ADVOCATES FOR NATURAL RESOURCES AND DEVELOPMENT VS ATTORNEY GENERAL

ANARDE, an organisation dealing in natural resources conservation, extractive industry accountability and land rights filed a constitutional petition with the Constitutional Court challenging provisions of the Mining Act, 2003 as well as the Petroleum (exploration, Development and Production Act, 2013.

The non for profit institution filed the suit in public interest challenging the constitutionality of Section 82(2) and (3) of the Mining Act, 2003 for providing for arbitration as the only mechanism to resolve disputes arising from queries regarding compensation for surface rights. Worse still, the arbitration process must be commenced within an unreasonable period of one year lest it is unenforceable.

The Petroleum (Exploration, Development and Production Act, 2013 has similar provisions under Section 139 (2) and (3) requiring settling of disputes arising from compensation for surface rights strictly through the Chief Government Valuer. Failure to bring such a matter for arbitration within four years makes it unenforceable.

The rationale is that mineral rich as well as oil rich communities are affected by such provisions that do not equally apply to other land owners. The provisions undermine the right to property of such land owners or occupiers for they do not get the fair hearing before impartial tribunals on matters regarding inadequate compensation or non-compensation.

This is particularly important given the influx of many mining companies in regions such as Karamoja, Mubende, Buhweju among others and of course in the oil rich communities in the Albertine Graben.

There is need to ensure that land and surface rights of communities are secured through reasonable, fair and accessible dispute resolution mechanisms which the law seems to neglect.

While the Mining Act was enacted almost 17 years ago, the Petroleum (EDP) Act was enacted in 2013 but still harbours such provisions which, in ANARDE’s view, contravene and are inconsistent with the spirit of the 1995 Constitution and need to be addressed by the Constitutional Court. The trend exhibited by the laws seems to be worrisome given that the review process of the former has lingered for a good many years and yet the current drafts do not address the issues raised before Court.

The Petition additionally seeks to address matters relating to Royalty payments that have rocked the mining industry for quite some time. It challenges Section 83 of the Mining Act, 2003 which provides that one must opt either for compensation for surface rights or for payment of royalty arising out of mining operations of companies.

Whereas both relate to land subject to mineral rights, ANARDE insists that the two are distinct and exclusive. In that regard, Court needs to interpret the same for the benefit of central government, local government and land owners or occupiers who are all beneficiaries in the value chain. This is all in a bid to secure the right to property of the land owners or lawful occupiers.