Land Access Approach For South Lokichar Petroleum Development Project

Exactly how much land does the project need and how will it be acquired? This is a delicate question among host Turkana communities and needs clarity. Clarity is what may not be fully possible at this point of time, but communication is critical.

Last year, during one of the CSO workshops, we learnt the skills of ring-fencing information from the different partners associated with petroleum contracts. This article tries to answer this question using that method. There are several documents in public, which would provide and educated estimate of the land needs for the project. The most recent are Tullow/AfricaOil’s ESIA scoping documents.

This is a difficult case, simply because Kenyan Land transactions are a complicated matter to both investors and even citizens. While the new constitution provides a charade of reforms, the PSC agreements for (10BB/13T) blocks located in what is under the 2010 Constitution, Turkana County, were signed before 2010.  

That is the why, according to the scoping documents, the Ministry of Energy & Petroleum (as the responsible ministry) has convened a Government Working Group on land matters specifically for the Development Project. ?The PSC are between MoEP and Tullow/AfricaOil. In the production sharing contract, according to the Contracting parties, MoEP was to provide Land Access for the Companies to (provide technology finance and risks) in exploration and if successful development and production of oil and gas.

The Turkana County Government’s engagement (and any other county where the off-take pipeline would access land) has been to then be negotiated within the working group, which should be inclusive of respective county representatives. Article 6 of 2010 Constitution calls them inter-dependent and conducting their mutual relations on the basis of consultation and cooperation.

Tullow Kenya is working with the Working Group to define the Development Phase land access approach, initially focusing on upstream areas. ? What then are the upstream land access needs of the South Lokichar Development Project? This would be critical in mapping out specific footprint impacts of the project within the project area for all the petroleum facilities to be constructed.  

It will need to meet applicable national land laws and International Finance Corporation (IFC) requirements - notably IFC Performance Standard 5: Land Acquisition and Involuntary Resettlement. The Environmental and Social review summary (ESRS) released by IFC June 2015 confirms applicability of PS 6. By the end of 2016, we hope to see more accurate project designs which should help improve our view of the specific projects land take needs.

The 2010 constitution stipulates community land as one of the categories of land in Kenya. Community rights are a critical aspect in determination of land access approach of projects. In Turkana County, according to ESRS, the Turkana groups hold land under complex traditional arrangements and there are no formal titles. The Kenyan President is quoted to have encouraged communities along the proposed LAPSSET route to form cooperative organs where they can jointly engage with the crude pipeline.

The northern rangelands trust (NRT) has come up with a series of conservancies, which some observers see to be aligned to the proposed petroleum facilities. Six NRT related community conservancies were proposed around Southern Turkana area and include community elders as officials managing community-based organizations. These conservancies have been subject of major anxieties and debate within the county, especially given the stalled community lands bill 2015. The ESIA scoping team denied that the conservancies will be covered as part of the current on-going ESIA.

While its too early to predict potential land impacts of upcoming field development, modern directional drilling techniques allow to position well pads away from human settlements even where the reservoir needs to be reached below a settlement. According to the IFC’s ESRS, the same applies to in-field flow and electric lines, access roads, and even the central processing facility (CPF). Exploration and appraisal drilling typically involves the creation of a well pad of about 4-5 hectares and access road of varying length, both secured on temporary land leases.

Significant displacements are not anticipated to result from the development of the oil field in South Lokichar. The company has adopted an impact minimization approach. The facilities will be “designed out” of significant land and settlement impacts. The Turkana County Government late 2015, constituted its County Land Board as per the National Legislations. By some interpretations, Turkana County is considered almost 99% Community land.  2010 constitution defines "all minerals and mineral oils as defined by law as Public lands". The interpretation here is that where mineral oils are found in the sub surface of land otherwise, generally defined as  community land, host communities and county government have claim to land surface rights.

The land access approach needs to be identified by early 2016 and presented in a Land Acquisition Framework (LAF) ?according to Tullow/AfricaOil ESIA Scoping documents. There are possibilities for temporary displacement (physical or economic) as in the case during exploration. In one case in Kenya, temporary structures used by pastoralists had to be relocated but such impacts can generally be avoided.

The ESRS spells out a compensation strategy and process where displacement is inevitable, compensation and a grievance mechanism are set in place. Where land is not held privately (and assumed to be held collectively by Turkana groups), the IFC document says, there is no cash compensation (except for crops if applicable), but in-kind compensation at community level in the form of community projects such as construction of, or improvements to community infrastructure, like classrooms or water supply systems.

The company will implement a free Prior Informed Consent (FPIC) process wherever land is taken temporarily or permanently from a community who meet the criteria in Performance Standard 7 on indigenous peoples. According to the ESRS, this will apply only to where the circumstances under PS 7 paragraph 13-17 occur.

Indigenous peoples are often closely tied to their lands and related natural resources. Frequently, these lands are traditionally owned or under customary use. Their use of these lands, including seasonal or cyclical use, for their livelihoods, or cultural, ceremonial, and spiritual purposes that define their identity and community, can often be substantiated and documented.

Specific steps to be undertaken are listed clearly in 14, while the next spells out what the company must do where land relocation cannot be designed out. Any relocation will be done according to PS 5. Priority will be given to critical cultural heritage where significant project impacts are expected.

These are still purely road maps of what the Government Working group will work with the Joint Venture of Tullow and Africa Oil to determine what specific land access framework will be used.

These are personal views and due diligence is advised on any references made, for any purposes whatsoever.