The Mining and Environmental Justice Community Network of South Africa (MEJCNSA) and community representatives have submitted an application to the Polokwane High Court against Waterberg Joint Venture (JV) Resources, which is majority owned by TSX- and NYSE-listed Platinum Group Metals (PTM).
Nyoffu Attorneys is representing the case on behalf of residents of the Kgatlu, Lewaneng and Ga-Ngoepe villages, which believe PTM’s start and continuation of mining-related activities is in violation of constitutional land tenure, as well as the environmental, cultural and administrative rights of the three communities.
The Waterberg project is located on the northern limb of the Bushveld Complex, in South Africa, and is a proposed fully mechanised, shallow platinum, palladium, gold and rhodium mine.
Other stakeholders in the JV are Impala Platinum; Japan Oil, Gas and Metals National Corporation; Hanwa; and black economic empowerment partner Mnombo Wethu Consultants.
PTM last updated shareholders in mid-July, stating it is in the process of converting a definitive feasibility study into a formal cost budget estimate, while optimising plans around roads, a construction camp, power, water and project start dates.
The company said the next major milestones included detailed work with host communities in the area of the mine, offtake arrangements and construction financing.
According to MEJCNSA affiliate activist Aubrey Lang, PTM failed to give written notices about its planned activities to the communities of Kgatlu and Lewaneng, as lawful occupiers of the Goedetrouw and Ketting farms.
Langa tells Mining Weekly that PTM also did not consult meaningfully with these communities.
He explains that the portion of land which PTM entered into pursuant to exercising the mining right it was recently granted by the State, is used communally by the Kgatlu residents.
The applicants are of the view that, since they have communal land rights, PTM must not only consult with the community but further obtain their consent as a central principle of the customary law, custom and usage they practice.
In South Africa, in terms of land reform policy the Interim Protection of Informal Land Rights Act protects these procedural and substantive individual and communal informal land rights.
The main grievances that the applicants have raised include an alleged failure by PTM to compensate the applicant residents of Lewaneng and Ga-Ngoepe for economic loss and damages to farming plots, graves and boreholes.
The residents attended a general community meeting on July 31, and refused to sign an interim surface lease agreement with PTM, considering that the Goedetrouw farm is the only land asset bequeathed to the Kgatlu community, the MEJCNSA says.
The residents demanded that the size of the surface infrastructure area be reduced before it signs the agreement, since it wants to use the land for grazing purposes and to, in future, expand the village.
The Goedetrouw-related residents are demanding that PTM be interdicted from carrying out mining and mining activities on their land, pending an eventual amendment of the mining right.
Moreover, Langa says the applicants are concerned about what it considers the unlawfulness of granting a mining right in a highly sensitive cultural and biodiverse area.
They allege that the mining right area comprises land properties located at Makgabeng Plateau and surrounds, which has been nominated as a national heritage site by the Rock Art Research Institute.
However, given that the communities do want mining to proceed, the applicants are prepared to engage with PTM to discuss mitigation of impact of these cultural and biodiversity attributes in accordance to the government’s offset principle pursuant to reaching an environment-friendly agreement.
This is against the backdrop that the applicant residents say that they are aggrieved that the directly affected communities were not involved in the settlement discussions between the South African Heritage Resources Agency (SAHRA) and PTM as this infringed their constitutional and statutory right to fair and lawful administrative justice.
Further, the mitigation plan that PTM was required to submit to the SAHRA as part of the settlement, was not subjected to public review by interested and affected parties, the MEJCNSA states.
The applicants also claim that PTM's black economic empowerment (BEE) transaction circumvented complying with rural development and land reform economic empowerment policy of the Department of Land Reform, Agriculture and Rural Development which is the nominal owner and trustee in respect of some of the properties encumbered by PTM’s mining right.
The State Land Lease and Disposal Policy (SLLDP) requires that a developer divest in favour of directly affected informal land rights holders a ring-fenced and direct minimum 10% shareholding in the operating entity, notwithstanding any BEE target required by any other economic sector such the 26% shareholding target set for the mining industry.
Ideally, the applicants wish to negotiate a settlement agreement with PTM on the matters raised in its court application. This is premised on the understanding that all the parties want the mine to be developed based on the overarching constitutional sustainable development principle that essentially balances the rights of the respective parties.