BY Carlyn Frittelli Davies
natural resources and environment
Mining and local communities: free, prior and informed consent in South Africa?
With South Africa’s recent cabinet reshuffle, the Department of Water Affairs and Sanitation was amalgamated with the Department of Human Settlements. This indicates the growing intersection between natural resources and people/communities, and in turn, the potential for policy to stop seeing natural resources and people in separate silos.
Recent judgments, such as Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Ltd and Another and Baleni and Others v Minister of Mineral Resources and Other, have shown how the exploitation of natural resources has the potential to exploit host communities. As such, consent, specifically free, prior and informed consent (“FPIC”) of informal land rights holders, has been elevated in relation to the rights and obligations of mining rights holders. The focus on consent from broader communities in relation to land requires a nuanced and measured approach to avoid tumultuous relationships between the stakeholders involved.
Internationally, FPIC is recognised through the United Nations Declaration on the Rights of Indigenous Peoples, and has been incorporated into many foreign jurisdictions’ mining legislation and practices. From a South African perspective, the Interim Protection of Informal Land Rights Act, 1996 has been referenced in the recent judgments. Although the requirements for consultation in terms of the Mineral and Petroleum Resources Development Act, 2002 have been judicially crystallised, FPIC has not, until now, been considered in relation to mining law in South Africa. Therefore, the trials and triumphs experienced elsewhere should be used to guide South Africa’s approach to FPIC.
First, we need to unpack what FPIC entails. The Good Practice Guide: Indigenous Peoples and Mining, produced by the International Council for Mining and Metals (“ICMM”) as part of the Sustainable Development Framework: ICMM Principles, provides a manual for FPIC. Essentially, FPIC means:
- free: consent obtained voluntarily and without coercion, intimidation or manipulation;
- prior: consent is sought sufficiently in advance of any authorisation or commencement of activities;
- informed: nature of the engagement and type of information that should be provided prior to seeking consent and also as part of the ongoing consent process;
- consent: collective decision made by the right holders and reached through a customary decision-making process of the community.
In Canada, mining companies enter into impact benefit agreements with the First Nations (predominant indigenous peoples in Canada), providing benefits to the First Nations in exchange for their support of the project. These communities recognise the need for development but balance this need by negotiating contractual obligations which the relevant mining company must discharge. In turn, mining companies have realised the value of a constructive relationship with host communities and therefore time is spent in understanding the structures, status and needs of the specific First Nation.
Internationally, so-called community development agreements are used to regulate, as far as possible, the relationship between indigenous host communities and mining companies, which has been met with varying degrees of success. Often local community organisations negotiate on behalf of the host community to ensure more equal playing fields. The focus on financial benefits has shifted to a more flexible community development component, which will ensure the continued upliftment of the community after mining operations have ceased. This may also prevent certain individuals from benefiting without financial incentives filtering down to the entire community.
While requirements for a social and labour plan in South Africa already aim to ensure community development, when coupled with the Mining Charter requirements, the inability to accurately determine leadership structures within the host community usually causes the most turbulence for all stakeholders. Although social impact studies are required as part of an application for a mining right, the current standard often results in the questioning of the legitimate leader of the community at a later stage. In other words, there is in fact no legislative requirement to determine who has the decision making authority within a community and identify the customary process to follow for such a decision. This is where FPIC can be used most effectively when coupled with a more advanced study of the local community and its leadership informed by its customary law. There may also be an opportunity for a specialist anthropologist to add depth to the social study usually conducted. Customary law is recognised by the Constitution but is often pushed aside for codified law which is assumed to hold more certainty.
However, the longer we avoid trying to delve deeper and to truly understand customary law and leadership structures in host communities, the longer it will take to forge true symbiotic relationships between such communities and the holders of mining rights. In the interim, there is no negative to implementing greater measures during the statutory consultation process to attain FPIC from an individual within the community and naturally, the community as a whole, despite any questions or challenges that may arise in relation to leadership structure. Open dialogue and ventilation of communities’ aspirations as well as detailed explanations of mining companies’ financial and other constraints will allow for mutual understanding of expectations. There is also a need to formalise benefits, rights and obligations of the stakeholders through more than a social and labour plan to give meaning and force to the consultation process.