The issue of human rights and mining is highlighted in a first-of-a-kind investigation into the relocation of communities to make way for mining.

The South African Human Rights Commission (SAHRC) deems the relocation of a Limpopo community to make way for a platinum mine as “adversely affecting” the communities concerned.

The world’s largest platinum-mining company, Anglo Platinum (Angloplat), relocated the communities that surrounded its Potgietersrus platinum mine in Mokopane.

The Angloplat investigation is the SAHRC's first major investigation in the "human rights and business" field.

Nongovernmental organisation ActionAid triggered the investigation by accusing Angloplat of human rights abuse in its relocation of communities.

The concerns raised pertain to issues around the lack of clean water, adequate sanitation, electricity access, environmental pollution, insufficient agricultural land for community subsistence, limited access to education and lack of cultural sensitivity during the relocation of graves.

While Angloplat described the ActionAid report as distressing, one-sided and inaccurate, it welcomes the SAHRC report and says that it has produced some useful recommendations about identifying and mitigating the risk of human rights violations associated with the resettlement of communities, but argues that that it does not have “the track record of a company that skimps on helping poor and vulnerable people progressively realise their social and economic rights”.

Angloplat requests that credit be given where it is due and reiterates that, in this tough economic climate where the price of platinum has dropped by more than 57% in 2008, the company may not always be in the position to contribute to the national treasury in taxes at its 2007 level of R7,5-billion or to invest anything like the R289-million it spent in 2007 on socioeconomic development.

“While we are pleased that the report makes no findings of violations of the law or human rights, the SAHRC has drawn attention to some of the hidden vulnerabilities of communities and residents around large-scale mining projects,” says Anglo Platinum corporate affairs heads Mary-Jane Morifi.

At the same time Morifi assures that Angloplat will give serious consideration to the SAHRC recommendations regarding complaints mechanisms, better community representation, more effective communication with affected communities, human rights impact assessment and the importance of building the knowledge and capacities of all the key players in a resettlement.

“The SAHRC has made a valuable contribution to current debates around business and human rights and recommended ways that the company can better protect the rights of poor and vulnerable people. This is an important report that will not only help guide our own business practices, but will serve as a reference for others in the mining industry engaging in similar large-scale projects in the future. This is a detailed and far-reaching report that needs to be studied. We shall be engaging the SAHRC, government officials, local communities and other stakeholders in discussing how to move this debate forward,” declares Morifi.

Angloplat has common ground with the commission in its belief that mining should enhance the capacities and livelihoods of the communities and that resettlement should improve the opportunities available to the affected communities.

“We believe that this will prove to be the case at Motlhotlo where the great majority of households have chosen to relocate and now have greatly enhanced housing, schools, health facilities and land. We accept that there is much still to do and we hope that the commission’s report will help all concerned to resolve outstanding issues,” Morifi says.

Raising Awareness

SAHRC research, documentation and policy analysis head Christine Jesseman tells Mining Weekly that the intention of the report is to be proactive and constructive, raising awareness of international best practices and avoiding exacerbating existing vulnerability.

“We are opening up the platform for debate and we want to see constructive input and companies pushing out the boundaries, finding out what works and looking at comparative examples. Our recommendations are from our experiences and point of expertise and there are a lot of practical experiences out there, which need to be acknowledged,” says Jesseman.

One of the recommendations of the report is that the Department of Minerals and Energy (DME) needs to state clearly what its criteria are for meeting the required standard for consultation by the applicant mining company with affected communities.

“The DME is to set out the content of the obligation to consult with the community. Currently, there is nothing on paper that is a checklist for adequate consultation and what mining companies need to do to be granted a licence,” Jesseman points out.

SAHRC, which had face-to-face discussions with the communities last December, has given time to all the stakeholders to digest the report.

Jesseman says that, while the question of imposing penalties does not fall within the commission’s jurisdiction, there should be consequences for private sector companies that fail to fulfil their obligations.

“When it comes to the State, there are consequences for it not fulfilling its obligations and we do not see why that same principle should not apply to the private sector. When one is looking at rights, one needs, also, to look at remedies,” she says.

A core fundamental is the resettlement action plan, which SAHRC emphasises.

“One needs to engage with the community before the resettlement process begins and the structures must include representatives from vulnerable groups within the resettlement committee,” Jesseman says.

Communities need to give their consent beyond a fixed point in time and to buy into the process.

Communities need to be made to feel empowered and to locate themselves within the process.

“In the case between Angloplat and the community, there seems to be a breakdown in trust and moving forward that trust needs to be rebuilt,” she says.

The Bench Marks Foundation, an independent organisation monitoring corporate performance, hails the SAHRC’s findings on the impact of Angloplat’s Potgietersrus operations.

Bench Marks Foundation CE John Capel says Angloplat is right in noting that legislative shortcomings in mining legislation pose a problem, but adds that that should not prevent the company from performing above the standards set by the law in terms of environmental, social and economic impacts on communities surrounding its operations.

“In our Policy Gap 2 study, which was released earlier this year, Bench Marks recommended that mining legislation throughout the South African Developing Community region should be standardised, so as to avoid being abused by unscrupulous mining corporations,” warns Capel.

However, former SAHRC commissioner and current human rights activist Rhoda Kadalie of Cape Town says that the SAHRC’s report fails to give a straight answer to a simple question, but talks instead about “social and environmental issues surrounding the operation of the mine may lead to potential human rights violations” and “potential human rights impacts”.

Kaladie says in a Business Day article that the report fails to state whether or not human-rights violations took place or who committed them and the commission’s seven-month investigation, she says, turns up nothing but a few esoteric recommendations about establishing complaints mechanisms, talking to belligerent nongovernmental organisations and moving beyond legal compliance – against the background of human rights violations being “very serious offences”.

She adds that investigating human rights violations requires careful methodology, research and interrogation of facts and there are huge lacunae in the commission’s collection of facts.

The SAHRC fails, she says, to mention that more than 1 600 households moved voluntarily to new settlements to make way for mining operations compared with fewer than 100 households (6%) that are refusing to move and are holding out for more compensation.

The SAHRC did not, she says, interview a single person from the majority of residents who relocated voluntarily, but “selectively chose” to listen to a small group of disgruntled individuals.

The SAHRC should also have compelled government departments to provide answers to questions about legal responsibilities for enforcing rights; and instead forced answers out of the leadership of section 21 companies and the tribal authorities on their involvement in allocating and managing funds for community development.

In an open letter to Business Day, SAHRC chairperson Jody Kollapen refutes Kadalie's assertions, statements like her assertion that the commission's report did not give "a straight answer to a simple question . . . do not appreciate the complexity of the relationship between South Africa and the mining industry, nor the complexity of the web of relationships and interests of the many stakeholders involved in community resettlements and related mining activities".

He also refutes the allegation that the SAHRC did not interview a single person from the majority of the residents who relocated voluntarily, explaining that it spoke to members of the Ga-Puka and Ga-Sekhaolelo section 21 companies and members of the Motlhotlo Development Committee, most, if not all, of whom have relocated to Rooibokfontein and Armodede. Interviews were also conducted with residents of Sterkwater, who have relocated from Old Ga-Pila.

Not a Mining Issue

DME mineral regulation DDG Jacinto Rocha tells Mining Weekly that the Mineral and Petroleum Resources Development Act, which is in Parliament for amendments, will address the issue of consultation.

“On the issue of human rights violations, there is a need for cultural change within companies. They have to understand and accept that, in the process of relocation, they are dealing with human beings. One cannot always prescribe when dealing with a human being. It is their responsibility within the context of own principles that they determine their relocation policies and use the law as a framework,” says Rocha.

He adds that the DME can assist companies and that communities need to understand that they must lodge complaints when there are grounds and not just because of relocation per se.

“As far as we are concerned, the issue of consultation is being addressed and we are not worried about the report, as it did not state that human rights are being violated. There are elements that relate to the regulatory system, we are going to look at the implications and whether we can accommodate them in our policies, guidelines and law. For instance, the general consultation, which does not relate to relocation, has been improved in the current amendments,” Rocha says.

He concurs that the issues raised in the report are serious and notes that companies need to address human rights issues when dealing with communities and even if there is a penalty provision in the law for human rights violations, it is not a guarantee that the behavior of companies would change.

“DME is not an arbiter of human rights violations, the correct place for penalties for human rights violation rests with the commission or the courts. It will be a big jump from issuing a mining licence to determining whose human rights have been violated. One of the issues that we raise with companies when it comes to the social and labour plans is that these should be used as tools to create an environment to improve relations with the communities and not as compliance tools only,” Rochas says, adding that some resettlement issues predate the end of apartheid and have for long been problematic.

“I know that both the DME and the provincial government are trying to assist in resolving the challenges. How does one evaluate a rural house compared to an urban one and these is when communities are given R20 000 and how does one value the discomfort created by the resettlement? The mining industry is getting attention for now, but I think the other industries should get a hint from this process that whenever you are going to have a project that will result in relocation, they should read the report about the pitfalls and it is not only mining that relocates. Relocation is not a mining issue as it affects different government departments,” Rocha reiterates.

Dividend Payouts

Diversified black-empowerment miner African Rainbow Minerals (Arm) made its second cash distribution to poor and rural communities, through its subsidiary the broad-based black economic-empowerment (BBBEE) trust. An estimated R25-million was given to rural upliftment trusts in seven provinces, a woman’s upliftment trust, various church trusts, and two trade unions representing about 500 000 workers.

The R25-million was divided among the different groups based on the number of people they served, in the areas in which Arm had operations. The funds were delivered to traditional and community leaders, as well as representatives of the two trade unions.

The cash distribution will be used to build schools, laboratories, crèches, clinics, hospitals and other community upliftment projects.

Minister of Minerals and Energy, Buyelwa Sonjica says that Arm should act as a role model to other black-empowered mining companies, in delivering wealth to the poorest.

“This, for me, is a flagship of all the BBBEEs that I have seen, and that I know of, in the sense that it truly is broad-based and is designed to contribute to socio economic development of far flung areas, the areas that are underdeveloped. I am also happy that women have also benefited, because the majority of our mothers are the ones at the coalface of poverty,” Sonjica said.

Jesseman states that the SAHRC's view is that matters of black economic empowerment are human rights matters.

"Discussions concerning BBBEE should be located within a human rights framework, as BBBEEE speaks to the empowerment of the previously disadvantaged from a perspective of equality and economic and social development," she says.