Section 163 of the Mining Act 1992 balances two things: a company’s interest in exploration data it paid for, and the public interest in knowing what is happening on the country’s land.
Section 163(1) — the confidentiality rule
Information disclosed under this Act to the Minister, to an employee of the Authority, or to a member of the Council shall not be disclosed to any person who is not an employee of the Authority without the prior written approval of the person who provided that information — except in the four cases below.
| Exception | |
|---|---|
| (a) | To the extent that disclosure is authorized or required under this Act or any other law |
| (b) | To the extent the provider authorized disclosure at the time of providing the information |
| (c) | To the extent necessary for the Managing Director to publish statistical information concerning the geology and mineral resources of the State |
| (d) | To the extent necessary for the Managing Director to give advice to the National Executive Council, other Departments and the Central Bank on a confidential basis |
Anything the Act itself requires to be published or made available falls outside the confidentiality rule — and so does anything any other law requires. That includes the substantial public-facing machinery described below, and the disclosure obligations of the Environment Act 2000.
What the Act itself makes public
| Section | What is public |
|---|---|
| 106(b) | A copy of every application published in the National Gazette |
| 106(d) | A copy sent to each District and Sub-District Office nearest the area |
| 106(e) | A copy advertised in a newspaper circulating throughout the country |
| 106(f) | A copy continuously posted at the headquarters of the Authority until determined |
| 107(2)(c) | A copy of every objection, likewise posted until the application is determined |
| 97(5) | The survey schedule of a proposed tenement, published in the National Gazette |
| 111(1)(d) | Notice of every grant or extension, published in the National Gazette |
| 113(3) | The Register of Tenements, received by all courts as prima facie evidence |
| 139(1)(d), (e) | Notice of a registered surrender, gazetted and posted for 30 days |
| 143(1)(b), (c) | Notice of a registered cancellation, gazetted and posted for 30 days |
| 7(1), 146 | Reservations of land and fees, by National Gazette notice |
Who has applied, over what land, who objected, what was granted, on what terms, and what has been surrendered or cancelled — all of that is public. Section 163 protects the technical and commercial information a holder supplies, not the existence or terms of the tenement.
A landholder who wants to know what is happening on their land should start with the Register of Tenements, the National Gazette, and the copies held at the nearest District and Sub-District Offices.
Paragraph (c) — statistical publication
The Managing Director may publish statistical information concerning the geology and mineral resources of the State, notwithstanding the confidentiality rule. Read with section 5A — under which all mineral and geological data must be submitted to the Authority’s repository, and every operating mine must transmit live production, extraction and sales data to a central monitoring hub — the Act contemplates a national picture being compiled and published in aggregate form.
Compare section 94(3) of the Environment Act 2000, which requires data from water investigations to be arranged, where possible, so that particulars are not identifiable as relating to a specific undertaking. Section 163(1)(c) achieves a similar result by confining publication to statistical information.
Section 163(2) — using information for personal gain
An employee of the Authority or member of the Council who uses, for the purpose of his personal gain, any information disclosed under this Act that comes to his knowledge in the course of, or by reason of, his employment or membership, is guilty of an offence.
Penalty: a fine not exceeding K10,000.00 or imprisonment for up to four years, or both.
The offence is use for personal gain, not disclosure. An officer who trades on knowledge of an unannounced discovery, or who uses it to peg ground, commits it whether or not the information goes anywhere else.
It sits alongside the Leadership Code obligations that apply to office-holders, and the general prohibition in section 100(5) and (6) on associated persons multiplying applications in a ballot.
The parallel under the Environment Act
The Environment Act 2000 strikes a similar balance for a mining project:
- Section 55(5) — before an impact statement is released for public review, the Director shall exclude information about a manufacturing or industrial process or trade secret, or confidential business or financial information.
- Section 131(5) and (6) — the Director may withhold part of a statement or assessment from the Register in the public interest, but must endorse the document with a notice and the reason.
- Section 77(3) — a data-collection notice may not require trade secrets, confidential business or financial information, or information subject to confidentiality conditions under another contract, permit or tenement.
- Section 131(7) — using or disclosing information provided under that Act for purposes other than in accordance with it is an offence carrying K50,000 or two years.
What is protected is commercial and technical detail. What is not protected is the existence and terms of the approval, the environmental effects, and the monitoring results. Under section 131(1)(j) and (p) of the Environment Act, each permit and its conditions, and each monitoring and management report, go on a register open to any person at all reasonable times.
Sources
- Mining Act 1992 — ss 5A, 7, 97, 100, 106, 107, 111, 113, 139, 143, 146, 161–163
- Environment Act 2000 — ss 55, 77, 94, 131
- Constitution — s 51; Division III.2 (Leadership Code)
Before relying on anything here, read the current text of the Mining Act 1992 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.