ABSTRACT

One of the key reasons for unsustainable use of resources is the lack of equity in the access to minerals and sharing of accruing benefits with local communities. Studies have rightly associated mining with perennial conflicts, increased poverty, massive environmental degradation, and blatant violation of human rights. In certain instances, mining has endangered the fortitude of local subsistence economies, thus threatening the survival of the local populace.

Despite the menace, experience of the last two decades shows a boom in the mining sector partly because of the surging global demand for minerals and increase in mineral prices. While developing countries are increasingly influenced to allow foreign mineral exploitation, their socio-economic developments especially at the local level is uncertain. Evidently, communities that have the longest history of mining are still rated among the poorest in the world. In Kenya, for instance, the Gongoni salt mining in Kilifi has been of diminutive value to the locals.

Owing to the foregoing, a very discernible civil society has emerged to question the propriety of mining regimes. Some sections seek to unconditionally impede mining in their areas. Others are only concerned with the creation of a more equitable mechanism for access and benefit-sharing. In light of this tussle, this thesis evaluates the legal status of local communities in the regime for access and benefit-sharing in mining. It first demarcates the evolving dimensions of the brawl and outlines certain equitable principles emerging at the international, regional and domestic levels.

The distillated principles are thereafter appraised in terms of recent legal developments especially in the areas of international human rights, environmental law and investment law. Thereafter, the thesis provides recent court jurisprudence globally in order to buttress further the rights of local communities to the lands and mineral resources where mining takes place.

It is demonstrated in this thesis that mining has the propensity of terminating basic rights and interests of local communities over their land and resources. These include property rights, social and economic rights, right to development, right to self-determination, and environmental rights. A case for urgent measures of redress is therefore made.

This thesis recommends a right-based approach in the criteria for access and benefit-sharing. It advocates for a more effective mechanism for local participation. It also argues for effective means of dispute resolution that are more independent, accessible, affordable, and expedient in dealing with matters concerning mining.

Hamisi Mgandi Lugogo is a member  to Kwale Youth and Governance Consortium  and the Deputy Programs Coordinator at Kwale Human Rights Network (KHURINET).

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