Tuvuke Land & Natural Resources Conference Sarova Panafric: 12 March 2015

The Mining Bill and Community land rights

By : Ibrahim Mwathane, ldgiTuvuke Land & Natural Resources Conference

Sarova Panafric: 12-13 March 2015ANCHOR FRAMEWORKS2SPNo 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)

Natural Resources: Exploration & Extraction 3 Which view do we take?

avoid trying to win by making someone else lose. Win by helping others win tooInvestments in natural resources4Are 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

KENYA: Some Natural Resources5OilNatural gas TitaniumGoldCoal CopperNiobium ManganeseRare EarthSoda Ash

Quite a lot of these found on community landArt 62 (f) CoK: Public land includes all all minerals and mineral oils as defined by lawGovernment can invoke compulsory acquisition

The Mining Bill, 20146Gazette 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

Some pertinent features7Ownership of mineralsAdministrationEstablishment of Mining Corp and tribunalMineral rightsAgreementsCompensation and disputesHealth, safety and environmentSect 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. Some pertinent features8Mining 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))

Communities and land rights9Community : 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 gvnt70%County gvnt20%Community.10%

Disbursement to communities: No clarity!

Communities and land rights10Grant of mineral right subject to consent of:For community land: The authority obligated by the law relating to administration and management of community land (community land law)For un-alienated community land: The National Land CommissionConsent assumed given where owners of community land have a legally binding agreement for prospecting or for compensation with the applicantSubject 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

Petroleum (Exploration, Development and Production) Bill, 201511Local community defined as sub-county or sub-counties in which an upstream petroleum resource is exploitedProvides for sensitization of local community before issue of permitsProduction sharing contract to be submitted to parliament for ratificationProvides for training and technology transferProvides for the establishment of a Sovereign Wealth Fund at the National Treasury

Petroleum Bill, 2015 :Access to land12 Access to land:-Owners consent requiredCompensation due to be agreedIf 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 ActDisputes under jurisdiction of E & LCPetroleum Bill, 201513 Sharing RatiosPetroleum profit shared between contractor and governmentNational government: 75%County government: 20%Local community: 5% (payable thro County government)Energy Bill 2014 & Natural Resources (Benefit Sharing) Bill14 1. Energy Bill, 2014 Dfn of local community: As in Petroleum BillDoes not provide for consultation with communitiesProvisions on land: As in Petroleum BillRoyalties: Nat gvnt, 75%; County gvnt, 20%; local community, 5%

2. Natural Resources(Benefit Sharing) Bill, 2014Local 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 ForumsRoyalties: 20%-Sovereign Fund; 80%-Govnt(Nat 60%, County 40%)(at least 40% of this to local community)

Some Recommendations15Benchmark protection of land rights in all bills/laws to the constitution and new land lawsHasten enactment of community land BillHasten enactment of Evictions and Resettlement BillHarmonise benefit ratios across legal frameworksConsistency in the definition of communityProvide for community pre-consultations and participation in processesMap key stakeholders in Government, Business and Civil SocietyThere is need to build the capacity of key stakeholders to understand local laws and the extractive industry for effective engagement