The long-awaited South African Human Rights Commission Report of the National Hearing on the Underlying Socio-economic Challenges of Mining-affected Communities in South Africa has been released. The hearings were held on the 13-14 September 2016, 26 and 28 September 2016, and 03 November 2016.
The main findings of the report are as follows:
There is a disjuncture between the intended impact of the comprehensive regulatory framework for the mining industry in South Africa and the lived reality of many of the country’s mining-affected communities. Many of these communities continue to experience significant levels of poverty and systemic inequality.
Land Use Management:
- A considerable gap exists in the mining licence application process, where mining companies, the Department of Mineral Resources (DMR) and the Department of Rural Development and Land Reform (DRDLR) appear to systematically disregard key pieces of legislation, particularly the Municipal Systems Act, 32 of 2000, the Spatial Land Use Management Act, 16 of 2013 (SPLUMA), and the Interim Protection of Informal Land Rights Act, 31 of 1996.
- Municipalities should fulfill their mandates and ensure that zoning requirements are met
- Improved inter-governmental cooperation is necessary to ensure that due consideration is given to the risk posed to local, regional and national food security, environmental resilience, and social and economic development by potential mining activities.
Relocation and Compensation:
- Mining companies who restrict compensation to the physical structure of the land are offering below what is considered to be appropriate in terms of global industry standards and are causing systemic economic displacement and impoverishment within mining-affected communities.
- There are no formal guidelines or oversight provided for the calculation of compensation and the finalisation of compensation agreements.
- The Department of Rural Development and Land Reform (DRDLR) has failed to monitor compliance with, or enforcement of, lease and compensation agreements and that a lack of transparency and access to information allows the potential for abuse of power and non-compliance.
- There is a very real potential for the infringement of cultural and other human rights as a result of inappropriate grave relocation practices that are carried out by mining companies.
- Despite strict regulatory requirements, unlawful grave relocations have been, and continue to be, conducted by a number of mining companies.
Mining in Sensitive and Protected Areas:
- There is an immediate need to give effect to the internationally recognised precautionary principle in matters dealing with environmental protection
- Strongly cautions against prioritising the immediate economic benefit of mining activities over the maintenance and protection of the environment, particularly in those areas that are crucial for sustaining ecological biodiversity, natural heritage, cultural significance and life.
- Particularly concerned by the DMR’s inability to provide certain information about the monitoring of mining activities in protected areas.
- Mining licences should be granted only in exceptional circumstances, under restricted conditions, and following public consultation.
Rehabilitation and Closure:
- It is unacceptable for mining companies to not provide detailed and sufficient information to enable communities and local governments to clearly understand how land can be used post-closure.
- DMR has not taken adequate steps to secure financial provision for rehabilitating damage to the environment and water resources.
- An immediate need for legislative provisioning for standardised and realistic closure costing, concurrent rehabilitation, partial closure, as well as the establishment of a “superfund” to cater for rehabilitation-related liability.
- The failure by mining companies, in close consultation with local government, to adequately address anticipated levels of migration and population growth in initial assessments undertaken during mining licence applications, result in the jeopardising of housing-related infrastructure including water and sanitation, electricity and roads.
- The current census for determining water reserves does not include measures to account for anticipated migration and population growth and other potential impacts on the availability of water resources, such as drought.
- There is an immediate need for water use licences (WULs) to incorporate more stringent measures to better protect communities’ water rights and the environment.
- The Department of Water and Sanitation (DWS), with local government, should address the problem of aging water infrastructure in mining-affected municipalities and collaborate with the Department of Rural Development and Land Reform (DRDLR) to translate guidelines regarding the provision of water on privately-owned land into policy.
- The WUL must be reviewed to allow for rights assertion where terms and conditions of such WUL can reasonably be anticipated to adversely impact the rights of affected communities to access water.
- There is a compelling need for meaningful consultation and information sharing in respect of applications for WULs, and audit and impact reports relating to WULs to increase transparency, and accountability in respect of the use of this scarce resource.
- Discrepant approaches in the application of environmental management laws and limited oversight of environmental management across multiple sectors are cause for concern.
- The DMR is not the appropriate authority for granting and enforcing environmental authorisations with respect to mining.
Air Quality and Blasting:
- The lack of regulation around blasting operations is problematic given the frequency in which issues arise. Discrepant practices across the industry and the propensity for blasting operations to negatively impact communities and the environment compound the seriousness of these issues.
- Industry bodies, such as the Chamber of Mines (CoM) – now called Mineral Council South Africa -, are not duly active in monitoring behavioural trends within the industry or guiding members on best practice concerning blasting operations.
- Mining companies are responsible for ensuring that, prior to conducting blasting operations, appropriate safety mechanisms are in place to prevent property damage (with due consideration given to the quality of structures in surrounding communities) and any risk to persons’ health and safety.
Nuclear Waste Management:
- There is an immediate need to address the lack of clarity concerning the State’s roles and responsibilities in the remediation of contaminated mine sites, particularly where such sites have been abandoned.
- In light of the potentially severe and long-lasting impacts of contaminated sites, the State must prioritise funding for the National Nuclear Regulator (NNR) to undertake remediation activities.
Social and Labour Plans:
- The current social and labour plans (SLP) system does not adequately address the negative impacts of mining activities and that systemic issues in the design of, and compliance with, SLP commitments limit their ability to drive socio-economic transformation in mining-affected communities.
- There is an immediate need for the DMR to develop clear and binding requirements for the content of SLPs and to ensure that they are aligned to EIAs and EMPs and include environmental information on the potential impacts of mining and post-closure quality of land.
- There is also an immediate need for the DMR to enforce compliance and develop sanctions for those mining companies that fail to comply with their SLP commitments.
- The DMR should define the minimum amount of financial contribution towards SLP projects. This amount must be ring-fenced.
- There is a compelling need to develop clear consensus driven standards for compliance, evaluation and assertion of the duty to achieve meaningful participation from the commencement of mining operations such as applications for licences.
- Meaningful consultation should not be confined to a tick-box exercise.
- Standards for consultation should ideally include opportunities for wider public participation in so far as the granting of mining licenses and evaluation of mining impacts are concerned.
Free, Prior and Informed Consent:
- Collective consent has been accepted as a test for consent, but such consent for a number of reasons including a lack of representation of diverse groups, and groups which experience systemic disadvantage such as women do not necessarily adequately embody the principles of fee, prior and informed consent which is a rights protective principle all stakeholders.
- Department of Rural Development and Land Reform (DRDLR) has not been sufficiently involved in community consultation processes to assess levels of consensus and consent.
- Insufficient time and accessible information is availed to communities to undertake decision making processes as required by their customary law.
Multiplicity of Consultation Forums:
- Greater inter-governmental cooperation is needed to ensure the establishment of streamlined and representative community forums, which are broadly consistent in their function and operation
Access to Information:
- The fundamental right to information as envisaged both in terms of the bill of rights and statute are inconsistently observed. The right to information is essential both for the purposes of achieving meaningful consultation and for ensuring sound corporate governance. This finding relates both to the duty to proactively release information, and in respect of limiting rights to information through clear criteria for the classification of information of certain mining-related information as “confidential.”
- Information is also not consistently made available in languages and formats which render them accessible.
- A large percentage of mining-related information, including SLPs, are not currently available to the public where such information should in fact be automatically publicly available in terms of the Promotion of Access to Information Act (PAIA).
- Mining companies are legally obligated to comply with Section 51 of PAIA. Section 51 based compliance, must be extended to ensure that information is proactively disseminated in a manner that is accessible and which facilitates the understanding of such information, through all available platforms, including the internet.
Compliance, Monitoring and Enforcement:
- Existing sanctions for non-compliance with environmental laws and regulations are inadequate and do not address, nor disincentivise, systemic non-compliance in the sector.
- There is a lack of mechanisms to monitor compliance and ensure enforcement of SLP-related obligations.
- There is an immediate need for the development and implementation of effective complaints mechanisms by mining companies, the DMR, and local government.
The complete report is available here: