THE MINING BILL AND COMMUNITY LAND RIGHTS

BY : IBRAHIM MWATHANE, LDGI

Tuvuke Land & Natural Resources Conference

Sarova Panafric: 12-13 March 2015

2ANCHOR FRAMEWORKS

SPNo 3 on NLP of Dec 2009: Resource Tenure Policy : Items 95-96Benefit Sharing from Land-Based Natural Resources: Items 97-100

CoK of Aug 2010 Sustainable exploit. of Nat Res Art. 60, 62, 69Agreements relating to Nat Res: Art 66(2), 71

Land includes ‘Nat Res contained ‘on’ or ‘under’ (CoK)

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NATURAL RESOURCES: EXPLORATION & EXTRACTION

Which view do we take?

avoid trying to win by making someone else

lose. Win by helping

others win too

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INVESTMENTS IN NATURAL RESOURCES

Are usually capital intensiveNo revenue earnings over long exploratory and

pre-production periodsUsually make significant earnings in excess of

initial costsRequire collaborative approach Require enabling (local) environmentNeed to embrace effective benefit sharingImprove awareness of land sector actors on

related policy, constitutional and legal provisions outside land sector

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KENYA: SOME NATURAL RESOURCES

1. Oil2. Natural gas 3. Titanium4. Gold5. Coal 6. Copper7. Niobium 8. Manganese9. Rare Earth10.Soda Ash

• Quite a lot of these found on community

land• Art 62 (f) CoK: Public

land includes all ‘’all minerals and mineral oils as defined by law

• Government can invoke compulsory acquisition

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THE MINING BILL, 2014Gazette Notice No 28: N.A. Bill No 8 of 2014Passed by NA: Returned to Senate by PresidentPending discussion by Senate: 1st reading

An Act of Parliament to give effect to Articles 60, 62 (1(f), 66(2), 69 and 71 of the Constitution so far as they apply to minerals; provide for prospecting, mining, processing, refining, treatment, transport and any dealings in minerals and for related purposes

7SOME PERTINENT FEATURES

Ownership of mineralsAdministrationEstablishment of Mining Corp and tribunalMineral rightsAgreementsCompensation and disputesHealth, safety and environment

Sect 6.(1) Every mineral— (a)in its natural state in, under or upon land in Kenya; (b)in or under a lake, river, stream, or water courses in Kenya; (c)in the exclusive economic zone and an area covered by the territorial sea or continental shelf, is the property of the Republic and is vested in the national government in trust for the people of Kenya. (2) Subsection (1) applies despite any right or ownership of or by any person in relation to any land in, on or under which any minerals are found.

8SOME PERTINENT FEATURES

Mining agreements to be submitted to parliament for ratification (Sect 95 (6))

Mining agreements to be public and accessible (Sect 97 (1))

Grant of mineral right subject to attainment of environmental impact assessment licence and environmental management plan approval (Sect 149 (2))

9COMMUNITIES AND LAND RIGHTSCommunity : Group of individuals or families who

share a common heritage, interest or stake in identifiable land, land based resources or benefits that may be derived from the land based resources

Community pre-consultations: No provisionCommunity objection to mining: No provision

Royalties payable:-National gvnt……………70%County gvnt………………20%Community……………….10%

Disbursement to communities: No clarity!

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COMMUNITIES AND LAND RIGHTSGrant of mineral right subject to consent of:1. For community land: The authority obligated by

the law relating to administration and management of community land (community land law)

2. For un-alienated community land: The National Land Commission

Consent assumed given where owners of community land have a legally binding agreement for prospecting or for compensation with the applicant

Subject to law on community land, consent granted before change of ownership in land shall be valid while mineral right subsists

Cabinet Secretary to make regulations for grant of rights on community land

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Petroleum (Exploration, Development and Production) Bill, 2015

Local community defined as sub-county or sub-counties in which an upstream petroleum resource is exploited

Provides for sensitization of local community before issue of permits

Production sharing contract to be submitted to parliament for ratification

Provides for training and technology transferProvides for the establishment of a Sovereign

Wealth Fund at the National Treasury

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PETROLEUM BILL, 2015 :ACCESS TO LAND

Access to land:-Owners consent requiredCompensation due to be agreed If objections to proposal, to way leave or

compensation value: Refer to Land ActWhere necessary, Cabinet Secretary may apply to

NLC to acquire land compulsorily under the Land Act

Disputes under jurisdiction of E & LC

13PETROLEUM BILL, 2015

Sharing RatiosPetroleum profit shared between contractor and

governmentNational government: 75%County government: 20%Local community: 5% (payable thro County government)

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Energy Bill 2014 & Natural Resources (Benefit Sharing) Bill

1. Energy Bill, 2014 Dfn of local community: As in Petroleum Bill Does not provide for consultation with communities Provisions on land: As in Petroleum Bill Royalties: Nat gvnt, 75%; County gvnt, 20%; local community, 5%

2. Natural Resources(Benefit Sharing) Bill, 2014 Local community: People living in a ward within which a natural

resource is situated and are affected by the exploitation of that resource.

Establishes County Benefit Sharing Committee and Local Benefit Sharing Forums

Royalties: 20%-Sovereign Fund; 80%-Govnt(Nat 60%, County 40%)(at least 40% of this to local community)

15SOME RECOMMENDATIONS

1. Benchmark protection of land rights in all bills/laws to the constitution and new land laws

2. Hasten enactment of community land Bill3. Hasten enactment of Evictions and Resettlement Bill4. Harmonise benefit ratios across legal frameworks5. Consistency in the definition of ‘community’6. Provide for community pre-consultations and

participation in processes7. Map key stakeholders in Government, Business and

Civil Society8. There is need to build the capacity of key

stakeholders to understand local laws and the extractive industry for effective engagement