JOHANNESBURG (miningweekly.com) – Four non-governmental organisations (NGOs) had joined together in seeking to assist the international arbitration tribunal in interpreting the relevant South African mining legislation in light of the country’s constitutional and international human rights obligations, Wits University’s Centre for Applied Legal Studies (CALS) said on Monday.

Lodging a public-interest intervention request in the case of Piero Foresti, Laura de Carli and others versus the Republic of South Africa, a coalition of NGOs, including CALS, said that a group of European investors’ claimed that the South African government had taken away their mineral rights without providing adequate compensation, prompting an action that could have “enormous ramifications for the millions of people left marginalised by the policies of the apartheid era, as well as for South Africa’s mining industry”.

The coalition said, in a media release, that South Africa’s bilateral investment treaties should not be read in a way that conflicted with its human-rights obligations under South Africa’s own constitution or under international treaties that it had signed.

Several Italian citizens and Luxembourg corporations – all claimants in the Foresti case that was filed in 2007 before an ad hoc arbitration tribunal constituted under the World Bank’s International Centre for Settlement of Investment Disputes – held stakes in granite quarrying companies in South Africa, CALS added in the release.

CALs, together with the Legal Resources Centre (LRC), said it was working with the Center for International Environmental Law and Interights (CIEL), and the International Centre for the Legal Protection of Human Rights (INTERIGHTS) - two international NGOs with experience in litigating international human rights. 

The four NGOs, in coalition, hoped to gain permission to comment on how the tribunal might consider the crucial domestic and international human rights issues that the case of Foresti versus South Africa had raised, the regularly delayed tribunal hearings for which were now scheduled for April 2010.

The claimants argued, the coalition said, that South Africa’s Mineral and Petroleum Resources Development Act (MPRDA) extinguished their mineral rights without providing adequate compensation and unfairly discriminates against them.

In a contextual explanation, the coalition said that the MPRDA had been introduced partially to fulfil the South African government’s obligations to advance equality in the country, including in natural-resource wealth.

Under the MPRDA, the coalition added, both domestic and foreign mining companies were required to submit applications to convert their “old-order” mineral rights into “new-order” rights.

In order to convert their rights, companies had to fulfil criteria that included the submission of an environmental protection plan and the achievement of certain broad-based black economic empowerment (BBBEE) targets. 

The investors alleged, the coalition added, that fulfilling those criteria would render “new” rights of lesser value than “old” ones, in breach of South Africa’s obligations under two of its bilateral investment treaties.

However, the South African government had maintained that the MPRDA conversion procedure protected the security of tenure of mining and prospecting rights, and complied with South Africa’s commitments under both domestic and international law.

The South African government maintained, the coalition added, that the BBBEE targets contained in the MPRDA were necessary to redress the devastating socio-economic impact of apartheid.

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