The right to consent or reject mining projects in South Africa

And its recognition in the Mining Law

SA deprives groups of right to consent to, or reject, mining projects on their land

Despite the rhetoric of transformation, the absence of free, prior and informed consent in SA’s mining law leaves the dehumanising status quo intact.

Phyllia Ngoetje and Nicola Seokoe

https://www.businesslive.co.za/bd/opinion/2020-10-08-sa-deprives-groups-of-right-to-consent-to-or-reject-mining-projects-on-their-land/

8 October 2020

During colonialism and apartheid, seemingly arbitrary laws dictating who could live where, with whom, and who could farm whose land, and when, were introduced to entrench white economic and political power. The callousness of these laws shocked the world, but their ideological origins were not exceptional: common to all colonial contexts is the belief that colonisers know what is best for the colonised, and that colonisers are therefore entitled to make choices for the colonised, on their behalf, without their knowledge or consent.

In repudiation of this disgraceful past, SA’s post-1994 legislature and judiciary afford profound importance to the value of autonomy, seeing it as integral to the constitutional values of freedom, equality and dignity. SA has been a leader in ensuring people’s individual autonomy and freedom over the decisions that affect their lives, whether it be women’s right to choose whether to have an abortion, or all citizens’ (including prisoners’) right to choose to vote for the political party of their choice.

Yet on the issue of natural resource governance, an issue requiring the recognition of communal autonomy,  SA falls short. Our legislation fails to grant communities the right to consent to, or reject, planned mining projects on their land.

This is why on October 12 Mining Affected Communities United in Action (Macua), Women Affected by Mining United in Action (Wamua), and Youth Affected by Mining United in Action (Yamua) will deliver a petition with over 50,000 signatures to President Cyril Ramaphosa, mineral resources and energy minister Gwede Mantashe, and mineral resources & energy parliamentary portfolio committee chair Sahlulele Luzipo. The petition calls on them to take immediate steps to ensure legislation governing natural resource management in SA explicitly guarantees mining affected communities the right to free, prior and informed consent.

This right empowers communities to withhold consent to mining operations on their land when they feel the operations will be detrimental to the protection of their land  and the development and wellbeing of their communities. In the context of mining, the ability of communities to consent to, or reject, new projects is particularly important because mining  brings profound, lasting changes to the lives of those living in surrounding areas — especially women, who usually bear the costs of  these changes while benefiting the least from mining operations. Mining’s effects on surrounding communities include the degradation of air, soil and water quality, which often renders subsistence farming impossible; damage to land and houses due to frequent blasting by mines;  illnesses such as silicosis, tuberculosis and various skin diseases; and the ubiquitous experience of emotional stress and fear.

Free, prior and informed consent is a well-recognised right of indigenous peoples in international law, with African regional bodies confirming it as a standard for all affected communities. For example, the African Commission on Human and People’s Rights adopted a resolution calling upon state parties to “confirm that all necessary measures must be taken by the state to ensure participation, including the free, prior and informed consent of communities, in decision-making related to natural resource governance; [ ... and] to promote natural resources legislation that respect human rights of all and require transparent, maximum and effective community participation in a) decision-making about, b) prioritisation and scale of, and c) benefits from any development on their land or other resources, or that affects them in any substantial way.”

In SA, however, no explicit right to free, prior and informed consent exists for communities that hold rights to the land on which mining is set to take place. This despite the fact that the Minerals and Petroleum Resources Development Act (MPRDA) was adopted specifically to end the antidemocratic, colonial governance of SA’s mineral resources. The Mining Charter was similarly introduced to facilitate the meaningful participation of previously excluded South Africans in the mining and minerals industry.

Successive versions of the Mining Charter, and of the regulations enacted under the MPRDA, have made progress in ensuring mineworkers and communities benefit from the mining operations in their areas. But they do not go far enough. They fail to recognise that it is mining affected communities themselves who know what is best for their land and livelihoods.

How can legislation that aims to improve the position of mining affected communities claim to do so without requiring their consent for mining projects? This obvious disconnect between the MPRDA’s aims and its prescribed process has not been lost on the courts. In November 2018, in a case brought by the Xolobeni community, the Pretoria North high court affirmed that communities must provide their consent before mining takes place on their land. Shamefully, the mineral resources minister decided to appeal against the judgment.

Macua, Wamua and Yamua chose October 12 for the delivery of the petitions because the action coincided with the date the Xolobeni community was due back in court, this time to ask that the minister’s appeal be dismissed on the grounds that it has not been launched after almost two years. The minister has opposed that application too — revealing an obvious disdain for the growing movement of mining affected communities across SA.

Historically, stripping black South Africans of their agency to choose how to govern and co-inhabit their ancestral land had two mutually reinforcing effects: it led to starvation, land degradation and poverty; and it simultaneously caused a rupture in the collective identity of indigenous African people, for whom land is central to understandings of community, ancestrality and belonging.

Today, despite the rhetoric of transformation, the absence of free, prior and informed consent in SA’s mining legislation leaves the dehumanising and infantilising status quo intact: once again we are told large mining corporations and the disconnected state government know better, that they may consider different perspectives but that ultimately they decide what progress and development mean for affected communities.

The unjust status quo must be rejected.

• Ngoetje and Seokoe are with the Macua Wamua Advisory Office legal department.

MACUA & WAMUA set to deliver 50 000 petitions to President Ramaphosa, Minister Mantashe and Chairperson of the Parliamentary Portfolio Committee Chair Mr Luzipo on 12 October 2020

https://macua.org.za/2020/09/30/macua-wamua-set-to-deliver-50-000-petitions-to-president-ramaphosa-minister-mantashe-and-chairperson-of-the-parliamentary-portfolio-committee-chair-mr-luzipo-on-12-october-2020/

On 12th of October 2020 we will deliver the first batch of 50 000 signatures of affected community members to the Union Buildings in Pretoria as the first step towards ensuring that our constitutional right to Free Prior and Informed Consent is recognised in the Mining Laws of the country.

The date of the 12th of October was specifically chosen to coincide with the date that the Xolobeni community was due to ask the Pretoria North High Court to dismiss the Minister of Mineral Resources appeal against the November 2018 Baleni (Xolobeni) judgement on the grounds that almost two years later, the minister has failed to prosecute his appeal. The Baleni judgement affirmed that communities must provide their consent before mining takes place on their land in line with the principle of Free Prior and Informed Consent. The Minister, who has once again opposed this application by the Xolobemi community, remains distinctly out of step with the Constitution and the mood of mining affected communities who are increasingly agitated by the arrogance of the Minister and the state in this regard.

Historical Context:

Mining Affected Communities United in Action (MACUA) and Women Affected by Mining United in Action (WAMUA) are fraternal organisations formed in response to the need to protect the integrity and interests of those impacted by mining. MACUA and WAMUA form a movement aimed at raising the voice of communities who have not been consulted in the processes of allocating mining licenses, developing communities and in the distribution of mining rents and wealth, but who bear the brunt of the social, economic and environmental degradation impacts of mining.

The appalling outcomes which have condemned mining affected communities to poverty and ill health, are enabled by the exclusion of communities and in particular the failure of mining laws to recognise the right of communities to Free Prior and Informed Consent and by the failure to include communities in all relevant decision-making bodies that directly impact on their lives.

The experience of over 150 years of mining in South Africa has shown that it is marginalised mining affected communities, particularly women, who subsidise large-scale mining operations.

Between 2007 and 2018 the industry reported net profits of R221 Billion Rand. Mining affected communities saw less than R1.5 Billion or 0.9% of that sum, over a 10-year period. While this paltry amount of the reported value created was claimed to have been spent in affected communities, our research has shown that more than 70% of development funds allocated to communities have not reached its intended beneficiaries. With the outbreak of Covid-19, the lives of mining affected communities were again placed in imminent danger. While mines re-opened during the lockdown, largely to meet the bottom-line of profit generation, no mitigation measures were put in place to ensure the communities, wherein mine workers reside, were protected. Unsurprisingly infections and Covid-19 related deaths spiked in mining areas while mine bosses who contravened the Covid -19 Regulations were not prosecuted in what appears to be cosy deals between the state and mining companies. We refer here to charges being withdrawn, without explanation, against Impala Platinum who was originally charged with contravening the regulations. With the Department of Mineral Resources and Energy, and the state more broadly, clearly failing to advance the interests of communities, we were compelled to resort to the courts to have our voices heard.

Even though the Labour Court Judgement we obtained on the 1 May 2020, confirmed that the Mine Health and Safety Act, places certain duties on the state and on mines to ensure the protection of mining affected communities and to meaningfully consult with communities on measures to prevent the spread of health risks such as Covid –19 Corona Virus, the DMRE still refused to meaningfully engage with communities to address the concerns of communities in what we experience as a continuation of our historical oppression, exclusion and exploitation.

There are now numerous court rulings in favour of greater community participation, including but not limited to:

• The ruling of February of 2017 in the Gauteng North High Court, where MACUA, WAMUA and others were recognised by the courts as relevant and affected stakeholders for purposes of consultations during the development of Mining Charter 3.
• The Baleni ruling of the Gauteng North High Court, commonly referred to as the Xolobeni ruling in November 2018, which affirmed that communities must provide their consent before mining takes place on their land.
• And more recently, The September 2020 the Gauteng North High Court again affirmed that our constitutional values require that communities be “part of the negotiating process from the start” when mining companies want to mine on community land.

The current Legislation as set out in the Minerals Petroleum Resources Development Act (MPRDA), does not ensure the fundamental protection of these rights and community interests and fails to prevent their ongoing and historical exploitation. It is instructive to note that the principle of Free Prior and Informed Consent is recognised in other South African laws, but the right is specifically excluded in the MPRDA. As a result of this lack of legislative protection, communities are compelled to continuously approach the courts for relief. Democracy is not meant to be realised through the courts and the pattern of intransigence with regard to community rights, experienced by communities at the hands of the DMRE and mining companies, is an afront to our democratic struggle and founding values of the constitution. The MPRDA and its regulations remain firmly structured around the colonial extraction and exploitation of the nation’s mineral wealth and subjugation of communities, without recognising the constitutional values of community and individual agency and the concomitant right to Free Prior and Informed Consent. There are numerous studies that confirm the exclusion of communities by the both the state and mining companies. The growth of MACUA & WAMUA attests to the increasing agitation and frustration of communities that remain locked out of the corridors of power where their futures are decided and where the wealth created from mining is distributed among the elite.

The MPRDA allows for the subjugation and disenfranchisement of affected communities. This framework of elite enrichment which drives the deep levels of inequality, in communities and the country, is an unsustainable path and will only lead to further conflict, division and massacres like the one our country suffered through in Marikana. We call on all South Africans to join us on the 12th of October at the Union Buildings to sign our petitions and to demand fair and equitable treatment of all citizens and for the right to Free Prior and Informed Consent.