BRIEFING OF SELECT COMMITTEE ON LAND AND MINERAL RESOURCES ON PERFORMANCE OF, AND CHALLENGES EXPERIENCED WITH PUBLIC CONSULTATIONS THROUGH THE REGIONAL OFFICES 2 June

BACKGROUND POLICY AND LEGAL FRAMEWORK FOR PUBLIC PARTICIPATION FOR CONSULTATION PROCESS FOLLOWED IN PROCESSING APPLICATIONS RMDEC AND ITS FUNCTIONS CONCLUSION PRESENTATION LAYOUT 2

MANDATE Constitutional mandate The department’s mandate is found in section 24 of the Constitution of South Africa (Act No. 108 of 1996). Legislative mandate Principally, Mineral and Petroleum Resources Development Act (Act No. 28 of 2002) and the Mine Health and Safety Act (Act No. 29 of 1996) provide the regulatory framework for the promotion and regulation of the industry, as well as the equitable access to and the sustainable development of the nation’s mineral resources and related matters. Policy mandate The Minerals and Mining Policy for South Africa (White Paper published in October 1998) ensures the transparent and efficient regulation of the development of South Africa’s mineral resources and mineral industry to meet national objectives and bring optimum benefit to the nation. 3

It must be emphasised that the primary duty to consult rests with an applicant for a Mining Permit, Prospecting, Exploration, Production or Mining Right. Applications for Rights and Permits are lodged online using SAMRAD. To assist applicants with the consultation process, guidelines and templates are published on the website and on SAMRAD and these get reviewed periodically. These guidelines and checklists cover all the various elements of the application process guided by the three legs of sustainable development (i.e. environmental, economic and social). The outcome of the Bengwenyama Constitutional Court case was utilized in strengthening the guidelines and templates pertaining to consultation. BUSINESS PROCESSES IN PLACE TO GUIDE THE APPLICATION AND CONSULTATION PROCESS 4

After an application is lodged on SAMRAD and accepted, it is made known and the public is invited to comment and object (Section 10 notices). These notices are placed at the Regional Office of the Department and other public places of note such as municipal offices, magistrate offices, etc. The law places an obligation on the applicant to consult with interested and affected (I&A) parties Applicant is instructed in the acceptance letter to consult with Interested and Affected (I&A) parties. These include landowners and others affected by an application such as communities, etc. An applicant is also instructed to consult (as part of the public participation process) with I&A parties as part of the Environmental Authorisation process in terms of the NEMA The results of such public participation are submitted to the Department for consideration, as part of the application process. PUBLIC CONSULTATION FOLLOWED IN PROCESSING APPLICATIONS 5

With regard to an Environmental Authorisation, the NEMA process requires the applicant through an Environmental Assessment Practitioner (EAP) to consult with relevant State Departments (Department of Environmental Affairs, DWS, including MPTPA (in case of Mpumalanga, etc.)) With regard to mining applications for Mining Rights, applicants are further required to consult on the development of a Social and Labour Plan with municipalities, amongst others. In instances where there are no objections or these are successfully addressed, applications are processed further for refusal or granting. In instances where there of objections, these are referred to the Regional Mining Development Environment Committee (REMDEC). PUBLIC CONSULTATION FOLLOWED IN PROCESSING APPLICATIONS 6

WHAT IS A REGIONAL MINING DEVELOPMENT ENVIRONMENT COMMITTEE Regional Mining Development and Environmental Committee (RMDEC), is a statutory Committee established in terms of section 64 of the MPRDA, to consider objections lodged against applications. These objections cover the entire spectrum of environmental, economic and social aspects of an application.

FUNCTIONS OF A REGIONAL MINING DEVELOPMENT ENVIRONMENT COMMITTEE The functions of RMDEC are to, in the case of objections:- Advise the Minister on objections against granting of prospecting rights, mining rights or mining permits Advise Minister before he makes decisions on approval of Environmental Authorizations for rights and permits Advise the Regional Manager in cases where the holder of a reconnaissance permission, prospecting right, mining right or mining permit is prevented by the owner or occupier of land to conduct operations

FUNCTIONS OF A REGIONAL MINING DEVELOPMENT ENVIRONMENT COMMITTEE Every regional office of the Department has a RMDEC structure in place. RMDEC serves as an affordable avenue other than a court of law, where mediation around competing interests pertaining to land use can be resolved. An objector to an application, is invited to a sitting of RMDEC to present his/her objection and this gets interrogated. At the end of the process, a decision is taken that paves the way for the processing of the application. The presence of a variety of State entities is intended to safeguard various land use interests, including key constituencies. The MPRDA requires that RMDEC is chaired by a Regional Manager, with the Principal Inspector of Mines serving as Deputy Chairperson.

COMPOSITION OF REGIONAL MINING DEVELOPMENT ENVIRONMENT COMMITTEE Other Committee members are drawn principally from: –Provincial Environmental Authority –Department of Agriculture & Rural Development –Economic Development and Tourism –Water & Sanitation –Land Affairs & Regional Land Claims Commissioner –Provincial House of Traditional Leaders –Cooperative Governance & Traditional Affairs –** co-opted Municipalities – on a need basis –** parastatals (in charge of environment such as Mpumalanga Parks and Tourism Agency, Cape Nature, etc.) –Petroleum Resources (Oil & Gas) ** (Offshore and Inland operations)

An applicant for a Mining Right is required by law to develop a Social and Labour Plan (SLP). The development of the said plan entails consultation with affected parties, Projects included in the SLP, must be aligned to the Integrated Development Plan of the local municipality. Prior to approval of the SLP, proof of consultation must be submitted to the regional office in form of a letter signed by the Municipal Manager. Certain shortcomings were identified in the area of consultation on SLPs of municipalities, and amendments have been effected in the MPRDA Amendment Bill to rectify these. These included allowing a longer period for consultation, as in the case of Environmental Authorisation; and effecting consultations at a district level, to ensure better impact and sustainability. CONSULTATIONS ON SOCIAL AND LABOUR PLAN 11

CONSULTATIONS ONSOCIAL AND LABOUR PLAN An applicant for a Mining Right is required to submit a Social and Labour Plan, which is aligned to the Integrated Development Plan of a municipality. In preparing this plan, a company should also assess and consult with the communities and everyone who are affected by the mining activities Mining company should consult with other economic development frameworks e.g. ( Provincial Growth and Development Strategies) and involve the house of traditional leaders (in cases of tribal land) Prior to approval of the SLP, proof of consultation must be submitted to the regional office in form of a letter signed by the Municipal Manager.

Disagreements over who was consulted in communities Unresolved disputes over traditional leadership positions Lack of information pertaining to what the proposed mining project would bring to the community Some mining companies don’t follow proper consultation processes, when engaging with stakeholders Misconceptions about the flexibility of Social and Labour Plans – these plans are notarised and registered long term agreements which can be updated once every 5 years and effective implementation requires a medium to long term developmental vision within the municipality. SOME COMMON CHALLENGES WITH CONSULTATION 13

Consultation process is dynamic and always evolving MPRDA was also amended to strengthen area of consultation The Department continues to engage with communities in a quest to address community concerns pertaining to consultations. The Department will also be better enabled to ensure meaningful delivery if a long term master plan for development can be put in place by the Municipalities and the mining industry’s contribution thereto can be agreed between DMR and the Municipalities. CONCLUSION 14

Thank You 15