Tuvuke Land & Natural

Resources Conference
Sarova Panafric: 12-13 March 2015
T H E M I N I N G BIL L A N D
C O M M U N I T Y L A N D R I GH T S
BY : IBRAHIM MWATHANE, LDGI

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
Agreements relating to Nat Res:

Art. 60, 62, 69

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
too

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

KENYA: SOME NATURAL

RESOURCES
5
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.

Oil
Natural gas
Titanium
Gold
Coal
Copper
Niobium
Manganese
Rare Earth
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

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: 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 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.

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))

COMMUNITIES AND9 LAND RIGHTS

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 gvnt70%
County gvnt20%
Community.10%
Disbursement to communities: No clarity!

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

Petroleum (Exploration, Development

and Production) Bill,11 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 transfer
Provides for the establishment of a Sovereign Wealth
Fund at the National Treasury

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

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)

Energy Bill 2014 & Natural Resources

(Benefit Sharing) Bill14
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)

SOME RECOMMENDATIONS
1.
2.
3.
4.
5.
6.
7.
8.

15

Benchmark protection of land rights in all bills/laws to the

constitution and new land laws
Hasten enactment of community land Bill
Hasten enactment of Evictions and Resettlement Bill
Harmonise benefit ratios across legal frameworks
Consistency in the definition of community
Provide for community pre-consultations and participation in
processes
Map key stakeholders in Government, Business and Civil
Society
There is need to build the capacity of key stakeholders to
understand local laws and the extractive industry for effective
engagement