New mining law headed for the bin or court
A flawed public participation process in the Mineral and Petroleum Resources Development Amendment Bill has created a serious dilemma for legislators
Having already spent five years in the legislative pipeline, the Mineral and Petroleum Resources Development Amendment Bill (MPRDA) looks like it is headed for the Constitutional Court or the rubbish bin. Parliament should have seen it coming.
The MPRDA, introduced in 2013 and passed six months later by both Houses of Parliament, was returned by the President. The President was concerned about “procedural” defects, which had to do with inadequate public participation, as well as “substantive” flaws concerning its possible incompatibility with the General Agreement on Trade and Tariffs (GATT) and the Trade, Development and Cooperation Agreement (TDCA).
By “inadequate public participation” what the President really meant is that he wanted the House of Traditional Leaders to have their say, and they did. But that wasn’t the last word from the public.
Mining Affected Communities United in Action (MACUA), which represents more than 150 communities across South Africa, took up the issue and slammed the failure of legislators to consult with mining communities.
Submissions by a range of legal, environmental and human rights groups followed. The Land and Accountability Research Centre (LARC) in the Public Law Department of the University of Cape Town, the Centre for Environmental Rights (CER), the Centre for Applied Legal Studies (CALS), the SA Institute of Race Relations (SAIRR) and others have since had their say in Parliament’s Committee on Mineral Resources.
The LARC, CER and CALS have all complained in the most recent Committee hearings that none of their recommendations are included in the revised Bill.
Some 57 amendments have been proposed on the MPRDA, but all of them come from the Department of Mineral Resources (DMR) and not from what civil society had to say.
However, the only amendments permitted at this stage are those that directly respond to the President’s concerns. The rules of Parliament make this clear. All amendments other than those that address the reservations raised by the President, are therefore invalid ‑ including at least some of the 57 amendments proposed by the DMR.
Opponents of the Bill are now suggesting that the only answer is to scrap the Bill and start all over again.
But that’s not all. There is another even bigger headache for the legislators. If the President rejects a Bill because of inadequate public participation, what happens if the people’s demands require amendments over and above what the President intended?
This is exactly what has happened in the protracted process of drawing up the MPRDA and it presents a real dilemma: a genuine citizen consultation process is very likely to come up with proposals that require entirely new amendments, but what is the point if no amendments can be permitted at this stage? And what of the dozens of public submissions already heard by the NCOP’s Select Committee on Land and Mineral Resources?
“Back door amendments”
In March 2015, MACUA compiled a People’s Mining Charter and called for it to be incorporated into the MPRDA. It stated: “It is the people’s, specifically occupiers of the land`s, fundamental right to decide if any extractives/mining can take place on their land or not”.
This message was echoed in repeated submissions to the Select Committee on Land and Mineral Resources.
Action Aid told the Committee hearing that despite its active involvement during 2015 and 2016 “the further amendments do not address the concerns of communities. They actually dilute the little community participation currently provided for in the MPRDA.”
The most recent Committee hearings heard legal, environmental and human rights organisations expressing scepticism about the MPRDA’s capacity to improve conditions in mining-affected communities.
The DMR amendments have become known at the Select Committee hearings as the “back door” amendments, and civil society organisations are universal in their condemnation.
In the latest round of public hearings the Chamber of Mines weighed in, warning that recent amendments have included the controversial Mining Charter, effectively making it into law.
This would give the Minister of Mineral Resources the power to amend or repeal legislation in the sector, which is a power that falls to Parliament alone.
In its submission the Chamber declared: “The legislature would have no control or oversight and would delegate its legislative obligations by giving a blank cheque to the executive”. This would make nonsense of the principle of the separation of powers.
Archive photo: Shaun Swingler
Meanwhile, LARC, CER, CALS, the SA Institute of Race Relations (SAIRR) and MACUA all agree that the process of public participation was fundamentally flawed.
Some remote communities were unable to participate and little use was made of local and community radio. Some only learned of the consultation process “through the grapevine” from NGOs who had better internet and communication connections.
At the recent hearings of the Select Committee of Land and Mineral Resources it was made clear that not enough time had been set aside to fully engage with the lengthy Bill, and no real explanation was provided about it not even the President’s reservations.
SAIRR pointed out that DMR-proposed amendments had not been included in earlier consultations and said it gave no indication of the consequent damage to the South African economy.
It described the Gauteng provincial hearing process as “fatally flawed”, saying the Bill was handed out at the door, with the proposed amendments, while the principal Act was not provided at all.
Mining communities excluded
ActionAid, in its submission to the Committee, reported findings of surveys it conducted across six provinces which found that within mining communities the feeling was that government policies favour the rich and do not serve the poor. Reasons cited included ongoing unequal employment of women by mines, the failure to hire people from the local community, the failure of mines to follow regulations, and inadequate community consultations. The majority of respondents responded that the only way to challenge the mines in South Africa was through mass protest action.
Among the proposals for an improved MPRDA, the LRC said the Bill had to: entrench the rights of the Land Rights Act and the right to free and prior consent before mining; be amended to give equal status to communities and corporations in negotiations for compensation for the effects of mining; and expressly state that traditional leaders could not be assumed to speak on behalf of the community unless there was viable evidence of consent
The LRC said income generated by mining activities on or near their land must be shared in a fair and equitable manner amongst all members of the community concerned. The Bill had to be amended to include easily enforceable obligations on companies, government and local government to account to the communities for all benefits, whether in the form of revenue or opportunities generated by mining on the land.
The consensus at the hearings is that if the MPRDA in its present form successfully makes its way through the legal process, it will find itself challenged in court.
Opinions expressed are not necessarily those of GroundUp
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