Implications of the landmark 25 Oct. Constitutional Court decision
Implications of the landmark Constitutional Court decision for mining affected communities
26 October 2018
Yesterday’s Constitutional Court of South Africa (ConCourt) judgment represents a hugely significant decision for communities and land owners. It means that mining companies who have obtained a mining right cannot simply go onto the land and start mining, as they could to date even without the agreement of the land rights holder.
The Court held that before mining starts there must be an agreement between the community and the mine on compensation. If that is not agreed, then compensation must be determined by the court or by arbitration before mining can commence.
The Court also held that the award of a mining right does not override the community’s rights as owners or lawful occupiers.
EFFECTS OF DECISION:
In a situation like that at Somkhele and Fuleni this decision has huge significance.
The mining companies always offer minimal compensation, an RDP house and a few thousand rand cash to compensate each family, and then to start mining.
When offers are refused by the community, the bulldozers advance destroying lands and resources. So, even as the “negotiations” continue, life becomes increasingly intolerable until resistance appeared futile and community members capitulate and agree to be resettled on the mine’s terms.
This is a pattern that has repeated itself many times in the past.
This should not happen anymore.
If the mine doesn’t offer a fair deal, which, in this context, means simply that the community member’s lives should be better not worse after mining, then mining won’t happen until such time as a court or an arbitrator has considered the compensation on offer and ruled on it.
In front of a court we would be arguing for compensation not only for our land and our homes and the lost livelihoods, but also to be compensated for the loss of community, the harm done to our culture and our traditions and our way of life.
Compensation would not necessarily be limited to cash. On the contrary we would expect programs to restore livelihoods and to re-equip us to live in a changed world. Women who would otherwise be engaged in subsistence farming would need to be trained and re-skilled for other livelihoods. Children would need to be properly schooled and equipped to live a modern life.
IMPACT OF DECISION:
The impact for a community like that of Fuleni and Somkhele would be significant. Mining for coal may be economical if you can get away with an RDP house and R100 000 per family, but it may not be economical if you are obliged to provide alternative land (hectares of indigenous bush and grazing land costs a lot of money) and to compensate for lost livelihoods and the social and economic networks that have sustained the community for generations.
Let’s face it, this kind of mining expansive open cast could never be undertaken in Europe or even in Australia, the cost of compensation is simply too high.
Mining is viable in much of Africa because you can get away with a 4×4 for the Chief, a backhander to the local politicians and a bunch of lousy RDP houses. The reality is that many of those whose land and livelihoods are taken from them by mining are left worse off and not better off than they were before.
The decision does not go so far as to affirm the right of community’s to say no. The court says that this is a question to be answered on another day, but it is a huge step forward.
It’s not a guaranteed outcome but certainly for the first time communities that are well advised and supported will be well placed to ensure that they actually benefit from mining on their land and are not impoverished thereby.
[Paraphrased from Richard Spoor’s summary on 25 October 2018]
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