SUBMISSIONS ON THE MINERAL AND
PETROLEUM RESOURCES DEVELOPMENT AMENDMENT BILL
The Amendment Objected to
The
Amendment objected to is the amendment to Section 5(4)(c) in terms of which the
duty to notify and consult with the landowner or lawful occupier of the land is
replaced with a duty to give at least 21 days written notice.
The Grounds of Objection
The
preamble to the Act recognises the need to promote local and rural development
and the social upliftment of communities affected by mining.
My
clients are in the main impoverished, rural communities affected by mining.
Their experiences of the impact of mining are however overwhelmingly negative
and by and large the quality of their lives is diminished and not improved by
mining activities on their land.
While
mining activities can undoubtedly contribute to social and economic
development, mining often inflicts a heavy social, economic and environmental
cost on the host community.
The
grant of a mining or prospecting right is a very serious inroads into a
community or an individual owner’s constitutionally protected land or property
rights. Great care should be taken before depriving a community of their land
rights. Indeed IPILRA spells out the procedure to be followed before a
community can be deprived of their land rights. The MPRDA allows for the
deprivation of such rights after an ill defined consultation between the mine
and the community. This seems wrong.
The
relationship between mining corporations and rural communities is characterised
by inequality and a monopoly on knowledge, skills and resources enjoyed by the
mining corporations. This inequality colours the consultation process
contemplated in Sections 16, 22 and 27 of the Act and invariably, the outcome
of the consultative process. The result is most often an unequal and
exploitative relationship (that may or may not be regulated by formal
agreements) between the parties.
The
nature of the consultation required or the desired outcomes are not defined in
the Act. It is silent on whether or not agreement must be reached, and if so
whether an in principle agreement is adequate or if a legally binding and
enforceable agreement is required. The Act does not give any guidance on what
constitutes proper consultation and what an acceptable outcome is or not, as
the case may be.
It
is significant that the only insight the Minister has into the consultative
process is the report thereon provided to her by the mining corporation itself.
At no stage before she awards a right does the Minister herself or the
department consult with the landowner or lawful occupiers. While this might not
be a concern where the landowner is a wealthy and privileged individual, it is
a huge concern where the occupiers are a vulnerable, rural community.
The
community has no insight into what report is made by the applicant to the
minister. For all it knows the applicant reported that the community approved
of the mining rights application when in truth they vehemently opposed it.
The
consultative process is critical to determine whether or not the relationship
between the mining corporation and the community promotes development and
social upliftment or deepens poverty and inequality for it is in that process
that the terms on which mining takes place on communal land are determined. The
Act does not contain any safeguards to ensure that there is a satisfactory
outcome to that process.
Section
5(4) lists the three fundamental requirements that must be met before mining or
prospecting can take place lawfully. A failure to meet anyone of those
requirements makes the mining or prospecting a criminal offence (see Section
98(a) (i)). The effect of the amendment is to decriminalise a failure to
consult. This sends out the wrong message and suggests that consultation is a lesser
consideration not worthy of protection by criminal sanction.
I
do not believe that section 5, which spells out the legal nature of a mining
right, should be read to be imposing an additional procedural step after the
grant of a right but before the right is exercised. It is intended to describe
the essential requirements that must be in place before prospecting or mining
operations can be said to be legal. If that is the concern of the committee it
could be addressed by referencing the notification and consultation referred to
back to the relevant sections that spell out those procedural requirements.
Alternatively the notice requirement should be stipulated elsewhere.
What
is required is that the term ‘consultation’ needs to be given some content for
example by requiring that the outcome of the consultative process must be
independently verified by the DME and assessed and evaluated against the
development objectives sought to be achieved.
The
weaknesses in the current legislative frame work can be illustrated by the
following examples. The first involves a private landowner but it illustrates
the problem quite well.
Private Land Owner
The
owner of a private game reserve was advised that an application for a
prospecting right had been made in respect of his property and that the
application had been accepted by the regional manager. He was invited to make
such comments and submissions as he felt fit to make. The owner wrote back to say
that he objected to the grant of such a right and requested more information
whereupon, he indicated, he would respond in detail. Nothing more was heard
from the applicant until recently when he advised that the prospecting right
had been granted by the Minister.
Technically
I suppose there had been consultation but clearly the question arises was it
adequate.
Ga-Ratau
This
is a small rural community in the
On
the strength of that consultation and similar consultations with traditional
authorities on the other farms, the Minister granted the prospecting right.
Before
it commenced prospecting operations, the mining company went back to the
traditional authority who confirmed that they had no objection and that prospecting
operations could proceed. The traditional authority nominated a co-ordinating
committee to liaise with the mine. No
formal agreement was entered into.
When
prospecting commenced, residents objected on the grounds that they had not been
consulted and that they had not agreed to prospecting
on their land. A rival traditional authority also complained that it had not
been consulted.
The
community felt that a formal written agreement should have been concluded
between the mining company and the community through a democratic and inclusive
process. They wanted issues such as the nature and extent of the prospecting
operations, the duration, hours of operation, compensation for the use of
individual and communal land, compensation for damage to property, compensation
for nuisance associated with the drilling operations and the use of scarce
community resources such as water to be spelled out in the agreement before
drilling commenced.
The
attitude of the mining company was that it had consulted the consultation was
adequate and in any event the Minister had awarded the right.
A
failure to resolve these issues led to conflict and division in the community,
protests, police actions, arrests and court interdicts and culminated this week
in the destruction, by members of the community, of three drilling rigs.
Mohlohlo
In
fulfilment of its obligations to consult, prior to being granted a mining
license on the community’s land, the mining company concerned consulted with
the community who agreed in principle to the mining operations and to be
relocated. A formal community land rights resolution was taken to this effect.
A committee was nominated by the community to
negotiate an agreement with the mine. The committee was however structured in
such a way that it was not subject to any democratic control or accountability.
They have, as of date, been in office without any elections for 9 years. The
members of the committee and their legal advisers are all paid by the mine. Not
surprisingly they have become alienated from the community.
The
committee negotiated a set of agreements with the mining company.(In my opinion the agreements are manifestly prejudicial to
the rights and interests of the community.) Many residents rejected the agreements
and called on the mine to renegotiate the terms and not to implement them. The
mining company refused to do so and refused even to talk to the aggrieved
community members.
This
led to conflict and division in the community which culminated this week in
protests and stay-aways. A number of people were injured as a result of police
action and a number more have been arrested.
Roka-Malepe
The
mining company consulted with the residents of one village (Segorong) about
mining on their community land but not with the traditional authority that has
jurisdiction over several villages including the village in question.
The
company set up a trust that is not democratic or accountable to contract on the
communities behalf. The agreements that have been
reached fail to reflect or make provision for the rights and interests of the
broader community.
The
agreements are also grossly prejudicial even to the interests of the residents
of Segorong and are exploitative and oppressive.
The
mining company refuses to consult with the tribal authority and has been
inciting Segorong residents against it. This has led to conflict and division
within the community.
Maandagshoek
The
mining company consulted with and recognised a particular community structure
that it had helped establish. The community does not accept that this structure
has any standing or authority to grant the mining company permission to enter
onto community land or to carry out mining operations on it.
The
mining company on its part refuses to consult with any structures other than
the structure which it recognises.
The
result has been conflict and division within the community and the mine has
been physically prevented from commencing mining operations on communal land. There
have been numerous arrests shootings and beatings.
Twickenham
In
the course of the consultative process, about 120 families agreed to be
relocated to make way for mining activities.
The
families were relocated to a village, Magobading, with inadequate water,
sanitation and storm water. They are left without land and without any means of
subsistence in a settlement that is completely unsustainable.
Such
agreements as were reached were grossly unfavourable for the communities.
The
result has been conflict and division and entrenched poverty.
As
is the case at numerous other mines on community land years after mining
commenced there are still no lease agreements in place between the communities
and the mining company. The communities derive no financial benefit in return
for the mines use of their land. (Modikwa and Marula platinum mines are other
examples of this)
Ga-Pila
In
the course of the consultative process, the community of some 7000 people,
advised by lawyers paid by the mine, agreed to be relocated. They established a
section 21 company to negotiate the terms on their behalf.
The
section 21 company entered into grossly prejudicial agreements with the mine.
The
community was relocated to an unsustainable township 20 kms further from town and without sufficient
land for ploughing and grazing and without proper compensation.
12
years after the members of the section 21 company were first nominated there
has still not been an election and the members still rule the community with an
iron fist.
The
result has been conflict and division and entrenched poverty.
Summary of Shortcomings in the
Consultative Process
There
is no meaningful consultation at all.
Communities
do not have the knowledge skills or capacity to participate meaningfully in the
process.
Communities
do not know their rights including their right to object, their right to appeal
and their right to apply for the preferential access to minerals that they
should enjoy.
Communities
don’t have the skills resources and capacity to exercise their rights in any
meaningful way.
The
consultation process is not inclusive.
Land
rights holders are not consulted and the IPILRA processes are not followed. The
participation of the DLA is not mandatory. Land rights are ignored.
The
mining company manipulates the process by co-opting community leaders and
representatives to betray the interests of the community. Corporate structures
are established to conclude agreements on the communities’ behalf that are
neither democratic nor accountable.
The
mining companies deliberately subvert and exclude elements in the community
that they cannot co-opt.
Companies
do not respect the communities’ right to independent professional and legal
advice and routinely appoint and pay lawyers to “advise” the communities.
The
outcomes do not promote the objects of the Act which include the social and
economic upliftment of the poor rural communities that host the mines.
Compensation
where agreed, bears no relation to the actual social economic and environmental
loss and harm sustained by the community
The
DME and DLA consistently fail to protect and to promote the rights and
interests of vulnerable communities.
There
is no provision for the DME monitors the process and assesses the outcomes of
the consultative process.
Recommendations
It
is recommended that the Amendment to section 5(4)(c)not
be passed.
It
is recommended that the Portfolio Committee consider making amendments to the
Act to protect vulnerable, rural communities so as to ensure both that there is
proper consultation and that the outcome of the consultative process is fair
and equitable and that it promotes local and rural development and the social
upliftment of the affected community.
It
is recommended that the Portfolio Committee consider whether mining activities,
which will significantly impact upon vulnerable rural communities, should be
allowed unless the full, free and informed consent of the community concerned
has been obtained thereto. This would be consistent with international norms
for the protection of the rights of indigenous communities.
Richard Spoor
28 May 2007