Mineral Resources and Energy Minister Gwede Mantashe published the 2019 Draft Mine Community Resettlement Guidelines (Draft Resettlement Guidelines) for public comment on December 4.
As the public comment period ran over the festive season, the closing date for submission of written representations was extended until January 31, 2020 by the Department of Mineral Resources and Energy (DMRE).
ENSafrica natural resources and environment executive Ntsiki Adonisi-Kgame and candidate attorney Dalit Anstey noted that the Draft Resettlement Guidelines recognise the positive economic contributions of the mining and minerals industry, while simultaneously recognising the direct or indirect negative socioeconomic and environmental impacts on land owners, lawful occupiers, holders of informal and communal land rights, and mine and host communities (affected parties).
The Draft Resettlement Guidelines note that mining has the effect of displacing communities where mining activities take place, in the form of physical resettlement, exhumation of graves, loss and damage to property, influx of people to the mining community and a boom in informal settlements.
Adonisi-Kgame and Anstey note that the Draft Resettlement Guidelines apply to both applicants and existing holders of mining rights, prospecting rights and mining permits in terms of the Mineral and Petroleum Resources Development Act (MPRDA), where prospecting or mining activities will have the effect of displacement or resettlement of the affected parties.
Further, the Adonisi-Kgame notes that the Draft Resettlement Guidelines prescribe fundamental principles for resettlement, specifically: meaningful consultation, gender equality, protection of existing rights, the conditions relating to meetings, and the avoidance and minimisation of resettlement and its consequences where possible.
The Draft Resettlement Guidelines require applicants and holders to make provision for development of a Resettlement Plan, Resettlement Action Plan and Resettlement Agreement.
A Resettlement Plan is defined as a broader consultative document, which is concerned with project description, impact analyses, costs and budgetary considerations and consultation mechanisms.
Anstey explains that the Resettlement Action Plan must list the steps that will be taken to achieve the goals stated in the Resettlement Plan, clarify the resources and timelines required, as well as identify responsible stakeholders.
The Resettlement Agreement serves to record, in full, all the commitments made by a holder in the Resettlement Plan and Resettlement Action Plan.
Adonisi-Kgame and Anstey say that the Resettlement Agreement should outline rights and obligations of all parties to the agreement, including authorised representatives of mine communities, and must be signed by all relevant stakeholders and submitted to the office of the Regional Manager for noting.
Other noteworthy aspects of the Draft Resettlement Guidelines are those regarding compensation and dispute resolution mechanisms.
The guidelines provide that no mining activity shall start until a Resettlement Agreement is reached on the appropriate amount of compensation as a result of resettlement of the affected parties.
An applicant or holder, where feasible, must provide financial assistance to affected parties. Adonisi-Kgame also notes that the Draft Resettlement Guidelines envisage a ‘party to party dispute resolution process’ that must be invoked prior to embarking on the Regional Manager-led process in Section 54 of the MPRDA.
“In our view, there are a number of potential issues with the Guidelines. In Bengwenyama Minerals v Genorah Resources, the Constitutional Court held that one of the purposes of consultation with a landowner is to see whether some accommodation is possible,” says Adonisi-Kgame.
She adds that the court further held that the MPRDA does not impose an obligation to reach agreement; the parties ought to engage in good faith to attempt to reach some accommodation.
Failure to reach agreement might result in the holder having to pay compensation to the landowner at a later stage.
Anstey notes that, in Maledu and Others v Itereleng Bakgatla Mineral Resources and Another, the Constitutional Court held that depending on the facts of a particular case, the Regional Manager-led process in Section 54 of the MPRDA must be exhausted before an interdict can be sought.
Therefore, to the extent that the Draft Resettlement Guidelines require an agreement regarding compensation to be reached prior to the start of mining activities, they are ultra vires the MPRDA and inconsistent with Constitutional Court jurisprudence on the duty to consult.
Adonisi-Kgame highlights another concern with the guidelines is that they attempt to apply to holders and not applicants. Moreover, the Guideline for Consultation with Communities and Interested and Affected Parties, which was published by the DMRE, only applied to applicants.
“It will be interesting to see how the DMRE would compel holders to undertake new Resettlement Agreements, where mining has already taken place and relocations [were] already negotiated and implemented, given that the guidelines are not enforceable.
“There is also some ambiguity in respect of the purpose of the guidelines,” she says.
Anstey explains that the title suggests that they seek to apply to certain types of landowners, namely ‘communities’ as defined in the MPRDA.
However, the Draft Resettlement Guidelines refer to landowners more generally and therefore clarity is required as to whether these guidelines will apply to all landowners requiring resettlement as a result of mining activities or communities only.
Linked to this are the practical challenges associated with determining who constitutes a community for purposes of the MPRDA and obtaining the signature of the authorised representatives of a particular community.
This is especially difficult in communities with factions, Adonisi-Kgame points out.
“We are of the view that a better balance could be struck between mineral development and individual or community property rights.
“Resettlement can be a difficult process for all affected parties and we welcome guidance and assistance from the DMRE in achieving successful resettlement arrangements,” she concludes.