A decisive break from the past? Still no right to free, prior and informed consent for mining affected communities in South Africa.

We feel that the Natives have not yet proved themselves as capable husbandmen, and until such
time as they have been taught to work the land why should we give them more and more land to
turn into a wilderness. – Native Affairs Commission meeting with farmers associations, 4 November

During colonialism and Apartheid, seemingly arbitrary laws – dictating who could live where, with whom, who could
farm whose land, and when – were introduced to entrench white economic and political power. The callousness of
these laws shocked the world, but their ideological origins were not exceptional: Common to all colonial contexts is
the belief that colonisers know what is best for the colonised, and that colonisers are therefore entitled to make
choices for the colonised, on their behalf, without their knowledge or consent.
In repudiation of this disgraceful past, South Africa’s post-1994 legislature and judiciary afford profound importance
to the value of autonomy, seeing it as integral to the constitutional values of freedom, equality and dignity. South
Africa has been a leader in ensuring people’s individual autonomy and freedom over the decisions that affect their
lives, whether it be women’s right to choose whether or not to have an abortion, or all citizens’ (including prisoners’)
right to choose to vote for the political party of their choice. Yet, on the issue of natural resource governance, an
issue requiring the recognition of communal autonomy, South Africa‘s legacy falls short. Our legislation fails to grant
communities the right to consent to, or reject, planned mining projects on their land.
This is why, on 12 October 2020, Mining Affected Communities United in Action (MACUA), Women Affected by
Mining United in Action (WAMUA), and Youth Affected by Mining United in Action (YAMUA) will deliver a petition
with over 50 000 signatures to the President, Cyril Ramaphosa; the Minister of Mineral Resources and Energy,
Gwede Mantashe; and the Chairperson of the Parliamentary Portfolio Committee on Mineral Resources and
Energy, Sahlulele Luzipo. The petition calls on them to immediately take steps to ensure that legislation governing
natural resource management in South Africa explicitly guarantees mining affected communities the right to free,
prior and informed consent.
The right to free, prior and informed consent (FPIC) empowers communities to withhold consent to mining
operations on their land when they feel as though the operations will be detrimental to the protection of their land
and the development and wellbeing of their community. In the context of mining, the ability of communities to
consent to, or reject, new projects is particularly important because mining brings profound, lasting changes to the
lives of those living in surrounding areas – especially women, who usually bear the costs of these changes while
benefiting the least from mining operations. Mining’s effects on surrounding communities include the degradation
of air, soil and water quality, which often renders subsistence farming impossible; damage to land and houses due to
frequent blasting by mines; illnesses such as silicosis, tuberculosis and various skin diseases; and the ubiquitous
experience of emotional stress and fear.
FPIC is a well-recognised right of indigenous peoples in international law, with African regional bodies confirming
FPIC as a standard for all affected communities. The African Commission on Human and People’s Rights, for example,
adopted a resolution stating that the Commission,
‘calls upon State Parties to […] confirm that all necessary measures must be taken by the State to ensure
participation, including the free, prior and informed consent of communities, in decision-making related to
natural resource governance; […and] to promote natural resources legislation that respect human rights of
all and require transparent, maximum and effective community participation in a) decision-making about, b)
prioritisation and scale of, and c) benefits from any development on their land or other resources, or that
affects them in any substantial way.’
In South Africa, however, no explicit right to FPIC exists for communities who hold rights to the land on which mining
is set to take place. This despite the fact that the Minerals and Petroleum Resources Development Act (MPRDA) was
adopted specifically to end the anti-democratic, colonial governance of South African mineral resources. The Mining
Charter was similarly introduced to facilitate the meaningful participation of previously excluded South Africans in
the mining and minerals industry. Successive versions of the Mining Charter, and of the regulations enacted under

the MPRDA, have made progress in ensuring that mineworkers and communities benefit from the mining operations
in their area. But they do not go far enough. They fail to recognise that it is mining affected communities themselves
who know what is best for their land and livelihoods.
How can legislation that aims to improve the position of mining affected communities claim to do so without
requiring their consent for mining projects? This obvious disconnect between the MPRDA’s aims and its prescribed
process has not been lost on the courts. In November 2018, in a case brought by the Xolobeni community, the
Pretoria North High Court affirmed that communities must provide their consent before mining takes place on their
land. Shamefully, the Minister of Mineral Resources decided to appeal the judgment.
MACUA, WAMUA, and YAMUA chose 12 October 2020 for the delivery of the petitions so that the action would
coincide with the date that the Xolobeni community was due back in court. This time to ask that the Minister’s
appeal be dismissed on the grounds that almost two years later, the Minister has failed to launch his appeal. The
Minister has opposed that application too – revealing an obvious disdain for the growing movement of mining
affected communities across South Africa.
Historically, stripping Black South Africans of their agency to choose how to govern and co-inhabit their ancestral
land had two mutually reinforcing effects: It led to starvation, land degradation and poverty; and it simultaneously
caused a rupture in the collective identity of indigenous African people, for whom land is central to understandings
of community, ancestrality, and belonging.
Today, despite the rhetoric of transformation, the absence of FPIC in South Africa’s mining legislation leaves the
dehumanizing and infantilising status quo intact: Once again we are told that large mining corporations and the
disconnected state government knows better, that they may consider different perspectives but that ultimately they
decide what progress and development mean for affected communities.
The unjust status quo must be rejected.
MACUA, WAMUA and YAMUA call on all South Africans to join us between 09:00 and 13:00 on the 12th of October
at the Union Buildings in Pretoria to sign our petitions and to demand fair and equitable treatment of all citizens and
the right to free, prior and informed consent. Nothing about us without us!