A/HRC/41/43/Add.2 E. Extractive sector: meaningful participation of affected peoples 54. The extractive sector has grown over the past decade, as the recent discovery of oil, gold and coal led the Government to target the extractive sectors with a view to achieving middle-income status by 2030. The contribution of the extractive industry to the GDP was 4 per cent in 2015, and is forecast to reach 10 per cent by 2030 by Kenya Vision 2030. Nevertheless, this potential for rapid growth in the sector may have an adverse impact if environmental protection, revenue-sharing, access to food and water and access to land are not addressed. The meaningful participation of potentially affected people in decisionmaking regarding extractive projects, both by companies and the Government, is critical to identify, prevent and mitigate negative human rights impacts. 55. Two ministries oversee the extractive sector. The Ministry of Energy and Petroleum oversees the exploration of oil, gas and fossil fuels, and issues the related licences, through the National Fossil Fuels Advisory Committee, under a regime set up by the Petroleum Act. The Ministry of Mining grants mining licences and oversees the operations of mining companies, in accordance with the Mining Act. 56. Kenya has a solid legal framework to facilitate community consultations, including specific provisions in the Constitution and requirements for consultations as part of environmental impact assessments.47 The Mining Act provides for increased transparency and access to information, including obtaining consent for access to land and environmental protection. However, these provisions are yet to be operationalized. In turn, the Petroleum Act does not provide for any consultative process with landowners, occupiers or community members. Affected community members living around extractive projects, including indigenous peoples, reported that, as a result, they had not been properly informed about extractive projects and their impacts, and their opinions had not been taken into account. 57. The Office of the Attorney General and Department of Justice informed the Working Group that new guidance on meaningful public participation was being drafted and that a policy on public participation, based on applicable international and regional human rights standards, had been developed, but not yet adopted. These tools should be designed in a way that accounts for and protects the views of rights holders. 58. The Working Group deplores the fact that no specific provision exists to consult indigenous peoples, in accordance with international standards. A recent ruling by the High Court of Kenya at Nairobi paves the way for further development in this area, as the Court criticized the proponent of the Lamu Port-South Sudan-Ethiopia Transport Corridor project (“LAPSSET” project) on coal mining for violating the rights of the indigenous community on Lamu island. The Court stated that the project proponent had an obligation not only to consult indigenous communities at the point of the project’s conceptualization, but also to hold ongoing consultations with the communities throughout the project cycle. 48 59. Meaningful, prior and informed consultation with communities affected by business operations is a central aspect of human rights due diligence, enable business and Government to identify concerns and grievances early on. Companies and national or local government authorities can establish memoranda of understanding with local communities, and publicize to create a measure of accountability. This would strengthen the trust between companies and local communities. 60. The sharing of extractives revenue is a constant source of tension between local communities, governments and companies. The Mining Act (sect. 183 (5)) provides for revenue-sharing between the national Government, county government and host community at a percentage ratio of 70, 20 and 10 per cent respectively. However, this is yet to be implemented. On the other hand, the relevant share for oil revenues still needs to be established, as the Petroleum Act fails to do so. The revenue-sharing formula is currently decided upon case by case, which has caused opposition and tension. 47 48 Constitution, art. 35; and Access to Information Act, No. 31 of 2016. High Court of Kenya at Nairobi, Petition No. 22 of 2012, Judgment, 30 April 2018, para. 329. 13