MINES BUY­ING SI­LENCE

The dis­turb­ing ri­sein the num­ber of suits against en­vi­ron­men­tal ac­tivists by min­ing com­pa­nies is de­signed to thwart trans­parency

Financial Mail - - ON MY MIND BY THE CENTRE FOR APPLIED LEGAL STUDIES -

Dawid Markus is a com­mu­nity ac­tivist from Hon­dek­lip­baai in the North­ern Cape. He works on en­vi­ron­men­tal is­sues af­fect­ing res­i­dents of the fish­ing com­mu­nity.

In Novem­ber 2016, he and other mem­bers of the mine-af­fected com­mu­nity in which he lives held a peace­ful protest out­side the premises of West Coast Re­sources. They wanted a meet­ing to dis­cuss the min­ing com­pany’s so­cial and labour com­mit­ments and they wanted it to know how badly the lo­cal fish­ing in­dus­try was far­ing, thanks to spillages from the mine.

But West Coast Re­sources clearly didn’t want to lis­ten.

In­stead, it went to court to stop the com­mu­nity from protest­ing. In the end, the mine even got a cost or­der awarded against Markus. Thank­fully, in June, the Cen­tre for Ap­plied Le­gal Stud­ies suc­cess­fully helped him chal­lenge that or­der.

It wasn’t the first time this had hap­pened. Three years ago, Cana­dian com­pany Ivan­hoe threat­ened le­gal ac­tion against Lawyers for Hu­man Rights (LHR) over its al­legedly “defam­a­tory” state­ment re­gard­ing a min­ing li­cence that Ivan­hoe had ob­tained to start its Pla­treef min­ing project in Mokopane, Lim­popo. LHR didn’t be­lieve its state­ment was defam­a­tory, but it with­drew the state­ment, rather than fight a case when those re­sources could be used to help the com­mu­nity.

Most re­cently, at­tor­neys Chris­tine Red­dell and Tracey Davies from the Cen­tre for En­vi­ron­men­tal Rights and West Coast com­mu­nity ac­tivist Davine Cloete had le­gal ac­tion in­sti­tuted against them by Aus­tralia’s Min­eral Sands Re­sources, again for “defama­tion”.

These three ex­am­ples demon­strate the grad­ual but dis­turb­ing in­crease in the num­ber of cases where public-in­ter­est en­vi­ron­men­tal ac­tivists and con­cerned cit­i­zens are “slapped” with law­suits for fight­ing for the public’s right to an en­vi­ron­ment that is not harm­ful to their health — a right en­shrined in the bill of rights.

There’s a name for this type of le­gal ac­tion. it’s called strate­gic law­suit against public par­tic­i­pa­tion, or Slapp.

Le­gal com­men­ta­tors de­fine a Slapp as “a mer­it­less case mounted to dis­cour­age a party from pur­su­ing or vin­di­cat­ing [its] rights, of­ten with the in­ten­tion not nec­es­sar­ily to win the case, but sim­ply to waste the re­sources and time of the other party un­til [it bows] out”. Slapp ac­tions are used to scare ac­tivists away from cam­paign­ing, and to si­lence them.

The fact that most Slapp ac­tions have no le­gal merit doesn’t stop them from pro­tect­ing cor­po­ra­tions’ in­ter­ests through si­lenc­ing, in­tim­i­dat­ing and bankrupt­ing ac­tivists.

Of course, Slapp ac­tions can take many forms. Ac­tivists may be charged with in­sti­gat­ing vi­o­lence, dam­ag­ing prop­erty or defama­tion. These suits are some­times backed by public cam­paigns to de­monise com­mu­ni­ties — of­ten por­tray­ing them as the rea­son for job losses or a com­pany’s fail­ure to meet min­ing char­ter re­quire­ments.

This bid to sti­fle the po­lit­i­cal agency of marginalised com­mu­ni­ties is a symp­tom of a broader shut-down of democ­racy.

Watch­dog role

There’s no lit­tle irony in this, con­sid­er­ing that SA’S le­gal frame­work was de­signed pre­cisely to sup­port en­vi­ron­men­tal jus­tice de­fend­ers. The Na­tional En­vi­ron­men­tal Man­age­ment Act places com­mu­ni­ties and ac­tivists in a crit­i­cal watch­dog role, re­quir­ing public par­tic­i­pa­tion in en­vi­ron­men­tal man­age­ment. It even recog­nises the pres­sure that ac­tivists come un­der from pow­er­ful in­ter­ests, and con­tains mea­sures to pro­tect them, specif­i­cally to aid whistle­blow­ers.

Be­sides vi­o­lat­ing the rights of en­vi­ron­men­tal ac­tivists, the use of Slapp ac­tions is a cow­ardly as­sault on the foun­da­tions of our con­sti­tu­tional or­der.

All stake­hold­ers, in­clud­ing the de­part­ment of min­eral re­sources and the Cham­ber of Mines, need to take steps to counter this abuse.

SA’S le­gal frame­work was de­signed to sup­port en­vi­ron­men­tal jus­tice de­fend­ers

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