Section 155 of the Mining Act 1992 is short, and it is the provision every landholder should know.
Section 155 — no entry until compensation is settled
The holder of a tenement shall not enter onto or occupy any land, the subject of the tenement, for the purpose of mining, until:
(a) he has made an agreement with the landholders as to the amount, times and mode of compensation, and the agreement has been registered in accordance with section 156(6); or
(b) compensation has been determined in accordance with this Part and the holder has paid or tendered such compensation as is then due.
Limb (a) requires more than agreement. It requires an agreement covering the amount, the times and the mode of compensation, and it requires that agreement to have been registered — which under section 156 means it must first have gone to the Chief Warden for his notice under section 156(4), and then been executed and lodged with the Registrar.
Limb (b) requires both a determination and payment or tender of what is then due. A determination alone is not enough.
An unregistered handshake agreement satisfies neither limb.
What section 155 covers, and what it does not
| Activity | Governed by |
|---|---|
| Entry or occupation for the purpose of mining | Section 155 — barred until compensation is settled |
| Marking out before an application | Section 96, including a section 96(4) authority on the prescribed form; must not interfere unreasonably with activities on the land (s 96(5)) |
| Survey of a proposed tenement | Section 97, including a section 97(2) authority; must not interfere unreasonably (s 97(11)) |
| Geological or geotechnical investigations by the Authority or the State | Section 165 — a right to enter granted by the Managing Director on the prescribed form |
| Exploration under an exploration licence | Section 23 rights — but compensation is payable under section 154(1) for entry or occupation for the purposes of exploration, and extension depends on it having been paid (s 28(1)(b)) |
Whoever arrives, ask what they are doing and under what authority — the tenement itself, a section 96(4) or 97(2) authority, or a section 165 right to enter. Each is on a prescribed form.
And note section 166: all members of the Police Force shall, when required by a Warden or an employee of the Authority, act in aid of them in the exercise of their powers under the Act. Police presence does not by itself establish that entry for mining is lawful; the section 155 requirement still has to be met.
Why section 155 is the key provision
Almost everything else in the Act happens without the landholder’s consent:
- Section 6 makes all land available for tenements, including customary land.
- Section 4 provides that a customary land dispute does not affect the right to apply for or be granted a tenement.
- Section 5 vests all minerals in the State.
- Section 120(2)(a) provides that, except for fraud, irregularities in the process before grant do not affect the registered holder’s title.
Against that, section 155 is a hard precondition to the miner actually getting onto the ground. It cannot be dispensed with by a mining development contract — section 19 provides that where such a contract conflicts with the Act, the Act prevails.
Section 159 — once settled, it binds
Subject to appeal under section 158, the provisions of (a) a compensation agreement duly registered under section 156, or (b) a Warden’s determination under section 157, shall be:
(c) a condition of the tenement to which it relates, the breach of which may be grounds for the cancellation of the tenement; and
(d) binding as a contract on both the holder and the landholders.
Compensation terms become a condition of the tenement. Breach is therefore a ground for the Managing Director to issue a show-cause notice under section 142, and for the Minister to cancel the tenement.
Unpaid compensation also bears on extension: under section 28(1)(b) an exploration licence is extended only where the Council advises that the holder has paid compensation as required by this Act, relying on the advice of the Chief Warden. And on surrender, cancellation or expiry, unpaid compensation is deducted from the security before any balance is returned (ss 139(2), 143(2), 144(2)).
Section 160 — where ownership is disputed
Where a dispute as defined in the Land Disputes Settlement Act (Chapter 45) makes agreement on compensation impracticable, the amount shall be determined as provided in section 157.
The amount so determined shall be payable into a statutory trust, to be held until the land dispute has been resolved, and then paid out as the Warden determines or in accordance with a compensation agreement.
So a land dispute does not stop the money being fixed, and does not let the holder onto the land for free. See compensation in a land dispute. Note that section 157(1)(b) expressly allows claimants to disputed land to request a Warden’s determination.
If a miner arrives on your land
- Ask what tenement is held, and ask to see it. Check it against the Register of Tenements.
- Ask whether compensation has been agreed and registered, or determined and paid or tendered. If not, section 155 forbids entry for the purpose of mining.
- Do not obstruct. Put the objection in writing, and take it to the Warden and the Registrar at once.
- Record everything — dates, names, vehicles, equipment, photographs, and the condition of the land before and after.
- Ask the Chief Warden to fix a determination under section 157 if agreement cannot be reached.
- Never accept a payment for permitting entry — under section 154(4) and (5) it is not compensation, and paying it is an offence carrying up to K10,000 or five years’ imprisonment.
- Get advice — the Public Solicitor, or a firm from the law firms directory.
Sources
- Mining Act 1992 — ss 4–6, 19, 23, 28, 96, 97, 120, 139, 142–144, 154–160, 165, 166
- Land Disputes Settlement Act (Chapter 45)
- Constitution — ss 41, 53, 59
Before relying on anything here, read the current text of the Mining Act 1992 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.