Abstract
This chapter examines the legal framework governing mining of sand in Uganda. Under Ugandan laws, sand is generally considered a mineral resource and subject of mineral right as provided for under the Mining Act. The chapter posits that prima facie reading of the general definition of minerals under the Mining Act does not directly show that sand is a mineral particularly when the definition specifically excludes what it calls building minerals which it lists to include sand mined for domestic uses. However, when the general definition is read in the context of the definition of industrial minerals under the Act, it becomes clear that sand enjoys the status of minerals. It is argued that this means that provisions in the Act regarding environmental protection in the course of mineral activities apply to sand mining. The chapter discusses the effects of sand mining on the environment including farmlands. It is thus posited that application of the environmental regime applying to other minerals to sand mining will help to better protect farmlands though more comprehensive regulation on sand mining as in some jurisdictions will offer better protection.
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Notes
- 1.
The Guardian (February 27th, 2017).
- 2.
In 2013 the Awaaz Foundation and the Bombay Natural History Society presented the issue of sand mining to the Secretariat of Convention on Biodiversity as a major international threat to coastal biodiversity.
- 3.
Agriculture contributes about 26% to Uganda’s GDP. It is the largest source of export earnings, about 53% of export earnings from 2007 to 2012/13. Over 75% of the labour force are employed in the sector. See Trading Economics (2019).
- 4.
In the case of United States, for example, the industry has been growing by nearly 10% annually since 2005 due to its of hydrocarbon extraction. Much of the market size for mining is held by Texas and Illinois. Silica sand mining business has more than doubled since 2009 on account for the need for this particular type of sand, which is used in a process known as hydraulic fracturing. Wisconsin is one of the five states which produce nearly 2/3 of the nation’s silica. As of 2009, Wisconsin, along with other northern states, is facing an industrial mining boom, being dubbed the “sand rush” on account of the new demand from large oil companies for silica sand. According to Minnesota Public Radio, “one of the industry’s major players, U.S. Silica, says its sand sales tied to hydraulic fracturing nearly doubled to $70 million from 2009 to 2010 and raked in nearly $70 million in the first nine months of 2011.” See MPR News (March 8th, 2012).
- 5.
National Agriculture Policy, NAP (2013), Par 2.6.1.
- 6.
NAP, Par 3.1.
- 7.
The Ugandan National Environment Management Authority (NEMA) issued a warning of devastating environmental consequences if Chinese investors insist on mining sand in Lake Victoria. NEMA said Mango Tree Group Ltd was only permitted to manufacture ships and must first seek approval to engage in sand mining. “We want to categorically state that Mango Tree Group Ltd’s activities of engaging in sand mining are illegal. We only cleared them [Mango Tree Group Ltd] to manufacture ships after they secured a license from the Uganda Investment Authority, not carrying out dredging on the lake shores,” said NEMA. “The sites where they want to excavate sand are very crucial. We warned them against tampering with them because any destruction may spark off a serious ecological disaster we may not handle as a country. They can think of other areas but an EIA [Environmental Impact Assessment] has to first be carried out,” she added. Background: On September 2 last year, the company submitted its first EIA report to NEMA, seeking approval to excavate sand from three sites on the lake shores of Nkumba near Entebbe, near Kimi Island in Mukono District and near Kavejanja-Buusi Island, Wakiso District. But NEMA rejected the EIA on the basis that the company’s activities would have a negative impact on the marine ecology. In a letter to Mango Tree Group directors dated 1st June 2017, Dr Tom Okurut, the NEMA executive director, explained that Kimi Island, for instance, is a tilapia breeding area, Buusi and Nkumba are breeding and nursery areas for Nile Perch as well as active fishing grounds, which must not be tampered with. See AllAfrica (February 2nd, 2018).
- 8.
Lithosphere refers to the solid component of the earth and includes the crust mantle as well as outer and inner core. See Prabakhar (2000), pp. 125–126.
- 9.
Prabakhar (2000), p. 126.
- 10.
Rajan and Rao (2007), p. 1.
- 11.
The mineral part of soil is divided into three particle-size categories: sand, silt, and clay. It should be noted that sand, clay and silt are collectively characterised as the fine earth fraction of soil: they are 2 mm in diameter.
- 12.
According to one estimate, it is worth $70 billion. See Mills and Staats Shrinking Shores: Florida sand shortage leaves beaches in lurch. See Naples News (January 13th, 2017).
- 13.
NEMA (2016).
- 14.
Daily Monitor (September 30th, 2016).
- 15.
Uganda Land Policy (2013), Par 1.4.1.
- 16.
According to Ministry of Animal Industry, Agriculture and Fisheries, 46% of Uganda’s soil is already degraded with 10% being highly degraded. See MAAF (2019).
- 17.
Saviour (2012), pp. 125, 131.
- 18.
According to the Wisconsin Department of Natural Resources Report (2017), there are currently no less than thirty-four active mines and twenty-five mines in development in Wisconsin.
- 19.
Wisconsin Department of Natural Resources Report (2017).
- 20.
Wisconsin Department of Natural Resources Report (2017).
- 21.
Uganda Land Policy Preamble.
- 22.
See Constitution Art. 26, see also Section 44 Land Act.
- 23.
Constitution of Republic of Uganda, Directive Principles of State Policy xxvii(i).
- 24.
Art. 242 of the Constitution of Republic of Uganda.
- 25.
Mining Act (2003).
- 26.
See Sec. 2 Mining Act.
- 27.
Sec. 2 Mining Act.
- 28.
Sec. 1 Mining Act.
- 29.
Precious minerals are categorised into previous stone and precious metals. According to the Act “precious minerals” include—(i) precious stones, namely agate, amber, amethyst, cat’s eye, chrysolite, diamond, emerald, garnet, opal, ruby, sapphire, turquoise and all other substances of a similar nature to any of them; and (ii) precious metals, namely gold, silver, platinum, iridium, osmium, palladium, ruthenium, rhodium, or any other rare earth elements” See Sec 2 Mining Act.
- 30.
Sec. 2 Mining Act.
- 31.
Petroleum is defined under the Petroleum (Exploration, Development and Production) Act, PEDP Act (2013).
- 32.
Sec. 2 Mining Act.
- 33.
Sec. 2 Mining Act.
- 34.
Sec. 2 Mining Act.
- 35.
Sec. 2 Mining Act.
- 36.
One of such rules in the case precious minerals is that relating to the Gold Smith Licence. The Act provides that no person shall manufacture any article from any precious mineral or from any substance containing any precious mineral without obtaining a licence to that effect called goldsmith’s licence. See Sec. 73 and 74 Mining Act.
- 37.
Sec. 98 Mining Act.
- 38.
Sec. 98 Mining Act. The section is subject to sec 100 of the Act.
- 39.
See Sec. 83 Mining Act. Section 82 provides for compensation in general while section 98 is about royalties.
- 40.
See Secs. 43(3)(b) and 47 of the Mining Act.
- 41.
Sec. 2 Mining Act.
- 42.
Sec. 72(b)(i) Mining Act.
- 43.
Sec. 78 (1)(b)(ii) Mining Act.
- 44.
This is in terms of the implication of Section 78(1)e) Mining Act.
- 45.
See sec 35(i) National Environment Act (NEA).
- 46.
Sec. 34(1)(b) and 34(2) NEA.
- 47.
See Regulation 23(1)(b) of The National Environment (Wetland, Riverbanks and Lake Shores) Management Regulations (2000). The application must be done using the form set out in the First Schedule to this regulation. Same explicit provisions are not made in respect of wetland. However, pursuant to regulation 11 of the Regulations, the second schedule to the Regulations lists exploitative commercial activities on wetland as one of the regulated activities on wetlands.
- 48.
Sec. 87(a-b) Mining Act.
- 49.
Sec. 87(c-d) Mining Act.
- 50.
Sec. 87(e) Mining Act.
- 51.
Sec. 87(2) Mining Act.
- 52.
See Sec. 86 Mining Act.
- 53.
This is by the implication of Section 78(1)(g) Mining Act.
- 54.
See Sec. 5(h) Uganda Wildlife Act.
- 55.
See Sec. 78(1) h) Uganda Wildlife Act. The consent referred to here and in other instances earlier discussed must be made in line with the relevant instruments of the agencies concerned such as National Forestry Authority in this instance. See Sec. 78 (2) which provides: “Any consent under subsection (1) of this section may be given subject to such conditions as are specified in the instrument of consent.”
- 56.
Sec. 81(1).
- 57.
Sec. 81(2).
- 58.
See Sec. 82(1).
- 59.
The law as per section 81(1)(I) further provides that in “assessing compensation payable under this section, account shall be taken of any improvement effected by the holder of the mineral right or by his or her predecessor in title the benefit of which has or will accrue to the owner or lawful occupier of the land; (ii) the basis upon which compensation shall be payable for damage to the surface of any land shall be the extent to which the market value of the land upon which the damage occurred has been reduced by reason of the damage; (iii) no compensation shall be payable to the occupier of a state grant land in respect of any operations under a mineral right existing at the date of such state grant”.
- 60.
Third Schedule, Item 6.
- 61.
Section 108 (NEA).
- 62.
In terms of Section 2 NEA, “standard” means the limits of pollution established under Part VI of this Act or under regulations made under this Act or any other law”.
- 63.
Prabakhar (2000), p. 126.
- 64.
Sec. 30 (1)(b) NEA.
- 65.
Sec. 30(2)a-d NEA.
- 66.
Sec. 30(2)e NEA.
- 67.
See Regulation 3 of the National Environment (Minimum Standards for Management of Soil Quality) Regulations, 2001.
- 68.
See Regulation 11.
- 69.
Sec. 109 NEA. The relevant section reads: “Environmental protection standards (1) There shall be included in every exploration licence or mining lease granted under this Act a condition that the holder of such licence or lease takes all necessary steps to ensure the prevention and minimisation of pollution of the environment in accordance with the standards and guide lines prescribed under the National Environment Statute, 1995”.
- 70.
Sec. 109(2) NEA.
- 71.
Ministry of Agriculture, Animal Industry and Fisheries is a Government Ministry charged with creating an enabling environment in the Agricultural Sector. It is commonly known as Ministry of Agriculture and carries out its role by enhancing crop production, improving food and nutrition security, widening export base and improved incomes of the farmers. The Ministry has Directorates which include Animal Resources, Crop Resources, and Departments for Planning, Finance and Administration.
- 72.
See Sec. 30(1)(a)(b) NEA.
- 73.
Sec. 54 (f) National Forestry and Tree Planting Act (2003).
- 74.
Sec. 54(g) National Forestry Act.
- 75.
Sec. 13(1) Mining Act.
- 76.
See Sec. 14(1)(a) b) Mining Act.
- 77.
Sec. 14(1)(c) Mining Act.
- 78.
Sec. 4 Kenya Mining Act (2016).
- 79.
Sec. 4 Kenya Mining Act.
- 80.
Sec. 1 Kenya Mining Act.
- 81.
Sec. 1 National Sand Harvesting Guidelines (2007).
- 82.
Sec. 1 National Sand Harvesting Guidelines.
- 83.
Sec. 2 National Sand Harvesting Guidelines.
- 84.
Sec. 7(a) National Sand Harvesting Guidelines.
- 85.
Sec. 7 (c) National Sand Harvesting Guidelines.
- 86.
Mineral and Petroleum Resources Development Act (1994).
- 87.
Sec. 1 Mineral and Petroleum Resources Development Act.
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Sanni, T. (2020). The Legal Framework for Sand Mining in Uganda. In: Yahyah, H., Ginzky, H., Kasimbazi, E., Kibugi, R., Ruppel, O. (eds) Legal Instruments for Sustainable Soil Management in Africa. International Yearbook of Soil Law and Policy(). Springer, Cham. https://doi.org/10.1007/978-3-030-36004-7_6
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