A Failure of Democracy

*This article first appeared in the Business Day on 13 March 2017. The article was written by Michael Clements,  the Head of the Environmental Rights Programme at Lawyers for Human Rights, and Christopher Rutledge,  the Mining and Extractives co-ordinator at ActionAid. Both organisations are part of the MPRDA Civil Society Coalition

In early March, Gauteng held hearings on proposed amendments to the Mineral and Petroleum Resources Development Act (MPRDA). This is the latest step in a procedurally flawed process — now in its fourth year — to formalise these amendments into law. In what is a hallmark of this legislative process, as well as the substance of the act and its amendments, the voice and consideration of mining-affected communities were almost entirely absent from the hearing. This is troubling, given that these are the people who bear the brunt of the health, environmental and socioeconomic impact of mining.
President Jacob Zuma sent the Mineral and Petroleum Resources Development Amendment Bill back to Parliament in 2013, citing constitutional concerns. Parliament either rejected or tackled all but one of these issues: that the public-participation process preceding the bill was insufficient.
In January, the Department of Mineral Resources — without consulting affected communities — then proposed an additional 54 amendments. This disregarded the fact that the law does not provide for any amendments at this stage of the legislative process. The National Council of Provinces has nevertheless proceeded to consider these, over protests from civil society and other stakeholders.
Provincial legislatures are now tasked with holding hearings on these new amendments to facilitate public involvement. If the Gauteng hearings are anything to go by, this attempt to assuage the president’s concerns over public participation cannot pass constitutional muster.
The Constitutional Court has held that such opportunities for public participation are a fundamental human right, that they must be meaningful, and that the public must be able to take advantage of them. This is critical in ensuring the legitimacy of new law and the accountability of the legislature to the electorate. It is especially crucial in this context, as mining-affected communities struggle to make their voices heard despite bearing the brunt of the long-term socioeconomic and environmental costs of the industry’s activities.
The Gauteng hearings were held, with just a few days’ notice, in central Johannesburg — far from the province’s main mining areas. The dense act and complex proposed amendments were neither distributed to communities nor explained to them before the hearing.
In an ill-planned effort to inject a mining community voice into the process, residents of the beleaguered Blyvooruitzicht Mine Village, still reeling from the sudden liquidation of the Blyvooruitzicht gold mine, were told transport would be provided to Johannesburg for the hearings. Community members gathered at 7am, but the buses never arrived.
"We weren’t sure what the hearings were about, but we try to take any opportunity we can to explain to the government how we are suffering here in Blyvoor as a result of the way our mine closed its doors back in 2013," said Pule Molefe, a lifelong Blyvooruitzicht resident and member of the local residents committee.
"We remain hopeful about the prospects of engaging our government on these issues, but we didn’t get that opportunity at this hearing."
The MPRDA Civil Society Coalition, composed of community-based organisations and their legal advisers, has challenged this legislative process and the substance of these amendments for their failure to facilitate meaningful community participation. In sum, the amendments attempt to eliminate the few remaining safeguards for community rights.
The bill now proposes, for example, removing required community participation from the conditions the minister can impose on applications for mining rights in some instances. Similarly, the bill envisions the creation of a mining advisory council, comprising representatives from government, labour and business, while communities are not to be represented on this council at all.
These changes reflect a fundamental failure to recognise communities as legitimate stakeholders in the mining cycle, even where the industry affects every aspect of their lives.
To this end, the coalition, after extensive consultations with hundreds of communities across SA, has called for free, prior and informed consent for SA’s mining legislation.
Like the brave people of Xolobeni in the Eastern Cape have insisted, communities must be allowed to choose their own development paths, armed with the full knowledge of their rights, as well as the mining project in question. They must be able to say no to mining on their doorsteps, or at least have a say in how mining and its impacts and benefits are managed.
Such considerations are absent from the mining law and its proposed amendments.
The socioeconomic and environmental crises unfolding on Gauteng’s West Rand, Mpumalanga’s coal belt and the deserted gold fields of the Free State provide clear proof that the mining law allows community rights to be trampled, with little consideration for the role of mining in fostering inequality in SA.
More than four years after the Marikana massacre, that community still provides the ultimate, painful lesson that the MPRDA has fallen woefully short in ensuring some of its fundamental objectives: that mining must help uplift affected communities and address past injustices. The proposed amendments offer no hope for changing this, and the procedural flaws of this legislative process require that Parliament reject the entire amendment bill.
The coalition reiterates that affected communities must be at the forefront of SA’s mining law. New legislation must be drafted in close collaboration with these stakeholders.
Provincial legislatures and the Department of Mineral Resources must do better in the coming weeks at hearings across the country to ensure legislators see the faces and listen to the voices of the men and women most directly affected by those growing wealthy from this country’s vast mineral endowment.
Hastily organised hearings located at great distances from affected regions undermine a fundamental premise of SA’s constitutional democracy: that public participation in the legislative process be more than empty ritual. Mining-affected communities must have the opportunity and ability to affect the outcome of these hearings. It is their constitutional right.

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