1. THE MINING BILL AND COMMUNITY LAND RIGHTS BY : IBRAHIM MWATHANE, LDGI Tuvuke Land & Natural Resources Conference Sarova Panafric: 12-13 March 2015

2. ANCHOR FRAMEWORKS 2 SPNo 3 on NLP of Dec 2009: Resource Tenure Policy : Items 95-96 Benefit Sharing from Land-Based Natural Resources: Items 97-100 CoK of Aug 2010  Sustainable exploit. of Nat Res Art. 60, 62, 69  Agreements relating to Nat Res: Art 66(2), 71 Land includes ‘Nat Res contained ‘on’ or ‘under’ (CoK)

3. NATURAL RESOURCES: EXPLORATION & EXTRACTION 3 Which view do we take?

4. INVESTMENTS IN NATURAL RESOURCES 4 Are usually capital intensive No revenue earnings over long exploratory and pre- production periods Usually make significant earnings in excess of initial costs Require collaborative approach Require enabling (local) environment Need to embrace effective benefit sharing Improve awareness of land sector actors on related policy, constitutional and legal provisions outside land sector

5. KENYA: SOME NATURAL RESOURCES 5 1. Oil 2. Natural gas 3. Titanium 4. Gold 5. Coal 6. Copper 7. Niobium 8. Manganese 9. Rare Earth 10. 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

6. THE MINING BILL, 2014 6 Gazette Notice No 28: N.A. Bill No 8 of 2014 Passed by NA: Returned to Senate by President Pending discussion by Senate: 1 st 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

7. SOME PERTINENT FEATURES 7 Ownership of minerals Administration Establishment of Mining Corp and tribunal Mineral rights Agreements Compensation and disputes Health, 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.

8. SOME PERTINENT FEATURES 8 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))

9. COMMUNITIES AND LAND RIGHTS 9 Community : 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 provision Community objection to mining: No provision Royalties payable:-  National gvnt……………70%  County gvnt………………20%  Community……………….10% Disbursement to communities: No clarity!

10. COMMUNITIES AND LAND RIGHTS 10 Grant 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

11. Petroleum (Exploration, Development and Production) Bill, 2015 11 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 transfer Provides for the establishment of a Sovereign Wealth Fund at the National Treasury

12. PETROLEUM BILL, 2015 :ACCESS TO LAND 12 Access to land:-  Owners consent required  Compensation due to be agreed  If objections to proposal, to way leave or compensation value: Refer to Land Act  Where necessary, Cabinet Secretary may apply to NLC to acquire land compulsorily under the Land Act  Disputes under jurisdiction of E & LC

13. PETROLEUM BILL, 2015 13 Sharing Ratios  Petroleum profit shared between contractor and government  National government: 75%  County government: 20%  Local community: 5% (payable thro County government)

14. Energy Bill 2014 & Natural Resources (Benefit Sharing) Bill 14 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)

15. SOME RECOMMENDATIONS 15 1. Benchmark protection of land rights in all bills/laws to the constitution and new land laws 2. Hasten enactment of community land Bill 3. Hasten enactment of Evictions and Resettlement Bill 4. Harmonise benefit ratios across legal frameworks 5. Consistency in the definition of ‘community’ 6. Provide for community pre-consultations and participation in processes 7. Map key stakeholders in Government, Business and Civil Society 8. There is need to build the capacity of key stakeholders to understand local laws and the extractive industry for effective engagement