Application and Consultation process for mining rights: Department of Mineral Resources performance and challenges

Meeting report

Department of Mineral Resources (DMR) briefing
The Department of Mineral Resources briefed the Committee on the performance of and the challenges experienced with public consultations through its regional offices. The delegation included Dr Thibedi Ramontja, Director-General, Mr Joel Raphela, Deputy Director-General: Mineral Regulation and Mr Kwezi Mhlongo Office of the Director General. The Minister and Deputy Minister on Mineral Resources extended their apologies to the Committee for not being able to attend the meeting.

Dr Thibedi Ramontja, DMR Director General, stated that the DMR had nine regional offices and three satellite offices. Mr Joel Raphela, Deputy Director General: Mineral Regulation, undertook the briefing. The constitutional, legislative and policy mandates of the DMR were touched on. He explained that there were business processes in place to guide the application and consultation process. The primary duty to consult rested with an applicant for a mining permit and a prospecting, exploration, production or mining right. Applications for rights and permits were lodged online using SAMRAD. To assist applicants with the consultation process guidelines and templates were published on the website and on SAMRAD which were reviewed periodically. The outcome of the Bengwenyama Constitutional Court case was utilised to strengthen the guidelines and templates for the consultation process. The processing of applications was explained. The law placed an obligation on the applicant to consult with interested and affected parties. These included landowners and communities. The results of such public participation were submitted to the DMR for consideration as part of the application process. In instances where there were no objections or objections were successfully addressed, applications were processed further for refusal or granting. In instances where there were objections these were referred to the Regional Mining Development Environmental Committee (REMDEC). The REMDEC was a statutory committee established in terms of section 64 of the Mineral and Petroleum Resources Development Act (MPRDA) to consider objections lodged against applications. The objections covered the entire spectrum of environmental, economic and social aspects of an application. The Committee was given detail on the functions of the REMDEC one of which was to advise the Minister on objections against granting of prospecting rights, mining rights or mining permits. Each one of the nine regional offices of the DMR had a REMDEC structure in place. The REMDEC served as an affordable avenue other than a court of law where mediation around competing interests pertaining to land use could be resolved. The composition of the REMDEC was outlined. An applicant for a mining right was required by law to develop a Social and Labour Plan (SLP).The development of the plan entailed consultation with affected parties. Projects included in the SLP had to be aligned to the Integrated Development Plan of the local municipality. Certain shortcomings were identified in the area of consultation on the SLPs of municipalities and hence  amendments were effected in the MPRDA Amendment Bill. The amendments allowed for a longer period of consultation as in the case of environmental authorisation and that consultations be done at district level to ensure better impact and sustainability.

The DMR identified common challenges with the consultation process in general:
- Disagreement over who was consulted in communities
- Unresolved disputes over traditional leadership positions
- Lack of information pertaining to what the proposed mining project would bring to the community
- Some mining companies did not follow proper consultation processes with stakeholders
- Misconceptions about the flexibility of SLPs. The SLPs were notarised and registered long term agreements which could be updated once every five years and effective implementation required a medium to long term developmental vision within the municipality.

In conclusion, DMR said it had to be remembered that the consultation process was dynamic and always evolving. The MPRDA had been amended to strengthen the area of consultation. The DMR continued to engage with communities in a quest to address their concerns.

Discussion
Mr M Rayi (ANC, Eastern Cape) did not feel that the briefing had covered exactly what had been requested in the Committee’s brief to the DMR. The briefing had been more about the processes that had been followed in consultations. The Committee needed specifics about what was happening at regional offices. The DMR should have for example spoken to applications that had been received in a specific province like Gauteng and elaborated on the processes followed. The briefing could have highlighted the objections received and challenges encountered in each of the provinces. The presentation and the challenges highlighted therein were too general.  The Committee needed specifics about its regional offices.

Dr Ramontja responded that in as much as the presentation was thought not to be specific enough of each province, the DMR had identified generic challenges of the provinces. It was possible for the DMR to provide the Committee with information on what was happening in specific provinces and the relevant companies who were involved.

Mr Raphela explained that the court ruling related to how a community was consulted in the Limpopo Province. When the matter came before court it transpired that there had been no proper meetings, that consultations were not clear and there were issues regarding the parties who had taken part in consultations. There were also discrepancies over the quality of consultations that had taken place. The court decision was used as a basis to determine how consultations should take place. Issues also arose around the authority of traditional leaders and that they needed to provide their signatures as proof that they represented communities.

Mr J Parkies (ANC, Free State) stated that sometimes traditional leaders signed registers to confirm participation. The signature could just be provided to confirm attendance and not be proof of real critical consultation having taken place.

Dr Ramotja said that there were instances when traditional leaders had signed as representatives of communities when the communities had stated that they had not given their consent for the traditional leaders to act on their behalf. The DMR often experienced delays in processes due to such difficulties. The DMR really did allow people to come forward and listened to what they had to say.

Ms C Labuschagne (DA, Western Cape) agreed with Mr Rayi that the Committee needed specifics. The specifics should be on each of the provinces and should speak to - amongst other things - applications that had been granted and those that have been refused. Specifics should be provided regarding concerns in the manner in which the public was engaged. Mention was made in the briefing about court rulings and the challenge that the DMR had about access to information. What was the DMR doing to ensure that processes were better? She asked if the DMR could provide information on the capacity of the REMDEC to effectively represent communities. What did the DMR do to ensure that communities communicated with the REMDEC? She referred to page 14 bullet point 4 of the presentation document and asked who was to drive the process mentioned. On what level did the process exist? What role did provinces play in the process?

Mr Raphela wished to point out that the REMDEC was not a formal structure like a court. There was no cost incurred for legal representatives. The idea was to have a process that was less formal than a court. There were instances where one found communities that needed capacity to better understand issues. The DMR empowered communities through workshops. Communities needed to understand their rights and responsibilities. He noted that in mining one dealt with capital. Business was more likely to have greater resources than communities. The DMR had a duty to protect communities. The DMR tried to mediate in order to find a way forward. Communities needed to coexist with mines. He reiterated that one way of dealing with challenges was to provide workshops to communities on mining issues. Consequently in some instances communities became the owners of mines. The DMR had also set up mining forums, especially in provinces like Gauteng. Mining forums were useful to deal with issues like socio-economic development. The DMR did have a programme for sustainable development of distressed communities. The key component of the programme was to have human settlements in an integrated manner. He added that social and labour plans were also being aligned to the development plans of communities.  

Mr A Nyambi (ANC, Mpumalanga) noted that given the impact that mining had on small communities, he asked the DMR to elaborate upon the requirement that an applicant for a mining right had to legally provide a social and labour plan.  He asked whether the challenges highlighted in the briefing were the same challenges that the DMR had in the past. How did the DMR intend to deal with the challenges? How did the DMR ensure that applicants did a social and labour plan? In what manner did the DMR gauge that the applicant for a mining right had done consultation. He pointed out that sometimes it was not clear what benefit the mining project was to bring to a community. Was it true that the flexibility of social and labour plans were seen as a challenge by the DMR?

The Chairperson referred to the DMR’s challenge that some mining companies did not follow proper consultation processes when engaging with stakeholders. Was this problem discovered after licenses were granted or prior to the granting of licenses? The problem SA was facing was urban migration due to the mushrooming of mineral resources enterprises. In the North West Province, the town of Rustenberg used to be considered the vegetable basket of Gauteng. Today it was prominent for chrome and platinum mining. As a result there were squatter camps mushrooming in the area which put a strain on municipalities to deliver services. This was true for other mining areas as well. The persons staying in the squatter camps worked on the mines. The Committee would appreciate it if the DMR could speak to some of the success stories regarding how social and labour plans were integrated with the Integrated Development Plans (IDPs) of municipalities.

He stated that on interested and affected parties around the table there had to be reciprocal engagement in terms of shareholding. There was a concrete example of Swartklip mining in Zeerust where the community did not agree with the chief. In communities there was a high rate of illiteracy which included the chiefs as well. What complicated matters were when the “x” that was signed in the register by leaders had to be verified.

Dr Ramontja stated that the DMR was aware of the challenge of aligning social and labour plans with the development objectives of municipalities. There was a need to integrate SLPs with the development plans of district municipalities. Given the changes that were made social and labour plans had to be in line with the IDPs of municipalities. He felt this to be an important step.

The Chairperson asked about compliance and whether there was enforcement for non compliance. Did the DMR have enough inspectors to enforce compliance? He asked in what provinces was there a lack of compliance? Could the DMR provide examples of where it had enforced compliance?

Dr Ramotja noted that the issue of inspections was two pronged. There was firstly compliance on mine health and safety. Secondly there were socio economic issues which included compliance with social and labour plans.

Mr Raphela said that there were processes on efficiency compliance and consequences for non compliance.  He noted that in terms of law in section 93 of Mineral and Petroleum Resources Development Act (MPRDA), there were consequences for non compliance. It covered a broad spectrum. If there was gross non compliance then the Minister could suspend mining operations. On the matter of having capacity to conduct inspections, the DMR covered sustainable development which looked at the environment, economic aspects as well as social and labour plans. For the environment, the DMR had a new unit to look at the issue. The DMR had started enforcement activities relating to the environment in the Eastern Cape. On social and labour plans there were officials and regional offices to deal with the matter. The DMR also had mine economists to cover the economic aspects to check if the mining was in line with plans. When renewal applications were made the DMR took into consideration compliance and enforcement.

Ms Prins asked whether the Committee would be getting the data on mining activities per province. It would assist members to check on whether mining activities were legal or not.

Dr Ramontja said that the DMR did have a database of legal mining operations and the information would be provided in writing to the Committee.

Committee Minutes
Committee minutes dated the 26 May 2015 were adopted.

Third and Fourth Terms Committee Programme
The Chairperson placed the Programme before the Committee for consideration.

Mr Rayi pointed out that the Committee was yet to get a briefing from the Department of Environmental Affairs on its budget. If no briefing had taken place how could there be a budget debate. If the date for the budget debate was set for 23 June 2015, when was the briefing to happen? He suggested that the Committee could be briefed on Friday 5 June 2015.

The Committee Secretary pointed out that the briefing by the Department of Environmental Affairs was scheduled for Tuesday 9 June 2015. He explained that issues raised by members in the National Council of Provinces (NCOP) strategic planning session had been compiled. The list was the basis on which the Committee Programme had been complied. He proceeded to take members through the Programme. 

The Committee Programme was adopted unamended.

The meeting was adjourned.