Mining law changes reaching far beyond harmonisation
MPs seem stone deaf to concerns of ordinary people who live on the ground under which riches lie, writes Paul Vecchiatto
SA’s largest mining companies took turns last week to take a swipe at proposed amendments to the law that governs SA’s mining sector, with Anglo American summarising the general dismay when it described the planned changes as “worrisome”.
The miners could be forgiven for this view as the proposed changes to the Mineral and Petroleum Resources Development Act do appear to go far beyond the original goal of harmonising the law that governs the mining sector in SA.
Key among the proposed amendments are that the minerals resources minister has the power to declare certain minerals “strategic” for use in developing a beneficiation strategy for the country.
The changes also propose making the Department of Mineral Resources the final arbiter for policing mines’ environmental obligations, as well as in the implementation of their social and labour plans.
The proposals seem designed to introduce more uncertainty in the mining industry, a major player in SA’s economy. If passed in their current form, the changes may usher in a period of such uncertainty that only the unscrupulous will thrive.
While mining houses, corporate lawyers and trade unions received more than their fair share of time during Parliament’s public hearings on the amendments, the MPs appeared to be stone deaf to the concerns of the ordinary people who live on the ground under which the country’s riches lie.
Still, Parliament’s mineral resources committee listened to 33 oral submissions in four days of public hearings. These were selected from a total of 80 submissions, consisting of over 900 pages of documentation from various groups such as the South African Chamber of Mines and the onshore and offshore oil and gas associations.
The major mining houses made sure they were there and so did Eskom, although stateowned oil and gas company PetroSA bailed out at the last minute. Its oral submission would have been interesting as the parastatal proposed becoming the sole custodian and regulator of the country’s onshore and offshore oil and gas finds.
Presentations from the National Union of Mineworkers and the National Union of Metalworkers of SA ended the hear- ings last night, giving them the last say on the issue.
Apart from Anglo American, other companies such as Lonmin, Implats, BHP Billiton and Gold Fields have come out against the amendments.
Their representative body, the Chamber of Mines, and legal opinion from law firms such as Webber Wentzel and Bowman Gilfillan suggest the proposed changes are unconstitutional. This is based on the argument that the amendments do not respect granted rights and amount to expropriation as the minister could determine the amount and the price paid for strategic minerals.
The trade unions punted the beneficiation argument, citing research by the Department of Trade and Industry which found that more and better paid jobs are found where raw materials are turned into value-added products.
Implats delivered a sobering tale of the failure of its Silplats platinum jewellery venture. There was no government support to get a key market such as China to drop its custom duties, and there was also no local market for platinum necklaces.
Environmental special interest groups pointed out that obtaining information from the Department of Mineral Resources and mining houses about prospecting rights was so difficult that this allowed unscrupulous companies to do as they pleased.
Tracey Davies, a lawyer with the Centre for Environmental Rights, presented the case of a Mpumalanga farmer whose water had been poisoned by a company called Cousins Coal Mining Operations. The company reportedly obtained further prospecting rights on his land despite having not met its environmental obligations.
“You mean that I have no say in the minerals on my land,” exclaimed one African National Congress MP. “Not since the current law nationalised mineral rights in 2002,” Ms Davies answered.
Maybe it was because the MPs had been so bombarded with language used by trade unions, corporations and lawyers, that when it came to presenters from community organisations who spoke plain English, an interpreter had to be called for.
David Maruma, a steering committee member of the Mining and Environmental Justice Community Network, was hor- rified when this happened to him. He was presenting a submission on how a mine had destroyed a heritage site in the area where he came from, saying the law should be changed to protect sites such as graveyards which held special significance for a community.
Mr Maruma said after the meeting: “I was seriously disappointed by the arrogance of the MPs. I speak English very clearly, but they were determined not to listen to people who live on the ground in the affected areas.”
His and other organisations complained that the Department of Mineral Resources conducted perfunctory consultations with communities and that public notices were only available in the Government Gazette or at local magistrate’s courts.
Federation for Environmental Affairs director Koos Potgieter pointed out how little the department did when trying to trace the owners of so-called abandoned mines.