Picture: ISTOCK
Picture: ISTOCK

The Chamber of Mines, which represents 71 companies in the mining sector, has come out swinging against the latest version of the Mining Charter, launching a legal challenge to its validity that is backed by an extensive media campaign, including a glossy website organised around the hashtag Not Our Charter.

One of the main charges levelled by the Chamber of Mines against the charter is that it was developed without meaningful public consultation.

An article on the Not Our Charter website, entitled 5 Reasons Why the Mining Charter is Bad for Mining, Bad for SA, states that the charter "has been unilaterally developed without proper consideration of the views of key stakeholders … by not taking into account any of the Chamber’s serious concerns, the DMR [Department of Mineral Resources] has acted in bad faith".

The mantel of champion of public participation is, however, a highly uncomfortable fit given the mining industry’s record in relation to groups of people who are affected by mining in a particularly acute and continuous manner: the communities who breathe the polluted air, drink unclean water and live in cracked houses as a result of mining.

Twenty years into the democratic era, unilateralism, failure to consult and bad faith remain pervasive characteristics of how mining companies themselves interact with communities.

The manner in which mining companies implement their statutory obligations with respect to social and labour plans has been instructive in this regard.

Social and labour plans form a central plank in the legislative schema for addressing the legacy of colonialism and apartheid in the mining sector. They consist of programmes for the skills development of mine workers and for the socioeconomic development of communities that mining companies are required to implement as a condition of their mining right.

An express objective of social and labour plans contained in the regulations is to ensure mining companies contribute to the social and economic development of areas where mining takes place.

One would think, then, that the communities who are meant to benefit from social and labour plans have an opportunity to identify their needs and participate in the formulation of programmes.

Research conducted by the Centre for Applied Legal Studies suggests the opposite, however. Members of all communities participating in the research reported that they had never been consulted on social and labour plans.

Many mining companies treat social and labour plans and annual compliance reports as secret documents. In fact, the overwhelming majority of interviewees reported never having seen social and labour plans meant to benefit them.

The Centre for Applied Legal Studies is frequently approached by members of communities who have been unable to obtain social and labour plans from the mines on their doorstep, and who require assistance with bureaucratic and burdensome access to information requests.

When communities seek to raise grievances with mining companies regarding the implementation of their social obligations and their mines’ negative environmental effects, they are often sent from pillar to post.

One might hope that, in seeking to win broader support for its opposition to the Mining Charter, the Chamber of Mines might, albeit belatedly, embrace the principle of the inclusion of communities as a core role player whose views must be accorded equal consideration, both at the level of particular mining operations and at the level of developing frameworks for transformation of the industry, such as the Mining Charter.

The public rhetoric of the Chamber of Mines has, instead, singled itself out as a core stakeholder and failed to acknowledge the far more systemic and longstanding exclusion of communities.

Even worse, it has strongly opposed applications brought by community networks to intervene in its review of the Mining Charter.

Mining Affected Communities United in Action, Women Affected by Mining United in Action, and the Mining and Environmental Justice Community Network of SA (representing more than 150 activists and community-based organisations), wish to put forward the case that the exclusion of communities from the development of the current Mining Charter renders it invalid.

The community networks have further asked the court to declare they are core stakeholders in mining and must take part in negotiations for future versions of the Mining Charter.

The Chamber of Mines has filed notice to oppose this application when it goes to the High Court in Pretoria on November 14.

The hypocrisy of complaining about being excluded from consultation, while actively excluding the people who are meant to be the beneficiaries of the transformation of the industry, not only undermines the Chamber’s own argument, but may also suggest contempt for the people who suffer the social, economic and environmental costs of mining profits.

Krause is a researcher in the Environmental Justice Programme at the Centre for Applied Legal Studies, based at Wits University. He writes in his own capacity.

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