Scrap The MPRDA
The MPRDA
During September 2013, which marked the beginning of the Parliamentary process to consider amendments to the Mineral Petroleum Resources Development Act (MPRDA) of 2002, we saw the continuation and intensification of the legislative exclusion of people and in some cases entire communities affected by mining activities.
Section23 (2A) of the MPRDA gives the Minister of Mineral Resources the power to impose conditions to promote the rights and interests of communities in the event of an application (Granting and Duration of Mining Right) that affects their land. The new version proposed the deletion of this specific mandate [including conditions requiring the participation of the community] from the existing clause.
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The Amendments further aimed to exclude social partners from the Regional Mining Development and Environmental Committee. Section 56A provides for representation from labour and business, but the amendment excludes representation from communities and other social formations. Communities, who have long been calling for their inclusion and for proper consultation with communities affected directly by mining, were now being even further alienated from the process of mining.
At the hearings, both Mining Affected Communities United in Action (MACUA) and the Mining and Environmental Justice Community Network (Mejcon) were poorly treated by MP’s who even belittled them during their presentations to the Portfolio Committee. In the end, none of their concerns were accommodated in the bill.
None of the contributions from the Legal Resource Centre (LRC), Centre for Environmental Rights (CER) or NUMSA, who were the only organisations promoting greater inclusion of community concerns, were considered. Instead the Department of Mineral Resources struck a separate deal outside of the Portfolio Committee to include all of the Chamber of Mines’ recommendations.
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The Bill was then unconstitutionally rushed through the National Council of Provinces (NCOP) in three days and did not allow for community participation in consultations at a Provincial level. MACUA, BUA, LRC and AASA tried in vain to facilitate community presentations at the provincial hearings but given the short notice and the fact that some provinces did not inform the public that hearings were proceeding, community participation was at best insubstantial and in most cases impossible. BUA managed to attend the hearing in the North West, but they were not provided with space to engage in the process.
MACUA promptly wrote to the President with the help of the LRC and advised that they intended to pursue a constitutional challenge to the Bill should the President indeed sign the Bill into Law. After months of deliberation and delay, the President finally sent the Bill back to Parliament. Indications are that the joint pressure of a constitutional challenge to the Bill and the extensive lobbying of the Oil industry to have the Petroleum and Mining industry dealt with in separate Bills have tipped the scale in favour of the Bill returning to Parliament.
CHALLENGE FACING COMMUNITIES AND CIVIL SOCIETY
The manner in which the Parliamentary Portfolio Committee was exposed to community concerns during the 2013 hearings on the amendment to the MPRDA, left an impression of a weak and divided sector that was not able to present any coherent opposition or alternative to the formidable power and resources of the mining lobby which compromises both corporate and political agents.
The cross pollination between the mining companies and politicians is well documented and the mutual interests of the shareholders in large scale mining corporates often get blurred within the political formulation of legislation. It is thus no surprise that the legislation that ended up on the President`s desk for approval was consistently pro–business and further excluded communities from claiming their rights against an increasingly predatory business elite.
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Concept Note Civil Society Strategy Workshop in MPRDA @ AMI 2015 2 Environmental issues which are directly and fundamentally linked to community well-being, have also been further denuded of any significance, as the Bill proposed that water use licences should no longer be compulsory. This in itself is likely to create conditions for rampant violations of constitutional rights to water by communities.
The challenge thus for communities and civil society engaged in community and environmental issues is how to roll back the overwhelming stranglehold of mining companies over the parliamentary process in order to ensure that we do not further erode the limited gains that may have been realised in the 2002 MPRDA Bill. Civil society needs to push even further for inclusive legislation that recognises communities as legitimate and important stakeholders and that their rights to healthy land, living and working environments are non-negotiable in relation to mining licences and practice across the life cycle of any mine.
To be a powerful movement of mining-affected communities united around the concept of the Peoples Mining Charter premised on Economic, Environmental and Social Justice.
A call to Scrap the MPRDA and to start afresh
The decision by Minister Gwede Mantashe and the Cabinet to withdraw the MPRDA Amendment Bill from the Parliamentary process and to simultaneously water down the provisions of the Mining Charter, appears once again to signal a decisive move by the current government to favour business and profits at the costs of some of the most marginalised and impoverished South Africans. This announcement comes ironically at a time when South Africans have been following the Zondo commission into the corporate capture of the state.
While the commission appears to be considering a particularly rabid type of corporate capture of the state, the announcement by Cabinet on Thursday, brings to the fore an ideological capture of the state by corporate interests. In its essence, the cabinet decision to set aside the current MPRDA Amendment process, is not so much a victory for policy certainty as it is a smashing down of the popular will and rational thought.
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Over the course of the last 6 years that the Bill has been floating between Parliament and the Provinces, Civil society organisations like MACUA and the Coalition on the MPRDA, which includes organisations such as Centre for Applied Legal Studies, Benchmarks Foundation and ActionAid South Africa among others, have worked tirelessly to shift the debate within the mining sector.
Their collective efforts have been so successful that more and more provinces were refusing to sign off on the Bill, because they wanted more rights for communities and for greater protection of the environment to be included in the amendments. The Eastern Cape Legislature went so far as to include in their mandate, the proposal to include a concept that mining interests are dead set against, namely Free Prior and Informed Consent for any community faced with the threat of Mining on their land.
The idea that communities must have a greater say in the issues that affect them, is a central theme of our Constitution, and has been affirmed by the Constitutional court in numerous judgements, yet the current MPRDA does not recognise communities as stakeholders who have the right to land and dignity.
Instead the Cabinet decision has condemned communities like those in Dingleton in the Northern Cape, to forced evictions and loss of land and well-being. The current law only requires that Anglo American give the community 21 working days’ notice before they start mining in and around their community and homes. Anglo has cut their water and electricity supply and have started blasting highly dangerous explosives meters away from the homes of those who chose to remain.
The ugly apartheid-like forced evictions of the Dingleton community is repeated in many similar communities across the country and the Xolobeni case before the Pretoria North High Court is set to expose the unconstitutional nature of the current MPRDA. In any event, the Coalition on the MPRDA are determined to challenge the constitutionality of the MPRDA in court especially after the Gauteng North High Court recently affirmed that mining affected communities are interested and affected stakeholders that must be included in consultations and negotiations on matters that affect them.
So not only does the cabinet decision condemn South African citizens to be victims of the bullying tactics of large Transnational corporations, they are also not providing a lasting solution to a problem that has plagued South Africa for over 150 years, namely the exclusion of people and their rights as a consideration when engaging in mining activities.
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The decision by the Cabinet furthermore ignores a wealth of evidence that has been placed at its disposal. None more so than the Motlanthe report of the High-Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change (HLP). Among the many useful and rational recommendations in the HLP with regards to compensation the HLP recommends that; “The MPRDA must be amended to ensure that both revenues from mining-related activities and opportunities generated by such mining activity are shared in an equitable and transparent manner among people whose land rights are directly affected.”
The recent report by the South African Human Rights Commissions; National Hearing on the Underlying Socio-economic Challenges of Mining-affected Communities in South Africa called on government to remedy some of the fundamental short comings in the current legislation.
Other evidence collected by civil society organisations have shown clear evidence of a systemic model of inequality which appears to be built into the legislative environment around mining. Dr. Aninka Claasens of UCT, in a recent working paper which forms part of a forthcoming MISTRA publication on Traditional Leadership and Customs in a Constitutional Democracy, due to launch early next year, is unequivocal that the “law has been used to entrench structural inequality in post-apartheid South Africa.
Thus, it is a sad indictment on our government that they have not remained level headed at the wheel but have bowed to the pressure from big corporates and panicked at the helm. The fruits of this short-sighted denial of popular sentiment, backed by empirical evidence, will come back to haunt us.
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