STATUTES

The
Constitution
2010

STATUS/DATE OF
COMMENCEMENT
Was promulgated on
the 27th of August
2010.

OVERVIEW AND APPLICATION

ENFORCING BODY

LINKS
STATUTES
In essence, the Constitution is to be read The Constitution requires an link
and enforced as a whole.
individualistic and multi-agency
For extractives purposes, the Preamble
approach. This means that it
enshrines the principle of respect of the
creates the arms of government
environment as our heritage, and
and gives them their own
determination to sustain it for the benefit of distinct mandates and requires
future generations
citizens
participation
in
Article 66(2) requires the parliament to enforcing its guiding principles.
enact legislation ensuring that investment
in property benefits local communities and
their economies.
Article 69 requires the State to, among
other
things,
ensure
sustainable
exploitation, utilization, management and
conservation of the environment and
natural resources, and ensure the equitable
sharing of the accruing benefits as well
utilize the environment and natural
resources for the benefit of the people of
Kenya.
Article 71 provides for ratification of
agreements entered by the government by
Parliament. This includes any agreements
on extractives

The Mining Commenced on the It is an Act of Parliament that gives effect The Act requires a multi-agency link

Act No. 12 27th May 2016

of 2016

to Articles 60, 62 (1) (f), 66 (2), 69 and 71 approach. However, key organs
of the Constitution in so far as they apply charged with enforcing the law
to minerals.
are, but not limited to
It makes provisions for prospecting,
i.
The
Cabinet
mining, processing, refining, treatment,
Secretary
transport and any dealings in minerals and
ii.
National Mining
connected purposes.
Corporation
iii.
The
Mineral
Rights Board
iv. Artisanal Mining
Committee
v. NEMA

Petroleum
Commenced on the
(Exploration 16th of November 1985
and
Production)
Act Cap 308
No. 19 of
1985

An Act of Parliament whose purpose is to

regulate the negotiation and conclusion by
the Government of petroleum agreements
relating to the exploration
for,
development,
production
and
transportation of, petroleum and for
connected purposes

Petroleum
Commenced on the It is an Act of Parliament whose purpose is
Developmen 31st May, 1991
to provide for the establishment of a
t Fund Act
Petroleum
CAP 426 C
Development Fund and the imposition of a
petroleum development levy.
The Energy Commenced on the 7th
Act No 12 of of July 2007

In as much as it requires a link

multi-agency approach, which
now includes the Parliament in
its
ratification
of
such
agreements, the other key organ
is The Cabinet Secretary who
negotiates
petroleum
agreements
with
potential
contractors.

The enforcing agency is the link

Kenya Revenue Authority. The
Commissioner General of the
Kenya Revenue Authority is
charged
with
ensuring
compliance.
It is an Act of Parliament whose purpose is The Act establishes key link
to amend and consolidate the law relating agencies such as the Energy

2006

to energy (which includes oil, gas and

coal), to provide for the establishment,
powers and functions of the Energy
Regulatory Commission and the Rural
Electrification Authority.
Part IV of the Act provides for licensing of
Petroleum Business and prescription of
offences while Part V provides for
renewable energy, energy efficiency
and conservation.
Gold Mines Commenced on the It is an Act of Parliament to provide for the
Developmen 22nd April, 1952
granting of financial assistance for the
t Loans ACT
underground development of gold mines in
CAP 311
Kenya

Environment Commenced on the

al
14th January, 2000.
Management
and
CoOrdination
Act CAP 387

It is An Act of Parliament whose purpose is

to provide for the establishment of an
appropriate
legal
and
institutional
framework for the management of the
environment.

National
Commenced on the An Act of Parliament to make further
Land
2nd May, 2012
provision as to the functions and
Commission
powers of the National Land Commission,
ACT CAP
qualifications
and
procedures
for
5D
appointments to the Commission; to give
effect to the objects and principles of
devolved government in land management

Regulatory Commission and the

Rural Electrification Authority.

Gold
Mines
Development link
Loans Board is charged with
the mandate of granting of
loans
for
purposes
of
development into the gold
mining sector
Being an establishing Statute, link
its
main
objective
is
establishing
independent
agencies, herein being
i.
The
National
Environment Council
ii.
National Environment
Management Authority
Also, being an establishing link
statute, its main objective is
establishing the independent
agency, herein being the
National Land Commission and
spelling its jurisdiction.

Water
Act Date
of
CAP 372
commencement: 18th
March, 2003: Sections
1 to 6, 19 to 24, 46 to
48, 51 to 78, 80 to 83,
90 to 111, 113 to 114:
29th August, 2003:
Sections 7 to 18, 25 to
45, 49 to 50, 79, 84 to
89, 112.

Labor
Commenced on the
Relations
26th October, 2007
ACT CAP
233

and
administration.
The Constitution, having declared that all
minerals fall under public land, therefore
leaves the management of such public land
on the National Land Commission.
It is an Act of Parliament to provide for the
management, conservation, use and control
of water resources and for the acquisition
and regulation of rights
to use water; to provide for the regulation
and management of water supply and
sewerage services.
The importance of water to extractives and
the environment cannot be over
emphasized.
Section 177 of the Mining Act specifically
states that provisions of the Act and rights
or entitlement conferred under a mineral
right shall not exempt a person from
compliance with the provisions of the
Water Act, 2002 concerning the right to the
use of water from any water resource. This
specifically protects our water resources.
It is an Act of Parliament to consolidate the
law relating to trade unions and trade
disputes, to provide for the registration,
regulation, management
and democratization of trade unions and
employers organizations or
federations, to promote sound labor

The enforcing agency is The link

State, being the Cabinet
Secretary, the Water Board and
other enforcing officers such as
the inspectors.

Enforcement of such a law is link

ensured by independent labor
unions. The enforcement of
such a law lies with the Cabinet
secretary for Labor and the
Labor relations court as the
adjudicating body

relations through the protection

and promotion of freedom of association,
the encouragement of effective
collective bargaining and promotion of
orderly and expeditious dispute
settlement, conducive to social justice and
economic development. This is one very
important law to the extractives industry
because of the nature of work engagements
of laborers in the extractives industry.
Foreign
Commenced on the An Act of Parliament to give protection to
Investments 15th December, 1964
approved foreign
Protection
investments.
Act CAP 518
Kenya has entered into a number of
bilateral investment treaties (BITs) that
entitle investors to full protection and
security of
investment, no less favorable treatment
than the States own investors, protection
against unreasonable and discriminatory
treatment, and in some cases, offer fair
compensation in the even that investments
are nationalized. This law domesticates
this treaties and thus offers security to
investors who may choose to invest in the
extractives industry.
Income Tax Commenced
1st An Act of Parliament to make provision for
Act CAP 470 January, 1974
the charge, assessment and collection of
income tax; for the ascertainment of the
income to be charged.
In it, corporate tax is prescribed. It details

This law is enforced by the link

Cabinet Secretary for Finance,
who
also
ensures
that
Certificates to the Foreign
Investors are granted and are in
order.

The Commissioner-General is link

invested with the jurisdiction to
enforce the tax code.

the determination of taxable income and

rates of taxation. The normal rates are
30% for resident companies and 37.5% for
nonresident companies. Operators, as
required by Company Laws are expected to
be Companies for purposes of business
operations and thus are required to pay
income tax.
Companies
Commenced on the It is an ACT of Parliament to consolidate
Act NO. 17 15th September, 2015 and reform the law relating to the
of 2015
incorporation, registration, operation,
management and regulation of companies.
The law is important as it guides on the
creation of business entities which include
operators in the extractives industry.
BILLS
SPONSOR
OVERVIEW

The
Local Hon. Gideon Moi, It is hinged on growing resource
Content Bill, Chairperson, Standing nationalism, which aims to assert greater
2016
Committee on Energy citizen control over the natural resources
located in Kenya.
Community
Hon. Kithure Kindiki, It is a bill, purposed
Land
Bill, Senate
Majority to give effect to
2014
Leader
Article 63(5) of the
Constitution; to provide for the
recognition, protection,
management and
administration of
Community land. This will offer a good
guide in differentiating community land

The enforcement lies on state

agencies such as the Attorney
Generals office

STATUS

LINKS
BILLS

Pending its first reading after its link

maturity on the 12/07/2016

H.E. Uhuru Kenyatta assented link

to the Community Land Act,
2016 (the Act). Yet to
commence.

TO

and public land.

The Energy Abdulswamad Nassir, The Bill is yet to mature. This therefore It is a bill purposed to
link
(Amendment Member of Parliament means that it has not had an opportunity to amend the Energy Act by
) Bill, 2015
be read in Parliament.
inserting a section
immediately after section
52. The principal object
of this Bill is to make
necessary amendments to
the Energy Act, to ensure
that compensation is paid
out to consumers who suffer
losses due to power
outage and delay in power
Restoration by the licensee.

The
Hon. Aden Duale, The bill has come up for second reading on
Petroleum
Leader of the Majority the
following
dates
22/10/2015,
(Exploration Party
27/10/2015
Developmen
29/10/2015 10/11/2015. The number of 2nd
t
and
reading sessions can probably be attributed
Production)
to the contentious nature of the bill. It has
Bill, 2015
been referred to the committee, Committee
stage, where it is now Pending
The Energy
Hon. Aden Duale, Had it 3rd reading on the 17/3/2016.
Bill, 2015
Leader of the Majority Pending remarks from the parliamentary
Party
energy committee.

It is a bill purposed to regulate link

the negotiation and conclusion
by
the
Government
of
petroleum agreements relating
to
the
exploration
for,
development, production and
transportation of, petroleum.
It is a bill purposed to
link
consolidate the laws
relating to energy, to provide
for the national and county
government
functions in relation to

energy, to provide for

the establishment, powers
and functions of the energy
sector entities; promotion
of renewable energy;
exploration, recovery
and commercial utilization
of geothermal energy;
regulation of midstream
and downstream petroleum
and coal activities;
regulation, production, supply
and use of electricity and other
energy
forms.
The Natural Aden Duale, Leader of It has been Passed forwarded to the Senate It is a bill purposed to give link
Resources
the Majority Party.
for consideration
effect to Article 71 of the
(Classes Of
Constitution of Kenya, 2010
Transactions
Subject To
Ratification)
Bill, 2015
PURPOSE & OVERVIEW
MAKER
OF
THE LINKS
TO
POLICIES
SUBJECT
REGULATIONS/ENFORCING
POLICIES
&
&
BODY
REGULATIO
REGULATI
NS
OS

The
Environment
al
(Impact
Assessment
And Audit)
Regulations,
2003
Water
Quality
Regulations,
2006 (Legal
Notice No.
120)

The
Environment
al
Management
And
Coordination
(Wetlands,
Riverbanks,
Lakeshores,
And
Seashores
Management
Regulations
2009)

It is the examination
of the effects of a
project
on
the
environment

It will apply to water

used for domestic,
industrial, agricultural,
and
recreational
purposes; water used
for
fisheries
and
wildlife purposes, and
water used for any
other purposes which
includes mining.
Wetlands i.e., riparian
lands,
areas
permanently
or
seasonally flooded by
water and coastal
zones.

The goal of regulations are to ensure that

decisions on proposed projects and
activities are environmentally sustainable.
It guides policy makers, planners,
stakeholders and government agencies to
make environmentally and economically
sustainable decisions.
The objective of the regulations is to
prohibit discharge of effluent into the
environment contrary to the established
standards. The regulations further provides
guidelines and standards for the discharge
of poisons, toxins, noxious, radioactive
waste or other pollutants into the
environment in line with the Third
Schedule of the regulations.

National
Environment Link
Management Authority

National
Environment Link
Management Authority

The main purpose is to provide for the National

Environment Link
conservation and sustainable use of Management Authority
wetlands and their resources in Kenya.
Environmental Impact Assessment and
Environmental Audit as required under the
EMCA shall be mandatory for all activities
likely to have adverse impact on the
management of wetlands.

The
Environment
al
Management
And
CoOrdination
(Conservatio
n
Of
Biological
Diversity
And
Resources,
And Access
To Genetic
Resources
And Benefits
Sharing)
Regulations,
2006.

The regulations were

developed to protect
biological
diversity
and resources.

These Regulations apply to access to National

Environment Link
genetic resources or parts of genetic Management Authority
resources, whether naturally occurring or
naturalized, including genetic resources
bred for or intended for commercial
purposes within Kenya or for export,
whether in in-situ conditions or ex-situ
conditions.

The
Environment
Management
And
CoOrdination
(Air Quality)
Regulations.

The objective of the

Regulations
is
to
provide for prevention,
control and abatement
of air pollution to
ensure
clean
and
healthy ambient air.

It provides for the establishment of National

Environment Link
emission standards for various sources Management Authority
such as mobile sources (e.g. motor
vehicles) and stationary sources (e.g.
industries)
as
outlined
in
the
Environmental
Management
and
Coordination Act, 1999. It also covers any
other air pollution source as may be
determined by the Minister in consultation
with the Authority. Emission limits for

various areas and facilities have been set.

IN EXERCISE
of the powers conferred by Sections 92
and 147 of the
Environmental Management and Coordination Act No. 8, of 1999, the
Minister for Environment and Natural
Resources, on the recommendation
of
the
National
Environment
Management Authority and upon
consultation with the relevant lead
agencies makes the
Regulations
The EIA guidelines and administrative
procedures have been developed to assist
in the integration of environmental
concerns in economic development to
foster sustainable development in Kenya

Waste
Management
Regulations,
2006

The objective of the

Regulations
is
to
provide for prevention,
control and abatement
of waste to ensure
clean and healthy
environment

Environment
Impact
Assessment
Guidelines
And
Administrati
ve
Procedures

The EIA guidelines

and
administrative
procedures have been
developed to assist in
the integration of
environmental
concerns in economic
development to foster
sustainable
development in Kenya
SUBJECT
PURPOSE/ OVERVIEW

PROPOSE
D
POLICIES

National
Environment Link
Management Authority

National
Environment Link
Management Authority

MAKER
OF
THE LINKS
TO
REGULATION/ENFORCING
PROPOSED
BODY
POLICIES &
REGULATIO
NS
Mining (Use Use, disposal and The proposed guidelines act as a guide for Ministry of Mining
link
Of
dealings in assets the dealings in the use and disposal of
Assets)
owned by license assets by operators

Regulations,
2016

holders.

Award
Mineral
Rights
Tender

Of They propose the best

way of awarding
By mineral rights, other
than the principle of
first come first serve
basis
Community
They propose the role
Development of mining companies
Agreement
in better defining their
Regulations, relationships
and
2016
obligations
with
impacted
communities.

The proposed guidelines act as a guide Ministry of mining

Award Of Mineral Rights

link

The proposed guidelines aimed at Ministry of mining

managing the expectations of a broad
range of stakeholders including, for
example, the mining company, the
impacted
communities,
local
and
national
government,
and
non-governmental
organizations.

link

Dealings In
Minerals
Regulations,
2016

They propose t is to provide for the scope

(application of these
Ministry of mining
regulations), procedures to be followed by
a person who requires a licence or permit
to
deal in a mineral, the qualifications, the
various forms that are required to
accompany
an application, the terms and conditions,
renewal, revocation and the reporting
requirements by the holder of the license or
permit as the case may be.

This regulation is to
give effect to section
223(1) of the Mining
Act in so far as it
relates
to
dealings
in
minerals.

link

Mining
(Employmen
t
And
Training)
Regulations,
2016

Employment
and The proposed policies propose for best The ministry of mining
training of locals
practice in the employment and training of
locals

link

Guidelines
For
Work
Programs
And
Exploration
Reports 2016

This manual intends

to provides guidance
to applicants for, and
holders
of,
reconnaissance and
prospecting licenses
on how to prepare
compliant
work
programs
and
exploration reports

Ministry of mining

link

Memorandu
m
On
Mining (Use
Of
Good
And
Services)
Regulations,
2016

The regulations are

primarily to address
the local content gap
and also to give effect
to section 50 of the
Mining Act.

The draft regulations cover four key areas. Ministry of mining

In the first place,
the regulations provide for the
purpose of the regulations and the types of
licenses or mineral related activities that
come under the remit of the regulations.
Secondly, the regulations make it
mandatory for every license to provide a
procurement
plan. Thirdly, the regulations impose an
obligation on the Ministry to develop a

link

register of local
suppliers and services from which holders
of licences shall access for the contracting
of
goods and services. Finally, holders are
required to submit quarterly and annual
reports on the procurement of goods and
services to the Director of Mines.

Regulation
Xii:
Mine
Support
Services
Regulations,
2016

Provides for support The mine support services industry is Ministry of mining
services to mining engaged mainly in providing services
services
integral to the mining
industry value chain. The industry provides
a range of specialist mining services which
are often not viable for mining companies
to develop independently or to provide in
house.

link

Mining
(State
Participation
)
Regulations,
2016

Essentially,
the
regulations
are to
give effect to
section 48(4) of the
Mining Act, 2016
.
Unlike the National
Mining Corporation
(established pursu

link

the regulations
Ministry of mining
are to cover the following:
a. the various options or forms of state
participation available to the State within
the context of section 48 of the Mining
Act, 2016;
b. the vehicle through which the State may
engage in mineral activities or
operations in a mineral right held by a
holder other than the state; and

ant to section 22(1) of c. the consent or prior approval of the

the
Cabinet Secretary as a requirement before
Mining Act, 2016
any state participation is undertaken.
) which may go ahead
with investments on
its own (with or
without private sector
investment),
these
particular regulations
are basically to deal
with how the state can
participate
in
prospecting or mining
operations
being
undertaken by a holder
of a mineral right.
National
Mining
Corporation
Regulations,
2016

Provides
for Provides
for
establishment
and Ministry of mining
establishment
and management of the National Mining
management of the Corporation
National
Mining
Corporation

link

Strategic
Minerals
Regulations,
2016

The purpose of the

Strategic
Minerals
Regulations is to
provide clarity on the
process through which
strategic minerals are
identified, declared as
strategic
and

link

The draft regulations on strategic minerals Ministry of mining

cover the following key areas:
(a)Providing for the purpose and objectives
of the
regulations;
(b)The application of the regulations:
(c)Providing a process through which
minerals or mineral deposits may be

regulated.

declared strategic,
(d)Clarifying
the roles in the review, approval and
regulation of strategic minerals;
(e)Setting out the role of the National
Mining Corporation;
(f)Providing initial guidance on the
licensing and exploitation of strategic
minerals;
(g)Providing the Cabinet Secretary with
the power to make and publish
guidelines to cover the exploration for and
reporting of exploration results, mining,
storage, processing and beneficiation,
among others

The Mining Provide for licensing Provide for licensing of mining operations
Act
of mining operations
Mining
(Licensing
And
Permitting)
Regulations,
2016
Regulation
Xiv: Mineral
Royalty
2016

Ministry of mining

link

The
purpose
of The purpose of mineral royalties is to Ministry of mining
mineral royalties is to provide
provide
monetary
monetary
compensation to the people of Kenya, as
compensation to the
owner of the minerals
people of Kenya, as until they are won, for the loss of

link

owner of the minerals Kenyas nonrenewable asset.

until they are won, for
the loss of Kenyas
Nonrenewable asset.
Reporting Of
Mining And
Mineral
Related
Activities
2016

Makes it mandatory to Makes it mandatory to report mining and Ministry of mining

report mining and mineral related activities
mineral
related
activities

COUNTY
COUNTY
LEGISTAL
ATION/BIL
LS
The
Taita Taita taveta
Taveta
County
Mining Bill,
2016

SUBJECT

The Turkana
County
Public
Participation
Bill,2014

Mining, oil and gas

Turkana
County

mining

link

OVERVIEW & APPLICATION LINKS

TO
COUNTY
LEGISTALA
TION/BILLS
A Bill for the County Assembly Link
or Taita Taveta aimed at
providing a legal framework for
the regulation, promotion and
protection of mining and
mining related activities, in
Taita Taveta County
A bill of the Turkana
link
County Assembly to provide
For public engagement and
matters of public interest in
relation to policy formulation
processes, legislative processes
in the
Turkana County and to provide

CONVENT
IONS/TRE
ATIES

SUBJECT

DATE & PLACE OF ADOPTION

Convention
International
Labor June 20th 1938, Switzerland
Concerning
Organization (Labor)
Statistics Of
Wages And
Hours
Of
Work, 1938
Safety And
Health
In
Mines
Convention,
1995
Treaty
between
Kenya and

International
Labor June 22nd 1995, Geneva Switzerland
Organization (Labor)

Memorandum
of Nairobi, on the 23rd June 2016
understanding on the
construction of an Oil

for mechanisms by which the

public may
Participate in the affairs of the
County; openness,
transparency, and accountability
on the part of the County, its
County Assembly, County
Executive and County Public
Service by providing
for citizens to exercise their
constitutional and legislative
right to public participation.
OVERVIEW
& LINKS TO
APPLICATION
CONVENTI
ONS/TREAT
IES
The treaty serves to supplement link
the laws addressing the laborers
in the extractives industry. The
treaty regulates the wages,
hours and working conditions
of laborers in the mining
industry.
The treaty spells out preventive link
measures and protection to be
afforded to persons, particularly
miners at the mines.
The two countries will construct Not
Yet
a crude oil pipeline that will run Available
from the Ethiopian capital

Ethiopia (not and gas pipeline

yet
signed
into force)

Addis Ababa to the Kenyan

coastal town of Lamu.
The pipeline is part of the Lamu
Port-Southern Sudan-Ethiopia
Transport Corridor project,
which runs through the two
countries and aims to transform
infrastructure of the two
countries.

Bilateral
Treaty
between
South Sudan
and Kenya
(not yet in
force)

Memorandum
of May 2002
understanding on the
construction of the
Juba-Lamu
oil
pipeline

The two countries will construct Not

Yet
a crude oil pipeline that will run Available
from Soth Sudan to the Kenyan
coastal town of Lamu.
The pipeline is part of the Lamu
Port-Southern Sudan-Ethiopia
Transport Corridor project,
which runs through the two
countries and aims to transform
infrastructure of the two
countries.

Bilateral
Treaty
between
Kenya and
the Islamic
Republic
Iran (not yet
in force)
Bilateral

Memorandum
of Signed in Nairobi on the 24/02/2009
understanding on the
import of oil and gas
among other things to
Kenya

The two countries seek to Not

Yet
cooperate in the development of Available
oil and gas infrastructure and
import of the same to Kenya.

Memorandum

The two countries seek to Not

of Signed in Nairobi on the 12/11/2013

Yet

Treaty
between
Kenya and
Kuwait (not
yet in force)
The
Convention
of
the
Protection,
Management
and
Developmen
t
of
the
Marine and
Coastal
Environment
of
the
Eastern
African
Region
or
Nairobi
Convention
of 1985
The Bamako
Convention
(in
full:
Bamako
Convention
on the ban
on
the
Import into

understanding on the
import of oil and gas
among other things to
Kenya

cooperate in the development of Available

oil and gas infrastructure and
import of the same to Kenya.

marine environmental Signed in Nairobi in 1985

management

The
Convention
of
the Link
Protection, Management and
Development of the Marine and
Coastal Environment of the
Eastern African Region or
Nairobi Convention of 1985 is a
regional framework agreement
for
marine
environmental
management.

Management
Hazardous Wastes

The Bamako Convention (in Link

full: Bamako Convention on the
ban on the Import into Africa
and the Control of Trans
boundary
Movement
and
Management of Hazardous
Wastes within Africa) is a treaty
of African nations prohibiting

of 30 January 1991

Africa and
the Control
of
trans
boundary
Movement
and
Management
of Hazardous
Wastes
within
Africa)
The
Bio diversity
Convention
on
Biological
Diversity
(CBD)

the import of any hazardous

(including radioactive) waste.
The Convention was negotiated
by twelve nations of the
Organization of African Unity
at Bamako, Mali in January,
1991, and came into force in
1998.

Signed on the 5 June 1992, effective on the The Convention on Biological Link
29 December 1993
Diversity
(CBD),
known
informally as the Biodiversity
Convention, is a multilateral
treaty. The Convention has
three main goals:

The
Prevention of Marine 13 November 1972
Convention
Pollution
on
the
Prevention
of
Marine
Pollution by

conservation of biological
diversity (or biodiversity);
sustainable use of its
components; and
fair and equitable sharing of
benefits arising from genetic
resources
The Convention on the link
Prevention of Marine Pollution
by Dumping of Wastes and
Other Matter 1972, commonly
called
the
"London
Convention" or "LC '72" and

Dumping of
Wastes and
Other Matter
1972,
commonly
called
the
"London
Convention"
or "LC '72"
Kyoto
Protocol

Reduction
greenhouse gasses

The
Ozone Layer
Montreal
Protocol on
Substances

also abbreviated as Marine

Dumping, is an agreement to
control pollution of the sea by
dumping and to encourage
regional
agreements
supplementary
to
the
Convention. It covers the
deliberate disposal at sea of
wastes or other matter from
vessels, aircraft, and platforms.
of 11 December 1997
It is an international treaty link
which extends the 1992 United
Nations Framework Convention
on Climate Change (UNFCCC)
that commits State Parties to
reduce
greenhouse
gas
emissions, based on the premise
that (a) global warming exists
and (b) human-made CO2
emissions have caused it. The
Kyoto Protocol was adopted in
Kyoto, Japan, on 11 December
1997 and entered into force on
16 February 2005. There are
currently 192 parties (Canada
withdrew effective December
2012)[4] to the Protocol.
Agreed on 26 August 1987, and entered The Montreal Protocol on Link
into force on 26 August 1989
Substances that Deplete the
Ozone Layer (a protocol to the
Vienna Convention for the

that Deplete
the
Ozone
Layer

The
Paris Greenhouse gases
Agreement

Vienna
Convention
for
the
Protection of
the
Ozone
Layer

The
Vienna
Convention for the
Protection
of
the
Ozone Layer is a
Multilateral
Environmental
Agreement. It was
agreed upon at the
Vienna Conference of
1985 and entered into
force in 1988. It acts
as a framework for the
international efforts to
protect the ozone
layer. However, it does
not include legally

Protection of the Ozone Layer)

is an international treaty
designed to protect the ozone
layer by phasing out the
production
of
numerous
substances that are responsible
for ozone depletion.
Agreed on the 5 October 2016, entered into It is an agreement within the link
force on the
United Nations Framework
Convention on Climate Change
(UNFCCC)
dealing
with
greenhouse gases emissions
mitigation, adaptation and
finance starting in the year
2020.
It was agreed upon at the Vienna The treaty, serves as a guide link
Conference of 1985 and entered into force and
a
commitment
by
in 1988.
signatories on reduction of
emissions. The extractives
industry is a major

Basel
Convention
on
the
Control of
Trans
boundary
Movements
of Hazardous
Wastes and
Their
Disposal

CASE LAW

binding
reduction
goals for the use of
CFCs,
the
main
chemical
agents
causing
ozone
depletion. These are
laid out in the
accompanying
Montreal Protocol.
Designed to reduce the Opened for signature on 31 April 1989, and
movements
of entered into force on 5 May 1992.
hazardous
waste
between nations, and
specifically to prevent
transfer of hazardous
waste from developed
to less developed
countries (LDCs).

STATUS

Peter Makau Decided

Musyoka &

It is an international treaty link

designed
to
reduce
the
movements of hazardous waste
between nations, and prevent
transfer of hazardous waste
from
developed
to
less
developed countries (LDCs).
The Convention is also intended
to minimize the amount and
toxicity of wastes generated, to
ensure their environmentally
sound management as closely
as possible to the source of
generation, and to assist LDCs
in
environmentally
sound
management of the hazardous
and other wastes they generate.
LINK
TO
SUBJECT
DECISION
DECIDED
CASES
Public participation, coal exploration at the The court found that the public link
Mui Basin in Kitui County
participation program designed

19
others
(Mui
Coal
Basin Local
Community)
vs
Permanent
Secretary
Ministry of
Energy & 14
others [2014]
eKLR
Cortec Mining Decided
Kenya Limited
v
Cabinet
Secretary
Ministry
of
Mining & 9
others
Environment
and Land Case
195 of 2014

Pasred
Youth Decided
Group/Forum &
other petitioners
as named in the
schedule
annexed
v

for the Coal Mining Project met

the threshold for purposes of
public participation subject to
continuing engagement with the
public. It also noted the
difficulty is assessing whether
there was adequate public
participation.

Public Interest, Judicial review, on the The Court held that the Minister link
issuance of mining licenses.
was right and was entitled to act
in the manner he did in public
interest once he was satisfied
the Commissioner of Mines had
in issuing the licence to the
Applicant acted in violation of
the law. This was because under
section 4 of the Mining Act
minerals are vested in the
Government and as such should
be dealt with as a national
resource for the benefit of all.
The right to participate in cultural life The Court held that the link
under Article 44 of the Constitution, right Petitioners had established that
to information held by the State under they had a lawful interest in the
Article 35 of the Constitution and issues land in question.
relating to rights of persons living in Their claims of environmental
Community Land as defined in Article 63 degradation were arguable as

Attorney
General & 5
others [2015]
eKLR

of the Constitution

Solomon
Decided
Mulwa
Mulyunga & 8
Others V Athi
River Mining &
9
others
[2012] eKLR
Petition 168B
of 2011

land rights, environmental rights

they had not been supported by

sufficient evidence and since
NEMA had given all the
necessary licenses to Camac
Energy (K) Limited no red flag
had been raised.
The Court also found that there
was doubt as to the authenticity
of the claim that the land in
question is used for religious
and cultural ceremonies. This
is because the nature of the
ceremonies had not been stated
and the bare statement to that
effect was not sufficient.
Public
participation
had
osccured.
The Court held that whether or link
not that land had title was a
totally
different
story. A
member of a community could
claim an interest in land either
as part of a group or
individually, because the rights
protected in the Constitution
was for groups and for
individuals.

Maritime
Final Submissions Maritime, boarder, offshore oil and gas The
Court
retreated
to link
Delimitation in filled
on
a exploration
deliberate on the issue. Pending

the
Indian preliminary
Ocean
objection filed by
(Somalia
v. Kenya, challenging
Kenya)
the Jurisdiction of
the court.
REGIONAL
JURISDICTION
SUBJECT
CASE LAW
Tanzania One Tanzania
Labor
Mining Ltd. Vs.
Andre Venter

final determination of
Preliminary Objection

the

STATUS AND DECISION

LINK

Case decided. It was a ruling link

pursuant to an application for
revision of an arbitration award.
The case was dismissed as it
was filed out of time.
Case decided. On 30 July 2013 a link

African Barrick United Kingdom

Gold lawsuit (re
Tanzania)

Human Rights

Anglo
South Africa
Operations Ltd
V
Sandhurst
Estates
(Pty)
Ltd (2006) 1
ALl Sa 230 (T)

Relationship between mineral rights holder Case decided. This

is a link
and the surface owner. Land Rights
decision that mainly deals
with the
Relationship
between
the
mineral rights holder and the
surface owner as regards the

group of 12 Tanzanians filed a

lawsuit in UK High Court against
African Barrick Gold and North
Mara
Gold
Mine
Limited
(NMGML). The plaintiffs claim
that the companies are complicit in
the killings and injuries of
villagers by police at the North
Mara Mine in Tanzania. African
Barrick Gold then initiated an out
of court settlement which was
accepted but terms remain
undisclosed.

Bareki &
South Africa
Anor V Gencor
Ltd
& Others 2006
(1) Sa 4
32 (T)

Environmental rights.

concept of lateral support. The

concept of lateral support is a
very broad one that includes
adjacent (implicating land uses
that
affect
neighboring
properties)
and
subjacent
support
(Implicating land uses that
affect the surface).
This case is notorious in link
environmental circles for being
the judgment that failed to
confirm
the
retrospective
application of s 28 of the
National
Environmental
Management Act 107 of 1998
(NEMA). The basis for the
courts finding was the common
law presumption against
retrospectivity, linked to the
nature of the obligations set out
in s 28. The court found that the
obligation to take reasonable
corrective measures in relation
to pollution were strict (i.e.
fault in the form of negligence
or intention was not a
requirement
to
establish
liability) and possibly even
absolute (lawfulness was not a
requirement).

Ca
Visser South Africa
Delwerye
(Edms) Bpk V
Du Plooy And
Others; In Re
Du Plooy And
Another
V
Minister
Of
Minerals
&
Energy
&
Others [2006] 2
All Sa 614 (Nc)

Right to Information

This case is significant for link

clarifying the obligation of the
Department
of
Mineral
Resources (then the Department
of Minerals and Energy) to
provide information to parties
that would prevent them from
needing to resort to court
proceedings.

City Of Cape South Africa

Town
V
Maccsand (Pty)
Ltd And Others
2010 (6) Sa 63
(Wcc)

Dispute resolution and

This is a very significant, recent link

case which essentially affirms
that mining is not exclusively
regulated by the national sphere
of government, but that all three
spheres may exercise their
Constitutionally
-mandated
concurrent powers in relation to
this activity.

De
Beers South Africa
Consolidated
Mines Ltd V
Ataqua Mines
(Pty)
Ltd
[2007] Zafshc
74
(13

Mining rights, Land Access

The applicant sought access to link

land
containing
diamond
reserves claimed by the
respondents.

December
2007)
Director:
South Africa
Mineral
Development,
Gauteng Region
& Another V
Save The Vaal
Environment
(Pty)
Ltd
[1996] 1 All Sa
2004 (T)

Es
Carpment South Africa
Environment
Al Protection
Group
&
Wonderfontein
Environmental
Commit
Tee V
Department Of
Water
Affairs &
Exarro Coal
(Pty)
Ltd,
2011(Unreporte
d,
Wt
03/08/2010)

Environmental rights

This was one of the first link

pleasing cases grounding the
new
Environmental jurisprudence in
post-apartheid South Africa.
The case is now probably most
useful for its obiter remark that
directly associates the principle
of sustainable development
with the issuing of a mining
license.

Right to sue on issues Human Rights and The comments set out in the link
Environmental rights violations (Locus case of Gideon Anderson t/a
Standi)
Zonnebloem
Boerdery
v
Department of Water and
Environmental
Affairs
&
another 2006 (Unreported, WT
24/02/2010)
regarding
the
approach of the Water Tribunal
to the issue of locus standi
apply
similarly to this case

Joubert
& South Africa
Others V
Maranda
Mining Co (P
Ty) Ltd 2010
(1) Sa 198 (Sca)

Public participation and mineral rights

This case provides guidance on link

when a mining rights holder
acquires a right of access to the
land upon which the relevant
minerals are located. It is clear
that this right only solidifies
once there has been compliance
with all the provisions relating
to public participation (which
includes consultation with
I&APs in the lead-up to the
granting of the right and after a
mining authorization is granted
but
before
operations
commence).

London
And South Africa
S.A Exploration
Co. V Rouliot
(1890 91) 8 Sc
74

Land rights on adjacent land

Silicosis Case

Health and safety

This case is significant for link

affirming a right to lateral
support between adjacent pieces
of land. The import of the
precedent is that ownership
of land includes a natural right
to lateral support of ones land
from adjoining pieces of
property.
South Africa gave the green Link
light on Friday for class action
suits seeking damages from
gold companies for up to half a
million miners who contracted
the fatal lung diseases silicosis

South Africa

and tuberculosis underground.

The High Court decision sets
the stage for protracted
proceedings in the largest class
action suits in Africas most
industrialized country. Analysts
have said the suits could cost
the gold industry hundreds of
millions of dollars.
Judge Phineas Mojapelo said
workers who had died of the
diseases could be included in
the suits, with any damages
paid to family members, and
that each mining company
should be held liable separately
for any damages
Shell
lawsuit International Court Oil spillage, land rights, environment, The plaintiffs filed three Link
(re oil pollution of Justice
jurisdiction
separate lawsuits, each one
in Nigeria)
addressing the impact of oil
spillages in the three villages
Oruma, Goi and Ikot Ada Udo.
The Oruma lawsuit claims that
oil spillages occurred on 26
June 2005 and that Shell
Petroleum
Development
Company of Nigeria (Shell
Nigeria) (Shells Nigerian
operating company) only closed

Shell
lawsuit London High Court
(re oil spills &
Bodo
community in
Nigeria)

Oil spillage, land rights, environment

the hole in the pipeline on 29

June 2005. Allegedly, the oil
flowed into plaintiffs farmland
and fishponds, polluting it and
making it unfit for use. The
plaintiffs further claim that the
clean-up started in November
2005 and that neither the
environment near Oruma nor
their oil-polluted property has
been adequately cleaned by
Shell Nigeria.
Members
of
the
Bodo Link
community in Nigeria filed a
lawsuit against Shell in London
High Court on 23 March 2012,
seeking compensation for two
oil spills, which occurred in
2008 and 2009 in the Niger
Delta. The 15,000 plaintiffs ask
for compensation for losses
suffered to their health,
livelihoods and land, and they
ask for clean-up of the oil
pollution. They allege that the
relevant pipelines caused spills
because they were over 50
years
old
and
poorly
maintained, and that Shell
reacted too slowly after being
alerted to the spills.

American
Mining
Congress
v.
Mine Safety &
Health
Administration
995 F.2d 1106
(1993)

United States Court Health and safety

of Appeals for the
District
of
Columbia Circuit

The Court was called upon to Link

determine whether the PPL on
the issue of x-rays was an
interpretive rule, in which case
it would be valid, or a
legislative rule, in which case it
would be invalid (for not being
enacted in accordance with the
Administrative Procedure Act).
The Court used a four-part test
to determine whether the rule
was legislative (an affirmative
answer to any one means the
rule is legislative):
1. Whether in the absence
of the rule there would
not be an adequate
legislative basis for
enforcement action or
other agency action to
confer benefits or ensure
the performance of
duties;
2. Whether the agency has
published the rule in the
code
of
federal
regulations;
3. Whether the agency has
explicitly invoked its
general
legislative
authority;

4. Whether
the
rule
effectively amends a
prior legislative rule.
Subsequent caselaw has
minimized
the
importance
of
the
second factor.
American
United States
Mining
America
Congress
v.
EPA Citation:
20 ELR 21415

American
U.S.
Court
Mining
Appeals for
Congress,
Tenth Circuit
Petitioner,
v.
Ray
F.
Marshall,
Secretary
of
Labor, U. S.
Department Of
labor;
and
United States
Department of
Labor;
and

of Jurisdiction,
environment

Health,

safety

of Jurisdiction, Mine Health and Safety

the

and The court holds that although Link

the Environmental Protection
Agency's (EPA's) decision to
relist six wastes generated from
metal smelting operations as
hazardous was within its
authority under the Resource
Conservation and Recovery Act
(RCRA),
EPA
did
not
adequately explain its decision
American Mining Congress, Link
challenged the promulgation of
rules by the Secretary of Labor
under the Federal Mine Safety
and Health Act (MSHA), 30
U.S.C. 801-960 (1976 &
Supp. III 1979), on both
substantive and procedural
grounds.
It was held that the Secretary's
Strategy for Implementation is
not a substantive rule to which
the APA's notice and comment

Robert
B.lagather,
Assistant
Secretary
for
Mine
Safety
and
Health,
U.S.
Department of
Labor;
and
Mine
Safety
and
Health
administration,
U.
S.
Department of
Labor,
Respondents,
671 F.2d 1251
(10th Cir. 1982)

provisions apply. It was further

held that the Secretary complied
with
all
the
necessary
procedural requirements in
promulgating the area sampling
regulations. Finally, we hold
that
the
area
sampling
regulations are not arbitrary and
capricious.
We
therefore
dismiss the petition for review.

United States v. Supreme Court of Jurisdiction, compulsory acquisition of Held that the action of the Link
North American the United States of land
general in taking possession of
Co.
America
the land was tortious, and no
253 U.S. 330
liability on the part of the
(1920)
government was created until
the action was approved by the
Page 253 U. S. 331
Secretary of War, and since this
approval occurred within six
years
before
the
commencement of this suit, the
suit was not barred by 156 of

the Judicial Code.

Choc
v. Canada
HudBay
Minerals Inc.
&
Caal
v.
HudBay
Minerals Inc.

Human rights, duty of care

Anderson
v. Canada
Amoco Canada
Oil and Gas

Property rights, subsurface rights

Lawsuits against Canadian Link

company HudBay Minerals Inc.
over human rights abuse in
Guatemala. Members of the
indigenous Mayan Qeqchi
population from El Estor,
Guatemala were pursuing three
related
precedent-setting
lawsuits in Canadian courts
against
Canadian
mining
company HudBay Minerals
over human rights abuses at
HudBays former Fenix mining
project in Guatemala. The
women alleged that the
companies were complicit in
the gang rapes suffered by the
women at the hands of security
personnel
hired
by
the
defendant companies.
The
women claim that the gang
rapes occurred in January 2007
during forced evictions of
members of the Mayan
Qeqchi community living in
El Estor.
In determining the respective Link
subsurface rights of
petroleum owners and non-

petroleum owners under

the Split Title Lands, the
Alberta Court of Queens Bench
held that the non-petroleum
owners were entitled to:
(1) primary gas cap gas; (2)
primary gas cap gas which
migrates from adjoining lands;
and (3) condensate and natural
gas liquids that derive from
primary gas cap gas.
The court further held that the
petroleum owners were
entitled to: (1) secondary gas
cap gas; (2) secondary gas
cap gas which migrates from
adjoining lands; (3) solution
gas that emerges from connate
water; and (4) condensate
and natural gas liquids that
derive from secondary gas cap
gas.