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

The guiding document of the ANC, the Freedom Charter, states that SA’s mineral wealth shall be transferred to the people. The constitution establishes a democracy that requires meaningful participation by people in decisions that affect  their rights and interests.

In spite of this, the former liberation movement in power today often acts with little regard for the wishes of the communities directly affected by mining.

The department of mineral resources seems determined to impose mining in Xolobeni in the Eastern Cape against the wishes of the communal landowners who will be directly affected, and who have waged a perilous struggle against the development for 15 years under the banner of the Amadiba Crisis Committee. Xolobeni is not an isolated case.

 The 2018 process of revising the Mining Charter, a central tool for transforming the mining industry, provides a case in point. Not because it illustrates the worst example of community engagement by the department, but rather because it was perhaps the most thorough public participation process the department has followed in the making of law or policy to date.

The inclusion of communities in the participation process was the result of a campaign of litigation and mobilisation by the largest national mining-affected community networks in the country: Mining Affected Communities United in Action (MACUA), Women Affected by Mining United in Action (WAMUA) and the Mining and Environmental Justice Community Network of SA (MEJCON-SA) and by individual communities.

Following the court order requiring community participation in the development of the new Mining Charter, a series of public consultations was held. This was, however, a severely flawed process that seemed designed to do the minimum to satisfy the order without consulting communities meaningfully.

The Mining Charter that emerged from this process, unsurprisingly addressed very few of the concerns raised by mining-affected communities.

Notice was very poor with invitations sent at the 11th hour (usually two days before the event and sometimes even the day before),making it impossible for communities to prepare. The halls chosen were often too small for a genuine mass meeting. In several instances, such as in Burgersfort in Limpopo, key community activists were prevented from entering the venue.

Furthermore, there was little or no logistical support for community members who needed to travel to the meetings. Such support is vital given the high unemployment rates in mining-affected communities. At the same time, community members reported that the governing party’s  supporters in favour of the department’s approach were often transported by bus to meetings. The People’s Mining Charter, representing the organised community sector’s vision of a people-centred development process, was not seriously engaged with.

In Sekhukhune, also in Limpopo, a predominantlyPedi-speaking area, community members reported being addressed inisiXhosa. Many of the letters by communities’ legal representatives, the Centre for Applied Legal Studies, requesting that the  department address these issues were ignored, which further communicated disrespect for communities. All these flaws meant that a vastly inadequate proportion of community members participated in this process.

One of the victories achieved by communities as a result of their campaign was that the department held meetings with community-based organisations at its offices to discuss the content of the proposed Mining Charter. Previously, the department’s close engagement on other versions of the charter had been limited to the mining bosses and some trade unions.

Unfortunately, and despite feedback from communities, several of the flaws that marred the earlier public engagements persisted, making it difficult for community representatives to prepare for the meeting. These deficiencies related in particular to access to information, for example the failure to circulate agendas or provide copies of the department’s  drafts prior to meetings.

The Mining Charter that emerged from this process, unsurprisingly addressed very few of the concerns raised by mining-affected communities, though the fact that a very small number of concerns were partially addressed was itself a victory for communities.

Not surprisingly, though, the new charter is not viewed as legitimate by the organised mining-affected community sector. Therefore even the best participation process by thedepartment has failed to accord the concerns of communities an equal weight. This is particularly unjust given that that the charter is meant to be a tool for empowerment of the previously disadvantaged.

Communities will continue to relentlessly pursue the struggle on all available fronts — mobilisation, public advocacy and litigation — until the department respects the wishes of communities and  their demand for “nothing about us without us” is a reality.

• Krause is a researcher at the Centre for Applied Legal Studies and Thobejane is the national chair of the Mining and Environmental Justice Community Network of SA. They write in their personal capacities.