Is a rock found in your land a mineral and therefore vested in the State?
A family in Oyam District has sued the Government of Uganda and Sino Hydro Corporation Ltd for unlawfully crushing ‘its’ rock into aggregate and using it to construct Karuma hydro-electric power dam without compensation, Oil in Uganda exclusively reveals.
In the suit Etot Paul and others Vs Attorney General and Sino Hydro Corporation Ltd, filed in 2015 in the Land Division of the High Court, the family of Mzee Etot wants court to compel Government and Sino Hydro Corporation Ltd – a Chinese company constructing the 600 megawatts Karuma dam, to pay for aggregate derived from the family rock.
According to the family, it all started in 2012, when the Ministry of Energy and Mineral Development decided to compulsorily acquire land near and around Karuma to pave way for the construction of the dam.
“Part of Mzee Etot’s land was among parcels that government acquired for construction of the dam. However, government only assessed the value of the land and development on it without taking into consideration the value of the rock on the land,” family spokesperson told Oil in Uganda.
The family claims that since it owns the land, it also owns the rock on the land, and therefore deserves compensation for the value of the rock.
“Consequently, government unlawfully took over the family’s parcels of land adjacent to river Nile, and handed it to Sino Hydro Corporation Ltd for the construction of the dam,” the plaint reads, further noting that part of the land which also contains a rock is also their property.
Through their lawyer, George Omunyokol, the family claims Sino Hydro Corporation brought a rock crusher and crushed the rock into aggregate that it is using to construct Karuma hydro-electric power dam free of charge.
Omunyokol argues that stones and rocks are not minerals and therefore government should compensate the family for unlawful use of its rock.
“The stone/rock in our clients land is not a mineral because the Constitution excludes it from minerals,” he states in the plaint.
Omunyokol’s argument is premised on Article 244(1) of the Constitution of Uganda that vests the entire property in and control of all minerals and petroleum in government on behalf of the Citizens.
Article 244 (5) of the Constitution excludes clay, murram, sand or any stone commonly used for building or similar purposes. “So, clearly, the Constitution is clear, it excludes stones from minerals,” Omunyokol told Oil in Uganda.
Consequently, the family hired professional geologists to quantify the value of the rock and according to the technical evaluation report seen by Oil in Uganda, puts the value of the rock at $ 6.5million (approximately Shs 22 billion).
According to the geologists, the rock has capacity to produce about 650,000 tons of aggregates. Therefore, at a market value of $10 (about Shs 33,000/=) per ton, the rock is worth $ 6.5 million (about Shs 22bn). Therefore, in the suit, the family wants court to order government to pay $ 6.5 million in compensation.
In addition, the Chief Government Valuer conducted valuation of the entire family property which includes; the value of crops, buildings and land to worth 813million Uganda shillings. These monies have not been paid to date.
Oil in Uganda has established that government withheld payment of the compensation, due to the standoff over the rock.
The family seeks a declaration that the actions of Sino Hydro Corporation quarrying the family’s rock, crushing it into aggregates and using the aggregates for the construction without compensation is unlawful and unconstitutional and seek compensation for the value of the crushed rock at the market rate.
However, the Attorney General, in a Written Statement of Defense to the suit, insists that a rock is a mineral and therefore vested in government and the family is not entitled to any compensation so court should dismiss the suit with costs.
“In respect of the claim for compensation for the rocks found on the suits, the plaintiffs [family] are not entitled to compensation in view of the provisions of the Constitution read together with various provisions of the Mining Act 2003,” the AG argues in the defense.
According to Andrew Karamagi, the legal argument by George Omunyokol is sound since rock is part of land and is not a mineral, hence its value should be factored into the computation for the final value of the said piece of land.
“There is a Latin maxim about land which argues to the effect that cujus est solum ejus usque ad coelum (translated to mean- he who owns the land owns everything above and below it). In mutatis mutandis with the Constitution of Uganda which precludes minerals, it is clear that this rock is on the land and is therefore part of the impugned land,” he told Oil in Uganda.
Last year, Uganda National Roads Authority (UNRA), was embroiled in wrangle with businessman Pius Mugalaasi, over the value of a rock on the Entebbe- Express highway on his land. The Roads Authority was eventually forced to divert the road.
The value of rocks found on land is becoming an issue given the demand of aggregate for various on-going projects. If for instance the court rules that a rock is not a mineral, and therefore a property of the land owner, even when exploited for commercial purposes, will set a precedent that could raise the value of rocky lands.
Report by Edward Ssekika.
In this part two of our artisanal miners’ series, we delve in the lack of a clear tax framework to generate revenues for local governments from artisan mining activities. We analyze the potential amount of money local governments could generate, but are currently losing from Gold mining operations.
The Mining Score Card recently launched by ActionAid Uganda in partnership with Africa Centre for Mining Policy (ACEMP) and National Planning Authority (NPA) revealed that there is a weak reporting practice in the mining sector.
It also revealed that even though the mining sector has a great potential of contributing to economic growth and poverty alleviation in the country; less has been done to harness this.
The office of the Auditor General last year revealed in his Value-for-Money Audit report 2016 that government had lost at least 4.4 billion shillings (approx.1.3 million dollars) in uncollected mineral royalties in the last five years.
Currently, the government has embarked on undertaking review processes to update the relevant mining legislations. A Draft Green Paper on Mineral Policy is before the cabinet for review and the review of the Mining Act 2003 is yet to commence.
One of the proposed amendments is the regularization of artisanal mining in Uganda to legally recognize them; integrate them in formal tax arrangements; enable them qualify for social goods, services and infrastructure and to increase revenues to local governments for proper managements. The consequences of under-regulation of artisan miners have wide ramifications and are far-reaching. It includes artisan miners not having access to social goods, services and infrastructure put in place by government; not being taxed appropriately; being prone to machinations by unscrupulous individuals in authorities; local governments not being able to realize their revenue collection targets; and being exposed to crime and conflicts.
The lack of clear sub-national taxation arrangements for artisan miners and utilization of revenue collected from artisan mining is denying local governments of much needed revenues. This is mainly not due to policy or legislative deficiencies, but more due to policy implementation and legislative enforcement. Busoga region is rich in mineral resources particularly Aluminous clays, yttrium, and rare metals such as gallium and Scandium estimated at $370 billion (about Shs942 trillion) by Kweri Investments, the company conducting Feasibility studies in the region. This wealth as mentioned in Part one; has attracted an influx of immigrants from all over the country and as far as Kenya who hope to tap into these resources.
According to Methuselah Batambuze, Community Development officer Buddaya sub-county, the population at Nabwala mining site before the influx was about 2000 and the indigenous people were into agriculture. He however noted that in 2015, with the discovery of gold in that area, the population increased to over 10,000 people.
Batambuze adds that when the miners were convinced that gold was ‘finished’, some left in search for new mining sites.
“What you are seeing now are trucks taking the tailings to other places where they are processed using cyanide for better results,” he told Oil in Uganda
Majidu Musisi, who took part in the first exploration and exploitation for gold in the area in the early 1990s, says he has been at it for now 10 years and has made on average 4 million shillings a week on bad days and over 20 million shillings on good days.
“I have invested in real estate and own more than 5 commercial buildings in Bugiri Municipality,” subdued Musisi reveals to Oil in Uganda.
‘I have also created employment for all these people you see in this mining site,’’ he added pointing to hundreds of youth digging for gold around the site.
A simple analysis of the money made by Musisi in one week; at a conservative estimate of UGX 4 million a week, he makes UGX 16 million a month and UGX 192 million a year. He then shares this money with the people he has employed which to our surprise do not even add-up to 50% of the money Musisi earns. A miner who works at the pit is paid a minimum wage of UGX. 25,000 a day. This money is not taxed because Musisi, like other artisanal miners, are still regarded as an illegal miner.
According to the Mining Act 2003, royalties are to be shared with mineral producing districts based on a basic revenue sharing schemes. The Second Schedule to the Mining Act stipulates that the central government is to take 80% of royalties collected and then distribute the remaining 20% as follows; 17% to “local governments” and 3% to “landowners or bona-fide occupants of land subject to mineral rights.”
This presupposes that central government would first collect the royalties before the local government can benefit from the contribution, implying that local governments do not have the right to tax/ collect the royalties. This is undermining revenue generation and social goods and services delivery at local government level. A failure on the part of central government to collect the royalties on time in the right amounts and distribute them accordingly to the beneficial local governments further worsens the revenue situation at local level. Consequently, local governments suffer financial deficiencies and stress.
The above cited revenue sharing scheme is common in mineral rich jurisdictions and therefore is a widely acceptable practice. However, whether it is the best practice for central government to first collect the royalties and then distribute them to the respective beneficiary district is not clear. We do appreciate that it is good practice to recognize the rights of landowners and bona-fide occupants of land where minerals are discovered and exploited. It is our opinion that local governments are given right to collect royalties and deduct what is due to them and remit that due to central government.
Our rough calculation indicates that if this money would, however, be taxed and royalties deducted, the district is to take 10 per cent of the revenues in royalties and it would generate about UGX. 19 million to its budget. This revenue contribution would be just from Musisi and assuming there are 100 other miners in Bugiri district making the same amount of money, it would be UGX. 1.9bn hence make significant contribution to the district budget.
According to the Bugiri district Budget Framework paper 2016/2017, the rest of the district’s UGX 21 billion shillings budget comes from government and donor programmes.
Interestingly, Musisi has never paid a single direct tax from the income derived from the sale of his gold to the ever available gold trading middlemen.
Just like in other mining areas Oil in Uganda has visited, the roads to the mining area where Musisi operates are impassable during the rainy season.
“If you are not round here and you want access my mining area, you cannot access it when you are not driving a four-wheeled car,” he warns.
Sadly, even the basic amenities like a pharmacy or clinic are not available for the miners who work there.
Some of these things would be solved through paying royalties as District revenues would increase.
According to Shafic Butanda, the Acting Community development Officer Bugiri District, in the more than 10 years small scale miners have been in Bugiri district, there has never been any contribution to the district budget from them ‘’Even right now we are going for a budget meeting but the briefing papers have mentioned the potential revenues that could be collected from gold mining’’ He adds.
Unfortunately, there has been no government plan to formalise Small scale mining in the country. And in Bugiri district there is no scheme to collect royalties since the law gives those powers to collect revenues to the government, which then shares with the district, the district officers say they were not even aware they could collect taxes from the small scale miners. Mr Shafic Butanda the Acting Community Development Officer says ‘’they will start looking into ways of raising money from the miners’
However, even in this, there appears to be an attempt to raise royalties from small-scale gold miners in the Neighbouring district of Namayingo, where according to the Banda Subcounty Chairperson Oguttu Bonaventure, they collect some ‘’little’ money from the miners at Nakuddi gold mining site. “What we collect is based on the same rates as the trading license for the shops in the sub-county which is still little money,’’ he says.
A Case study on revenue sharing schemes in the mining areas of Kabale and Moroto districts commissioned by Transparency International Uganda in 2015, found that while the districts complained of lack of information and erratic payment of their royalties share from government, even government itself doesn’t have enough information and depends on the disclosures of the miners to collect royalties, which in the case of small-scale miners is nonexistent.
This is because small scale miners are usually individuals who rent portions of land for mining from an individual, with an agreement to share what is found on the ground, this is what happens in Nabwala Bugiri district and Nakudi in Namayingo district. Taxing individuals has always been hard and there is an effort by various civil society organisations including ActionAid Uganda to help small-scale miners in Uganda form associations, help them acquire mining licenses and formalise their relationship with government.
This turn of events according to Mr Shafic Butanda, Community Development Officer of Bugiri district will prompt the district to look at creating a mining policy modelled on the National mining policy ‘’Maybe that way we can also help our people benefit from the minerals in the district,’’ he says.
We recommend that local governments are given right to collect royalties and deduct what is due to them and remit the rest to central government. This way local government will not starve of revenues.
Report by Collins Hinamundi Oil, Gas and Land reporter
High court Masindi has indefinitely postponed the hearing of the Rwamutonga case where more than 200 families were brutally evicted to pave way for the construction of oil waste treatment plant, Oil in Uganda has learnt.
Justice Albert Rugadya Atwoki, High Court resident judge Masindi was expected to give a ruling on an application on January 19, 2017but informed the court that he would make a ruling on notice.
According to Bashir Twesigye, Executive Director Civic Response on Environment and Development, the judge’s move to make his ruling on notice shows that the judge is not comfortable with the case hence the hesitation to make a decisive ruling.
“Hon. Justice Rugadya should not have any excuse ruling on the case because he has had six months to study the case,” he argued.
“The judge making a ruling on notice means that he will make a decision when he feels ready,” he explained to Oil in Uganda, adding that since the first ruling was done last year, this second ruling would give the evictees a mileage and has been pending for a year.
The families were evicted in August 2014 from the two pieces of land; one titled in the names of Robert Bansigaraho and another in Joshua Tibagwa. The affected families have since been living in Kakoopo Internally Displaced Persons camp (IDP) with no stable source of livelihood.
Nelson Atich, Bugambe District Councilor and representative of the evictees told Oil in Uganda, that they are shocked by the judge’s decision to make the ruling on notice.
“We are now thinking of petitioning the Principal Judge over this matter,” he stated.
“When we went to court on 19th, January, 2017, we were surprised when the clerk to the judge told us that the judge will give us the ruling on notice. We are in a dilemma, but we think we are not getting justice from courts of law,” Atich said.
He further added that the evicted families have been living in a camp for close to three years now under inhuman conditions yet the case has not been given priority,” Atich said.
Oil in Uganda has learnt that the court ruling was actually meant to be given on December 8, 2016 but was postponed to January 19, 2017.
Last year, Justice Simon Byabakama, the then resident judge Masindi ,ruled that 53 families out of the 200 families affected were illegally evicted on land owned by Robert Bansigaraho since the eviction court order was issued in error.
Justice Byabakama in his ruling also ordered Bansingaraho to compensate the evictees for the unlawful eviction.
“The eviction was unlawful and should not have happened in the first place because at the time of the execution of the warrant of vacant possession, there was an ongoing suit to determine true ownership of the land,” ruled Justice Simon Byabakama last year.
The court went ahead to award costs of the application to the residents, but declined to restore them on the land until the main suit was determined.
In their case application, the evictees, through their lawyers Iam Musinguzi of Musinguzi and Co. Advocates and Jonathan Okiria, an advocate with Justice Centers Uganda in Hoima are seeking a declaration that the families were unlawfully evicted by Tibagwa Joshua and should be awarded compensation.
In November 2016, Betty Amongi, Minister of lands visited Rwamutonga camp and appointed a probe committee to investigate and establish the rightful owners of the disputed land.
According to Isaac Kawooya, Hoima Resident District Commissioner, the committee finalized its investigations and has submitted a report to the minister.
Report by Edward Ssekika
Stephen Wafula is a happy gold miner in Nakudi village, Banda Sub County, Namayingo district. The 27-year-old, father of 2 children, says, he switched from agriculture to gold mining last year, after witnessing his colleagues ‘prosper’ from mining. “Unlike farming, there is some money in gold mining. I don’t wait for a season, I earn per day,” he narrates, though hesitant to reveal how much he has earned from gold mining.
Byakatunda Katib who also mines in the same area, says they can earn as much as 20 Million shillings ($5,500) a week from Gold mining, if the season is good.
Like other artisanal miners, the use of rudimentary tools like hoes and spades are used in this area to dig deep underground and extract ore with traces of gold. After extracting the ore (soil containing gold) from the ground, the miners normally have two options; to dry, crush, wash and extract the gold or sell the iron ore to other people who can wash it and extract gold for themselves. Either way, the ore is sun dried and then put into a grinder and grounded into fine soil that is then mixed with water and mercury to attract gold dust (particles).
“Without mercury, it is difficult to extract gold particles because we do not have proper mechanization,” Wafula explains. He adds that after extracting gold, the remaining ‘soil’ containing mercury is disposed of in the open ground or sold for further processing using cyanide.
The use of mercury and cyanide is common in all gold mining area like Busia, Mubende, Moroto and Buhweju among others. These hazardous chemicals are mainly used to attract gold particles from the iron ore.
Mercury is a thick, waxy silver chemical that is used in the extraction of secondary gold. This chemical is used to purify gold from ore in a process called amalgamation. During this process, the vapour from the amalgamation (burning of gold particles mixed with mercury) is inhaled by the miner who often does not have protective clothing.
Many miners like Wafula are not aware of the risks of using mercury. Furthermore, they do not have proper healthy and safety gears for protection.
In the latest value for money audit report into the mineral’s sector, the Auditor General, recommends that government should slap a total ban on the use of mercury in gold mining due to health and environmental consequences. The report covers the period between 2011 to 2015.
“The use of mercury and cyanide in gold recovery is a health hazard and should be discouraged else safety precautions should be taken. There is bound to be serious environmental impacts and health issues related to pollution of streams and rivers of Mubende. According to the report, the tailings containing mercury is disposed of in the open, and when it rains mercury finds itself in water streams where the local people fetch water for domestic purposes.
It takes more than 5 years for mercury to completely dissolve into the soil, while it takes 10 years for Cyanide to dissolve into the soil. The Auditor General findings are similar to the Directorate of Geological Survey and Mines (DGSM) internal inspection report that also noted illegal mining and ‘harmful mining practices’.
According to the DGSM internal inspection report for June and July this year, the inspection team visited several artisanal mining sites where people were using mercury to recover the gold and the remaining tailings are then washed with cyanide in a makeshift processing plant which is a threat to the environment.
In Namayingo district, the inspection report notes that there is a company known as Lujiji Processing Company that has installed a gold procession plant and uses Cyanide to extract gold from tailings left behind by the artisanal miners who are also using mercury to recover the gold.
“The gold processing operations of Lujiji Processing Company should be halted until an Environmental Impact Assessment (EIA) process is finalized and approved by NEMA,” the report recommends.
According to Oguttu Bonventeur Stephen, LC3 Chairperson Banda sub-county, the mercury being used in the mining sites are imported from Kenya through Busia and even as far as from Tanzania. He blames the porous borders and lack of enforcement on the use of the harzadous chemical.
“This mercury is being used a lot here. In a day, I am told they can use about 15-20 kgs of mercury and all that ends up in our water streams,” he told Oil in Uganda during a meeting.
Oil in Uganda has also established that artisanal miners in the mines buys 1 gram of mercury at 600 Uganda shilling at whole sale price and 1000 shillings at retail price.
Emmanuel Kibirige, general secretary, Singo Artisanal Gold Miners Association and a gold miner at Kitumbi, Mubende district, argues that the problem is improper disposal of tailings. He concurs with Auditor General Report, that when it rains, mercury is washed away and end up in streams and water sources.
“The problem is not mercury itself, but its improper disposal. It is disposed of anyhow. I think, we need to find a place, where we can dispose the mud containing mercury, and then treat,” he explains. However, he explains that many miners continue to use mercury without wearing any protective gear. “People here don’t use gloves, they use their bare hands and feet, yet there is mercury,” he said.
During an impromptu visit to some of the mining sites in Bugiri and Namayingo districts respectively, Oil in Uganda also found out that there was limited knowledge on the dangers of mercury and cyanide use.
At Byewunyisa Gold Mining Company in Budhaya Sub-county, the miners had removed their gumboots and were handling the tailings with bare hands, despite the fact that they had just used cyanide to get the gold particles.
The story is not any different from situation at Nsango B mining site where children are engaged in washing crushed iron ore with mercury. Recently, Dr. Tom Okurut, the executive director, National Environment Management Authority (Nema) revealed the use of mercury by miners exposes them to contract diseases like lung and kidney problems.
MINING POLICE The inspection report observes that miners have been sensitized against the use of mercury and environmentally friendly mining, there is very little change and recommends stringent enforcement mechanism. “Government should increase security in all gold rush areas including the establishment of Mining Police to enforce compliance,” the internal report recommends.
Of recently, the government has established units in police to hand specific tasks. For instance, there is the oil and gas protection unit and environment protection unit among others, and therefore the ministry wants a specific unit for mining to enforce compliance with good mining practices.
Report by Edward Ssekika and Collins Hinamundi. Additional information by Beatrice Ongode.
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