MINING, LAND, AND COMMUNITY IN COMMUNAL AREAS I - WHAT COULD BE ACHIEVED AND WHY IT IS NOT

In this brief, I provide an overview of the issues relating to mineral and land rights and community governance. Two follow-up briefs will delve more deeply into each issue.

Introduction

Mining law involves a complicated nexus of mineral rights, land rights, community governance structures, and health and environmental regulations[1]. Since 1994, mining policies in South Africa have been designed to benefit all South Africans.  They have been embodied in the Mineral and Petroleum Resources Development Act (“MPRDA”).  Unfortunately, these policies often do not have their intended effect. Many individuals and communities get lost in the cracks of the mining law nexus. They suffer much more than they benefit as their land, resources, status, and dignity are diminished. Sometimes this happens because leaders and companies get greedy, but sometimes it happens even when leaders and companies mean to do something good for the affected community. Future suffering can be prevented by keeping the basic principle that mining must benefit South Africans while changing the structure and, most importantly, application of some of the law.

Three current confrontations

Last September, violence broke out in Limpopo when Mapela community members protested a lack of transparency in mining company Anglo American Platinum’s (“Amplats’”) negotiations with their Kgoshi, David Langa, and the closure of the Seritarita Secondary School in Skimming Village, Mapela. The land on which the community had built the school at their own cost during apartheid was to be used as a waste dumping site. As Joanna Pickering and Thabiso Nyapisi, researchers at the Land Accountability Research Centre (formerly the Rural Women’s Action Research Programme), assert in an article from April 2016, many people were injured, some, including pregnant women, were shot at by police, and 36 community activists and protesters were arrested. The dispute around the school has been resolved, but disputes about the lack of accountability and transparency regarding deals between Amplats and the Kgoshi are ongoing.[2]

Dispute and violence also continue on the Wild Coast where communities in the Xolobeni area struggle with each other and with mining companies over proposed dune mining (the Australian-based company Mineral Commodities Ltd. which had been spear-heading the push for mining pulled out late this July, divesting its interest to its BEE partner Keysha Investments[3]). Individuals and community organizations express concern about environmental degradation, displacement involving the dissolution of community structures, devastation of livelihoods tied to land, and unclear compensation. The assassination of Sikhosiphi Bazooka Rhadebe, a prominent community activist opposed to the mining, this past March was only the most recent in a pattern of violence dating as far back as 2003. The Amadiba Crisis Committee, a community organization, alleges that police have been intimidating the community with night-time raids.[4]

For years, members of the Bapo Ba Mogale community in the North West Province have complained that blasts from nearby Platinum mines, run by Lonmin Plc, Sky Chrome Mining, and others, cause cracks their houses and dust that destroys their crops and their health. They also complain about social upheaval caused by a dramatic increase in migrant labour associated with the mines. Although the mines in the area have made some positive contributions to the community, including financing schools, many residents feel frustrated about the difficulty of securing compensation for the damage that they believe is being done to their homes and livelihoods.[5] Moreover, in 2015, members of the Bapo Ba Mogle community launched an application to review and set aside a transaction entered into with Lonmin in 2014 in which, amongst other things, they exchanged their mining royalty rights for equity in Lonmin, which has since dramatically decreased in value. Transparency and accountability issues are, once again, central to the application, with community members arguing that they were not properly consulted about the deal that has had a big impact on them.[6]

These are just three contemporary examples out of many of people struggling to uphold their basic rights and dignity in the face of existing or proposed mining development.

Mining is important to South Africa’s economy and has the potential to benefit many. According to the University of Cape Town’s Centre for Law and Society, in 2015, mining accounted for about R260 billion or 8.3% of total annual production in South Africa, and the Chamber of Mines says the industry’s indirect contribution is closer to 18% of GDP. Mining employs about 525 000 people directly and accounts for another 840 000 jobs that are indirectly dependent on mining.  South Africa has almost 90% of world platinum reserves and about 40% of gold reserves.[7]

It is important to note that, increasingly, both within South Africa and worldwide, there are calls to better account for and to quantify both the environmental and health costs of mining and income generated from biodiversity and non-mining uses of land. This is emerging research that deserves more attention.[8]

Nevertheless, despite good intentions, the laws that govern mining in this country are failing South Africans. The problem of finding the right balance between respect for individual and community rights and the benefits of mining development is not unique to South Africa. Attempts to move on from the troubled history of the industry in South Africa, however, are failing. It need not be so.

Mineral rights and land rights

The current structure of mineral rights in South Africa was designed to prevent private landowners from blocking mining development that has potential to benefit the country as a whole. Unfortunately, in practice, it often produces unequal negotiating positions that disproportionately disadvantage rural black communities. These communities are disproportionately disadvantaged because their relationship with land is often different from the freehold relationship that most white landowners have with their land. In general, payment of the commercial value of their land adequately compensates white landowners, who can relocate to land of equal value. In contrast, communities in which interpersonal relationships are structured around land and which occupy land on a communal basis are less mobile and less easily compensated. Communities also begin from a weaker negotiating position given their land tenure insecurity.

This is ironic because the change in law was part of the effort to empower black South Africans in the new democracy. The preamble of the MPRDA includes in its aims the eradication of all forms of discriminatory practices in the mining sector and the undertaking to take measures to address the effects of the skewed distribution of economic benefits which took place during the apartheid era.[9]

As the Constitutional Court stated in a leading case on the new legislation, AgriSA v The Minister of Minerals and Energy:

Regrettably, the architecture of the apartheid system placed about 87 percent of the land and the mineral resources that lie in its belly in the hand of 13 percent of the population. Consequently, white South Africans wield real economic power while the majority of Black South Africans are still identified with unemployment and abject poverty. For they were unable to benefit directly from the exploitation of our mineral resources by reason of their landlessness, exclusion and poverty. To address this gross economic inequality, legislative measures were taken to facilitate equitable access to opportunities in the mining industry.[10]

The Act eliminated private ownership of mineral rights and vested ownership of minerals and petroleum in the state. Prior mineral rights regimes in South Africa combined private and state ownership of minerals and petroleum, but a rights holder could: 1) sit on mineral resources without developing them; 2) sell, lease or cede the right at any time; 3) claim compensation if the right was expropriated by legislation.[11]

Under the MPRDA, real or legal persons can apply to the state for any of: 1) a reconnaissance permit; 2) a prospecting right or mining right (for minerals); or 3) an exploration right or production right (for petroleum). Mining and production rights cannot usually be alienated to third parties and depend on extracting resources within a specified period (not more than 30 years), which prevents the rights holder from sitting on mineral resources without developing them (“sterilising” the mineral right).

The problem is that although holders of mining and production rights are required to negotiate with landowners and occupiers about access to the land, barriers to start mining or prospecting before negotiations have concluded are few and weak. Provisions and case law that emphasize the obligation to consult do not require ultimate agreement. While the traditional common law rule that mineral rights trump land rights might have been justified by the idea that mineral rights had been ceded by a landowner or his predecessors for fair value, it is not clear that this justification holds under the new system.

As I will explain in a follow-up brief, additional problems arise in suing for damages related to cracks in buildings, dust, and other problems created by living close to a mine. Often, the defence of statutory authority bars a claim in negligence or nuisance.  

Communal land ownership in traditional communities can compound these problems, but I address it as an issue of community governance below and in my follow-up briefs.

Community Governance

The continuance in rural South Africa of “traditional communities” governed in part by traditional governance structures and customary law is protected by the Constitution. The institution of traditional leadership is most obviously protected by Chapter 12, “Traditional Rulers”, but also to some extent by Sections 30 and 31 of the Bill of Rights, which guarantee cultural rights.[12] It is supported by national and provincial legislation, including the Traditional Leadership and Governance Framework Act[13] and, for example, the Limpopo Traditional Leadership and Institutions Act[14]. Traditional governance poses particular problems for mining companies trying to negotiate with these communities.

Violent divisions within communities are created or exacerbated when mining companies do not make the time and effort to understand traditional governance structures and customary law. The need to engage with distinct communities within countries that are governed by versions of customary law is not unique to South Africa, or indeed, Africa. Nevertheless, companies can contribute to problems if they try to generalize their experiences elsewhere without accounting for differences in context.

It is possible to have legitimate sympathy for mining companies that want to make a positive impact in an area but become caught in the middle of divisive community politics. That said, there are few positive stories out of communities affected by mining in South Africa, and many companies that seem to be locked into a mindset of legalistic compliance rather than careful attention to real and lasting benefits.[15] Problems can be exacerbated by poor leadership that lacks accountability and transparency or by a broader lack of clarity about governance structures. Moreover, without a robust and nuanced conception of democratic imperatives within customary law, traditional governance and communal landholding structures can be abused at the expense of individual rights, freedoms, and well-being.

Tamara Jewett
Researcher
tamara@hsf.org.za