The Claimants were also required to produce a mining feasibility and an approved
Environmental Impact Assessment licence, which, according to the Government, they never did.
The Claimants’ project proposed removal of 100 million tonnes of the metal niobium and 30 million
3
Respondent’s Counter-Memorial on the Merits and Memorial on Objections to Jurisdiction dated 5 October 2016,
para. 5.
3
tonnes of rare earths from the reserve area. Section 4(2) of the Environmental (Impact Assessment
and Audit) Regulations, 2003, provided:
No licensing authority under any law in force in Kenya shall issue a
licence for any project for which an environmental impact
assessment is required under the Act unless the applicant produces to
the licensing authority a licence of environmental impact assessment
issued by the Authority [NEMA] under these Regulations.
4
(emphasis
added)
The Tribunal recognizes that resource allocation was to a significant extent intertwined
with politics in Kenya in 2013, but nevertheless the regulatory system, including statutory
conditions precedent to the issuance of the mining licence, required compliance.
9. For the reasons that follow, the Tribunal concludes that the BIT protects only lawful
investments, and that the Claimants have failed to establish any compensable investment that was
lawfully issued in accordance with the laws of Kenya.
10. The prospecting licence, SPL 256, expired (after two renewals) according to its own terms
on 1 December 2014, without Government intervention.
11. SML 351 purported to confer on the Claimants an exclusive right to mine valuable minerals
for 21 years in an area that included Mrima Hill and to exclude all others from exploitation of these
public resources. The Claimants’ own evidence establishes that SML 351 was procured by their
successful political lobbying of officials of the outgoing Kibaki Government. In the Tribunal’s
view, the freshly elected Government was not bound either under domestic law or international
law by a “purported” mining licence issued under political direction in disregard of the explicit
requirements of the Kenya Mining Act and other relevant Kenyan legislation.
8
The Tribunal is not
bound by the decision of the Kenyan courts but has reached the independent conclusion that SML
351 was void. It was a scrap of paper issued by an irresponsible bureaucrat contrary to specific
legislative requirements. In the circumstances, the Claimants have failed to establish the existence
8
Respondent’s Counter-Memorial on the Merits and Memorial on Objections to Jurisdiction dated 5 October 2016,
para. 5.
5
of an investment that qualified for treaty protection. Accordingly, ICSID and the Tribunal lack
jurisdiction and the claim is dismissed. |
