Our minister of mineral resources reportedly told parliament last week: “”We are on the path of changing the mining and petroleum industry in South Africa, whether you like it or not. …. Change is painful, change is bitter, especially when you are stuck in the past. This act is about the people of South Africa.”
She is right. She will leave black communities stuck in the past. Her words ring true for black communities whose land is being mined by mining companies whom she gave mining rights. Communities experience pain on a daily basis and will remain stuck in the past because the 2014 MPRDA amendment bill exacerbates the position of black communities who will continue to suffer and get no benefit from mining on their own land.
We give three examples of how the Bill makes matters worse for communities:
1 The Bill as published amends the objectives of the act to exclude promotion of communities;
2 The portfolio committee, at the instance of the department, further amended the bill so that water use licenses are no longer compulsory;
3 The portfolio committee, at the instance of the department, further amended the bill and removed the proposal that a mining company be directed to address the socio economic needs of communities.
In October 2013 MACUA and a number of NGOs addressed the portfolio committee on the bill and urged it to make further amendments to the published bill and to strengthen the bargaining position of black communities whose land is being mined. Historically white land owners had some say about mining on their land and received royalties or shares. Black communities had no say about mining on their land and the minister of native affairs as trustee of their land made deals with mining companies. Black communities lost their land and their livelihoods because of mining.
MACUA’s proposal for further amendments was that community consent is necessary before its land is mined, that communities get reparation for past mining and that communities are properly and meaningfully consulted on environmental and social impacts if mining is going ahead.
Our proposals were ignored and the department and the portfolio committee never responded thereto. Instead the department brought further amendments to the portfolio committee, including making water use licenses discretionary and removing the socio economic needs directive.
MACUA together with NGO`s, including the Bench Marks Foundation, ActionAid South Africa and the Land Access Movement of South Africa, also met with the Office of the Presidency in September 2013 and the Office of the Presidency made the following commitments which have not been met.
- It was agreed by all parties that there will be a need for follow up meetings with different Departments including DMR, Human Settlements and Department of Water Affairs.
- The DMR was tasked with engaging with the delegation to facilitate our inputs into the current legislative process. The Office of the Presidency has undertaken to expedite our submissions and facilitates a process with the DMR and other relevant departments.
- The Deputy President (DP) will write to the Presiding Officers of Parliament and the other legislative bodies to ensure that the process of public participation and hearings are extended and include our delegation and the organisations we represent.
- The DP committed to table the issues raised by the delegation at the next Inter-Ministerial meeting and that each ministry will report back on progress on the issues which will be sent to the DP`s office by AASA. This will form part of discussions at the next meeting between the parties.
- The DP suggested that the time was not right for a summit of community and government but that we should work towards such an event.
- A follow up meeting with the Presidency will be arranged with AASA at which we will discuss practical interventions by the Departments as well as a more substantive discussion on community inclusion in platforms and policy.
None of the commitments were met and the Office of the Presidency now refuses to even acknowledge our attempts to contact them with regards to these commitments.
The additional amendments deal with:
a) Discretionary water use licenses, ie “where necessary” inserted in eleven places in the bill with the following or similar wording or import: to apply, where necessary, for a license for use of water in terms of the applicable legislation.’’.
b) Repeal of the proposed amendment of section 23(2)(b) of the act :
The Minister [may] must
(a) [having regard to the nature of the mineral in question,] take into consideration the provisions of section 26
The primary amendment is to section 2 of the act, where specific reference to the promotion of communities is repealed:
‘‘(d) substantially and meaningfully expand opportunities for historically disadvantaged [persons, including women and communities]South Africans, to enter into and actively participate in the mineral and petroleum industries and to benefit from the exploitation of the nation’s mineral and petroleum resources;
We interrogated the record of the parliamentary hearings to find the evidence and justification for the last minute changes to the amendment bill as published. This is what we found in statements by the department:
a) Water use licenses are not necessary if the mine gets water from a municipality’s waste plant, and a WUL is only necessary if groundwater is going to be used;
b) Section 23(2)(b) is superfluous because community benefit or redress for suffering from mining will be covered by SLPs.
We say this :
1 as far as WULs are concerned, it is not for the applicant or the regional manager to decide on the need for an application. The department of water affairs should consider all applications and the need for applications cannot be screened by another department. In any event, WULs are necessary for extraction from both rivers and the ground. The provision is internally contradictory. If legislation requires a WUL then applications must of necessity be made for such licences. The necessity for an application has already been determined. The insertion of the words “where necessary” creates confusion as to the legislative intent, in conflict with the requirements of regulatory certainty and rule of law. Communities may forfeit their own scarce water resource.
2 as far as community benefit and redress is concerned we had pointed out that social and labour plans are inadequate, prepared by consultants without consultation with communities, and not complied with by mining companies or policed by the department.
SLP mitigation measures have not worked. Parliament itself said as much in portfolio committee’s report on the hearings concerning the Mining Charter tabled before the portfolio committee on 5 June 2013:
“When we conduct oversights, we come back depressed. Because before you enter into a mine, you walk through a sea of poverty. … In our own experience these Social and Labour Plans are indeed not implemented…Mining communities lament that here, within our area we extract the wealth of the country but there is no drop that comes back to us as the mining community.”
At the mining indaba at the beginning of 2013 the minister undertook to address the legacy of the 1913 Land Act and the community conditions that lead to the Marikana tragedy. She said that this was the context for reviewing the MPRDA:
This year also marks a hundred years since the enactment of the Native Land Act, which created a system of land tenure that deprived the majority of South Africans of the right to own land, and eventually compelled Africans who had lost their land to join the mining industry as migrant labourers… It is the remnants of this historical legacy of the migrant labour system, poor housing and living conditions, high levels of illiteracy, and low skills level that inevitably contributed to Marikana.
The only provision in the bill that was beginning to address the concern then expressed by the minister is section 23(2)(b). The department has not provided a cogent reason why it has made an about turn and removed the provision. Neither has the portfolio committee justified the amendment to the amendment bill.
The minister seems to be making sure that black communities whose land is being mined with her authorization, remain stuck in the past. As in the past under the minister of native affairs, the rights of black communities are ignored. Now they are further eroded.