Removal of landowner consent requirement a slap in the face of mining-affected communities | Land Portal
Robert Krause and Zanele Malindi, Centre for Applied Legal Studies, Wits University
Language of the news reported: 

Minister of Environment, Barbara Creecy’s recent revocation of the 2021 Environmental Impact Assessment Regulations Amendment is effectively reversing some of the very important progress communities have made in their ongoing fight for environmental justice and self-determination.

In South Africa on 3 March 2022, mining-affected communities and the broader environmental justice sector woke up to the news that the Minister of Forestry, Fisheries and the Environment, Barbara Creecy, had removed a vital protection for mining-affected communities.

The new amendment removes a requirement for mining companies to obtain the consent of landowners or persons in control of the land they wish to mine before applying for environmental authorisation for mining activities. Creecy’s actions are likely to exacerbate the struggles of mining-affected communities across the country. 

The message this sends is that our government prioritises the profits of mining houses over the land and environmental rights of mining-affected communities.

The minerals-energy complex has, since the 19th century, been at the heart of South Africa’s unequal economic system, characterised by the colonial plunder of land that belongs to African communities, as well as slave-like working conditions for a largely migrant labour force. 

The colonial and apartheid-legislated land dispossession of Black people confined the majority to being landowners of only 13% of the country in the so-called homelands. The fight for land was therefore at the centre of the anti-apartheid struggle and crucially intertwined with other liberation objectives, such as wealth redistribution and civil and political equality. These struggles also constituted part of a broader fight against capitalist imperialism and the plunder of land, natural resources, and labour in the Global South by natural resource extraction corporations.

As a result of activists’ brave struggles, Section 25 (6) of the Constitution provides that there be legislation for the protection of land rights rendered vulnerable by the legacies of apartheid and colonialism. While a final law for the protection of these rights has not yet been promulgated, the Interim Protection of Informal Land Rights Act (Ipilra), renewable annually, provides that no one holding informal land rights may be deprived of those rights without their consent, other than by expropriation by the state. 

This is in line with current norms in international and African human rights instruments, which advocate for free, prior, and informed consent as prerequisites for development. These standards were driven by the struggles of peoples in the global South.

The environmental law regime established under the National Environmental Management Act (Nema) since 1998 is also, in many respects, in alignment with this right, and has robust public participation requirements. Regulation 39 of the Nema environmental impact assessment regulations provides that project “proponent[s] must, before applying for an environmental authorisation in respect of such activity, obtain the written consent of the landowner or person in control of the land to undertake such activity on that land.” This is, however, subject to three exceptions, one of which concerns the mining and mining-related activities regulated by the Mineral and Petroleum Resources Development Act (MPRDA).

In practice, unfortunately, the attainment of democracy has not brought about an end to land dispossession in South Africa. The country’s economy remains heavily dependent on the minerals-energy complex. As such, mining legislation is consistently at variance with the Ipilra consent provision, in that it only mandates consultation with the landowner or occupier. Mining has increasingly encroached on the former apartheid homelands, and mining companies (with the tacit support of the State) have cemented alliances with large sections of traditional leadership, in order to acquire community land.

This has resulted in land dispossession, inadequate compensation and the enrichment of the few — namely, capital and traditional authorities. Many communities have courageously sought to resist: the struggle of the Amadiba Crisis Committee (ACC) against imposed titanium mining on the Wild Coast in Xolobeni being the most notable example. 

A key component of ACC’s legal strategy has been to argue that the protections associated with Ipilra are not nullified by the MPRDA process. This resulted in a historic high court victory, effectively confirming that consent under Ipilra was required, regardless of the consultation process according to mining law. 

A 2021 amendment to the environmental impact assessment regulations — which puts an end to the exemption of mining from the consent requirement — was therefore greeted with elation by communities and the broader environmental justice sector. This amendment seemed to respond to — and accept —  the Xolobeni judgment, as does a Constitutional Court judgment known as Maledu. Both confirmed the rights of communities under Ipilra, even when weighted against the MPRDA and the rights of mining companies.

Creecy’s recent revocation of the 2021 amendment is effectively reversing some of the very important progress communities have made in their ongoing fight for environmental justice and self-determination. Creecy claims that the reversal was necessary, due to the fact that “procedural requirements of public participation in terms of sections 44 and 47” of Nema were not “adequately complied with”.  This attitude exemplifies the power of the mining sector, and demonstrates that almost three decades since the end of apartheid, mining-affected communities’ battle for land and environmental rights is far from over.

Self-determination is embedded in complex and dynamic power relations; Creecy’s de facto reversal diminishes communities’ power over themselves, their ability to protect their land, their homes and their livelihoods. It also spotlights the need for stronger alliances between mining-affected community organisations such as Macau, Wamua and Mejcon-SA, as well as civil society organisations and organised labour.

But, fundamentally, issues such as this substantiate the need for alternatives to extractive capitalism, which are critical if we hope to counter the power of the minerals-energy complex in a meaningful (and long-lasting) fashion. Only then can we truly capacitate organisations and communities to protect their land and homes. In the interim, it is essential that we meaningfully consult and engage with mining-affected communities and apply their specialised forms of knowledge — and their unique paradigms — to the problem of combatting Creecy’s decision, which will unquestionably undermine hard-fought victories and see us regress instead of continuing to make strides in the right direction. DM/OBP

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