Financial Mail

MINES BUYING SILENCE

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

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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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