High court ruling over titanium mining empowers communities

By: MAXINE BEZUIDENHOUT: SIMON MATHEBULA/ SUNDAY TIMES

Minister and director-general of the department have to obtain full and informed consent

A groundbreaking and power-shifting high court ruling on September 11 places the interests of affected communities at the centre of decision-making processes regarding proposed mining projects and affirms their right to say no.

In 2018 the Amadiba Crisis Committee lodged an application with the high court in Pretoria to have the right to say no affirmed, as the community had not been consulted about nor consented to a titanium mining project that was planned for the land on which their livelihoods are rooted. This legal challenge was further forced by the fact that the government had up to then refused to listen to them.

The court, after hearing the arguments of the department of mineral resources & energy and the Umgungundlovu community, ruled in favour of the community, declaring that the minister and director-general of the department “lacks any lawful authority” to grant a mining right in terms of the Mineral Petroleum Resources Development Act, unless they have obtained the “full and informed consent” of the community in terms of the Interim Protection of Informal Rights to Land Act.

The tenets of free, prior and informed consent require that affected communities must participate in development processes without coercion and with access to the full particulars of the proposed development, be it mining or the building of a road or dam, as it is the basis on which to participate in an informed manner.

The most important factor is the affected communities’ right to consent to a proposed development. This means affected communities have the right to say yes or no to whatever it is that will affect them, and confirms that they are active participants in development processes.

To participate actively in development processes, affected communities must have access to all information relevant to the proposed project so as to make informed decisions that will affect their future and that of generations to come.

In this particular case, vital information contained in the mining right application was withheld from the community. Similar instances have occurred in many other communities in the country. How is an affected community supposed to make an informed decision when they lack access to key information?

It is a disruption of the business-as-usual approach of the state rolling out the red carpet for transnational corporations

This is what brought the Amadiba Crisis Committee back to court. In what can be deemed another landmark judgment, the court made an important ruling that “interested and affected parties as contemplated by the Mineral and Petroleum Resources Development Act are entitled, on request to the relevant regional manager of the department of mineral resources & energy, to be furnished with a copy of an application for a mining right subject to the right of the applicant and/or the department to redact financially sensitive aspects of the application”.

This affects the power dynamics at play between communities, the state and mining companies. It is a disruption of the business-as-usual approach of the state rolling out the red carpet for transnational corporations.

The asymmetry of power that belies the current development model unfairly grants corporations insurmountable power over communities, and to a degree the state itself. The development model allows corporations to bid for and initiate domestic development projects under the auspices of advancing economic growth through employment and the social development and upliftment of the community that will be affected by the project.

However, it is well documented through the work of the Southern Africa Campaign to Dismantle Corporate Power and the Permanent Peoples’ Tribunal on Transnational Corporations in Southern Africa that the communities affected by mining and other extractive projects are often left worse off and bear the brunt of pollution, soil poisoning, devastating health conditions and a degraded natural environment.

The other leg of the power horse lies with the state. Its heavily bureaucratic and laborious processes, coupled with dodgy policies and background cronyism, means that it puts the economic interests of corporations above those of the people who will be affected by the decisions. So when an application for a mining right lands up with the department, it is already assumed that the application will be approved. An interception of this power dynamic ensures affected communities must be able to put forward their proposals and alternatives so as to drive an alternative model of development in favour of livelihoods and the natural environment.

For too long mining corporations have bullied communities into accepting their promises of social upliftment programmes and jobs, or just refused to engage them. Mining corporations can no longer circumvent the lawful process of meaningfully engaging with affected communities in an effort to fast-track their operations. If they do, they can expect to be embroiled in lengthy and costly legal battles.

Declaring that affected communities are entitled to the right to say no and that they have access to full particulars of mining right applications significantly balances the very skewed power dynamics

It is common practice for affected communities to be deliberately sidelined from decision-making processes and to have their voices of dissent bulldozed by big corporations with access to a legal arsenal and private security militia.

The Amadiba Crisis Committee is no stranger to this kind of violence and repression in an effort to quell resistance. At the peak of violent repression in 2016 its then chairperson, Sikhosiphi “Bazooka” Radebe, was murdered at his home in front of his son by men who claimed to be police officers. The Radebe family have yet to receive any form of justice.

Declaring that affected communities are entitled to the right to say no and that they have access to full particulars of mining right applications balances the skewed power dynamics. In handing down this judgment the court has in effect supported the struggle of affected communities for consent rights concerning projects that affect them, their environment, land and their livelihoods.

It is not only a victory for the community of Umgungundlovu but has far-reaching effects for all communities affected by mining and extractivism. Its powerful determinations start to lay the foundations for and secure the right to say no in common law, as well as to bolster and legitimise the various struggles against extractivism. Apart from its implications for law and practice in SA, it serves as a beacon of hope and encouragement to resist for affected communities throughout SA and the continent.

The judgment is an inspiration; a show of what is possible as the culmination of resistance action, peoples’ power and the demand for the right to say no, especially for affected communities such as the Ogiek people in Kenya, the Ogoni people in Nigeria, rural women in Zambia and the Mikea people in Mozambique, who have been embroiled in battles concerning the protection of the commons from the clutches of state and corporate collusion in the exploitation of natural resources, the degradation of the environment and the destruction of livelihoods.