PIXLEY ka Isaka Seme, the founder of the ANC, explained the purpose of the first conference of what was to become the political party, in these words: “Chiefs of royal blood and gentlemen of our race, we have gathered here to consider and discuss a scheme which my colleagues and I have decided to place before you.
“We have discovered that in the land of their birth, Africans are treated as hewers of wood and drawers of water. The white people of this country have formed what is known as the Union of South Africa – a union in which we have no voice in the making of laws and no part in their administration. We have called you, therefore, to this conference, so that we can together devise ways and means of forming our national union for the purpose of creating national unity and defending our rights and privileges.”
It is an irony then, that 20 years after the dawn of democracy, black Africans are still not afforded their rightful place in the making of laws and their administration.
The 2014 Mineral and Petroleum Resources Development Amendment Bill which was unconstitutionally rushed through the National Council of Provinces in three days, exacerbates the position of black communities, which will continue to suffer and get no benefit from mining on their own land.
At the Mining Indaba at the start of last year, the minister undertook to address the legacy of the 1913 Land Act and the community conditions that led to the Marikana tragedy. She said that this was the context for reviewing the Mineral and Petroleum Resources Development Act (MPRDA):
“This year also marks 100 years since the enactment of the Native Land Act, which created a system of land tenure that deprived the majority of South Africans of the right to own land, and eventually compelled Africans who had lost their land to join the mining industry as migrant labourers… It is the remnants of this historical legacy of the migrant labour system, poor housing and living conditions, high levels of illiteracy, and low skills level that inevitably contributed to Marikana.”
The only provision in the bill that starts to address the concern then expressed by the minister is section 23 (2) (b). The section states that: “The minister [may] must (a) [having regard to the nature of the mineral in question,] take into consideration the provisions of section 26 [and]; [(b) after taking into consideration the socio-economic challenges or needs of a particular area or community, direct the holder of a mining right to address those challenges or needs].”
The department has not provided a cogent reason why it has made an about-turn and removed the provision. Neither has the portfolio committee justified the amendment to the amendment bill.
The passing of the bill in a rushed manner and without community participation seems to be making sure that black communities, whose land is being mined with government authorisation, remain stuck in the past. As in the past under the minister of native affairs, the rights of black communities are ignored. Now they are further eroded.
We give three examples of how the bill makes matters worse for communities:
n The bill amends the objectives of the act to exclude the promotion of communities;
n The portfolio committee, at the instance of the Department of Mineral Resources, further amended the bill so that water use licences are no longer compulsory;
n The portfolio committee, at the instance of the department, further amended the bill and removed the proposal that a mining company be directed to address the socio-economic needs of communities.
In October 2013, Mining Affected Communities United in Action (Macua) and a number of NGOs addressed the parliamentary portfolio committee on the bill and urged it to make further amendments to the published bill and to strengthen the bargaining position of black communities whose land is being mined.
Historically, white landowners had some say about mining on their property and received royalties or shares. Black communities had no say about mining on their land and the minister of native affairs as trustee of their land made deals with mining companies. Black communities lost their land and their livelihoods because of mining.
Macua’s proposal for further amendments was that a community’s consent is necessary before its land is mined, that communities get reparation for past mining and that communities are properly and meaningfully consulted on environmental and social impacts if mining is going ahead.
Our proposals were ignored and the department and the portfolio committee never responded thereto.
Macua, together with NGOs, including the Bench Marks Foundation, ActionAid South Africa and the Land Access Movement of South Africa, also met with the office of the presidency in September 2013. The office of the presidency made commitments that have not been met.
Like a century ago, in 1912, when Seme first articulated the exclusion of Africans from the making of laws, Africans today are faced with an unchanged reality.
The irony is then that, despite 20 years of democracy, the people who should benefit most from a democratic dispensation are still denied the very core fundamental demand of being able to participate in the process of making laws that directly affect them.
Our democracy should not fail in its mandate to represent the interests of the people of South Africa. It is time for communities affected by mining to have a say in the making of laws that directly affect them.
Christopher Rutledge is the mining and extractives co-ordinator at ActionAid South Africa