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Taking Parliament to People, and People to Parliament
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MINERALS AND ENERGY PORTFOLIO COMMITTEE
10 October 2000
DELIBERATIONS ON THE ABOLITION OF LEBOWA MINERALS TRUST BILL
Documents handed out:
Informal Submission from Mr I Davidson (Democratic Party)
Committee members discussed outstanding issues within the Lebowa Mineral Trust Bill and were assisted by Parliamentary Law Adviser Ms Z Traut, State Law Adviser Mr Selokela and the DG of the Department of Minerals and Energy Mr S Nogxima. Mr I Davidson (DP) presented an informal list of proposed amendments to the committee which were deliberated upon by members.
Mr S De Beer (UDM) informed the committee that the UDM rejects the bill in total with no further amendments because no amendment will change the essence of the bill.
Mr A Nel (NNP) stated reservations about the bill as it stands and said that members must ensure that assets of the trust will ultimately be forwarded for the benefit of the people and the previously disadvantaged communities.
Mr E Lucas (IFP) contended with the statement from the UDM and noted that members should settle issues of ownership before the proceedings can go further. The committee must have a comprehensive list of established claims so that they know whom this bill will affect.
At this point Chairperson Mr D Nkosi requested elaboration from Mr De Beer regarding the position of the UDM. He also wanted clarity as to whether or not people on the list have received royalties in the past from the Lebowa Minerals Trust (LMT).
Mr S De Beer conceded that the UDM opposes the bill based on their responsibility to inhabitants of that area. Abolition of the LMT will deprive these people and tribes of millions of Rand in assets as well as the social benefit initiatives that are accrued from this Trust. Arbitrary confiscation of property rights without compensation is against their party policy, especially when individuals are given no avenues of recourse. The UDM will, however, support the restructuring of the LMT in order to bring it in line with the Constitution. Mr De Beer informed members that UDM has already submitted all the necessary documents to the Department.
Chairperson Nkosi asked again if members know of any claimants having received dividends as yet. Mr De Beer replied that his party is unable to provide a response and advised the Chair to seek this information from the Department or from the LMT itself.
Mr G Oliphant (ANC) expressed concern as to where the money from the LMT will go upon abolition, and wanted assurance that it will benefit the people of the former Lebowa. He stated that members have not been able to agree on a comprehensive list of claimants yet and this matter will probably not be settled for some time. He referred members to Clause 3(c) of the bill that grants the Minister the right to settle claims of ownership and confirm rights to those who are able to establish them through title deeds. He said also that just because the committee does not have a comprehensive list of claimants does not mean that these individuals/tribes will be denied. Committee members should continue processing the bill with the knowledge that individuals/tribes who are not mentioned in the bill yet are provided with an avenue of recourse and will be fairly treated.
At this point Mr I Davidson (DP) informed members that the DP is opposed to this bill on principle because of the incumbent concept in the legislation of state ownership of mineral rights. In reality most mineral rights are held in private ownerships, and to take away these rights will exacerbate issues of poverty. The bill also does not address the need for compensation at all. The DP recognizes that the Mineral Development Bill (MDB) is scheduled to be tabled next year and recommends that processing the bill at hand be delayed until then. Mr Davidson suggested that the Government is moving towards a "soft target" and is therefore trying to pass undesirable legislation through "sleight of hand" tactics. He claimed that the people of the former Lebowa will ultimately fight for their rights and that the DP will be there to support them in this. Mr Davidson also asked what the mechanism for "sufficient proof" would be in the processing of land and mineral rights. He said that it is unfair to put the onus on individuals who are unfamiliar with legislative procedure to provide proof considered sufficient enough to verify their mineral rights. A clear and comprehensive mechanism for this must be in place before the Bill is passed. He is not convinced that the Department will perform as an "impartial adjudicator" in this regard. The Government must assist and facilitate people wanting to establish their rights, instead of leaving it up to them to provide evidence that may be judged insufficient in the end. Mr Davidson also asked for clarity as to how the Labor Relations Act will fit into the Bill in terms of if staff end up displaced or transferred (this question was given support by Mr Oliphant). He stated that the Bill should be clear regarding if it seeks to abolish or to reform the LMT. He considered that "reformation" implies that mineral rights are retained, whereby those that own them are allowed to exploit those rights on their own terms, and that the LMT is changed to a developmental body with its social benefit programs intact. "Abolition", on the other hand, is finite and does not address what will happen to staff or to claimants who deserve compensation.
Ms C Dudley (ACDP) made the committee aware that the ACDP is opposed to the Bill as it stands. Her party feels that the people who will be most affected by abolition are unfamiliar with governmental processes and will be unable to protect themselves from the implications of abolition. The ACDP does support restructuring of the LMT.
Mr A H Nel (NNP) considered the two functions of the LMT, specifically those that are regulatory versus those that are developmental. He asked the committee if it is not possible to abolish the regulatory functions of the Trust while protecting and maintaining the developmental initiatives. Mr Nel encouraged the committee to recognize the distinction involved, and relayed that the NNP cannot support the bill as it currently stands but will support transformation.
At this point Chairperson Nkosi expressed a desire for concrete information that would assist the members in resolving some recurring concerns. He acknowledged that although government has handled land rights issues before, this is the first time they have dealt with restitution issues involving mineral rights. He supported Mr Davidson's concerns regarding the need for clear structures that would assist individuals seeking to prove ownership rights. He reasoned that the committee's report to the Department should include concerns involving management, but asked members for assistance as to the best way to address these issues. Chairperson Nkosi clarified that at the moment, there is no debate regarding ownership of mineral rights and that nobody objects to individuals holding justified rights. The problem is that there is no agreed list of claimants as yet, and probably this will take years to quantify. The committee needs to separate relevant issues in the report to the Department so that a process of dealing with these issues may be developed. Mr Nkosi cautioned the committee about having duplicate administrative bodies performing overlapping functions. He said that now is the time for practical suggestions, and bigger issues may be dealt with as necessary. He then adjourned the meeting for a short recess.
As members reconvened, Mr Davidson (NP) prompted members to be constructive and clear as to what they want to achieve for the Northern Province. He observed that the LMT is not fulfilling its function as it should be and administrative issues need to be addressed prior to the continuance of processing the Bill. He suggested the committee compile a report on their specific aims/process/objectives/concerns to be submitted to the Minister. He also pressed the committee as to why there is a deadline to this abolition when the Mineral Development Bill (MDB), which will effect standards set in the LMT Bill, will not be finalized until next year.
At this point Mr E Lucas recited a statement from the IFP illustrating its stand on the Bill. The IFP feels that a careful investigation of ownership issues needs to be performed and presented to the Minister before proceedings continue. Issues relayed at the public consultations in the Northern Province have not been sufficiently addressed by the committee, in particular concerns involving joint venture agreements, job creation, and poverty. He recommended that in Clause 3(c), the word "may" be changed to "must" so the provision reads "The Minister must, on application by any person who claims any right to minerals referred to in paragraph (b), grant such right to the person concerned if such person produces proof of ownership of such right to minerals to the satisfaction of the Minister" (Abolition of Lebowa Mineral Trust Bill 2). Mr Lucas expressed reservation about Clause 4, which deals with retrenchment of staff but does not address conditions of service. He also inquired if it is appropriate for the Minister to be allowed to delegate his/her power.
Mr Oliphant restated the position of the ANC, that they support the bill and subsequent abolition. He acknowledged that the stakes involved in the proceedings are high but that the Bill has been delayed for too long and the committee cannot postpone a decision forever. He pointed out that concerns raised at this time should be contained in a formal report but that they are important ones that will not be ignored. He affirmed the ANC policy that mineral rights should be owned by the state, but that individuals should be provided for through compensation. Mr Oliphant agreed with Mr Nel's previous statements that the two functions of the LMT should be recognized, and that the Northern Province Developmental Corporation (NPDC) should be strengthened as an entity. Retrenchment should be considered as a last option. Mr Oliphant expressed regret that the UDM is completely opposed to the Bill, as this hampers formal discourse and makes it difficult to engage in debate with this party. He pointed out that the LMT as an entity has largely operated towards the benefit of big companies and that the ANC will not ignore the needs of the poor or other sensitivities that are raised.
At this point Chairperson Nkosi clarified for the committee that parties opposed to the Bill with no amendment are the NNP, DP, ACDP, and the UDM, with the remaining parties standing in favor of the Bill. The committee then went through the Bill clause-by-clause.
Mr Selokela (State Law Adviser) suggested that the words "Minister of Minerals and Energy" in the long title of the Bill be deleted as this is intrinsically implied by the reference to the "State". Mr Oliphant suggested leaving this to be dealt with by the Department as the committee is more concerned with the body of the Bill.
Mr B Bell (DP) suggested committee change "abolition" to "transformation" in the long title of the Bill. Mr Oliphant replied that in the event that the committee may prefer transformation, this change may be enacted on Friday when members meet again.
Mr Lucas reiterated his desire for Clause 3C to be changed from the Minister "may" to the Minister "must" in order to give confidence to the community that this Bill will not hamper any efforts at claiming legitimate rights. He further suggested that the Bill should specify which communities are involved and are being affected by the Bill. Mr Oliphant responded that unfortunately the committee cannot specify certain groups targeted for benefit because this will exclude others who may, although this is unlikely, desire to claim mineral or land rights and won't be able to. However he agreed that regulations dealing with the process of appeal should be strengthened. He also said that Clause 3(c) should be left as is lest it become too obligatory, and that the discretion of the Minister should be considered sufficient.
Mr Davidson then suggested to the committee various amendments and inclusions to be incorporated into the Bill (these are clarified later in the meeting). At this point Mr Oliphant requested a written copy of these submissions, and asked Mr Davidson not to confuse issues of land rights with those of mineral rights. He suggested that members may be prompting further amendments in order to prolong the life of the LMT, and if abolition goes through the LMT will be void and these amendments will be unnecessary.
Mr Lucas then pointed out that Clause 3(b) is being specific in that it refers the right to minerals "held by the Trust", and that Clause 3(c) should reflect this and include the phrase "the Minister mustâ€¦". Mr Oliphant replied that members should not vote on this issue until the member has submitted his suggestions in writing so the committee can know exactly what is being proposed.
Mr A Nel (NNP) stated that as Clause 3(c) stands now, the Minister is not bound by the Act to preserve the rights of individuals or tribes wanting to claim them. The regulations should reflect his/her responsibility to these people.
Mr S De Beer (UDM) asked the Chairperson if committee will vote on the issues now or if the voting will be postponed until Friday. Mr Oliphant interjected that committee is not postponing but that they must wait for the drafting regarding Clause 3(c) before continuing.
At this point Mr Davidson tabled an informal submission regarding his previously suggested amendments to the Bill. These were as follows:
- In the long title to omit "to the Minister of Minerals and Energy and"
- Under Clause 3(1C) to omit "to the satisfaction of the Minister" and to substitute "as prescribed in terms of Section 5"
- In the heading to Clause 4 to omit "retrenchment" and to substitute "handling"
- On page 4, in line 4, to omit "retrenched" and to substitute with "deal with"
- On page 4, in line 29, to insert "The Minister may after consultation with the relevant Portfolio Committee prescribe the nature of proof required in terms of section 3(1)(c).
- The Minister must constitute an impartial tribunal consisting of the Minerals and Energy Department and the Beneficiaries Forum to facilitate the question of claims of ownership of mineral rights under the jurisdiction of the former Lebowa Mineral Trust.
- That should such claims be established in terms of sub section 3(1)(c) the Minister must grant to such a person or persons the right to such minerals.
On page 2, from line 19, to omit paragraph (c) and to substitute:
On page 2, after paragraph (c) to insert:
On page 2, after subsection 2, to insert:
3.3 Should the Minister for any reason not be able to transfer such rights in terms of subsection 3(1)(d) then the Minister shall pay compensation to the owner of the established claim.
Mr J H Nash (ANC) asked members what the procedure is regarding a party who has opposed the Bill in its entirety with no amendments to return to the committee seeking amendments. Mr Davidson rebuked that it is within his rights to oppose the essence of the Bill but still seek amendments during proceedings. Mr Oliphant again requested formal copies of the verbal suggestions from Mr Davidson. Mr Nel then suggested that any comments may be written up for the members on Friday but today they may just note them as part of the debate.
Mr S Louw (ANC) expressed support for the sentiment from Mr Nel and said that due process dictates that any proposed amendments should be submitted on Friday.
Mr Oliphant claimed that any amendments would only be considered again if adopted by the committee as a whole. If committee members desire to adopt or reject a suggestion now, they don't have to wait until Friday to do it. He expressed discomfort with the fact that some parties said they have no amendments in the beginning of the meeting and are now presenting amendments.
At this point Chairperson Nkosi noted that the Bill on the table is not a lengthy one and members should go through and bring any further amendments they desire to the meeting on Friday. He observed that the committee may end up with another draft to consider after all suggestions have been reviewed, but for now they should proceed towards concluding this Bill on Friday. He asked members to continue reviewing the Bill clause by clause.
Under Clause 4, Mr Oliphant asked for the deletion of the word "entrenchment" so that the heading would read just "Transfer of Staff". Mr Davidson opposed this amendment and pointed out that if abolition goes through, the Government cannot simply transfer the whole staff of an entity which does not exist. Committee members must contemplate entrenchment or they will tie the Minister's hands.
Mr Oliphant responded that the law already gives the right of retrenchment to the Minister even if this particular Bill does not include a Clause to that effect. Also, there are intermediate steps committee members should consider between retrenchment and staff transfer. Mr Bell replied that if the committee feels this way they should name all the options within the Bill including retraining. At this point Mr Selokela clarified for the committee that "transfer" will include retraining or whatever other options are relevant.
Mr Nel asked that Clause 4(A)(iii) be clearer as to how the Labour Relations Act will correspond with this legislation. Advocate Mr S Nogxima (Director General of the Department of Minerals and Energy) responded that before formal retrenchment takes place, there must be a consultative process whereby staff are made aware of the process. Retrenchment will follow the guidelines set up in the Labor Relations Act. Mr Oliphant stated that retrenchment is always possible but it should not be considered as a first option, and provided support for Mr Bell's previous suggestion.
Ms S Motubatse (ANC) noted that the committee may be getting into too much detail and that these issues are primarily administrative and can be dealt with in the Department. Ms B Tinto (ANC) added that concerns regarding staff transfer are dealt with in Clause 4B. Parliamentary Adviser Ms Z Traut stated that the Labor Relations Act will also cover these concerns. Mr Lucas countered that under Clause 4(A), employees should be guaranteed they would not be disadvantaged or transferred to a less favorable post.
At this point Chairperson Nkosi clarified that although the aim is to transfer staff, retrenchment may result and so members need to establish a process whereby staff aren't delegated to less desirable posts. Mr Oliphant suggested setting up a new Clause 4(1)(B) to this aim. Advocate Nogzima then stipulated that any Clause dealing with retrenchment should also consider compensation.
Mr Lucas then withdrew his submission regarding retrenchment and members considered Clause 4 to be amended by deleting the word "retrenchment" from the heading.
Parliamentary Advisor Ms Traut then informed the committee that should further substantial amendments take the Bill into policy changes, it may be reconsidered as a Section 76 Bill under Constitutional requirements. Advocate S Nogxima noted that if the situation arises that retrenchment must take place, Clause 4(a) does not include provisions to pursue this option. He advised committee members to take out the word "retrenchment" but stipulate that the Minister will deal with these situations according to the Labor Relations Act.
Mr Davidson pointed out that the LMT is not part of the public service and this must be recognized. Chairperson Nkosi asked members if they felt the Bill is adequate in terms of corresponding regulatory bodies, and what procedures should be taken to deal with this.
Under Clause 5 Regulations, Mr Lucas suggested adding the words "in consultation with the Portfolio Committee". Mr De Beers requested clarity as to what the Constitution dictates for this situation. Mr Oliphant suggested that adding the words "after consultation with the Portfolio Committee" would be more beneficial. At this point Mr Davidson noted that previous consultations with the Northern Province regarding this bill were carried out on the basis that concerns presented would be deliberated upon and changes made "after consultation". He said the proceedings at hand have shown that no changes have resulted "after consultation" and so committee members should not have faith that this provision will be effectual. Mr Davidson recommended that deliberations be carried out "in consultation". Chairperson Mr Nkosi then conceded that committee members have agreed that consultations should be made and that perhaps the debate on in/after can be made at a later date.
Mr Lucas then presented his concern regarding Clause 6 that allows the Minister to delegate powers. He said it is inappropriate to allow the Minister to give away powers/duties because it implies also delegating responsibility that comes with his/her position. Ms D Motubatse pointed out that any delegation the Minister instigates must be in writing and according to established procedures. She also drew a distinction between responsibility and power. Mr Lucas replied that the Minister should not be able to transfer power to someone else, s/he must be held responsible in order to maintain accountability.
Advocate S Nogxima then clarified for the members that the Minister cannot delegate responsibility without also granting power to act on that, they must both be transferred to have effect. Mr Bell asked if when the Minister gives away his/her power if this means s/he doesn't have any more power. Advocate S Nogxima stipulated that the Minister will retain power but that others may use this power on his/her behalf.
After a short recess, committee members reconvened and were given copies of Mr Davidson's proposed amendments. After going through each suggestion the committee decided to reject Mr Davidson's proposed amendment #1 and #2 and accepted proposed amendments #3-5. Mr Selokela mentioned that should amendments be adopted, further definitions are needed. Mr Oliphant distinguished that there is a difference between a process report (which would include mechanisms of proof) and the broader policy report which would come after. Chairperson Nkosi asked all the members to submit a brief report including all specific issues they feel still need to be addressed for the next meeting when they will finalize the Bill as a group. Mr Nkosi then noted the UDM's total opposition to the Bill, and adjourned the meeting until Friday 12 October.
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