Law protecting the interests of South African communities in mining deals is insufficient

The impact of mining operations on rural communities is a controversial issue in South Africa. There is also concern about the way in which communities are consulted about mining on their lands.

There are often tensions between seeking the economic benefits of mining and protecting the cultural rights of people. Some communities depend on the land to support themselves through agriculture, and for some, their cultural identity is tied to the earth.

South Africa has laws to protect the interests of communities in their dealings with mining companies. The Provisional Protection of Informal Land Rights Act 1996 requires communities to provide “consent” before mining operations can begin. The Mineral and Petroleum Resources Development Act of 2002 stipulates that there must be “serious consultation” between mining companies and communities.

Like my research in the case of the Xolobeni community in the Eastern Cape Province, the Mineral and Petroleum Resources Development Act does not provide the necessary protection for communities in granting licenses to exploit their lands.

I noticed that the new Traditional Leadership Law and Khoi-San might not offer more protection to communities either. And it could be open to abuse. If the basic level of trust between communities and traditional leaders is not present, then legislation will not address the injustices that occur.

The challenges of community engagement

In November 2018, the Xolobeni community successfully challenged the granting of a license to an Australian mining company to extract titanium on its lands.

The case concerned the level of consent required to obtain a mineral right to a property owned by a community benefiting from informal tenure. In South Africa, communal lands are collectively owned by the community under customary law and are managed by tribal authority.

The high court ruled that in the case of informal land rights holders, community consent was a prerequisite for obtaining a mining license. The court’s decision follows a ten-year battle. She had pitted the community against the mining company and traditional chiefs.

My research, based on official documents and published community accounts, showed that traditional leaders or community representatives did not adequately represent the interests of the community in this case.

They did not properly consult with affected members of the community and therefore failed to adequately represent their interests.

Another problem is the potential for corruption. Like a report by a legislative review committee chaired by former president Kgalema Motlanthe found, there have been instances where leaders have consented to mining in exchange for some advantages.

There is also no control measure to ensure that communities are effectively consulted properly.

The Traditional Leadership Act and Khoi San

In a new attempt by the legislature to address the issue of community engagement, the Traditional Leadership Act and Khoi San was adopted in 2019. Article 24 of the law regulates the conclusion of agreements between a traditional council and private entities. It replaces the provisions of all other laws.

A traditional advice is an organization that administers the affairs of a rural community. It is made up of elected members of the community or traditional leaders or both.

The new law does not address the problems identified by my research. Instead of emphasizing community rights, the law appears to reaffirm the absolute authority of traditional leaders over the community engagement process. The voices most affected within a community could once again be lost.

By law, partnerships and agreements between mining companies and communities must benefit communities and have their majority support.

The “consent” of the whole community, as previously required by the Interim Protection of Informal Land Rights Act, is no longer required. The decision should simply be supported by the majority.

It might be difficult to determine if there is in fact majority support for a mine. The law does not say how this majority will be determined.

According to to lawyers Janine Ubink and Joanna Pickering:

Legislation regulating traditional leadership, on the other hand, centralizes the powers of senior traditional leaders without incorporating the essential accountability mechanisms inherent in customary law.

It is therefore necessary to find measures to ensure that the process of obtaining consent for mining operations is legitimate and fair.

To do this, the shares of mining companies should be monitored more effectively by independent third parties. This is to ensure that they engage with members of the affected community in a way that gives them a voice.

Solve the problem

The government could have hoped to make the community engagement process more transparent by regulating how mining deals should be concluded in the Law on Traditional Leadership and Khoi San. But it would be wrong to think that this will be possible.

The law gives too much power to traditional leaders by giving them the right to control the engagement process and decide when a sufficient level of consent has been reached.

In order to solve this problem, some practical steps need to be taken by the government, traditional rulers and mining companies. First, communities must be fully aware of their rights regarding community engagement and the process that must be followed for companies to obtain consent to use their lands.

Although there has been initiatives by civil society to inform communities of their rights, much work remains to be done in this regard. Community leaders and mining companies can also contribute to these advocacy efforts.

Second, the government must address the problem of traditional leaders who abuse their authority. If traditional leaders cannot effectively fulfill the role of intermediary between communities and mining companies, then this responsibility should be delegated. This could be done by appointing an impartial third party.

In general, there is a need for more transparency and accountability regarding the allocation of mining licenses. This could prevent corruption and ensure the protection of the rights of communities.

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