Changes to mining Act need work

Years of fighting by South African mining communities have shaped the changes to the Mineral and Petroleum Resources Development Act.

But civic organisations say the recently released amendments need some work if these communities are to finally be heard.

In his speech to delegates at the 26th annual Mining Indaba in Cape Town this week, Mineral Resources Minister Gwede Mantashe said that mining companies “must take seriously the communities on whose land they mine”.

The subject of community land rights has been a mainstay of Mantashe’s time as minister, as his department inched closer towards finalising the draft amendments to the Mineral and Petroleum Resources Development Act.

The Act — which came into force in 2004 and vests all mineral rights in the state — governs who gets to mine.

But in recent years litigation has exposed how the Act, in its initial form, has failed to address the tension between land rights and the rights of companies to mine that land.

In two court battles — over the informal land rights of the Bakgatla community in the North West and a community in Xolobeni in the Eastern Cape — judges found that the Act does not trump the rights of communities to decide what should happen to their land.

Although civic organisations have pointed out that the amendments to the Mineral and Petroleum Resources Development Act are a step in the right direction — in that they clarify what it means to meaningfully consult with these communities — they have also identified loopholes that could undercut the aim of the amendments.

For instance, in its submission on the amendments, Corruption Watch notes that the definition for meaningful consultation merely requires “good faith” on the part of the applicant.

“While this requires the applicant to go further than mere notification of the affected and interested parties, the reality is that the guidelines have similar requirements, which has led to the limitation of participation rights of community members,” the submission reads.

In its submission, The Centre for Applied Legal Studies takes issue with the phrasing of the requirements for initial consultation with interested parties.

The centre points out that “the phrasing of each of requirements as alternative ‘or’ rather than cumulative ‘and’ means that technically, mere publication in the provincial gazette could be sufficient”.

This could undermine the “progressive intent of the amendment”, the submission adds.

(John McCann/M&G)

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Sarah Smit
Sarah Smit
Sarah Smit is a general news reporter at the Mail & Guardian. She covers topics relating to labour, corruption and the law.

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