Integrating Environmental Governance, Land and Socio-Cultural Rights:

Experiences and lessons learnt from Oil governance in Uganda

Mugyenyi OnesmusManager - Environmental Democracy

Programme/Public Policy Analyst

Advocates Coalition for Development and Environment

Presentation at FoLT Workshop

1st - 2nd October, 2012

Introduction

Oil activities can have disastrous impacts on the environment, socio-economic and cultural wellbeing of communities.

Oil and gas are non renewable extractive resources which are finite, and their exploitation and utilisation must be undertaken in a manner that creates durable and sustainable social and economic capacity of a country.

Consequently, integrating environmental governance, land and socio-cultural rights in natural resource extraction is essential for sustainable development.

2

Oil and gas Development in Uganda

Uganda’s oil discovery was officially announced on 8th Oct,2006, a day before the 44th independence anniversary.

Exploration started way back in the 1920’s,stalled from 1945-1980. Between 1980-1997 there were significant steps-1985- enactment of the Petroleum(Exploration and Production) Act,1997- commencement of licencing,1991- formation of the Petroleum Dpt and acquisition of data that confirmed three main depo centres conducive for petroleum production, but significant oil and gas reserves were encountered between 2002-2004 leading to the 2005 constitutional amendment on resource tenure.

3

Oil and gas Development in UgandaAbout 55 wells drilled of which 26 are exploration wells and 29 appraisal wells only four have no prospects of oil and gas.

Commercially viable quantities have been confirmed with the current projections of 2.5 barrels of oil reserves and government has embarked on the project of building a refinery. The process of acquiring land for the refinery infrastructure is on going – A RAP study has commenced that will provide guidance on the process of land acquisition, environmental management in the area, management of land and socio-cultural rights.

4

5

Oil and gas resource baseOnly 40% of the Albertine Graben has been explored indicating that there are more discovery prospectsStudies done indicate that the regional market is in the region of 120,000 barrels per day growing at 5% per year making the refinery viable.(there are arguments to the contrary). The proposed refinery expected to be complete by 2015 will start with production capacity of 20,000 barrels /day, will progress to 60,000,150,000 and then 200,000 barrels/day.Both the oil and refinery site are located in the albertine rift with high biodiversity value and the biggest part of the exploration is taking place in a national park. Therefore balancing oil and gas development and biodiversity conservation is likely to be one of the key challenges.

Exploration areas

6

The concept of environmental governance, land and socio-cultural rights

EG refers to the whole range of rules, practices, accountability mechanisms, institutions, financing mechanisms related to the management of the environment. It is an over arching principle that regulates public and private behavior towards greater accountability and responsibility for environment.

The concept started to gain recognition in the early 70s when international organisations started to take key resolutions relating to environmental management.

7

Concepts…The significant ones are:

Stockholm Conference on Human Environment,1972. The Rio Conference on Environment and

Development,1992. The World Conference on Sustainable

development,2002.

These conferences adopted plans of action containing recommendations to governments and declarations on the environment that informed the basic international principles for protection of the environment and sustainable development.

.8

Concepts…Major principles have emerged from these conferences include:

Cooperation in protecting the environment. Inflicting damage on the environment beyond

national jurisdiction. Ecological evaluation to determine the impact on

the environment beyond national jurisdiction. Right to a clean and healthy environment. Polluter pays principle. Precautionary principle. Principle 10 of Rio declaration (Access to information,

Environmental justice, public participation in environmental decision making.

9

Concepts…

Land and socio-cultural rights derive their basis mainly from the provisions of two major international instruments.

The Universal Declaration of Human Rights adopted by UN General Assembly on 10th Dec.1948-which has influenced most national policies and constitutions.

International Covenant on Economic, Social and Cultural rights adopted by the UN General Assembly on 16th Dec,1966 and came into force in1976. A.15 provides for participation in cultural life.

10

Integration of EG, Land and Socio-Cultural Rights in Government Policy and legal framework: theory and practicePolicy Framework

National Environment Action Plan-provides a framework for integrating environmental issues in socio-economic development.

National Environment Management Policy-to ensure sustainable development.

National Policy for conservation of Wetlands

National Water Policy

Uganda Wildlife Policy

The Forestry Policy11

12

Highlights of the policy and legal Highlights of the policy and legal framework in the oil and gas sectorframework in the oil and gas sector

The National Oil and Gas Policy,2008 Principles: Using finite/limited resources to create

lasting benefits to society, efficient resource management, transparency and accountability, protection of environment and biodiversity, spirit of cooperation, capacity and institutional building

Policy Goal: Use the country’s oil and gas resources to contribute to early achievement of poverty eradication and create lasting value to society.

Objectives: Efficient production and management of the oil and gas resources, ensure optimum national participation, promote valuable utilization o the oil and gas resources, undertake development of the resource in manner environmental friendly. etc

Highlights of the policy and legal Highlights of the policy and legal framework in the oil and gas sectorframework in the oil and gas sector

The policy prohibits gas venting and flaring oil and gas; will support control measures against the release of hazardous gases; put in place response mechanisms for any oil spills; endorses polluter pays principle; involve stakeholders in decision making; enhance institutional capacity to regulate and coordinate activities and provide resources for the implementation of the policy.

The policy recognizes that its implementation will affect land and property rights and the provisions of the constitution and the the Land Act will relating to land and property rights will be respected.

13

Highlights of the policy and legal Highlights of the policy and legal framework in the oil and gas sectorframework in the oil and gas sector

On social impacts the policy provides for support measures to reduce disease including HIV infection and promotion of employment of nationals in the sector.

The policy gives a role to local governments, civil society and cultural institutions-mobilising and having dialogues with communities, holding different players accountable with regard to oil and gas issues and participate in getting the voices of the poor in designing , monitoring and implementation of programmes in the oil and gas sector.

14

Highlights of policy and legal Highlights of policy and legal frameworkframeworkLegal Framework

The constitution. The foundation for effective resource management and administration of Uganda’s oil and gas is the 1995 Constitution, which provides for sustainable utilisation of natural resources, including; water, wetlands, minerals, oil, fauna and flora, on behalf of the people of Uganda (Objective no. 13 of National Objectives and Directive Principles of State Policy)

The 2005 however, took away minerals and petroleum from the ambit of the Public Trust Doctrine and instead the control is vested in government on behalf of the Republic of Uganda.

The right to a clean and healthy Environment is made part of the bill of rights.

15

Highlights of policy and legal Highlights of policy and legal frameworkframeworkLegal framework

On land and property rights A. 237(1) provides that land belongs to the citizens of Uganda and shall vest in them in accordance with the land tenure systems provided for in the Constitution. Article 26 provides that every person has a right to own property either individually or in association with others and no person shall be compulsorily deprived of property or any interest in or right over property of any description except where the property is required for public use, and even then, on prompt payment of fair and adequate compensation.

16

Highlights of policy and legal Highlights of policy and legal frameworkframework

Legal FrameworkCultural rights- A.36 –Every person has a right to

belong to, enjoy, practice, profess, maintain and promote any culture, cultural institution, language, tradition or religion in community with others.

The Land Act

Incorporates the public trust doctrine.

Land may be acquired for public use in accordance with the constitution.

Provides for compensation for loss of property and outlines the evaluation principles.

17

Highlights of policy and legal Highlights of policy and legal frameworkframework

Petroleum (Exploration and Production) Act ,1985:The Act was enacted to make provision for the exploration and production of petroleum in Uganda. It deals with issues of licensing for exploration, compensation etc, but lacks comprehensive provisions on institutional framework, resource management and environmental sustainability and revenue management.

Environmental Impact Assessment Regulations Provides for assessment of the impact of the project on the

environment and provision for mitigation. Provides for assessment of social-economic and cultural

impacts-immigration, social cohesion, human health, local economy, effect on culture and objects of cultural value.

EIA documents are made public documents under regulation 29.

18

The practiceThe practice

Lack of monitoring and evaluation frameworks undermine implementation of the policies and programmes. The Oil and Gas policy still lacks the a monitoring and evaluation framework.

Policies and laws are not enforced due to lack of budget discipline and lack of political accountability.

Provisions of the constitution and Land Act prompt payment of adequate and fair compensation before land acquisition are not enforced.

19

The practiceThe practice

Enjoyment of cultural rights and establishment institutions is implemented selectively and compensation for cultural sites, destruction of social cohesion is always ridiculed.

Project Impact Assessments have always emphasised environmental impacts and less of socio-cultural impacts even when provided for.

Public hearings are rarely held since the Executive Director of NEMA has discretion to determine which EIA requires public hearing.

Some EIA reports are hard to access even when they are made public documents by law.

20

The practiceThe practice

Effective participation of Civil Society is being hampered by state intimidation and the operational environment is becoming more hostile notwithstanding the policy provisions in the Oil and Gas Policy regarding the role of civil society.

NGOs are not well organised and in many cases lack a coherent and consistent strategy of engagement and in most cases are not taken seriously.

21

Proposed laws under the NO&GPThe Petroleum (Exploration, Development and Production) Bill,2012. (Upstream Bill)

The purpose of the Bill is to provide for regulation of oil exploration, development and production. It provides for establishment of the Petroleum Authority and the National oil company among others.

Although the Bill covers some aspects of damage resulting from pollution, EG is not one of the aspects adequately covered.

It provides for compensation for land rights n accordance with the old land legislation yet to be amended.

Socio-cultural rights are not covered by the Bill.

22

Proposed laws…Petroleum (Refining, Gas processing and Conversion, Transport and Storage) Bill,2012.

The purpose of the Bill is to operationalise the Oil and Gas policy by promoting petroleum refining, gas processing, transportation and storage.

The Bill provides for compliance with environmental principles in the mid-stream activities and regulation of activities that impact on the environment by the National Environment Management Authority.

It provides for public safety and health of the environment arising from mid –stream activities.

There are no specific provisions relating to cultural rights. 23

Proposed laws…

Public Finance Bill

The Public Finance Bill deals with management of public finance and aspects of oil revenue management.

24

Lessons

Civil Society representation on emerging decision making organs in the sector is relevant in fulfilling its mandate of ensuring that the voices of the poor into the designing, monitoring and implementation of programmes.

Although the National Environment Management Act provides for civil society representation on the

Board, that section of the law has never been operationalised.

Civil society is not represented on the Government Monitoring team that ensures that oil development does not compromise the quality of the Environment.

25

Lessons

Effective participation of stakeholders in the EIAs and Strategic Environmental Assessment can lead to effective integration of EG, Socio-cultural rights in the oil sector.

Ensure that socio-cultural impact assessments and ecosystem services are taken care of in the conduct of EIAs and SEAs

Following up and effectively participating in the SEA.

A clear engagement strategy in order to have impact on the sector is a must.

26

Lessons

Entrenchment of the role of civil society, cultural institutions and public participation in the policies relating to environmental governance and sustainable development provides an opportunity for civil society engament and integration of EG, land and socio-cultural rights.

Chapter 7 of the National Oil and Gas Policy recognizes the role of CSOs and Cultural Institutions- “holding different players accountable with regard to Oil and Gas issues and participate in getting the voices of the poor into designing, monitoring and implementation of programmes in the oil and gas sector.”

mm27

LessonsInvestment in quality research and analysis is critical for influencing government policy in integrating EG, land and socio-cultural rights.

Holding government accountable requires knowledge and information -understand rights and obligations of government and other stakeholders. eg to allege pollution damage, you need the baseline data-status of soils, water ,quality of air and biodiversity.

Effective participation in designing and monitoring programmes requires research and knowledge.

28

Lessons

Addressing the question of political governance is vital for entrenching EG, Land and socio-cultural rights in the oil sector.

Oil and Gas sector is a very sensitive sector because of the value of the resource and going at it a s a single organization can result in isolation and defeat- Loose Coalitions can insulate organizations against this danger. Coalitions have their own challenges though.

29

30

Thank You!