Consultation and Access to Information Joint submission to the Portfolio Committee on Mineral Resources by: Centre for Environmental Rights groundWork South Africa Earthlife Africa Johannesburg Branch Environmental Monitoring Group Vaal Environmental Justice Alliance Federation for a Sustainable Environment

Submission The Bill does not make adequate provision for consultation or access to information, therefore failing to give effect to the Constitutional rights to fair administrative action and access to information

Mining has an enormously disruptive and distressing impact on the lives of those affected by it Impact recognised by the Constitutional Court in Bengwenyama: “[t]he exercise of prospecting rights is highly invasive of the use by owners of their land” and “the granting and execution of a prospecting right represents a grave and considerable invasion of the use and enjoyment of the land on which prospecting is to happen.” Often, vulnerable rural communities and emerging farmers without the resources to challenge applications or mitigate impacts. Constitutional Court recognised: in order to mitigate this impact, must have: Consultation in good faith; (NOT BOX TICKING) Necessary information on all that is to be done;

MPRDA does not give effect to these principles of administrative justice because: It fails to provide for adequate notice to and consultation with those who are interested in and affected by mining. Timeframes woefully inadequate (e.g. section 10 gives I&APs 30 days to submit comments and objections to a mining right application). Methods of notice are such that I&APs rarely see notices – find out by word of mouth, or after it is too late to object; Consultation that does take place is seen as a “box-ticking” exercise by DMR and companies. No good faith engagement to address issues raised by interested and affected parties. AND

MPRDA fails to make provision for access to information by I&APs DMR and consultants hired by mining companies refuse to make available even most basic information: e.g. works programmes, information relating to financial and technical capability. Refusal to give communities social & labour plans. Affected parties expected to comment meaningfully on applications about which they have no information – effectively “blindfolding” them. Renders even those consultation provisions that are in the Act meaningless. In most cases DMR and mining companies do not even notify landowners and occupiers when rights have been granted on their own land – blatant infringement of right to fair administrative action.

Bill does not rectify these shortcomings Despite pleas to the DMR by many civil society organisations, community based organisations and NGOs over a period of many years, and detailed submissions on these issues on the 2012 Bill. We submit that as a minimum the Bill should make provision for: An obligation on all applicants for rights under MPRDA to make available full application to I&APs; All rights to be made publicly available; Public, online database of rights issued by the DMR; Obligation on DMR to make all delegations of power by the Minister publically and automatically available.

MPRDA’s failure to give effect to principles of administrative justice perpetuates the legacy of unequal access to and distribution of South Africa’s mineral wealth Section 3(1) MPRDA: “[m]ineral and petroleum resources are the common heritage of all the people of South Africa & the State is the custodian thereof for the benefit of all South Africans” MPRDA preamble recognises: “the need to promote local and rural development and the social upliftment of communities affected by mining.” Pernicious impacts of mining on rural communities well documented. Marginalisation of communities affected by mining achieved by failure to give effect to these communities’ rights to fair administrative action, culture of secrecy and denial.

Refusals to make information available. MPRDA’s failure to give effect to principles of administrative justice exposes decisions under future MPRDA to increased legal challenge Short timeframes for consultation = excuse given my mining companies for failing to consult properly. Mining and prospecting rights granted in cases where land claims not yet settled. Refusals to make information available. Failure to allow objectors to submit objections orally, in a language of their choice.

Mining and social conflict closely associated in SA MPRDA’s failure to give effect to principles of administrative justice makes conditions in mining affected communities conducive to the generation of social conflict Mining and social conflict closely associated in SA Stakeholder engagement = minimising conflict Stakeholder engagement needs at least meaningful consultation & provision of all information Mining companies engage exclusively with traditional leaders, excluding communities = social rifts and conflict Act must make clear that all members of community entitled to be consulted, not just traditional authorities

DMR’s failure to consult with communities during legislative reform process Draft Bill published for comment 28 December 2012 – comments by 8 Feb 2013 No attempt by DMR to facilitate comments by mining affected communities Extreme difficulty of commenting on a draft bill amended by an Amendment Act not yet in force Significant obstacles to community participation DMR says consultation took place – but only in 2011, only in some provinces, and no records of this process made available All evidence of poor treatment of mining affected communities

Meaningful consultation and access to information strengthens and benefits mining industry and government Consultation not a way to limit mining interests Effective consultation means better licensing Effective consultation reduces conflict, legal challenge Effective consultation means more environmentally and socially appropriate conditions for mining Communities can assist government in monitoring of compliance if they have access to all information

THANK YOU