During colonialism and apartheid, seemingly arbitrary laws dictating who could live where, with whom, and who could farm whose land, and when, were introduced to entrench white economic and political power. The callousness of these laws shocked the world, but their ideological origins were not exceptional: common to all colonial contexts is the belief that colonisers know what is best for the colonised, and that colonisers are therefore entitled to make choices for the colonised, on their behalf, without their knowledge or consent.

In repudiation of this disgraceful past, SA’s post-1994 legislature and judiciary afford profound importance to the value of autonomy, seeing it as integral to the constitutional values of freedom, equality and dignity. SA has been a leader in ensuring people’s individual autonomy and freedom over the decisions that affect their lives, whether it be women’s right to choose whether to have an abortion, or all citizens’ (including prisoners’) right to choose to vote for the political party of their choice.

Yet on the issue of natural resource governance, an issue requiring the recognition of communal autonomy,  SA falls short. Our legislation fails to grant communities the right to consent to, or reject, planned mining projects on their land.

This is why on October 12 Mining Affected Communities United in Action  (Macua), Women Affected by Mining United in Action (Wamua), and  Youth Affected by Mining United in Action (Yamua) will deliver a petition with over 50,000 signatures to President Cyril Ramaphosa, mineral resources and energy minister Gwede Mantashe, and mineral resources & energy parliamentary portfolio committee chair Sahlulele Luzipo. The petition calls on them to take immediate steps to ensure legislation governing natural resource management in SA explicitly guarantees mining affected communities the right to free, prior and informed consent.

This right empowers communities to withhold consent to mining operations on their land when they feel the operations will be detrimental to the protection of their land  and the development and wellbeing of their communities. In the context of mining, the ability of communities to consent to, or reject, new projects is particularly important because mining  brings profound, lasting changes to the lives of those living in surrounding areas — especially women, who usually bear the costs of  these changes while benefiting the least from mining operations. Mining’s effects on surrounding communities include the degradation of air, soil and water quality, which often renders subsistence farming impossible; damage to land and houses due to frequent blasting by mines;  illnesses such as silicosis, tuberculosis and various skin diseases; and the ubiquitous experience of emotional stress and fear.

Free, prior and informed consent is a well-recognised right of indigenous peoples in international law, with African regional bodies confirming it as a standard for all affected communities. For example, the African Commission on Human and People’s Rights adopted a resolution calling upon state parties to “confirm that all necessary measures must be taken by the state to ensure participation, including the free, prior and informed consent of communities, in decision-making related to natural resource governance; [ ... and] to promote natural resources legislation that respect human rights of all and require transparent, maximum and effective community participation in a) decision-making about, b) prioritisation and scale of, and c) benefits from any development on their land or other resources, or that affects them in any substantial way.”

In SA, however, no explicit right to free, prior and informed consent exists for communities that hold rights to the land on which mining is set to take place. This despite the fact that the Minerals and Petroleum Resources Development Act (MPRDA) was adopted specifically to end the antidemocratic, colonial governance of SA’s mineral resources. The Mining Charter was similarly introduced to facilitate the meaningful participation of previously excluded South Africans in the mining and minerals industry.

Successive versions of the Mining Charter, and of the regulations enacted under the MPRDA, have made progress in ensuring mineworkers and communities benefit from the mining operations in their areas. But they do not go far enough. They fail to recognise that it is mining affected communities themselves who know what is best for their land and livelihoods.

How can legislation that aims to improve the position of mining affected communities claim to do so without requiring their consent for mining projects? This obvious disconnect between the MPRDA’s aims and its prescribed process has not been lost on the courts. In November 2018, in a case brought by the Xolobeni community, the Pretoria North high court affirmed that communities must provide their consent before mining takes place on their land. Shamefully, the mineral resources minister decided to appeal against the judgment.

Macua, Wamua and Yamua chose October 12 for the delivery of the petitions because the action coincided with the date the Xolobeni community was due back in court, this time to ask that the minister’s appeal be dismissed on the grounds that it has not been launched after almost two years. The minister has opposed that application too — revealing an obvious disdain for the growing movement of mining affected communities across SA.

Historically, stripping black South Africans of their agency to choose how to govern and co-inhabit their ancestral land had two mutually reinforcing effects: it led to starvation, land degradation and poverty; and it simultaneously caused a rupture in the collective identity of indigenous African people, for whom land is central to understandings of community, ancestrality and belonging.

Today, despite the rhetoric of transformation, the absence of free, prior and informed consent in SA’s mining legislation leaves the dehumanising and infantilising status quo intact: once again we are told large mining corporations and the disconnected state government know better, that they may consider different perspectives but that ultimately they decide what progress and development mean for affected communities.

The unjust status quo must be rejected.

• Ngoetje and Seokoe are with the Macua Wamua Advisory Office legal department.

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