SAHRC Report on Mining-affected Communities & DMR response

Meeting report

The Chairperson said the Committee would monitor the events happening at Gloria Mine in Mpumalanga. The Committee was faced with how to mediate the unresolved Sibanye industrial action. Subsequent information is that Sibanye intends to lay off over 6 000 employees. The country is waiting the Budget Speech this afternoon but the Budget only talks to money that will be spent, not money that will be generated. Last week the Committee debated the High Level Panel Report recommendations on mining affected communities and this week it would hear the South African Human Rights Commission (SAHRC) recommendations on the socio-economic challenges of mining affected communities.

South African Human Rights Commission (SAHRC) briefing
SAHRC Commissioner, Adv Jonas Sibanyoni, remarked that the meeting was taking place on the same date set aside for social justice, the World Day of Social Justice. The theme of the 2019 celebration was: ‘If you want peace and development, work for social justice’. He said the SAHRC Report had some findings and directive. He invited the SAHRC Senior Legal Officer to present the report.

Ms Alex Fitzgerald, SAHRC Senior Legal Officer, said the report corroborated and amplified what the legal society talked about. The report shows that there is widespread non-compliance to laws and the historic tendency for departments to work in silos. The recommendations given are to ensure that mining companies collaborate with the Department of Mineral Resources. She addressed the categories of the Report:

Land:

Land-use Management:
SAHRC found that there were gaps in the mining licence application process, where mining companies, DMR and the Department of Rural Development and Land Reform (DRDLR) appear to systematically disregard key pieces of legislation, particularly the Municipal Systems Act, Spatial Land Use Management Act (SPLUMA), and the Interim Protection of Informal Land Rights Act Interim Protection of Informal Land Rights Act (IPILRA). There is an immediate need for the municipality to be consulted when a licence application is processed to enable it to provide for integrated and sustainable land use. Although consultation is not legally required by the MPRDA, the Commission notes that municipalities were frequently not consulted and were sometimes unaware that a mining licence had been granted. This failure in consulting municipalities in the application for, and granting of, a mining licence impairs local government’s ability to adequately plan and provide for integrated and sustainable land use systems. It also directly violates the constitutional and legislative division of the roles and responsibilities of different spheres of government.

SAHRC recommended the DMR must, when considering applications for mining rights, ensure that alternative land uses for sustainable local development were identified and considered. It is important to emphasise that this consideration may include not approving an application. Such land use approvals must be secured from the applicable municipalities prior to the DMR granting the licences or permits. There is the right to consult people before the use of land they own has been implemented but the municipality is not consulted — hence there is no planning in allocation of resources. This lack of planning on allocation of resources leads to pressure on infrastructure within the community. In Mpumalanga, people complained about the use of land for mining because the bias was for mining land. Hence, land was not provided for agriculture and the local economy was not diversified.

Relocation and Compensation:
The SAHRC found that mining companies that restricted compensation to the physical structure of the land were offering below what is considered to be appropriate in terms of global industry standards and are causing systemic economic displacement and impoverishment within mining-affected communities. For compensation to be meaningful, it should account for loss of life; loss related to communal and individually held tenure or title; as well as loss incurred for production value gained from the land; whether that production value is linked to traditional ways of life, or more commercial enterprises. SAHRC also found that the DRDLR, responsible for promoting equitable and sustainable rural livelihood and development programmes, had not proactively considered means through which the rights and opportunities for development may be protected. SAHRC found that there was an immediate need to follow internationally recognised precautionary principles in dealing with environmental protection and it strongly cautions against prioritising the immediate economic benefit of mining activities over the maintenance and protection of the environment, particularly in areas crucial for sustaining ecological biodiversity, natural heritage, cultural significance and life. It was concerned that information on mining rights was not being provided by DMR.

Mining in sensitive and protected areas:
SAHRC directed the Department of Environmental Affairs (DEA), the Department of Agriculture, Forestry and Fisheries (DAFF), DMR, and the Petroleum Agency South Africa (PASA) to take definite steps to ensure no seabed mining or extraction took place in sensitive areas. This should include a strategic environmental assessment of impacts of existing rights on marine ecosystems and Marine Protected Areas (MPAs).

Rehabilitation and closure:
SAHRC found that it was unacceptable that mining companies did not provide detailed and sufficient information to enable communities and local government to clearly understand how land could be used post-closure. Also DMR has not taken adequate steps to secure financial provision for rehabilitating damage to the environment and water resources and there was an immediate need for all Environmental Impact Assessments (EIAs) and Environmental Management Programs (EMPs) to clearly detail land quality and potential post-closure land use. SAHRC was of the opinion that licences should not be granted where long-term, sustainable land use could not be guaranteed. The Commission found that there was an immediate need for legislative provision for standardised and realistic closure costing, concurrent rehabilitation, partial closure as well as the establishment of a “superfund” to cater for rehabilitation-related liability. DMR was directed to report on the progress and anticipated timelines for the finalisation of the National Closure Strategy. It was also directed to consider legislative reform to address the gaps in partial and full mine closures. DMR must, together with relevant stakeholders, develop a Regional Master Plan aimed at addressing environmental rehabilitation and the remediation of derelict and ownerless mines.

Housing:
SAHRC found DMR was not performing the role of monitoring mining companies in the provision of housing in mining affected areas in consultation with local government which was its responsibility. The lack of consultation and collaboration led local government to be unable to plan housing and housing infrastructure in mining affected areas. SAHRC expressed concerns that DMR and mining companies were not concerned about housing infrastructure in mining affected areas. It undermined the rights to basic services and housing.

Environment:
SAHRC found that even though the One Environmental System had positive intentions to streamline the application process and promote collaboration and partnership between departments responsible for mining-related activities, the discrepancies in approach in the application of environmental management laws and limited oversight of environmental management across multiple sectors were cause for concern. It found that the DMR was not the appropriate authority for granting and enforcing environmental authorisations for mining even though it was supposed to set standards in mining environments, monitor and enforce it. Also DEA, DSD and DMR were not working together.

Ms Fitzgerald also looked at the recommendations for social and labour plans (SLPs); meaningful participation, consultation, consent; access to information, transparency and confidentiality; compliance, monitoring and enforcement and the way forward to ensure implementation and that mining companies collaborate with the DMR (see document).

In conclusion, Adv Sibanyoni referred the Committee to Constitution and said that the Committee should note that the SAHRC recommendations were binding.

Discussion
The Chairperson noted Adv Sibanyoni’s statement that the recommendations of SAHRC were binding and invited Members to comment.

Mr M Matlatla (ANC) asked SAHRC to clarify if DMR was compelled to provide housing to mine workers that lived in areas where mining operations took place. He also asked if DMR was compelled to provide housing to illegal mine workers irrespective of from where they originated.

Mr H Schmidt (DA) asked for clarity on whether the recommendations and directives were legally enforceable. He asked if the SAHRC recommendations had timelines. He observed that the mining community comprised of local, provincial and national parties and it is a good idea to ensure that information on Social Labour Plans (SLPs) were made known to the mining community. The community is entitled to housing and housing infrastructure as a result of the activities of mining companies.

Mr J Lorimer (DA) asked SAHRC to clarify what mining community meant. He suggested that SAHRC engage with other stakeholders such as the Chamber of Mines. He noted that SAHRC had many clear requirements that they were addressing in the investigations but suggested that it should prioritise requirements that ranked socioeconomic challenges higher.

Ms Alex Fitzgerald replied that the definition of mining community was defined in the legislative framework. She acknowledged that SAHRC needed to engage with stakeholders such as the Chamber of Mines. She said SAHRC did not believe that it was creating new obligations for DMR but it was amplifying the existing obligations so that they would be implemented.

Adv Sibanyoni replied the SAHRC was a Chapter Nine institution like the Public Protector. Since the ConCourt has provided that the recommendations of the Public Protector are binding then the recommendations of SAHRC are binding as well. SAHRC respects the separation of powers and Section 183 of the Constitution gives SAHRC powers to carry out certain functions.

Ms Fitzgerald replied that DMR was responsible only to monitor the action of providing housing and housing infrastructure by mining companies. SAHRC has the document that contains the timelines and could forward it to the Committee. Separation of powers has made SAHRC to limit the brief to recommendations directed to DMR and the departments it collaborates with. SAHRC believes the basic first step was transparency. Environmental impact assessments, environmental management partnerships and SLPs need to be made available to the mining community.

Ms M Mafolo (ANC) said she had concerns about the timeframes for the recommendations but SAHRC had addressed this. Mining companies were given requirements and timeframes before mining licences were approved, only to dodge responsibility on approval. It was a good thing to publish SLPs to ensure that people did not bother departments but know that SLPs were the mining company’s responsibility.

Mr S Jafta (AIC) expressed concerns about the capacity in DMR to implement and monitor the SAHRC recommendations. He asked how SAHRC saw the capacity requirements given that DMR had only regional and national offices. He asked if the Department did not need to extend its offices to local municipalities.

Ms Fitzgerald said SAHRC appreciated Members’ comments on the Report. SAHRC believes that the obligations it escalated are not new ones but those that had initially existed. DMR need not extend its offices to local municipalities. The state and local departments need not work in silos anymore but need to collaborate to ensure that water, environmental and infrastructure issues are resolved. These collaborations would also lead to better regulated mining communities.

Adv Sibanyoni explained that SAHRC submitted the Report to the Inter-Ministerial Committee (IMC) for the Revitalisation of Distressed Mining Towns and Labour Sending Areas in 2018. DMR has been engaging with SAHRC to indicate how it would cater for housing and infrastructure in communities located in mining areas.

The Chairperson commented that DMR had already been protected by SAHRC before the Committee started its interrogation.

Mr A Pikinini (ANC) welcomed the Report but said SAHRC should have given a background to the process.

The Chairperson said Mr Pikinini’s suggestion was noted.

Ms H Nyambi (ANC) noted that there were different types of mining companies. She asked for clarity on what would happen if the mining company was located in an area that had a community in existence initially.

Ms Y Yako (EFF) asked SAHRC to state how much the Department of Health assisted the community on environmental challenges.

Ms Fitzgerald said the SAHRC apologised for not giving background details of the process. It was because the meeting was initiated through a referral by the Speaker.

Ms Fitzgerald replied that there is no document that directs what happens in SLPs. The recommendations given are directed at the SLPs that address housing. The recommendations given are directed at DMR. However, in the larger report there are recommendations to conduct a public inquiry on respiratory issues.

Adv Sibanyoni said the presentation on the Report had been limited to the time allocated by the Committee. SAHRC looks forward to have further engagements with the Committee.

The Chairperson said it had not requested that SAHRC include a background. The Committee notes the comment that the Public Protector and SAHRC are Chapter Nine institutions that have powers. The Committee needs to consolidate the findings and recommendations because Parliament would be rising in March 2019 and not much could be achieved within that time. Some of the issues on land could have been resolved if they had come up earlier. He understood why Mr Pikinini asked for a background as this was needed to ensure that historical injustice was reversed. The SAHRC findings deal with the present situation but in the past many human rights violations occurred that might have an impact on the recommendations.

The Chairperson said there are instances in the recommendations where the SAHRC says that DMR must review the legislation but legislation is not the responsibility of DMR. The Committee rather would need to review the legislation. The Committee needs to review the legislation. The responsibility of trade unions is needed when SLPs are interpreted.

The Chairperson noted Ms Fitzgerald mentioned that SLPs must be reviewed not only for the benefit of the employees but to entrench the rights of the community. The SLP must relate to infrastructure not housing as this might lead to shifting the responsibility of housing from the municipality.

Ms Fitzgerald remarked that the Report was comprehensive as SAHRC is trying to change its approach. It intends to monitor and implement all its recommendations and be a watchdog on issues that affect the rights of people in the country. SAHRC has resource challenges, some challenges have been anticipated and others were unanticipated. SAHRC is going through a learning curve but it believes it is pursuing its mandate.

Department of Mineral Resources response
Adv Thabo Mokoena, Director-General, DMR, welcomed the SAHRC presentation. He introduced his team and said DMR had attended the meeting with its top management to be able to address all issues of compliance. SAHRC has made some recommendations on compliance which has serious implications on DMR. He said DMR had resource constraints and hopefully the Budget Speech would address the resource constraints. The Mineral and Petroleum Resources Development Act (MPRDA) was enacted in 2002 to address the injustice of the past. Hence a balanced approach needs to be followed on the findings and recommendation raised in the Report. There are discussions that DMR has started with SAHRC but there are some recommendations that would cause a challenge to DMR when the Auditor General audits it. Some of the recommendations could not be addressed by DMR as they were outside its purview but these recommendations would be used to judge DMR in the future. Members have alluded to that fact. DMR needs to engage with SAHRC on some issues as SAHRC says that the MPRDA did not make room for consultations. The Constitutional Court gives some resolution on essential consultations with rights owners. The engagements between both agencies, DMR and SAHRC, should ensure that messages that were incorrect or inconsistent were not given to the public. The DMR mandate is to inspire hope and confidence within the mining industry; and in so doing attract more investors both local and foreign; increase GDP and create more jobs and to ensure that high unemployment rate was reduced.

Ms Ntokozo Ngcwabe, Deputy Director General: Mineral Policy and Promotions, DMR, said that SAHRC did not present its report to DMR before tabling the report at the Inter Ministerial Committee (IMC). Members of the IMC expressed concerns to this effect when it was tabled. Also there are timelines in the SAHRC Report which DMR is supposed to meet but some of the issues in the report have been overtaken by events. For instance, SLPs must be published in English and two other languages; the term ‘mining community’ has been defined; the consultation process has been addressed and DMR has gone further to give meaning to Section 54 of MPRDA. The guidelines for Section 54 [Compensation payable under certain circumstances] have been developed and DMR is ready to publish them for communities.

Ms Ngcwabe said that the amending of legislation was not in the hands of DMR. Also DMR had consistently informed stakeholders that amending legislation may not necessarily be a solution to the issues. The Department of Environmental Affairs (DEA) is already working on guidelines to protect the marine environment and it has planned a joint fact finding mission with DMR to obtain best practices. Mining companies had to provide housing facilities and infrastructure in the past because mines were located in locations that did not have accommodation. DMR is looking at best practice internationally to ensure that these challenges are resolved. It happened that the housing conditions were inhumane hostels but this was unfortunate. The ideal is that housing would be phased out because DMR is looking at ways of sorting out housing challenges by introducing a housing subsidy instead. She said that policy and legislation reviews were complex and such reviews should not be rushed into.

Mr Xolile Mbonambi, Chief Director: Mine Health and Safety, DMR, said DMR noted the health findings and recommendations of SAHRC but reported that similar studies had been done by DMR in 2018. A study on the adverse health impact associated with gold mine dust was undertaken to access the impact of mining activities on the mine health and safety in communities. The study was done in line with the Act. DMR continually promotes health awareness during annual events where community members are accessed for health problems and the individuals are referred to primary health care facilities when diagnosed with any ailment. The blasting regulations were promulgated in 2006 but it has since being amended twice. The recent regulation promulgated in December 2018 says that blasting should be done in an area which is 500m away from houses. As a result of this regulation, DMR commissioned a study on the challenges of people living near mines in 2017 related to blasting. The study led to development of mining standards on vibration and DMR is using the results to develop recommendations on blasting. It hopes to incorporate some of the recommendations listed in the SAHRC Report.

Adv Mmadikeledi Malebe, DMR DDG: Mineral Regulation, said DMR had always advocated that SLPs be aligned to the NDP goals. As mentioned by Ms Ngcwabe most of the recommendations have already being implemented by new mining companies. However, legacy mining companies have not implemented these recommendations. The Committee will recall that before 2004 there was no law regarding mining companies. DMR is collaborating with other departments, especially DEA and Department of Social Development, to achieve One Environment goals. As a result of constitutional mandate, DMR was given sole authority on the One Environment goals.

Adv Malebe said that DMR agrees that it might not adhere to some of the deadlines because it would not say it has achieved a recommendation when it had not. It would however provide a submission in writing to explain why a recommendation had not being implemented. DMR solicited funding from SAHRC to assist it in implementing the deadlines on some of the recommendations.

The Chairperson said to avoid confusion, DMR needed to respond to the SAHRC Report by informing SAHRC of what it had already done, what it intends to do and the limitations to implementing the remaining recommendations. DMR should inform SAHRC of its reservations about any of the recommendations so that failure to meet the deadlines did not lead to litigation by the SAHRC. He also mandated DMR to review the common areas between the High Level Panel and the SAHRC recommendations, what it had done/what it had not done due to limitations in its mandate and submit the details of the review to the Committee. He asked DMR not to solicit funds from SAHRC because every department presently wanted to secure more funding. He informed SAHRC to ensure that its political heads were aware of the steps it was taking. He asked SAHRC to confirm in writing if DMR had responded to the Report because the Committee did not agree to only verbal confirmation from the Commissioner that DMR had engaged with SAHRC. He reminded SAHRC to forward the recommendation timelines to the Committee.

Adv Sibanyoni requested that the Committee include its engagement with SAHRC in its Legacy Report. He said SAHRC was committed to engagements with DMR.

Ms Fitzgerald said SAHRC would not respond to DMR mentioning that it did not receive the Report before the Inter Ministerial Committee meeting. The SAHRC circulated the full report to all participating stakeholders on 6 December 2018. Comments were received and the inputs added before the Inter Ministerial Committee meeting.

Adv Sibanyoni added that the SAHRC Chairperson had requested a meeting with the Minister of Mineral Resources.

The Chairperson noted that some of the High Level Panel Report recommendations had been raised. He requested that DMR submit a written response on the status of implementing the SAHRC recommendations and High Level Panel Report recommendations. He informed SAHRC that the Committee would include the meeting outcomes in the Committee’s Legacy Report.

The Committee adopted the minutes of 13 February 2019 and the meeting was adjourned.