LEGAL CONSIDERATIONS ON ACQUISITION, OPERATION, MANAGEMENT AND DECOMMISSIONING OF A QUARRY IN UGANDA

PREPARED BY

This document has been prepared by the above mention people
ANGUALIA DANIELKASINGYE STUART
KABAHIMA INNOCENTARIHO EMMANUEL

1.0 INTRODUCTION

Uganda is a country endowed with a variety of rock types that are often used as raw materials for the dimension stone industry. Amongst these are marble, limestone, granite, sandstone and slate, or aggregates. A quarry is a place where such rocks, sand or minerals are extracted from the surface of the earth. These are used among others for the construction of roads and buildings. With the growth in housing, construction and infrastructural development in Uganda, engaging in quarrying as an economic activity can be immensely rewarding. How then does one venture into this kind of activity? The purpose of this article is to enlighten the reader about the legal regime and the various expectations they are expected to meet in order to successfully carry out quarry operations in Uganda.

2.0 LAND RIGHTS ACQUISITION

Before one sets up a stone quarry, it is very important to identify the ownership of the land on which he or she intends to set up a stone quarry. This is because the Constitution under article 237 vests ownership of land to the citizens of Uganda and also protects individuals from the deprivation of property which includes land. Ownership of Land extends to everything that is attached to land like rocks except minerals. According to the Constitution under article 237(3) and Section 2 of the Land Act, land is owned in accordance with the four tenure systems to wit, customary, freehold, mailo and leasehold.

A person seeking to set up a quarry should adequately compensate the land owners whose land is taken for quarry and the areas surrounding the quarry. In land acquisition for quarry purposes, interest of donors such as the World bank, European union, African Development bank especially in funded road projects should be taken into account. Besides the interest of donor agencies, each of the land tenure systems has its own challenges when it comes to compensating project affected persons (PAPs).

2.1 Occupants on the land who are not vendors

Before any person buys land or enters into a tenancy agreement with the owner of the land, he or she should conduct thorough due diligence. To be sure about what he or she is purchasing, the prospective buyer or tenant ought to search beyond the Land Register. In most cases, it would involve using area local authorities, clan leadership depending on the part of the Country and neighbours to help establish the occupants of the land and their interests.

2.2 Rights of lawful or bona fide occupant

A bona fide occupant is a person, who before the coming into force of the 1995 Constitution occupied and utilized or developed any land of the registered owner or agent of the registered owner for twelve years or more or a person who had been settled on land by the government or an agent of the government which may include a local authority. See Section 29(2) of the Land Act.

According to article 237(8) of the 1995 Constitution, a lawful or bona fide occupant of mailo land, freehold or leasehold land enjoys security of occupancy on the land. A bona fide occupant is given security of tenure and his or her interest in the land cannot be alienated except as provided by the law. A tenant by occupancy on registered land shall enjoy security of occupancy on the land and is treated as a tenant of the registered owner.

A person who obtains registration with the intention of defeating the unregistered interest of the tenants on the land is guilty of fraud and the registration is liable to be set aside. The law requires the owner of the land who wishes to sell the reversionary interest in the land to give the first option of buying that interest to the tenant by occupancy. Similarly, the rights of tenant to enter into a transaction is subject to the approval of the owner. A tenant by occupancy who purports to assign, sell, sublet, pledge, subdivide the land on which he is a tenant by occupancy without first giving the option to the owner commits an offence, the transaction is invalid and the tenant shall forfeit the right over the land with the land reverting to the registered owner. However, there is no requirement of consent or approval in case of inheritance of the right to occupancy. See section 35(2) Land Act.

2.3 Dealing with Family land

Every spouse enjoys security of occupancy on family land. To this end, the law does not allow any person to sell, transfer, mortgage or lease or enter into any contract for the sale or exchange of land or give away any family land inter vivos or enter into any other transaction in respect of family land except with the prior written consent of the spouse.  The spouse has a right to give or withhold his or her consent to any transaction. Where the consent of the spouse is not obtained, the sale or transaction is illegal and of no effect. The High Court of Uganda sitting at Gulu in the Case of Lanyero Ketty-v- Okene Richard & Hellen Abwola, Civil Appeal 0029 of 2018 held that section 39 (1) (b) of The Land Act prohibits a spouse from entering into any contract for the sale, exchange, transfer, pledging, mortgage or lease of any family land, except with the prior written consent of the other spouse. According to section 38A (5) of The Land Act, this restriction does not apply to spouses who are legally separated. A transaction of sale of family land entered into by one spouse without the express written consent of the other is void. Where such transaction is entered into by a purchaser in good faith and for value without notice that the requirement has not been complied with, the transaction is void but the purchaser has the right to claim from any person with whom he or she entered into the transaction, any money paid or any consideration given by him or her in respect of the transaction (see Section 39 (4) of The Land Act).

2.4 Land held by an administrator or forming an estate of the deceased

The administrator has the capacity and powers to sell the land which forms part of the estate of the deceased. Where land is registered under the Registration of Titles Act, a grantee of probate or Letters of Administration becomes the transferee and is deemed to be the proprietor of the land under section 134 of the Registration of Titles Act.  An administrator has full control of all properties making up the estate and can give a good title to them and can also enter into any contract on behalf of the beneficiaries. It is thus imperative that the intended buyer of the land that forms part of the estate to ascertain whether the intended vendor has powers to sell that is, whether he or she is a grantee of probate or letters of Administration. The prospective buyer should ascertain the authenticity of the letters of Administration or grant of probate by obtaining certified copies from the court registry where the grant of probate or letters of Administration are claimed to have been obtained and also find out who the beneficiaries are. The proceeds from the sale of land by administrator or executor of the estate must be utilized for the benefits of the beneficiaries of the estate.

2.5 Ownership of land by non-citizens

It is important to note that non-citizens are prohibited from acquiring or holding customary, mailo of freehold. Leasehold tenure is the only tenure through which non-citizens can own and utilize land.  A lease is one created either by contract or by operation of law. Under this, one person namely the landlord or lessor grants or is deemed to have granted another person namely the tenant or lessee, exclusive possession of land usually for defined period, directly or indirectly by reference to a specific date of commencement and a specific date of ending. It is usually subject to the terms and conditions agreed upon by the parties in a lease agreement which is usually but not necessarily inclusive of rent/premium as way of consideration. See article 237(2) and section 3(5) of the Land Act as amended.

Section 40(3) of the Land Act categorically puts it that non-citizens may acquire leases for a maximum of 99 years and a lease of five years or more by non-citizens must be registered in accordance with the Registration of Titles Act and a certificate of title issued to the lessee.

Regarding corporate entities, a company is deemed to be a noncitizen if the controlling interest lies with non-citizens, or where the board’s decision making lies with non-citizens, or where shares are held in trust for non-citizens or a company whose articles of association does not restrict the transfer of shares to non-citizens. Such company just like non-citizen individuals can only own land in Uganda by acquiring a Lease hold title.

3.0 ACQUISITION OF MINERAL RIGHTS

Individuals and or companies may also acquire mineral rights over rocks intended for quarry even if they don’t actually own the surrounding land. Section 2 of the Mining Act defines a mineral right as a prospecting licence, exploration licence, retention licence, mining licence and location licence. Mining or to mine is defined by the same section as meaning intentionally to dig or excavate for minerals and includes operations directly or indirectly necessary for or incidental to the digging or excavation for minerals.

One may acquire the right to search for, retain, mine and dispose of any mineral in Uganda by acquiring such right under and in accordance with section 4 of the Mining Act 2003. The same law prohibits anyone from exploring, mining or disposing of any mineral in Uganda except under and in accordance with a license issued there under. Section 5 restricts the acquisition of mineral rights to; Individuals that are citizens of Uganda, those above 18 years and not adjudged bankrupt and or a company registered in Uganda or incorporated under the companies Act. The Application for the mineral right is made to the Commissioner for Geological Survey and Mines Department under Section 9 of the Act. Some of the mineral rights are explained below;

3.1 Prospective License

Under section 2 of the Mining Act, to prospect means to intentionally search for minerals and mineral deposits and includes any operations to test the mineral bearing qualities of any land or mining area.  The application for prospecting license is made to the commissioner upon payment of the prescribed fee. The Commissioner has powers to either grant or as appropriate, revoke any such license and shall give reasons for refusal to grant or revocation of the same as the case may be. Under section 26 of the Mining Act, a prospective license shall be for duration of one year.

3.2 Exploration license

The application is to be accompanied by a plan of the area over which the license is sought; it shall identify the minerals in respect of which the license is sought. It shall also indicate the name and nationality of each person making the application. In case of a body corporate, the name of such body, place of incorporation, names and nationalities of directors, managers and other officers of similar rank shall be indicated. The application shall also bear information on the financial status, technical and industrial competence and experience of the applicant. It shall state the period, not exceeding three years for which the license is sought and also be accompanied by a proposed programme of exploration operations for the proposed period of the license and the estimated cost of the operations. It shall contain evidence in support of the existence of the minerals, which the license will cover in the proposed exploration area, contain or be accompanied by a statement giving particulars of the applicant’s proposals with regard to the employment and training of Ugandan citizens, and any other matter or information which the applicant wishes the commissioner to consider in accordance with section 26 of the Mining Act. Subject to Section 29, the duration of an exploration license is three years but may be renewed under Section 30.

3.3 Mining Lease

One may apply for a Mining license under Section 41 of the Mining Act upon payment of prescribed fees. The application is made to the Commissioner and shall indicate among others; Financial and technical resources available to the applicant to carry out his or her obligations under such lease, Be accompanied by a full feasibility study including a plan of the area in respect of which the lease is sought. State the period for which the lease is sought. Give or be accompanied by a statement giving details of the mineral deposits in the area of land over which the lease is sought, including details of all the known minerals proved, as well as possible and probable ore reserves and mining conditions. Be accompanied by a technological report on mining and processing techniques proposed to be used by the applicant. Give or be accompanied by a statement giving particulars of the program of proposed development and mining operations, including a statement of; The estimated capacity of production and scale of operations, The estimated overall recovery of the ore and mineral products, Nature of the mineral products. Be accompanied by a business plan giving a detailed forecast of capital investment, operating costs and revenues plus the anticipated type and source of financing including the year for the positive cash flow, financial plan and capital structure.

In addition to the above requirements, the applicant must also satisfy the Commissioner among others that; The program of proposed mining operations takes proper account of Environmental Impact Assessment, Environmental Impact Research, Environmental Statement and safety factors, The feasibility study of the relevant ore body indicating that the mineral deposit in question can be profitably mined. The applicant has adequate financial resources, technical competence and experience to carry on effective mining operations and that the applicant has secured the surface rights of the land the subject of his or her application and that they are not in default.

3.4 Location License

One may apply for a location license where the prospecting and mining operations are by methods that do not involve substantial expenditure and the use of specialized technology. Substantial expenditure means expenditure in excess of five hundred currency points necessary to bring the mine into production under section 54. This means that any citizen of Uganda or Company in which citizens of Uganda hold at least fifty one percent of the beneficial ownership that wish to carry out small scale prospecting and mining operations shall apply to the Commissioner for a location license under section 55.

Before acquisition of the rock for stone quarry activities, it is important to conduct due diligence with the aim of ascertaining as to whether there are existing prior mineral rights over the subject rock. Otherwise, the owner of such prior mineral rights reserves the rights to stop further activities on the subject rock or areas covered by the mineral right.  In the alternative, it is better to engage holders of such mineral rights for consent and or license prior to investing heavily on the rock.

3.5 Case law conflict on ownership of rocks by Government and individuals

Article 244 of the Constitution vests the entire property in and the control of all minerals on or under any land or waters in the government on behalf of all Ugandans. The question is whether stone aggregates used for construction are minerals within the control and management of the Central Government. Two different judges of the High court have made contradicting judgements which has inevitably led to confusion in the area.

In the High Court of Uganda at Soroti Civil Suit No. 16 Of 2014; Welt Machinen Engineering Ltd Versus (I) China Road & Bridge Corporation (2) Ilukol Jobs Lomenen And Nakapiripit District Local Government as third Party, Hon. Lady Justice H. Wolayo held among others that; The community of Atumtoak or Kamusalaba where the rock was found did not have the right to permit mining works on their land, because minerals are vested in the Government of Uganda by the Constitution. The community can only exercise its rights as the occupiers of the land but not to permit mining itself. The rock excavated by china road & bridge corporation contained granite mineral therefore china road & bridge corporation required a licence from the Commissioner of survey and Mines, to mine and crush aggregate for road construction.  Nakapiripit district local government as third party and Ilukol jobs Lomenen did not have capacity to enter into an agreement with china road & bridge corporation because under section 13 of the Mining Act, only the Commissioner of Geological Survey and Mines is authorised to issue licences and therefore authority to mine and not the district local government. That rather than defending individuals or entities that breach the Mining Act, the Commissioner of Geological Survey and Mines should take steps to investigate and prosecute them.

In another high court decision in Kampala high court civil suit no. 252 of 2015, Etot Paul Peter & ors v Attorney general & sino hydro corpration limited, the land owners asked for compensation for the excavated rocks that were used in connection with construction of Karuma dam. Attorney General argued that the compensation could not be awarded on grounds that a rock is a mineral owned by government and that a private land owner cannot own it and later alone ask for any compensation in that respect. Justice Byabashaija Andrew stated that rocks are not included in the definition of “minerals” in the Constitution so as to put them out of reach of the owners of the land. That Article 244(5) of the Constitution provides to the contrary in its definition to wit” “Minerals does not include clay, murrum, sand or any stone commonly used for building or similar purposes”. That the rocks were crushed by Sino Hydro Corpration Limited and the aggregates being used for the construction of the dam.

The judge further stated that Article 237 (1) of the Constitution must be read together with Article 244 (5). The overriding law is the Constitution and as such, the position to be taken by court is that rocks are stones commonly used for buildings or for similar purposes and are excluded from the definition of minerals. Therefore compensation, would be payable for rock deposits on land belonging to the land owner.

While establishing a quarry, a developer is likely to be faced with conflicting interests based on the above two decisions of the high court. It is therefore important to balance the different interests for the success of the quarry establishments.

4.0 EXPLOSIVES PERMIT

In quarry operations, explosives like dynamites are used to blast rocks. The Explosives Act Cap 298 regulates and relates to manufacture, storage, sale, transport, importation, exportation and use of explosives. For one to deal in explosives, they must obtain a license as per Section 7 of the Act. They must also obtain a ‘permit to purchase’ signed by an Inspector of Explosives or his/her deputy, or by an Inspector of mines, Magistrate, police officer not below the rank of Inspector or other person deputed by the engineer in terms of section 2 of the Act.

If a company desires to import such explosives, it needs to obtain a permit under Section 9. The law prohibits any use of blasting materials without a permit issued under the authority of an Inspector of Explosives. Such permit shall be issued upon satisfaction that the applicant may safely be entrusted with the use of blasting materials and that such use by him/her is necessary.

Regulation 6 of the Minerals and Mining (Explosives) Regulations 2012 requires a holder of a mineral right in which explosives are used and a manager to appoint a person with a valid explosive manager’s certificate as Explosives Manager. His duty is to ensure that activities involving explosives are managed by a certified Explosives Manager and other competent and certified persons if the licenses and permits required are in place.

The manager before conducting any operation as above is required to submit to the Chief inspector an Explosives operating plan which shall show in detail the proposed activities to be conducted. It is upon approval of such plan that the Chief Inspector of Explosives shall issue an Explosives Operating license within fourteen days in accordance with regulations 6, 8, 9 and 10. The Operating License is renewed annually upon submission of updated explosives operating plans.

5. OCCUPATIONAL SAFETY AND HEALTH CONSIDERATIONS

5.1 Occupational Health and Safety

The government of Uganda through the Ministry of Gender, Labor and Social Development has a mandate under the Occupational Safety and Health Act No.9 of 2006 to ensure that all public and private workplaces, enterprises, companies and organizations adhere to safety and health measures. Stone quarries that dispel a lot of tiny dust particles has a health impact on people’s lives and has been closely linked with various diseases and require protective measures to be put in place to avoid such diseases.  Quarrying also involves a lot of processes like blasting, rock falls, raising dust particles which ultimately impacts on the air we breathe, the water we use and soil quality hence a threat to public health. Some quarry operators use rudimentary methods that often leave open excavated pits having a huge bearing on not only environmental degradation but also the several fatal occupational accidents that on many occasions lead to death. Open pits also collect huge amounts of stagnant water and provide breeding grounds for mosquitoes causing malaria and increasing mortality rates in such areas. Occupational Safety and Health Act No.9 imposes certain occupational health measures and standards to be complied with; for instance; Section 13 requires the employer to protect workers and take as far as is reasonably practicable, all measures for the protection of not only workers but the general public from the dangerous aspects of the Employer’s undertaking, at his or her own cost. The Employer is required to provide adequate and appropriate information, instructions, training and supervision necessary to ensure safety taking into account the functions and capabilities of different categories of workers in an undertaking.

5.2 Workers compensation

The Worker’s Compensation Act Cap 225 provides for compensation of workers for injuries and scheduled diseases suffered in the course of employment under section 3. Any accident that arises in the course of employment is, unless the contrary is proved, presumed to arise out of employment. Section 26 provides for the procedure to be followed in paying compensation. Quarry operations are sometimes associated with accidents to workers employed in the quarry largely due to various machineries involved. A quarry operator should put in place proper safety measures and insurance for workers in case of occupational accidents and or scheduled diseases contracted as a result of the quarry operations.

6. ENVIRONMENTAL CONSIDERATIONS

Uganda has a comprehensive regulatory and institutional framework for the protection and management of environment. The Constitution of the Republic of Uganda, 1995 lays the foundation for all the laws that have a bearing on the environment in Uganda. Generally, the constitution makes provisions for the protection of natural lakes, rivers, wetlands, forest reserves, game reserves, national parks and any land for ecological and tourist purposes. Every Ugandan has a right to a clean and healthy environment as stipulated in article 39 of the 1995 Constitution and section 3 of the National Environment Act, 2019.  It is the duty of every person to create, maintain and enhance the environment including the duty to prevent pollution.

6.1 Environmental and social Assessment

The law sets out the categories of projects or activities which require a developer to conduct environmental and social impact assessment. The purpose of environmental and social assessments is to evaluate environmental and social impacts, risks or other concerns of a given project or activity. The Authority may also require a developer to undertake an environmental risk assessment as part of the process of environmental and social impact assessment. See section 114. An Environment Impact Assessment is a study conducted to determine the possible negative and positive impacts which a project may have on the environment and community.

It is the responsibility of the developer to ensure that a person carrying out an environmental and social assessment for him or her, either personally or by employees, contractors or sub-contractors, complies with all applicable laws. The developer is responsible for the quality of the environmental and social impact assessment as per section 111 of the National Environment Act.

The law also sets out projects whose environmental and social impact assessment is to be by way of project brief. Thus a developer of a project set out in Schedule 4 to the Act which also include extraction of non-mineral products that entails extraction of sand, murram and clay and stone extraction and quarrying must undertake an environmental and social impact assessment by way of project brief. The project is only approved where the Authority, in consultation with the lead agency, is satisfied that the project is likely not to have significant adverse impacts on human health or the environment or that the project brief contains sufficient mitigation measures to cope with the anticipated impacts.

6.1 Environmental and social Assessment

The Worker’s Compensation Act Cap 225 provides for compensation of workers for injuries and scheduled diseases suffered in the course of employment under section 3. Any accident that arises in the course of employment is, unless the contrary is proved, presumed to arise out of employment. Section 26 provides for the procedure to be followed in paying compensation. Quarry operations are sometimes associated with accidents to workers employed in the quarry largely due to various machineries involved. A quarry operator should put in place proper safety measures and insurance for workers in case of occupational accidents and or scheduled diseases contracted as a result of the quarry operations.

6.2 Possible Environmental Impacts

Although modern technology and scientific investigations methods have made it possible to reduce environmental impacts associated with stone quarrying/blasting and manage impacts at acceptable levels that do not cause significant harm to the environment, stones cannot be blasted/ crushed without causing some environmental impact.

 

The most common impact of stone quarrying/blasting is change in geomorphology and conversion of land use, with the associated change in visual scene. This may be accompanied by noise, dust and vibrations. Other frequent complaints the public makes against stone quarrying where the site is situated near residential or population centers are about blasting noise from earth moving equipment, processing equipment and blasting. The effects of noise from stone quarrying depends among others on the source of the sound, the topography, land use, ground cover that surrounds the quarrying site. Dust, an irritating effect of stone blasting has an impact on human health and environment. Dust may result from excavations, blasting, from haul roads and also from point sources such as drilling, crushing and screening.  However, a carefully prepared and implemented dust control plan can reduce the impacts from dust.

However, most impacts can be controlled, mitigated, kept at tolerable levels and restricted to immediate vicinity of the aggregate operation by empowering responsible operational practices that use available engineering techniques.

6.3 Decommissioning of the quarry

The Developer must take closure planning into consideration before and throughout the quarry operation time for purposes of reducing or avoiding negative environment impact of the quarry operation. The National Environmental Authority may also require an operator of any project to submit a preliminary decommissioning plan as part of a project brief or environmental impact and social impact statement. The Authority may also require a developer or operator of a project to undertake decommissioning in accordance with the approved decommissioning plan and international best practices, at his or her own cost, before final closure of the project or completion of activities. A person required to decommission a project or who wishes to voluntarily decommission must submit a detailed decommissioning plan to the Authority at least 12 months or such shorter period as the Authority may determine, before the intended project closure. The Authority may also require the operator of a project or activity to deposit a financial security.

An Environmental Restoration Plan is a requirement before any exploration or mining lease can be granted for areas that are likely to be damaged or adversely affected by operations under section 110 of the Mining Act. The Plan may include; an identification of the exploration or mining area concerned, its current uses and productivity prior to exploration or mining operations and, a detailed timetable for the accomplishment of each major step to be carried out under the restoration plan which may include reinstatement, leveling, re-vegetation, re-foresting and contouring of the affected land, filling in, sealing or fencing off excavations, shafts and tunnels, or any other method appropriate.

The Commissioner before accepting the Plan takes into consideration a number of factors like the steps taken to comply with applicable environmental protection standards, existing land use policies and any applicable health and safety standards as seen above. Location license holders are also required to carry out effective restoration, rehabilitation and reclamation of mined areas as per section 59 of the Mining Act.

In some instances, the Commissioner may require guarantees for compliance with the mining Act, hence the developer may be asked to deposit Security for Compliance (for instance under a Decommissioning fund) for which failure may be construed as a contravention of the Act.

7.0 CONCLUSION

The establishment and operation of a stone quarry is an aspect that is regulated by law. The law imposes several obligations on acquisition, operation, management and decommissioning. An operator of a stone quarry needs to know its obligations before, during and after completion of the stone quarry project. Most obligations relate to the mineral rights acquisition, land acquisition, protection and preservation of the environment on which to set up a stone quarry, occupation health of the workers and people engaged in the activity, the neighbours and interest of donor agency especially if the stone aggregates from the quarry is to be used for construction of a donor funded project.  One only has to comply with the law as seen above in order to avoid not only government interference and inconveniences but also damages and costs resulting from court cases by people whose rights are infringed upon as a result of stone quarry operations. This is because of the environmental law legal principle that, “exercising proprietary rights should not negatively affect the public”. It is for this reason that it is important to seek legal advice from lawyers with experience in the area before establishing a stone quarry.

HOW WE CAN BE OF HELP;
  1. Conduct due diligence on land ownership
  2. Conduct due diligence on ownership of the rock or quarry
  3. Addressing expectations of project affected persons
  4. Negotiating with the land owners and project affecting persons on your behalf
  5. Conduct compliance audit in relation to existing quarry.
  6. Preparation and registration of all transaction documents for successful quarry operations