Mining rights: Communities 'not consulted' on bill

The LRC has argued that the bill's main fault lies with the exclusion of mining communities, most affected by the allocation of mining rights, from mining developments. (Madelene Cronje, M&G)

The LRC has argued that the bill's main fault lies with the exclusion of mining communities, most affected by the allocation of mining rights, from mining developments. (Madelene Cronje, M&G)

The Legal Resources Centre (LRC) has called on Parliament to withdraw the Mineral and Petroleum Resources Development Amendment Bill (MPRDA). It said there is "no evidence" that rural mining communities have been consulted during deliberations around the bill.

Friday was the last day for the public to comment on the bill.

The LRC said any legislation around the awarding of mining rights must include the views of the communities directly affected by mining. And the current form of the bill failed to address the "gross inequalities" that persisted throughout the country's "complex rural landscape".

The bill is intended to iron out "ambiguities" in the current legislation, but it has been criticised mainly for giving the minister of mineral resources too much control over the awarding of mineral rights.

The bill is also intended to do away with the "first come, first served" way that mining rights have been awarded thus far. Instead, the minister will now alert mining companies to available opportunities by a proclamation in the government gazette.

While critics of the bill have voiced their concern over investor confidence and the capacity of the Department of Mineral Resources (DMR) to implement the proposed changes, the LRC on Friday argued that its main fault lies with the exclusion of mining communities, most affected by the allocation of mining rights, from mining developments.

Scrapped and redrafted
The LRC is a non-profit public interest law firm, and in this case it is representing rural communities occupying communal land.

For the past decade, the LRC said it has repeatedly tried to get the DMR to consult with mining communities in drafting legislation.

When the current amendments were drafted in February, the LRC wrote to the department again saying there was no evidence that mining communities had been consulted.

It asked for the bill to be scrapped and redrafted, but the department did not respond to its request, the LRC said.

Writing to the portfolio committee on Friday, the LRC said: "We now turn to your committee with specific proposals for significant amendments to the bill prepared by the department.
We do so without the benefit of extensive consultations with rural communities.

"We had the opportunity to consult with some of the communities whom we work with in Limpopo, North West, Gauteng, Mpumalanga, KwaZulu-Natal and Northern Cape. We also consulted with the Mining Affected Communities United in Action."

"We urge your committee to urgently engage in a thorough and comprehensive public participation programme to ensure that the voices of rural communities on communal land, directly affected by mining are heard…" 

1913 legacy
The submission further states that current legislation does not address the 1913 legacy of land dispossession.

"Limited black economic empowerment introduced though the MPRDA and the Mining Charter may have changed prospects for city dwellers, but rural communities have not benefitted."

Proposed changes to section 23 of the MPRDA state that "The Minister must, after taking into consideration the socio-economic challenges or needs of a particular area or community, direct the holder of a mining right to address those challenges or needs."

But the LRC said this power "remains in the unfettered discretion of the minister, and any mining company could object to being singled out to bear the burden of structural discrimination".

It also said that the Social and Labour Plans (SLP) of mining companies, which require them to take steps to improve the socio-economic conditions of mining communities, have not worked.

"Little is known about SLP undertakings … because they are kept confidential by companies, the department and local authorities."

"Recently the SLP undertakings of Lonmin came to light in Marikana Commission of Inquiry proceedings. In 2006, as part of its rights conversion application, the company undertook to build 5 500 houses for employees. The record shows that only 3 show houses had been built in the intervening period," the LRC said.

South African rural landscape
In its submission, the LRC also said the bill, in its current form, "fails to address adequately the complex of the South African rural landscape".

"It is common cause that the South African rural landscape is one still plagued not only by the gross inequality in land and service allocation of the apartheid era, but also with the reality of different operating notions of ownership and land rights.

"It is the latter state of affairs that makes it difficult for rural communities to assert their voices in the development discussion in South Africa."

"For this and other reasons, we argue that the bill should provide for effective mechanisms to facilitate the participation of communities in their own development and on their own terms."

It said the MPRDA "entrenches" historical discrimination against customary forms of land ownership, as only those with recognised land ownership in the pre-MPRDA era had old order rights which could be converted.

Equal opportunity
"While the constitutional provisions for restitution and security of tenure aimed to ensure the systematic overturning of such a racially discriminatory property regime, it came too late for most communities to allow them equal opportunity to convert their rights …"

And while the Constitution recognises customary law, "the rights arising from such law – to land and resources – remain largely unrecognised. Any legislation that deals with rural development and land use change must prioritise rural communities who were and continue to be the most vulnerable".

The Centre added, "The failure as yet of the legislature to give effect to section 25 (6) of the Constitution, of ensuring security of tenure for people on communal land is but one reason for the continued marginalisation of rural communities."

The LRC is not the first organisation to call for the scrapping of the amendment bill. The DA previously said the bill would kill jobs and further fuel the "poisonous" relationship between the ruling elite and big business.

At a press conference in August, the DA said the bill gave too much discretionary power to the minister of mineral resources and her officials. It also said 80 submissions on the bill were ignored by the department, leaving the version of the June 2013-version of the bill largely unchanged from the version released for public comment in December last year.

Sarah Evans

Sarah Evans

Sarah Evans interned at the Diamond Fields Advertiser in Kimberley for three years before completing an internship at the Mail & Guardian Centre for Investigative Journalism (amaBhungane). She went on to work as a Mail & Guardian news reporter with areas of interest including crime, law, governance and the nexus between business and politics.  Read more from Sarah Evans

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