mineral rights in kenya

Procuring a Mineral Right in Kenya- Legal Framework

Introduction

The Mining Sector in Kenya is governed by a number of regulations in tandem with the Constitution of Kenya 2010 and the Mining Act, 2016. The regulations governing the Mining sector in Kenya include: Mining (Licence and Permit) Regulations 2017, Mining (Use of Assets) Regulations 2017, Mining (dealings in Minerals) Regulations 2017, Mining (Employment and Training) Regulations 2017, Mining (Work Programme and Exploration Reports) Guidelines, Mining (State Participation) Regulations 2017, Mining (Use of Local Goods and Services) Regulations 2017, Mining (Strategic Minerals) Regulations 2017, Mining (Award of Mineral Rights by Tender) Regulations 2017, Mining (Community Development Agreement) Regulation 2017, Mining (Mine Support Services) Regulations 2017, Mining (Reporting on Mining and Mineral Related Activities) Regulations 2017 and Mining (National Mining Corporations) Regulations 2017. Article 66 of the Constitution of Kenya further, empowers Parliament to enact legislations to ensure investments benefit local communities and their economies.

All the minerals are held in trust for the people of Kenya by the National government, this is provided for under Article 62 of The Constitution of Kenya, 2010(COK). This Article of the COK gives birth to Section 6 of the Mining Act, 2016 which provides that every mineral in its natural state in, under or upon land in Kenya; in or under a lake, river, stream, or water courses in Kenya; 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.

All the minerals are held in trust for the people of Kenya by the National government, this is provided for under Article 62 of The Constitution of Kenya, 2010(COK)

Application of the Mineral Right

A mineral right is defined under Section 1 of the Mining Act, 2016 to mean a prospecting licence, a retention licence, a mining licence, a prospecting permit, a mining permit or an artisanal permit.

Further, Section 2 of the Mining Act 2016 provides that “A mineral right may be granted in respect of a large scale operation or small scale operation”. The Act, states that the following licences and permits may be granted for a mineral right under this Act to authorise a mineral right holder to engage in:

a.  large scale operations which shall include – a reconnaissance licence; a prospecting licence; a retention licence; a mining licence; or

b.  small scale operations, which shall include – a prospecting permit; or a mining permit.

Section 33 (2) of the Act, provides the Cabinet Secretary shall, on the recommendation of the Mineral Rights Board(MRB), approve or reject an application; within ninety (90) days in the case of an application for prospecting licence or reconnaissance licence or within one hundred and twenty (120) days in the case of an application for a mining licence. The Cabinet Secretary is obligated to notify the Mineral Rights Board of the decision to approve or reject an application before notifying the applicant. The same application whether rejected or approved must be in writing.

Upon the approval of the application, the applicant must in writing accept or reject the offer for grant of the Mineral right within twenty-one (21) days from the date or receipt of notification of the approval. If the applicant does not notify the Cabinet Secretary of the acceptance of the offer, the approval of the application lapses after twenty-one (21) days.

The Cabinet Secretary is obligated under the Act, upon receipt of the application to publish a notice pending application in a newspaper of wide circulation at the Applicant’s expense. Normally, this publication is done with the Kenya Gazette. Once the Kenya Gazette has assessed the mineral right being applied for, it will state the fees to be paid by the applicant for the Gazettement. The Kenya Gazette can be accessed online through the Kenya Law Report website.

The notice will state the proposed boundaries of the land in relation to which an application for a mineral right is made and be published, for twenty one (21) days in the Gazette and in the offices of the County Government within which county the land is situated.

If a person or community objects to the grant of a licence, for an application of the prospecting licence must be done within twenty one (21) days and for a mining licence within forty two (42). The Cabinet Secretary will hear and determine any objection to an application through the Minerals Rights Board.

The applicant of a mineral right shall be required to obtain the following by the Mineral Rights Board before it forwards its recommendation to the Cabinet Secretary, this under Section 36(2) of the Mining Act:

a.  Approval of the National Land Commission (NLC), in relation to public land. This is also in regards to community land;

b.  Approval of the relevant State agency where that mineral right is on public land under Article 62 (1)(b) of the Constitution;

c.  The approval of the appropriate Cabinet Secretary or other authority, where the area in respect of which a mineral right is sought is dedicated or set apart as a place of burial, religious significance, as a public building, or for any other public purpose;

d.  The Governor of the respective county exercising control where the land is situated within a town, municipality or trading centre;

e.  The Cabinet Secretary responsible for matters relating to wildlife conservation and management, where the land is situated within a marine park, a national park or a local sanctuary under the Wildlife (Conservation and Management) Act;

f.  The Cabinet Secretary responsible for matters relating to the environment, where the land is situated within a protected area, a protected natural environment, or a protected coastal zone under the Environmental Management and Coordination Act;

g.  The Director of the Kenya Forest Service, where the land is situated within a forest area or; operations on, under or over an area, that has been declared a forest area under the Forests Act; and

h.  Any other person who in the opinion of the Cabinet Secretary would otherwise be affected by the grant of a mineral right, who may include the owner of private land or the community in occupation of the land.

The land owners consent is also an important factor when procuring for a mineral right. The Mining (Licence and Permit) Regulations, 2017 Regulation 23 (1) requires that an application for a mineral right shall only be granted with the consent of the landowner. Regulation 23 (2) Consent shall be in the form of a written agreement that clearly describes the boundaries of the land in relation to the licence or permit area which is the subject of the application. The applicant must seek the written consent of the land owner and submit copies of the signed consents or agreements to the Ministry.

Section 37(1) provides that “a prospecting and mining rights shall not be Mineral rights on granted under this Act with respect to private land without the express consent of the registered owner, and such consent shall not be unreasonably withheld.”

Further, Section 37 (2) that consent will be deemed to be given where the owner of the private land has entered into;

a.  a legally binding arrangement with the applicant for the prospecting and mining rights or with the Government, which allows for the conduct of prospecting or mining operations; or

b.  an agreement with the applicant for the prospecting and mining rights concerning the payment of adequate compensation.

Section 37(1) provides that “a prospecting and mining rights shall not be Mineral rights on granted under this Act with respect to private land without the express consent of the registered owner, and such consent shall not be unreasonably withheld.”

Important to note, is that the Act states that where consent is granted prior to any change in land ownership, such consent shall continue to be valid for as long as the prospecting and mining rights subsists. Just as consent will be deemed under private land the same is also deemed under community land.

Where consent is unreasonably withheld or the Cabinet Secretary considers that withholding of consent is contrary to the national interest. The Cabinet Secretary may take steps under the law relating to the compulsory acquisition of land or rights or interests in land, to vest the land or area in question, or rights or interests in such land or area, in the Government or on behalf of the Government.

The Mining Cadastre- Online Application 

The Mining (Licence and Permit) Regulations, 2017, established an online Mining Cadastre an electronic platform that enables an applicant access services of the Ministry of Petroleum and Mining (State Department of Mining) including making applications for the mineral rights. Through the mining cadastre portal applicants are required to create an account which will give them access to various applications one can make through the portal. The applicant will be required to upload the relevant documents under the mineral right they are applying for.

Among the essential things required to be fed in the mining cadastre portal is the areas coordinates, this are basically the longitude and latitude of the area one is interested in applying for the mineral right. The applicant is required to select a block or polygon area. The regulation provides that upon uploading the proof of payment of the application fee, the application shall be registered.

NOTE: This article is for general information and does not constitute legal advice. If interested in getting legal advice or guidance in respect of the above area, kindly do not hesitate to contact us.

 

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