High court finally gives mining communities a voice
An order handed down by the high court has vindicated the fight by miningaffected communities for recognition as true stakeholders in the negotiation of mining regulation that has an effect on their daily lives.
The High Court in Pretoria handed down an order postponing the judicial review of the most recent version of the Mining Charter, published by Mineral Resources Minister Mosebenzi Zwane in June, while recognising miningaffected communities as interested parties for purposes of consultation in the development of a new charter.
The Sefikile, Lesetlheng, Babina Phuthi Ba Ga-Makola and Kgatlu communities, which host mining operations on their land, along with three mining community federations originally challenged the 2017 charter on a range of procedural as well as substantive issues. The Chamber of Mines opposed the minister in the same matter.
By its nature, mining is an invasive activity. The lives of the community applicants demonstrate what it means when it occurs just outside the front door. As mine-hosting communities, they represent those who face the brunt of the business: increased traffic, dust, incessant noise, land deprivation, deterioration of water quality, health concerns, food insecurity, economic distortions and high levels of inward migration.
These tear at the fabric of the communities, who continue struggling to obtain benefit from the mineral resources secured beneath their land.
The irony for such communities is that despite bearing these burdens, their voices have been consistently undervalued and often ignored in the drafting of key mining legislation and regulations.
Zwane’s 2017 charter was no exception. In fact, this was the third version of the charter published since 2004, in terms of the Mineral and Petroleum Resources Development Act 28 of 2002.
That act is partly premised on recognising the need to promote development and social upliftment of miningaffected communities and to bring about more equitable access to SA’s mineral resources. The charter is required to give effect to these objectives.
The act and the charter are together intended to breathe life into the prescripts of the Constitution, which itself makes explicit reference to transforming access to SA’s mineral resources, which by law belong to and must benefit all people of the country.
It is unnecessary to look far into the past to understand why a commitment to tackling this particular historical inequality was deemed worthy of its own constitutional mention. No less a body than the Truth and Reconciliation Commission determined that the mining industry helped provide the foundation for, and was a primary beneficiary of, the apartheid regime.
This set the stage for the role many mining communities are forced to continue to play, battling for even a small portion of SA’s fabulous mineral wealth. This is not enough.
The 2017 charter committed to fixing this. But the process of developing this charter failed to ensure that mining communities across the country had the opportunity to help shape the minister’s understanding of the effects of the industry he regulates. The 2017 charter, like those before it, therefore had little hope of changing these circumstances.
This matters to miningaffected communities, which often seek not to prevent mining, although surely their consent should be a prerequisite to the granting of any mining licence that affects the land and lives of the residents there, but simply to have a real say in their own development and to benefit from mining that occurs on their land.
Events over the course of the weekend preceding the 2017 charter hearing felt all too familiar to the community applicants in this case. Reports emerged that the minister and the Chamber of Mines had agreed to postpone the case. Neither state nor industry thought to bring into the fold the other applicants to discuss the postponement; communities were simply informed of the bilateral agreement with the potential to prevent judicial consideration of their issues in their entirety. Against this background, Monday’s order is a victory for mining-affected communities — a strong signal that the pattern of exclusion against which mining-affected communities have fought for years must be halted, and that communities must be seen and treated as the stakeholders in the process of developing the next charter.
It should also prompt reflection on the state of the mining industry. Certainly, progress has been made in recognising the rights of those most directly affected by mining, largely due to the tireless efforts of these communities themselves. But the poverty-stricken communities stripped of their land rights in the platinum belt of Northwest, their gold counterparts on Gauteng’s West Rand facing an acid-mine drainage crisis, and those that live in the appalling environmental conditions of Mpumalanga’s coal belt, show that much more is required of industry and the state.
The court decision on Monday must be viewed as the start of a new day.