Legal bid to review Mining Charter
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Pretoria - The Gauteng High Court, Pretoria, is hearing arguments to review the 2018 Mining Charter, which several affected communities feel was developed without meaningfully engaging with them.
The Centre for Applied Legal Studies and Lawyers for Human Rights are representing some of the communities. Several trade unions have also joined the fray.
The review application was brought by the Minerals Council of South Africa (the former Chamber of Mines), against the Ministry of Mineral Resources and Energy.
The National Union of Mineworkers has joined the proceedings as a friend of the court.
The applicants and interested parties want a new Mining Charter that all stakeholders can support.
Lawyers for Human Rights represents the communities of Bakgatla Ba Sefikile and Babina Phuthi Ba Ga-Makola, two large mining host communities whose experiences are representative of many similarly situated communities across the country.
The Minerals and Petroleum Resources Development Act requires the Minister of Mineral Resources and Energy to develop and publish a Mining Charter to give effect to certain objectives of the legislation.
These include expanding opportunities for communities to participate in the mining industry and making certain that mining right holders contribute towards the socio-economic development of the areas in which they operate, Louse du Plessis of Lawyers for Human Rights said.
However, Du Plessis said that in practice host communities rarely saw these benefits, despite suffering the primary negative burdens of such mining operations.
The Bakgatla Ba Sefikile and Babina Phuthi Ba Ga-Makola communities argued that the charter did not sufficiently address the issue of mining community development or the protection of land rights of mine-hosting communities.
Du Plessis said this was in part due to the fact that the concerns raised by mine-hosting communities – some of the poorest, and most vulnerable in the country – were not properly considered in the drafting the 2018 charter.
According to Du Plessis, the community consultation process was flawed.
This, she said, was despite an historic victory secured in 2018, in which the high court declared mining communities to be key stakeholders who must be consulted on the laws and policies that affected their lives.
Lee-Anne Bruce of the Centre for Applied Legal Studies, representing some of the largest community networks, including Women Affected by Mining United in Action, said the Mining Charter was intended as a tool for addressing inequality and promoting transformation in the mining sector in the country.
“Yet, the charter has a history of being developed without engaging the very people it is supposed to benefit,” she said.
Several affected communities scored a historic victory in 2018 when the court declared that they were key stakeholders in mining who must be consulted on the laws and policies that affected them.
Bruce said that despite this, the public participation process on the new Mining Charter in the months that followed was inadequate as it did not feature community representation or consultation.
In the preamble to the Broad-Based Black Economic Empowerment Charter for the South African Mining and Minerals Industry in 2018, it was stated: “The majority of mining communities continue to live in abject poverty despite the state being the custodian of the country’s mineral wealth on behalf of the nation.”
It will be argued on behalf of the communities that large-scale mining and its commercial success comes at a great human and environmental cost, and has been achieved through the gross exploitation of black people.
Thus, a Mining Charter must be developed that looks after their interests as well, they said.