Mine Community Resettlement Guidelines published for implementation
Mining operations have the potential to displace individuals and communities, resulting in the loss of income, loss of physical and non-physical assets (including homes), productive land, subsistence, resources, cultural sites, social structures, networks and ties, cultural identity and mutual help mechanisms.
In this context, on 30 March 2022, the Minister of Mineral Resources and Energy published the Mine Community Resettlement Guidelines, 2022 for implementation. This follows the publication of the draft mine community resettlement guidelines, 2019 for public comment on 4 December 2019 (“Draft Guidelines”).
The Resettlement Guidelines identify the following principles for resettlement:
- meaningful consultation;
- protection of existing rights;
- conditions relating to meetings;
- avoid and minimise resettlement; and
- professional services of historically disadvantaged South Africans to be used throughout the process of resettlement.
The purpose of the Resettlement Guidelines is to provide guidelines to an applicant or a holder of a mining title in instances where, landowners, lawful occupiers, holders of informal and communal land rights, mine communities and host communities will be displaced or resettled from their land as a result of the mining operations (“Affected Parties”).
Below are the most salient features of the Resettlement Guidelines.
The Resettlement Guidelines apply to applicants of mining titles and existing holders of mining titles in terms of the Mineral and Petroleum Resources Development Act, 2002 (“MPRDA”) where incremental project expansion will have the effect of displacement or resettlement of the Affected Parties.
Resettlement Plan, Resettlement Action Plan and Resettlement Agreement
Similar to the Draft Guidelines, the Resettlement Guidelines require an applicant or holder to develop a Resettlement Plan, Resettlement Action Plan and Resettlement Agreement.
A Resettlement Plan is a broader consultative document that is concerned with project description, impact analyses; costs and budgetary considerations, and consultation mechanisms.
The Resettlement Action Plan is envisaged to be a document that lists what steps must be taken in order to achieve the goals outlined in the Resettlement Plan. The Resettlement Action Plan is intended to clarify what resources are required to reach the goal, formulate a timeline for when specific tasks need to be completed and determine what resources are required.
The Resettlement Agreement serves to record, in full, all the commitments made by an applicant or holder of a mining title in the Resettlement Plan and the Resettlement Action Plan. The agreement must be signed by all relevant stakeholders and submitted to the office of the relevant Regional Manager for noting.
Obligations of an Applicant or Holder
The Resettlement Guidelines state that when an applicant or holder intends to relocate Affected Parties to an alternative area, the applicant or holder shall, amongst others, consult meaningfully with the Affected Parties by offering options that are practical and economically suitable; ensure that the Affected Parties’ concerns, inputs and comments are heard and considered; establish a Resettlement Monitoring and Evaluation Committee and bear the cost of resettlement.
Resettlement and compensation
The Resettlement Guidelines requires the resettlement of Affected Parties to enhance and improve affected community livelihoods such as housing, schools, health facilities and recreational facilities.
In addition, similar to the Draft Guidelines, the Resettlement Guidelines state that no mining activity shall commence until a resettlement agreement is reached on the appropriate amount of compensation as a result of resettlement of Affected Parties. This requirement is ultra vires the MPRDA, disregards the obligations of holders of mining titles to commence with prospecting and mining operations within a specified period in the MPRDA and is contrary to the judgment of the Constitutional Court (“CC”) in Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd 2011 4 SA 113 (CC), in terms of which the CC held that the MPRDA does not impose an obligation to reach agreement; the parties ought to engage in good faith to attempt to reach some accommodation.
Dispute resolution mechanism
The Resettlement Guidelines make provision for applicants or holders of mining titles to pay for the appointed legal representation of the Affected Parties in the dispute resolution processes. The Resettlement Guidelines also make provision for a “party to party dispute resolution process” in terms of which an applicant or mining title holder must first seek to resolve a dispute amicably through engagements and mutual agreement with Affected Parties prior to invoking the process outlined in section 54 of the MPRDA.
Section 54 deals with compensation which is payable to landowners under certain circumstances. It also provides holders of rights with an avenue to resolve land access disputes with landowners who refuse to grant them access.
The Resettlement Guidelines seek to prescribe a process in terms of which the Regional Manager may resolve resettlement disputes and, on the face of it, grants the Regional Manager powers that are not contemplated in section 54.
The procedure contemplated in the Resettlement Guidelines appears to increase the time period for resolving land access disputes.
The Resettlement Guidelines also seek to create a procedure for resolving disputes which give the minister, Director-General or Deputy Director-General certain powers to deal with “complicated matters”. It is unclear what constitutes “complicated matters”.
Legal status of the Resettlement Guidelines
The Resettlement Guidelines correctly acknowledge that the MPRDA does not contain express provisions dealing with the resettlement of Affected Parties. The Resettlement Guidelines are merely guidelines, and do not have the status of law, as would be the case with legislation and regulations.
The Department of Mineral Resources and Energy would therefore not be able to invoke the Resettlement Guidelines to prevent an applicant or holder from adopting alternative means to carry out the resettlement of Affected Parties to those provided for in the Resettlement Guidelines.
Natural Resources and Environment | Head of Department
Natural Resources and Environment | Associate