Nonhle Mbuthuma of Amadiba Crisis Committee shows the red sand at Kwanyana Beach near Xolobeni in the Wild Coast that is at the centre of the dune mining dispute. Picture: DAILY DISPATCH/LOYISO MPALANTSHANE
Nonhle Mbuthuma of Amadiba Crisis Committee shows the red sand at Kwanyana Beach near Xolobeni in the Wild Coast that is at the centre of the dune mining dispute. Picture: DAILY DISPATCH/LOYISO MPALANTSHANE

Mineral resources minister Gwede Mantashe deliberately misinterprets the findings of the court in the so-called Xolobeni judgment.

To recap, the Pretoria high court said the department of minerals resources cannot grant a mining right in terms of the Mineral and Petroleum Resources Development Act (MPRDA) unless it complies with certain provisions. The main provision cited is compliance with the Interim Protection of Informal Rights to Land Act of 1996 (IPILRA).

The court declared that the department is obliged to obtain the full and informed consent of the Umgungundlovu community, as holder of rights to land, prior to granting any mining right to the mining company concerned. The court further said  that the MPRDA must be read together with IPILRA, in keeping with the purpose of IPILRA — to protect the informal rights of customary communities that were previously not protected by the law.

Thus, they may not be deprived of their land without their consent, and must be placed in a position to consider the proposed deprivation and be allowed to take communal decisions in terms of their custom to give consent or not.

Historically, the Bench Marks Foundation has shown, through its policy gap research studies and community monitoring of mining in more than 40 mining communities, that communities are often deprived of this right. What happens is either the company goes to the local chief and gets consent without consulting, or gets the consent of the community through section 21 companies comprised of community members and induces them with vehicles and salaries to relocate their own communities.

Sometimes communities give consent based on poor information and promises of a better life, only to find out later that they have been uprooted and the promises of jobs and a better life don’t materialise.

If mines went about fully informing communities of the potential impacts and remediation actions, involved communities in joint decision-making and treated them as inclusive partners — and stopped bribing traditional authorities and local elites for consent — the problem Mantashe faces would never have arisen

One example is the Magobading community in Limpopo, which lived under the shade of the mountain, had access to cattle and crops, and livelihoods, and relocated to a township dwelling, only to find out they had now given up everything, lost everything and that the promises were empty of any substance. Today they are a traumatised community, poverty stricken and surviving on state handouts. They were misled like many other communities.

So when the mineral resources minister says a shift has taken place whereby communities will decide if mining can take place and no longer the government, this is a complete distortion of the court ruling. What the court is saying is that proper administrative justice must take place; that communities must be fully informed and give consent. The experience so far of communities has been far different from this.

This is why, this year alone, there have been over 400 mining community protests in Limpopo alone. Communities rarely, if ever, benefit from mining, but face all the negative impacts of mining, from land loss, land degradation, air quality and health problems, water contamination and lack of access to clean water and a host of airborne diseases.

If mines went about fully informing communities of the potential impacts and remediation actions, involved communities in joint decision-making and treated them as inclusive partners — and stopped bribing traditional authorities and local elites for consent — the problem Mantashe faces would never have arisen. The industry and government are complicit, with the industry arguing that it is the government’s policy that they engage the traditional leaders. Communities are deprived of their constitutional rights and all the high court has ruled is that informed consent must be given and the laws of this country respected.

So this will force the industry and the government to do their jobs properly, get informed consent, and make sure that if communities agree to mining, they are better, not worse off. It’s no longer the Wild West, with mining companies free to operate anywhere, no matter the negative economic costs or whether communities lose their livelihoods and are thrust into unemployment, desperate and starving.

The damage left behind

What Mantashe needs to understands is that while mines might bring wealth, this is not always the case. In the case of Minerals Resource Commodities and Transworld Energy, the lifespan of the mine is only 15 years. The jobs are minimal and members of the local communities don’t get the jobs. Profits will be shifted offshore and costs localised. The damage left behind will always be there. Rehabilitation is seldom done, with mines selling off just before the end of life to junior players that do not have the resources to clean up, or they are put on “care and maintenance” forever. And a whole community is deprived of its livelihood and land forever.

We have often said there are winners and losers in mining and this is the problem the department and mining industry don’t want to face up to. Now they are required to consult with the objective of gaining prior and informed consent there can be no more shortcuts, no more “bribery”. This is a victory for democracy and the democratic right of people to determine their own future and way of life.

The ruling is a game changer and will, if adhered to, lead to more sustainable mining, less damage to the ecosystem, and more responsible mining. Maybe, just maybe, communities will finally be better, not worse off.

• Capel is executive director of the Bench Marks Foundation, which was the 129th applicant in the case and supplied the leading affidavit in support of the Amadiba Crisis Committee.