The environment minister Barbara Creecy withdrew an amendment requiring consent from landowners for environmental authorisations for mining activities. Photographer: Waldo Swiegers/Bloomberg via Getty Images
The government’s withdrawal of an amendment to environmental regulations requiring consent from landowners for environmental authorisations for mining activities is a “slap in the face” for mining-affected communities in South Africa.
On 3 March, Forestry, Fisheries and Environment Minister Barbara Creecy withdrew a 2021 amendment to regulation 39 (2) of the environmental impact assessment (EIA) regulations, which required the consent of landowners where environmental authorisation is sought over land which is not owned by the developer.
According to the Centre for Environmental Rights (CER), before the June 2021 amendment to the EIA regulations, developers were only required to consult landowners. The amendment changed the position to require consent from landowners. It is this amendment that has been withdrawn.
The withdrawal notice states that the public participation processes for the amendment of environmental legislation had not been adequately complied with.
“This is a step backwards and a slap in the face of communities whose land and other basic rights are continually trampled by corporations such as mining companies,” said Robert Krause, researcher in the environmental justice programme at the Centre for Applied Legal Studies.
“The amendment, which has now been withdrawn, aligned the EIA regulations with the protections offered by the Interim Protection of Informal Land Rights Act [IPILRA] which required the consent of those whose land rights were rendered vulnerable by apartheid,” he said.
Danjelle Midgley, an environmental law specialist at the CER, said she noted the withdrawal of the amendment with “disappointment”. She explained how, in 2016, the South African Human Rights Commission, in its report on the national hearings on the underlying socio-economic challenges facing mining affected communities, directed the department of mineral resources and energy to establish a working group with stakeholders to establish best practice guidelines or binding standards that must adhere to the principle of free and prior informed consent.
“That followed growing recognition internationally, including on the African continent, of the role that the extractives industry plays in worsening inequality because of the destruction of natural resources on which many rely directly, resettlement of communities to make way for mining expansion and the like,” Midgley said.
The principle of free and prior informed consent (FPIC) requires more than just consultation between developers and those whose land is to be used for a development, which will have negative effects on their economic, social and environmental wellbeing.
“The requirement of consent, as a part of FPIC, is essential to enable communities to negotiate their own development outcomes — especially in the context of extractive industries in South Africa. The Xolobeni communities’ ground-breaking #RightToSayNo judgment confirmed that consent is still required for those living under customary law under the IPILRA,” she said, describing how the FPIC is therefore not a new concept in the local context.
The withdrawal of the amendment by the environment department shows a lack of alignment on the issue of consent for development with the mineral resources and energy department, which together with the environment department, regulates mining in South Africa, Midgley said.
“The law has now reverted to require that, when applicants seek environmental authorisation for a development on land which they do not own, the developers must merely consult with the landowners even though those projects, such as mining, will have some of the most egregious impacts on that land.
“Mining activities, linear activities — such as road or pipeline construction — and ‘strategic integrated projects’ are the three categories of activities for which consent of the land owners and occupiers is not required.”
Mariette Liefferink, the chief executive of the Federation for a Sustainable Environment (FSE), said the withdrawal may be attributed to the “heightened tension” between the right to property versus the right to access to natural resources.
This includes the disconnect between the Mineral and Petroleum Resources Development Act — the primary legislation — where the holder of a right or permit merely needs to notify and consult with a landowner prior to commencing operations — and the proposed amendments of the EIA regulations — the subordinate legislation — which requires written consent from the landowner or person in control of the land on which the mining or prospecting activity is to be undertaken must be obtained.
Liefferink said the Federation for a Sustainable Environment strongly supports the principle of free and prior informed consent because the entitlements that flow from mining and prospecting operations are “so far-reaching.
“For example, the holder of a prospecting or mining right is entitled to enter the and bring onto that land any plant, machinery or equipment to build, construct any surface or underground infrastructure to mine and prospect on or under the land and to and remove and dispose of any mineral found; to use water from any natural spring, lake, river or stream, situated on or flowing through the land.
“To this end, the federation welcomed the proposed amendments and is disheartened by the recent withdrawal of the amendment.”
Albi Modise, the department’s spokesperson, said the amendments to the EIA regulations and associated listing notices were published for comment in the Government Gazette on 13 November 2020. “The proposed amendments did not include any amendments to regulation 39(2). As part of the consultation process a comment was received related to regulation 39(2) of the EIA regulations. After consideration of the comment received, an amendment was made to regulation 39(2), however the amendment was not subjected to a public consultation process as required in terms of section 47 of the National Environmental Management Act.”
The amendment of regulation 39(2) was later challenged through litigation, based on a procedurally fair process not being followed for such an amendment, Modise said. “The department obtained legal advice on the matter from senior counsel who advised that the most appropriate option to remedy the procedurally unfair amendment of regulation 39(2), is to immediately withdraw the amendment as the minister has an obligation to rectify any unlawful administrative action.”
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