1. Legal Resources Centre: [submission no 33] Bill 15 and the community right to negotiate about mining on their land: “no mining on communal land without community consent” CONTENTS slidememo Lack of consultation in the legislative process by the departmentthree 5 good reasons why consent is the appropriate standard2; 9-124 - 17 Discrimination continues3 - 56 Consent  wording620  reparation principles824 Artisanal mining1322 Legal Resources Centre 2013 09 161

2. Consent - background 5 good reasons why consent is the appropriate standard for local communities on communal land (NOT OTHER OWNERS)  1913 land act and discrimination  The Constitution demands equality and authorises reparation  Customary law is based on consent for any disposal  Treaty law and African Charter: the right to development implies the right to negotiate and decide  Land Reform Policy Statements July 2013 rely on consent and IPILRA Other comments before the committee that supports consent as the appropriate standard  The industry – webbers and glencore / oxfam consent index  Labour – numsa supports ILO 169 and meaningful consultation  Communities – macua supports FPIC  International best practise – wbg and equator principles require effective and meaningful participation Legal Resources Centre 2013 09 162

3. The right to negotiate refused – 1813 to 2004 Historically white landowners had a right to negotiate, through a first option to mine… they had say over access to their land. Black communities could not own their land and the SADT negotiated deals for itself. “Past mining legislation and the general history of racial discrimination in this country prevented black people from acquiring access to mineral resources. Dispossession of land aggravated the situation.” Homeland governments negotiated deals including rent and royalties… now payable to provincial governments and held in D accounts. Legal Resources Centre 2013 09 163

4. The right to negotiate still refused - 2004 to 2013 There are two streams of potential participation:  Access to land – section 5(4) or 5A notice before entering; section 54 about compensation for loss and damages  Regulation of mining: mitigation of environmental and social impacts – section 10; 16; 22;  10(2)(b) the regional manager may refer the objection to the applicant to consult with the person objecting and submit the result of the consultation  16(4) to consult in the prescribed manner with the landowner, lawful occupier and an affected party and include the result of the consultation in the relevant environmental reports  Section 22 as proposed to be amended provides for social and labour plans with community consultation… but under very limited headings such as housing, local employment projects etc alligned with the municipal IDPs To effect transformation for communities they must have say over access to land. Legal Resources Centre 2013 09 164

5. The right to negotiate still refused - 2013 23(2)(b) the minister may after taking into consideration the socio-economic challenges or needs of a particular area or community, direct the holder of a mining right to address those challenges or needs. 23(2A) If the application relates to the land occupied by a community, the Minister may impose such conditions as are necessary to promote the rights and interests of the community [,including conditions requiring the participation of the community]. To effect transformation for communities they must have say over access to land. Why rely on the minister only ? Legal Resources Centre 2013 09 165

6. Consent : wording Our proposal : section 5A no person may mine without (d) on communal land, the prior written consent in terms of customary law if applicable and the Interim Protection of Informal Land Rights Act 1996 of the directly affected community 2008 section 5A [since June 2013] No person may mine without (c) giving the landowner or lawful occupier of the land in question at least 21 days written notice. 2002 section 5(4)(c) No person may mine without… notifying and consulting with the land owner or lawful occupier of the land in question. IPILRA 1996 no person may be deprived of any informal right to land without his or her consent. Legal Resources Centre 2013 09 166

7. Consent wording IPILRA 1996 no person may be deprived of any informal right to land without his or her consent. Where land is held on a communal basis, a person may …be deprived of such land or right in land in accordance with the custom and usage of that community. the custom and usage of a community shall be deemed to include the principle that a decision to dispose of any such right may only be taken by a majority of the holders of such rights… Legal Resources Centre 2013 09 167

8. Reparation heads Surface use, loss of livelihoods and dislocation of communities and structures… to be put in or arrive at a position [or better] than they would have had it not been for the human rights violation Ownership of land Dimunition in the value of land as a result of mineral exploitation The SADT trust moneys and D account moneys For present purposes:  The BBSEE component  No new mining on communal land without community consent in terms of IPILRA Legal Resources Centre 2013 09 168

9. Constitutional basis Recognition of customary law – s39(3), 30, 31, 211(3) and 9(2) – not Chapter 12. Recognised as an independent source of law [the Constitution recognises customary law primarily, and as a result customary institutions. Traditional leaders are not representatives of customary law] Necessitated by the Constitution’s commitment to equality and transformation. Recognition of living customary law (not common law or codified versions). But is it being given effect to? Legal Resources Centre 2013 09 169

10. Equality and customary tenure PEPUDA Preamble calls for “the advancement, by special legal and other measures, of historically disadvantaged individuals, communities and social groups who were dispossessed of their land and resources, deprive of their human dignity and who continue to endure the consequences”. We have restitution of land, marine resources (recent MLRA amendment)….but what about mining? Legal Resources Centre 2013 09 1610

11. The significance of customary law Ownership – despite no statutory recognition, communities are the owners of communal land (acknowledged by Minister Nkwinti in State Lease and Disposal Policy and IPILRA) and owned resources prior to these being expropriated by series of disriminatory legislation (see Alexkor) – so they should have been entitled to convert rights in terms of the MPRDA HAD IT NOT BEEN FOR YEARS OF DISCRIMINATION AGAINST CUSTOMARY OWNERSHIP. Source of free, prior and informed consent READ WITH EQUALITY: the imperative to promote; to transform; to achieve substantive equality. For marginalised rural communities this translates into REPARATION and CONSENT. Legal Resources Centre 2013 09 1611

12. International law recognition of customary rights, reparation and consent African Charter on Human and Peoples’ Rights ACHPR Principles and Guidelines (2011) recognises customary tenure as property rights Endorois decision (2010) ACHPR Resolution on the Extractive Industries (2012) calls on States to recognises FPIC of local communities ILO 169: FPIC for local communities – effective in Latin America because it was domesticated in law. Legal Resources Centre 2013 09 1612

13. Illegal mining Illegal mining costs the mining industry (and the government through lost taxes) about ZAR 5.6 billion annually Additional security costs for mining houses Adds to state burden with regard to organised crime as it is linked to human trafficking, smuggling, money laundering, bribery and corruption

14. State Land Lease and Disposal Policy Chapter 3: commercial developments