, washing, panning, and amalgamation with mercury. (As will be discussed below, women do not appear to be involved in mercury processing in Zamfara and possibly elsewhere in Nigeria). To a lesser extent, women may own mining concessions; serve as mine operators, dealers, or buying agents; or own mining equipment. Women also frequently provide goods and services to mining operations in the form of cooking and selling food, running shops, and sometimes working in the sex trade. Because of their involvement in artisanal gold mining, particularly gold processing, women and their children working in artisanal gold mining are susceptible to their own set of health concerns. Generally speaking, women face the greatest risks from carrying heavy materials, washing ore in contaminated water, and becoming exposed to chemicals when burning gold amalgam.25 Likely afflictions for women and children working in or around mines include gastroenteritis, lung inflammation, respiratory infections, spinal, joint, neck and back damage, frequent cuts and bruises,26 in addition to the extremely hazardous effects of exposure to mercury and lead, as described below. These gender-differentiated impacts bring added challenges and considerations to addressing needs within the ASGM sector, as well as unique opportunities to improve the quality of artisanal miners‘ life and health. Mercury Exposure Exposure to mercury during the amalgamation process poses one of the greatest health threats to women working in artisanal gold mining.27 While mercury exposure is dangerous for both women and men, sociocultural factors often lead to greater exposure for women, and women suffer more severe physical harm from such exposure. In a number of countries (though not necessarily Nigeria), mercury amalgamation and amalgam decomposition are often carried out by women, putting them in direct contact with mercury. This process can frequently take place in the home, especially in Muslim communities under Sharia law, where women typically must stay within their family compounds. Direct open-air burning to separate mercury from the mercury- gold amalgam may also take place in the home or small sheds near the mining site, leading to high exposure to mercury vapors in these enclosed spaces. The amalgamation process is also sometimes carried out with cooking stoves and kitchen utensils, items with which women, as the predominant food providers, frequently come into contact. Additionally, since women are usually responsible for caring for young children and babies, their participation in mining activities is often done with babies tied to their backs or toddlers at their sides, exposing their children to the same health hazards. 5 While awareness of the risks associated with mercury is scarce among all miners, sociocultural inequities particularly hinder access to information for women, often leaving them unaware of the risks they and their children face with repeated mercury exposure. Lead Exposure In addition to mercury, lead also poses significant health threats to women and their children. In Zamfara, lead poisoning has claimed the lives of hundreds of children, and even those who were treated and survived remain in danger. Exposure to the toxic effects of lead stems from the rock grinding conducted with flour mills and mortars and pestles in the home (although processing activities have now moved outside the housing compounds in at least some areas); the dust that miners, young girls selling food to miners, and others transport back to their families on their clothes and bodies; and the housing compounds‘ dirt floors and mud bricks, which contain lead- contaminated soil. Women spending considerable time with children inside the home experience even greater exposure. As girls between the ages of 6 and 15 marry and become pregnant, ―their bodies will release lead stored like calcium in their bones,‖ according to the Columbia University professor who developed Succimer, the treatment for lead poisoning.28 This can cause miscarriages and reduced brain function of some form in their children. Other Health and Safety Concerns Other serious health and safety concerns for women living and working in artisanal mining communities include violence and threats to sexual and reproductive health from prostitution and sexual violence.29 Illicit trade in drugs and prostitution, and the violence that often accompanies it, may be more prevalent in communities established as part of a gold rush than in more well- established communities that have a stronger government presence, family ties, and social cohesion. Nevertheless, violence against women in artisanal mining communities has been documented on a global scale. Along with such violence, the sex trade in artisanal mining communities leads to a high rate of infection with HIV/AIDS and other sexually transmitted diseases. Complicating this situation is the fact that women often work longer hours than men but earn less – studies have shown on average four times less – potentially leading them to seek other sources of income, even through such high-risk work as prostitution. Among the poorest households in rural communities are those in which the men have migrated to urban areas or mining centers, leaving the women as de facto heads of household. In these and other communities with few other options for generating revenue, women may work excessive hours, endangering their health and that of their children without benefits or security. Child prostitution can also occur in artisanal and small-scale mining communities, where virginity is held in high esteem and where fears of HIV/AIDS and other sexually transmitted diseases also exist. Addressing Women’s Vulnerability Because of their position and roles in the social framework of ASGM communities, women hold the potential to induce positive change in their communities if their participation in gold mining is strengthened and they are taught safer mining practices.30 Women play a key role in community stability, cohesiveness, and morale, and can serve as primary change agents. In some mining communities, they have been identified as strong couriers of information who could help 6 influence and improve the mining techniques practiced by their families. (Particular cultural challenges in Nigeria that may affect this dynamic are noted in the next paragraph.) When organized as a group, women are more likely to raise concerns about rights and safety and may be more willing to adopt alternative technologies. Additionally, since women bear primary responsibility for food preparation, they are best able to respond to education about the health risks of consuming mercury-contaminated foods. Women can help change their family‘s food habits, such as by reducing consumption of carnivorous fish in areas where mercury is used, or by keeping gold amalgamation separate from cooking areas and utensils. Governments can also support policies and programs geared towards women in artisanal gold mining communities.31 Increased research on women‘s involvement in ASGM can help shed light on areas where government programs can be most useful. Information can be gathered not only through dedicated research programs, but also through gender-sensitive training of police and health workers. Health and security conditions in the communities in which ASGM takes place vary widely, and this research and information-gathering can help inform gender policies that take community-specific circumstances into account. Technical assistance and community development programs can help promote employment opportunities for women, support their participation in regional development, support women‘s organizations, incentivize use of improved technologies, and conduct public service announcements about the hidden health risks of mercury and lead exposure and the proper precautions miners should take. Training women in marketing, management, bookkeeping, and other aspects of artisanal gold mining can also empower them to benefit more from their involvement in ASGM and help address gender inequities. One example of an approach to addressing gold mining and gender issues can be seen in Mongolia, where the Sustainable Artisanal Mining Project – formed to help deliver reform to the artisanal and small-scale mining sector following a government resolution approving regulation of the sector – has incorporated gender considerations throughout its activities.32 The project has developed gender-sensitive training materials and approaches for use in implementing its initiatives. These initiatives, which include capacity building and the development of community action plans, must all be gender-sensitive and include proportional participation of women and men. The project also conducts gender analysis on an ongoing basis to better understand gender- based inequities and demonstrate the link between gender roles and relations and the sustainability of artisanal and small-scale mining activities. ASGM and Gender in Nigeria Although it was difficult to obtain gender-specific information during the field visits in Zamfara in 2012-13, women are said to make up a percentage of the artisanal and small-scale mining workforce (not limited to gold) in Nigeria overall.33 Women in Zamfara had previously taken an active role processing gold in residential compounds, using the same mortars and pestles that they used to prepare food. However, field visits to Dareta, Abare, Bagega, and Bukuyyum (Yargalma) in September 2012 and June 2013 suggest that women may no longer be significantly involved in processing activities in at least some mining communities in Zamfara. This has likely resulted in part from education and outreach about the dangers of lead exposure following the 2010 lead poisoning outbreak, which emphasized the need to move processing 7