Introduction
The allocation of mineral titles in Nigeria is principally governed by the Nigerian Minerals and Mining Act 2007 (“the Act”). While the Act establishes an administrative framework for the grant of mineral titles, section 9 introduces competitive bidding as a special mechanism for the grant of Exploration Licences and Mining Leases in designated areas. Section 9(1) provides that the Minister shall, by regulations, determine areas in which an Exploration Licence or Mining Lease shall be granted based on competitive bidding requirements. Pursuant to this provision, Regulation 4 of the Nigerian Minerals and Mining Regulations 2011 (“the Regulations”) deals specifically with areas in respect of which mineral titles may be granted through competitive bidding.
The important legal question is whether Regulation 4 merely gives effect to section 9 or
whether, in some respects, it extends the Minister’s power beyond what the National Assembly
delegated.
1. The Scope of Section 9
Section 9(1) confers a specific power on the Minister: to determine, through regulations, the
areas in which Exploration Licences and Mining Leases will be subject to competitive bidding.
Importantly, section 9(2) assigns the responsibility for considering competing bids and selecting
the successful bid to the Mining Cadastre Office (MCO). It further specifies the factors to which
the MCO must have regard, namely:
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- 1. the proposed exploration or mining programme and expenditure commitments;
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- 2. the applicant’s financial and technical resources; and
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- 3. the applicant’s previous experience in reconnaissance and mining operations.
Section 9(3) provides that the successful application shall be treated as an application under
section 59 or section 65 of the Act.
Thus, Parliament did not leave the competitive-bidding process entirely to ministerial
discretion. It established the basic framework and identified the principal criteria for evaluating
competing applications.
2. What Regulation 4 Provides
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- a. Regulation 4(1) requires the Minister to establish a committee to advise him on the determination of areas where mineral titles may be granted through competitive bidding.
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- b. Regulation 4(2) then identifies certain areas that may be subject to competitive bidding, including:
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- i. areas free of valid existing mineral titles;
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- ii. areas in which minerals classified by the Act as security minerals have been found; and
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- iii. areas which the committee considers appropriate to recommend to the Minister.
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- b. Regulation 4(2) then identifies certain areas that may be subject to competitive bidding, including:
The committee created by Regulation 4 is therefore advisory. It does not, on the face of the
Regulation, possess the final statutory power to determine the areas. That power remains with
the Minister under section 9(1).
3. The Limits of the Delegated Power
The fact that section 21 of the Act generally empowers the Minister to make regulations does not mean that the Minister possesses an unrestricted legislative power. Regulations made by a Minister are subordinate legislation and must remain within the boundaries established by the
parent Act. The principle is straightforward: a delegate cannot exercise powers greater than
those delegated by the legislature. Consequently, Regulation 4 may properly prescribe the
administrative mechanism for identifying and recommending areas for competitive bidding. It
may also establish an advisory committee to assist the Minister in exercising the power
expressly conferred by section 9(1). However, difficulties arise where the Regulation is
interpreted as creating substantive powers which section 9 does not confer.
For example, Regulation 4(2)(b) refers to areas where security minerals have been found and to
areas which the Minister may declare as security-mineral areas from time to time. This raises a
question as to whether the Minister is merely identifying areas suitable for competitive bidding,
as authorised by section 9, or is effectively expanding or altering the statutory classification of
minerals. The distinction is important. The Minister has expressly been given power under
section 9(1) to determine areas for competitive bidding. That does not necessarily amount to a
general power to alter substantive classifications established by the Act.
4. The Role of the Mining Cadastre Office
Another important limitation arises from section 9(2). Parliament expressly entrusted the MCO
with the responsibility of considering competing bids and selecting the successful bidder. The
MCO must do so through an open and transparent method and must have regard to the criteria
specified in section 9(2)(a)–(c). Consequently, neither Regulation 4 nor an administrative
guideline should be interpreted as transferring that statutory decision-making function to the
committee established under Regulation 4. The committee advises the Minister on where
competitive bidding should take place. The MCO determines which bidder succeeds, subject to
the statutory criteria. Maintaining this distinction is essential to preserving the structure created by the Act.
5. Nigerian Judicial Authorities on Delegated Legislation
The Nigerian Supreme Court has repeatedly emphasised that subsidiary legislation derives its
authority from the principal legislation and cannot exceed it. In Governor of Oyo State & Ors v
Folayan (1995) 8 NWLR (Pt. 413) 292, the Supreme Court stated that a subsidiary legislation
derives its validity and authority from the substantive law and “has not the capacity to extend
such authority.”
The principle was stated even more directly in NNPC & Anor v Famfa Oil Ltd (2012) 17 NWLR
(Pt. 1328) 148. The Supreme Court explained that the principal legislation provides subsidiary
legislation with its source of existence and that subsidiary legislation must conform to the
principal law. Where the parent statute prescribes a particular method for exercising a
statutory power, that method must be followed. Any provision of subsidiary legislation
inconsistent with the Act is, to the extent of that inconsistency, void. The same principle was
applied in Omatseye v FRN (2017) LPELR-42719, where the Court of Appeal recognised that
subsidiary legislation derives its force from the principal legislation and is secondary and
complementary to it. These authorities provide an important framework for interpreting
Regulation 4.
6. Section 9 and Section 21
Section 21 provides the general regulatory foundation for the Regulations, while section 9
provides the specific delegation concerning competitive bidding. Section 21 should therefore
not be interpreted as enlarging the specific authority granted under section 9. The general
regulation-making power must operate consistently with the specific provisions of the Act.
A regulation may fill in procedural and administrative details which the Act leaves open, but it
should not amend the Act, create a new substantive entitlement or restriction, or transfer a
statutory power to another body without adequate legislative authority.
Conclusion
Regulation 4 is, in principle, a legitimate mechanism for implementing the competitive-bidding
power contained in section 9(1). The establishment of an advisory committee is not inherently
problematic because the committee does not appear to replace the Minister as the decision-maker. The more difficult issue concerns the extent to which Regulation 4 may introduce additional substantive criteria or classifications that are not contained in the Act. In particular, the reference to security minerals and the Minister’s ability to make further declarations
requires careful examination against the substantive provisions of the Act. The correct approach is therefore not to assume that every provision of the 2011 Regulations is valid merely because it was made under section 21. Each provision must be tested against its specific enabling provision in the Act. In the case of competitive bidding, the governing principle is clear: the Minister may regulate and implement the competitive-bidding regime established by Parliament, but he cannot use
delegated legislation to enlarge the power that Parliament itself has granted.