Mining test for legislators
Leaders need to step down from their horses and engage affected communities in meaningful consultations for a sustainable political solution over bill, writes
ONCE again Parliament’s credibility as the “voice of the people” will be tested when the Mineral Petroleum Resources Development Act Amendment Bill (MPRDA) comes back from public hearings which were conducted by Provincial Legislatures.
The bill was sent back to Parliament on January 16 2015 by the president for substantive and procedural reasons.
In his reservations, the president expressed concern that certain aspects of the old bill were inconsistent with South Africa’s obligations in respect to international agreements, that there was insufficient public consultation and that the National House of Traditional Leaders had to be consulted after Mining Affected Communities United in Action (Macua) wrote to the president with regards to the lack of public participation.
The farcical legislative process of this bill dates as far back as 2013.
In 2014 the bill was rushed through Parliament and provincial public hearings were held in just 14 days. Provincial legislatures were given five days to finalise their position on the bill and five provinces called for more consultations with communities while the Western Cape Legislature refused to participate, given the small window for consultations.
Mining affected communities have been largely excluded from the legislative process since this act came into effect in 2002. During the hearings in the National Assembly in 2013, Macua and Mining and Environmental Justice Community Network made submissions to the portfolio committee and called for greater inclusion of communities, but instead found themselves on the receiving end of egregious condescending remarks from the committee which berated community leaders for their inability to submit their comments in “proper” English.
After the bill was returned to Parliament in January 2015, it bounced around Parliament between the portfolio committee on mineral resources, the National Council of Provinces and the House of Traditional Leaders, with no one quite sure what to do with it.
Eventually it found its way to the NCOP Select Committee and was scheduled for public hearings during the first quarter of this year.
However, the dates, times and venues for the provincial hearings kept changing and Macua, ActionAid and other civil society organisations that formed part of the Civil Society Coalition on the MPRDA were forced to complain to the Provincial Legislatures and the select committee for land and mineral resources about the lack of notice and accessibility of these hearings.
Besides the difficulty of accessing the provincial hearings, the process was substantially flawed in that an additional 56 amendments, developed in some dark corner of the legislative process, were introduced at the NCOP stage in direct violation of the Joint Rules of Parliament and of constitutional injunctions on the parliamentary process.
Having participated in, or having attempted to participate in all the provincial processes, it has become clear to the affected communities we work with, that this process was politically-orchestrated to make it difficult if not impossible for civil society and well-informed and organised community members and organisations to participate in the hearings.
The KwaZulu-Natal invitation to the public hearing was only addressed to traditional leaders as if it was just a briefing. Extensive public participation was not encouraged.
In Mpumalanga four public hearings were held at various venues at the same time. Gauteng had one hearing which took place in the Joburg city centre, far from the affected communities and the provincial parliament did not provide communities with transport to the hearings.
The Northern Cape hearings were held in virtual secrecy, despite our concerted and repeated efforts to get details of the hearings.
When we approached the select committee for natural resources on this lack of participation in the Northern Cape, it could not provide any clear answers and did not itself understand how the process could continue in the absence of clear communication with interested and affected parties.
In the Free State “rent-a-crowds” were bused in to ensure the hearing gave the Free State Legislature a mandate to endorse the bill even though its content was poorly understood by those bused in for free meals and T-shirts.
Macua delegates who attended the hearings in the Free State reported that it was apparent that the rented crowds were given the mandate to suppress those community activists who would engage the contents of the bill in a meaningful way.
Macua activists reported that despite their objections they felt their voices were suppressed through intimidation and unruly crowd behaviour.
In the Limpopo hearings held at the Lebowakgomo Legislative Chamber, again no transport was arranged for affected communities who were generally located hundreds of kilometres away from the legislature and who had no viable means to attend the hearings.
Those who did manage to attend raised the issue of broader public participation and the unlawful inclusion of amendments to the bill, but whether their inputs will be included in the provincial mandates is uncertain if not highly unlikely to be taken into consideration.
In the North West four hearings were held at the same time and the invitations were sent less than three days earlier despite appeals by Macua for further notice and information workshops to be held on the bills before the provincial hearings.
In Mpumalanga, where four hearings were held at the same time, the legislature asked communities to give a mandate to go ahead with the bill, but these were roundly rejected by strong contingents of affected communities.
The Eastern Cape hearings were chaired by a community member after the Amadiba Crisis Committee took that decision and told members of the legislature that this could afford them a clear chance to take recommendations from the community because that was what they had come for.
In the Western Cape two hearings were held and the Provincial Legislature once again rejected the bill in its final negotiating mandate.
In all the public hearings, communities were never given sufficient time or resources to prepare to attend the hearings.
In most hearings, community members were given the 47-page bill at the entrance and expected to engage meaningfully.
It is the provincial legislatures’ constitutional mandate to ensure public participation in the legislative process.
In this case the process was procedurally flawed, and the bill itself is patently unconstitutional in that it introduces new amendments in an unprocedural manner while structurally and deliberately excluding affected communities from having a say in the laws that govern their lives.
After four years, two Parliaments and three ministers of mineral resources, the MPRDA Bill appears to be headed to yet another dead-end and our political institutions and processes are yet again being eroded of its public support.
The governing party`s obsession with elite pacts and deals at the expense of marginalised communities is a recipe for conflict.
The NGO Coalition on the MPRDA stands ready to take this flawed process to the Constitutional Court, but we once again call on political leaders to step down from their high horses and engage affected communities in meaningful consultations around their continued exclusions to find a sustainable political solution.
Legislatures’ mandate to ensure public participation
Sifiso Dladla is the mining and extractives project manager for ActionAid South Africa and writes in his personal capacity