South Africa: Mining And Local Communities: Free, Prior And Informed Consent In South Africa?

Last Updated: 2 July 2019
Article by Carlyn Frittelli

Most Read Contributor in South Africa, July 2019

With South Africa’s recent cabinet reshuffle, the Department of Water Affairs and Sanitation was amalgamated with the Department of Human Settlements. This indicates the growing intersection between natural resources and people/communities, and in turn, the potential for policy to stop seeing natural resources and people in separate silos.

Recent judgments, such as Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Ltd and Another and Baleni and Others v Minister of Mineral Resources and Other, have shown how the exploitation of natural resources has the potential to exploit host communities. As such, consent, specifically free, prior and informed consent (“FPIC”) of informal land rights holders, has been elevated in relation to the rights and obligations of mining rights holders. The focus on consent from broader communities in relation to land requires a nuanced and measured approach to avoid tumultuous relationships between the stakeholders involved.

Internationally, FPIC is recognised through the United Nations Declaration on the Rights of Indigenous Peoples, and has been incorporated into many foreign jurisdictions’ mining legislation and practices. From a South African perspective, the Interim Protection of Informal Land Rights Act, 1996 has been referenced in the recent judgments. Although the requirements for consultation in terms of the Mineral and Petroleum Resources Development Act, 2002 have been judicially crystallised, FPIC has not, until now, been considered in relation to mining law in South Africa. Therefore, the trials and triumphs experienced elsewhere should be used to guide South Africa’s approach to FPIC.

First, we need to unpack what FPIC entails. The Good Practice Guide: Indigenous Peoples and Mining, produced by the International Council for Mining and Metals (“ICMM”) as part of the Sustainable Development Framework: ICMM Principles, provides a manual for FPIC. Essentially, FPIC means:

  • free: consent obtained voluntarily and without coercion, intimidation or manipulation;
  • prior: consent is sought sufficiently in advance of any authorisation or commencement of activities;
  • informed: nature of the engagement and type of information that should be provided prior to seeking consent and also as part of the ongoing consent process;
  • consent: collective decision made by the right holders and reached through a customary decision-making process of the community.

In Canada, mining companies enter into impact benefit agreements with the First Nations (predominant indigenous peoples in Canada), providing benefits to the First Nations in exchange for their support of the project. These communities recognise the need for development but balance this need by negotiating contractual obligations which the relevant mining company must discharge. In turn, mining companies have realised the value of a constructive relationship with host communities and therefore time is spent in understanding the structures, status and needs of the specific First Nation.

Internationally, so-called community development agreements are used to regulate, as far as possible, the relationship between indigenous host communities and mining companies, which has been met with varying degrees of success. Often local community organisations negotiate on behalf of the host community to ensure more equal playing fields. The focus on financial benefits has shifted to a more flexible community development component, which will ensure the continued upliftment of the community after mining operations have ceased. This may also prevent certain individuals from benefiting without financial incentives filtering down to the entire community.

While requirements for a social and labour plan in South Africa already aim to ensure community development, when coupled with the Mining Charter requirements, the inability to accurately determine leadership structures within the host community usually causes the most turbulence for all stakeholders. Although social impact studies are required as part of an application for a mining right, the current standard often results in the questioning of the legitimate leader of the community at a later stage. In other words, there is in fact no legislative requirement to determine who has the decision making authority within a community and identify the customary process to follow for such a decision. This is where FPIC can be used most effectively when coupled with a more advanced study of the local community and its leadership informed by its customary law. There may also be an opportunity for a specialist anthropologist to add depth to the social study usually conducted. Customary law is recognised by the Constitution but is often pushed aside for codified law which is assumed to hold more certainty.

However, the longer we avoid trying to delve deeper and to truly understand customary law and leadership structures in host communities, the longer it will take to forge true symbiotic relationships between such communities and the holders of mining rights. In the interim, there is no negative to implementing greater measures during the statutory consultation process to attain FPIC from an individual within the community and naturally, the community as a whole, despite any questions or challenges that may arise in relation to leadership structure. Open dialogue and ventilation of communities’ aspirations as well as detailed explanations of mining companies’ financial and other constraints will allow for mutual understanding of expectations. There is also a need to formalise benefits, rights and obligations of the stakeholders through more than a social and labour plan to give meaning and force to the consultation process.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions