The Week's Essay: South African High Court affirms vital community rightPublished by MAC on 2020-09-22
Source: GroundUp (South Africa)
The Gauteng High Court has ruled that the Umgungundlovu community is entitled to a critical provision of the United Nations treaty on the rights of Indigenous Peoples - receiving vital pre-mining information from a company in order to adequately assess the risks it might endure.
This marks another step in the decades-long "battle of Xolobeni" which has profound implications for other communities in the country [See: Community wins court battle].
South Africa: Groundbreaking Court Judgment On Mining and Community Rights
GroundUp (South Africa)
22 September 2020
The Umgungundlovu community, located in Xolobeni in the Eastern Cape, has won an important case in the Gauteng High Court that enables communities to meaningfully consult with companies that want to conduct mining operations in areas where they live or work.
On 11 September, Judge Nana Makhubele ruled that the Mineral Resources and Petroleum Development Act (MPRDA) entitled the community to information contained in a mining right application submitted by mining company Transworld Energy and Mineral Resources (TEM). In 2015, TEM lodged an MPRDA application to mine titanium in the Umgungundlovu area.
According to the judgment, the regional manager of the Department of Mineral Resources must provide a community who will be affected by proposed mining operations with the information contained in a mining right application if the community requests it. Judge Makhubele agreed that a community cannot engage in meaningful consultations, or make informed objections on proposed mining activities, if the information contained in a mining right application is not provided to it. The court did however add that the mining company or department of mineral resources would be entitled to remove financially sensitive or confidential information from any copy it provides to an affected community.
This judgment is a significant victory for the Umgungundlovu community who have successfully brought several court challenges resisting the commencement of mining operations in Xolobeni. But this case also sets a precedent for other communities affected by proposed mining operations. It means they must have sufficient information to raise proper objections to why mining activities should not commence and will enable them to hold meaningful consultations on how any mining operations will take place.
According to the MPRDA, a company that wants to commence mining operations must submit an application to the regional manager of the Department of Mineral Resources. Among other things, the application must include a social and labour plan, explaining how mining operations will affect the local community, and a mining work programme, explaining how the company intends to conduct mining activities and the market it intends to sell extracted minerals to.
If the regional manager accepts the application, the company must hold meaningful consultations with any community that will be affected by the proposed mining operation. The community can also lodge objections with the regional manager within 30 days of the mining application being approved.
After becoming aware of TEM's application, Xolobeni residents requested the regional manager to provide them with a copy. The community requested the information to enable it to hold meaningful consultations on proposed mining operations and to enable it to lodge informed objections with the department on why the mining right should not be granted.
The regional manager responded that the application had already been approved and refused to provide a copy. He suggested that the community request a copy of the application from TEM directly or lodge a request to access the application by submitting a Promotion of Access to Information Act (PAIA) request to the department.
The lawyers for the community then requested TEM to provide them with a copy of the mining application. TEM also refused and said that the community should request the application from the department.
In June 2015, the residents lodged its formal objections to TEM being granted permission to mine on the basis that it would destroy the local environment and disrupt their way of life. They also informed the regional manager that they had still not received a copy of the mining right application. Again, the community requested him to provide them with a copy and said that any confidential or financially sensitive information could be redacted.
The regional manager again refused the request. He repeated his previous suggestion that the community ask TEM for a copy or that they lodge a PAIA request with the department.
The community then once again asked TEM to provide a copy of the mining right application. TEM refused again.
The community then decided to go to court to compel TEM or the regional manager to provide a copy of the mining right application.
In February 2016, after the community had filed court papers, TEM relented and provided the mining right application but refused to admit that it was under any legal duty to provide the community with the application or that it would engage in further consultations with the community.
The lawyers for TEM opposed the relief sought by the community on two primary grounds:
First, the case was moot because it was unnecessary for the court to decide whether the MPRDA entitled the community to the information contained in the mining right application. Among other things, TEM said that the community had already received the requested information which TEM provided after the court papers were filed and because the department's PAIA manual had been amended in 2017 to provide for the automatic disclosure of the information contained in a mining right application.
Second, the MPRDA did not entitle the community to the information contained in a mining right application. If the community required the application to engage in meaningful consultations, or to make informed objections, it should submit a PAIA application to the department.
Lawyers for the Umgungundlovu community said the court should adopt an interpretation of the MPRDA that best gives effect to the Bill of Rights and the objectives of the MPRDA. Requiring the regional manager to provide a mining right application to an affected community would best give effect to its constitutional rights to live in a clean environment and of access to information. It would also best give effect to the MPRDA's objective of sustainable development and the right of communities to meaningfully influence the outcome of decisions that will affect them.
The community's lawyers also said that PAIA does not adequately give effect to their rights under the MPRDA to hold meaningful consultations or make objections to a mining right application. This is because the MPRDA only gives a community 30 days to lodge objections to a mining right that has already been granted. The MPRDA also contains a limited time period for a community to engage in meaningful consultations. In practice, PAIA applications are not responded to within these short time frames which deprives communities of their right to engage in meaningful consultations or lodge informed objections to mining activities.
Also, they also said that the department's PAIA manual is subject to annual revisions and there is no guarantee that a future revised PAIA manual will provide for the automatic disclosure of the information contained in a mining right application.
Adding to the case, the Centre for Applied Legal Studies (CALS) submitted statistical reports compiled by the Centre for Environment Rights (CER) which proved that PAIA applications to the department have a low success rate. In practice, most PAIA applications are not responded to within the 30 day time period, if they are responded to at all.
The department of mineral resources did not appoint lawyers to make arguments in the case.
Why the case was not moot
Judge Makhubele disagreed that the case was moot. This was for two reasons.
First, this argument downplayed the fact that the community only received the application after it had "been sent from pillar to post" by TEM and the department. TEM only provided the requested information after the community had to approach the court to enforce its rights.
Second, it was important to clarify what information a community affected by proposed mining operations must have to engage in meaningful consultations or lodge informed objections. This meant the court should decide the case because this issue did not only affect the Umgungundlovu community, but also other communities who could be in a similar position.
Why meaningful consultation requires access to the mining right application
Justice Makhubele agreed that a community affected by proposed mining operations cannot engage in meaningful consultations, or lodge informed objections to mining activities, without access to the information contained in a mining right application.
The court agreed with the argument of CALS that the community would be most affected by proposed mining operations and should not come after the fact. For consultations to be meaningful, both parties must be placed on an equal footing. To be placed on an equal footing an affected community must have access to the information contained in the mining right application. Without this information, the right of a community to meaningfully participate in a process that affects them would not be properly realised.
The court also agreed that the lengthy processes set out in PAIA could result in affected communities not receiving the information contained in a mining right application before the consultation process started. The court also noted that several documents the community had requested did not appear in the department's revised PAIA manual. For example, documents relating to the shareholding and ownership of TEM.
Judge Makhubele therefore found that an affected community does not have to follow PAIA to receive a mining right application because it is entitled to that information under the MPRDA. She also ordered TEM to pay the legal costs of the Umgungundlovu community and CALS.