South Africa: will Xolobeni victory transform the way miners operate?Published by MAC on 2018-11-25
Source: Amnest International, GroundUp, News24wire (2018-11-23)
Having gained a legal victory in the long struggle to assert its rights to "free, prior and informed consent" to mining on its lands, South Africa's Xolobeni community now faces attempts by government and mining companies to wriggle out of the decision.
[See also: South African community wins major court battle ]
South Africa: 'We Will Never Stop Fighting Against the Mining' - Xolobeni Community After Court Victory
22 November 2018
The Department of Mineral Resources says it has noted the North Gauteng High Court judgment which ruled that the Xolobeni community, which has been fighting against their land in the Eastern Cape being reduced to quarries, has the right to say no to mining.
The department told News24 it was studying the judgment and would pronounce on the matter in due course.
The North Gauteng High Court made its ruling on Thursday after the Amadiba Crisis Committee (ACC) launched a court battle earlier this year in an attempt to stop the Department of Mineral Resources from giving mining rights to Australian company Transworld Energy and Mineral Resources (TEM).
The land in question is in Umgungundlovu on the Wild Coast and covers an area of around 2 859 hectares, court papers revealed.
In her judgment, Judge Annali Basson said that several hundred people and their ancestors had lived on this land according to their customs and traditions for centuries and that there were family graves in the area which are considered essential sites for family and community rituals.
Basson also noted that this was not the community's first battle. She noted that in previous years they also faced attempts to remove them from the land and relocate them.
"They have successfully resisted these attempts precisely because of the fact that such a relocation would result in them leaving behind the graves of their ancestors," Basson said in her judgment.
ACC member, Siyabonga Ndovela told News24 that they had been fighting for the preservation of their land for about 20 years because they know its value and have no choice but to save it for future generations as their forefathers did before them.
"We will never stop fighting against the mining," said Ndovela.
"The mining is going to take away our land. We have to fight for the land, that is our legacy."
The community placed its arguments before court, depending on their informal rights of the land as defined by the Interim Protection of Informal Land Rights Act (IPILRA) and that they occupy their land in accordance with their law and custom.
Land according to this community's customary law accrues to persons by virtue of them being members of the Umgungundlovu community.
Government refused to acknowledge rights
They also argued that community members who live within or near the proposed mining area fear the disastrous social, economic and ecological consequences of mining.
For generations, many of the applicants have utilised the land for grazing of their livestock and for the cultivation of crops. They also depend on it for water supply, Basson said.
However, in its arguments TEM did not recognise that the applicants have a right to consent prior to the granting of a mining right, Basson noted.
She added that the first to fourth respondents (government parties), including the Department of Mineral Resources, likewise refused to acknowledge that the applicants have a right to consent to a mining right.
The respondents further argued the Mineral and Petroleum Resources Development Act (MPRDA) trumps IPILRA and maintained that in terms of the MPRDA, no land owner can have a right to refuse consent to mining.
Basson declared that the MPRDA stated the mineral resources minister must obtain consent from the community, as the holder of rights on land, prior to granting any mining right to TEM.
She further declared that any decision to grant a mining right would constitute a deprivation of rights, including informal rights.
"It is declared that the first respondent (minister of mineral resources) may not deprive the applicants of any of their rights in land without complying with the living customary law of the Umgungundlovu community and of the amaMpondo people, which is law protected by sections 211 and 212 of the Constitution," Basson said.
In her conclusion, Basson said the MPRDA and IPILRA must be read together, in keeping with the purpose of the IPILRA to protect the informal rights of customary communities that were previously not protected by the law.
"The applicants in this matter therefore have the right to decide what happens with their land."
South Africa: Ruling Against Mining Company a Victory for Marginalized Communities Across the Country
23 November 2018
In response to the North Gauteng High Court’s ruling that the government cannot issue a license for proposed titanium mining in Xolobeni without the consent of indigenous communities, Executive Director of Amnesty International South Africa, Shenilla Mohamed, said:
“This progressive court ruling is a victory for the people of Xolobeni, who have long fought for their right to say no to mining on their ancestral land. The judgement sends a clear message that multinational mining companies cannot trample over people's rights in the pursuit of profit.
“This judgement is not only a win for this community, but for communities across the country who are fighting to protect their land, heritage and culture.
"The government must take heed of the ruling and ensure that informed consent is sought from Indigenous peoples when granting future mining licenses."
A subsidiary of the Australian mining company MRC, Transworld Energy and Minerals (TEM), had applied for the right to mine titanium in the uMgungundlovu district on the Wild Coast in the Eastern Cape province in 2008.
Villagers of Xolobeni in Pondoland formed the Amadiba Crisis Committee (ACC) in 2007 to challenge the mining project, arguing that it constituted a deprivation of their ancestral land which threatened to take away their history and livelihood.
South Africa: Xolobeni Judgment Is Vital to Land Debate
23 November 2018
Gwede Mantashe [SA Minister of Mineral Resources] is concerned about mining being halted, but the judgment is an incentive for the industry to change the way it operates
South Africans have spent much of 2018 debating whether the Constitution must be amended to explicitly provide for expropriation of land without compensation. Lost in this debate is the reality that thousands of South Africans have continued to lose their land under the constitutional dispensation without just and equitable compensation.
These are the members of customary communities -- communal owners of the land in the former Bantustans. They are an estimated 16 to 20 million South Africans. Communal land is where the majority of new and expanding mining projects in the country are located.
The legislation that governs mining in South Africa, the Minerals and Petroleum Resources Development Act of 2002 (MPRDA), made the state the custodian of all mineral resources in South Africa. The MPRDA also provides that the Minister of Mineral Resources may grant a mining right to a mining company against the will of the land owner, and indeed, the Minister routinely exercises that right. Land owners cannot stop mining from happening on their land, even if it means that they are forced to leave their land.
That reality has been staring members of the Umgungundlovu community -- often called the Xolobeni community, after the name of one of the villages in the area -- in the face for more than a decade. The sands of the coastline where they have lived for centuries, is rich in titanium. For years, an Australian mining company, Transworld Energy and Mineral Resources (TEM), has attempted to get a mining right to conduct open-cast mining on an estimated 900 hectares. Their attempts have not yet been successful, because of the resistance of the community members who will lose their land to the mining.
The community has engaged in formal processes, protested, and litigated. But this resistance has come at a huge cost: some members of the larger Amadiba community who will not lose their land, want the mining in the hope that it will bring jobs and economic opportunity. The Chief of the area, once a fierce campaigner for his people against the mine, has changed his mind. This, the community members say, must have something to do with the vehicle and directorship that he received from TEM. Tensions within this community escalated to such an extent that an anti-mining community leader, Bazooka Radebe, was assassinated in March 2016. As a result, the then Minister of Mineral Resources instituted an 18-month moratorium on the granting of a mining right in the area.
Why would members of the Umgungundlovu community be willing to risk their lives, literally, in order to defend their land? Because, for them, land is not simply a place to live, much less an investment to generate income. These households and their ancestors have lived on the land for generations. The land is central not only to their livelihoods, through grazing, cultivation, tourism and the like, but to their very identity.
A household, called umzi, is more than a place of living. For the people of Amadiba, it is a symbol of social maturity and social dignity. It forms the basis of the relationship between the living and the dead, but also of the social fabric of the community today. You cannot relocate the community elsewhere without destroying that. The land is everything.
For this reason, members of this community and other customary communities like them have argued that they cannot be treated like other land owners who, when they lose their land, can be compensated by calculating the market value of the land lost. The value that land has to a customary community cannot be calculated in rands and cents. For that reason, no-one should be able to take the land without the community's consent. They must have the right to say no, argue the residents opposed to mining.
There is even a piece of legislation that guarantees them that right to consent, namely the Interim Protection of Informal Land Rights Act (IPILRA) of 1996. The Act provides that people with customary rights to land, amongst others, have "informal rights" for the purposes of the Act and that no-one with an informal right to land can lose that right without their consent. What is more, they argue, international law recognises that indigenous peoples have the right to free, prior and informed consent over their land.
The government and mining companies have rejected this argument for years. They say that the MPRDA only requires that a land owner be consulted about the impact of the mining prior to the granting of a mining right. Consultation does not give the land owner the right to say no. It merely entitles the land owner to be notified of the planned mining and to raise objections - objections that may be ignored. They argue that IPILRA cannot be used to stop mining, because the MPRDA does not give land owners the right to refuse mining.
Those rules apply to common law landowners with title deeds, the Umgungundlovu community argues. You cannot treat customary law land rights holders the same.
The North Gauteng High Court was finally faced with this very dispute when the Umgungundlovu community approached it in April this year asking for an order declaring that the Minister must seek their consent before granting a mining right over their land. In deciding the issue, Judge Annali Basson emphasised the special place that customary law has under our Constitution, in particular because of the historical discrimination against indigenous forms of law in South Africa. The rights that South Africans have under customary law, including the rights to land, require special protection precisely because these rights have for so long gone unrecognised and ignored.
Judge Basson rejected the argument of the Minister of Mineral Resources and TEM that the MPRDA trumps IPILRA. They must be read together, she found, which means that the Minister must seek the consent of the affected land rights holders before granting a mining right.
In response to the judgment, Gwede Mantashe, Minister of Mineral Resources, said that the Department will look to appeal it as "I suspect within the next ten years the right to issue licenses is systematically shifting from government to communities and if we do that there will be no mining".
The statement suggests that government knows that the communities who are most severely affected by mining are sceptical of its benefits, but the state still continues to issue licenses at will. More than anything, this statement reveals the significance of the judgment: if communities do not have the right to reject mining, the industry will never have the incentive to change the way it operates in order to make their presence attractive to mine-hosting communities.