In South Africa, there are a number of ambiguities in the existing law regulating community participation processes in mining projects, including the MPRDA and MPRDA Guidelines. This limits the involvement of communities in projects, potentially creating a recipe for greater social mistrust and conflict. For this reason, mining companies have to go all-out to involve communities in their Greenfield projects.
Implementation of a community engagement and participation process is standard practice in any mining project which is located in a community. Given the country’s legacy of apartheid, which, to some degree, has contributed to the somewhat shaky relationship between mining companies and host communities, South Africa presents a unique case study.
In South Africa, the wording of the MPRDA, Regulations and Guidelines relating to public participation is in many instances vague, especially with regards to Social Labour Plans (SLPs). For instance, if mining companies only focus on complying with the literal wording of the applicable provisions (which provides limited guidance), it is highly risky in a climate in which communities are increasingly asserting their rights.
This is a point from Robert Krause, a researcher who works in the Environmental Justice Programme at Wits University School of Law. “The focus on the black letter law only in the contemporary climate is highly risky because it disregards or overlooks increase in community protests. Bearing in mind the extremely impactful nature of mining in communities, understandably, there has been a groundswell of legitimate demands for meaningful participation in all decisions that directly impact on lives and immediate environment.”
Without doubt, in the absence of a comprehensive legal framework, mining companies have to increase their scope of community participation as much as possible. Nonetheless, understandably, their biggest predicament is where to start from.
At the outset, by looking at principles of participation, especially in the area of Social Labour Plans (SLPs), mining companies can map out the most practical way to fulfil their community participation obligations, according to Krause.
Presently, there are a number of ambiguities in the existing law, including the MPRDA and MPRDA Guidelines, governing community engagement, participation and facilitation for mining projects.
Firstly, there is need for more clarity in the law regarding the requirements for notice of engagements. The Mineral and Petroleum Resources Development Act (MPRDA) frame the different forms of notice (e.g. in government gazette, affixing notice on mine site, publication in local newspapers etc.) occasionally/piecemeal basis rather than cumulatively.
Instead, proper participation requires multiple forms of notice to make sure that different sections of society with different ways of accessing information (print, radio etc.) should be reached. In actual fact, the regulations governing environmental impact assessment under the National Environmental Management Act, 1998 (NEMA), which are also relevant to the mining applications, provide a clearer participation process with regards to the development of environmental impact assessments and environmental management programmes.
Secondly, there needs to be a specific participation process for the development, implementation and amendments to Social and Labour Plan (SLP) projects by the workers and communities who are the designated beneficiaries. At present, there is insufficient guidance on how participation should take place in the specific instance of social and labour plans.
The implications of lapses
Increasingly, mining-affected communities are legitimately demanding a say in whether and how mining occurs on their land. And so, due to gaps in the current law in relation to community participation, especially on SLPs, there is a risk of a mining project occasioning mistrust and greater societal conflict.
Increasing the scope of community participation
Thus, the importance of increasing the scope of community engagement and participation programmes cannot be overstressed. Currently, while the law has been overtaken by developments, communities are more enlightened than before about their rights. Krause observes: “Communities are asserting the right to free prior and informed consent to mining as recent case law suggests. In the case of Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and another  ZACC 41, the Constitutional Court held that the requirement in the Interim Protection of Informal Land Rights Act (IPILRA) that the award of a mining right does not override the requirement of consent to the deprivation of informal rights to land.
Read: The Draft Mineral And Petroleum Resources Regulations: A Proverbial Curate’s Egg?
Soon afterwards, the Amadiba Crisis Committee, which has been fighting against a proposed titanium mine for more than a decade achieved a well-known court victory, with the High Court ruling that the Minister cannot grant a mining right unless they have complied with the requirement of IPILRA regarding consent of the landholder.”
He adds, “The emerging international human rights principle of FPIC, which mining-affected community organisations and networks are increasingly demanding, goes beyond the right to say yes or no to mining. It is also about a decisive say in every phase of projects and all aspects directly impacting on communties’ environmental, social and economic rights. Hence, engagement with communities needs to be in accordance with this principle of meaningful and constant participation.”
In a nutshell, the following areas are fundamental and should be prioritised: Respect for communities rights to land and property, Information must be publicly available, Information must be publicly available, and Transparent and Inclusive community forums.
- Respect for communities rights to land and property
Furthermore, mining companies must respect communities’ rights to land and property, for instance when carrying out tasks like blasting. Blasting must be within legal limits but even if within legal limits, any damage to homes etc resulting from blasting should be remedied by mining companies whether through compensation or directly fixing the houses.
- Information must be publicly available
All information affecting communities (e.g. social and labour plans, environmental authorisations, environmental management programmes, annual compliance reports submitted to the regulator, surface use agreement etc.) must be made publically available.
- Transparent and inclusive community forums
Community engagement forums must be transparent, inclusive (it should be an easy and speedy process for community-based organisations representing different constituencies to gain representation). It has been observed that a major source of friction and escalation of tensions being community forums that are secretive exclusive and narrow in their representation. In order to address the problem, Krause suggests, that they should be a democratic process by which communities decide the local economic development projects that are best tailored to meeting their pressing needs.
However, sometimes, mining companies may slacken in implementing community engagement and participation initiatives. It is in these situations where Krause believes that significant contactor companies to mining houses, whether as buyers of minerals, or in construction, inputs etc., can play a major role. “The contractors can use their important role in the mining process as leverage to pressure companies to change practices where respect for communities’ rights to participation, FPIC and environmental, social and economic rights are not adequate.”