A Roadmap for Reversing the Resource Curse

 

For many African countries, Covid-19 has provided a useful cover for leaders to advance authoritarian ends, consolidate their autocracies and undermine whatever rule of law existed before. This seems especially true for ruling coalitions in countries with access to mineral or hydrocarbon wealth. 

Mozambique is a desperate case in point. While Angola and Nigeria have historically been the empirical poster children for the existence of a ‘resource curse’, Mozambique is fast becoming the most frightening expression of it. The country is rich in minerals and has recently discovered massive quantities of offshore high-quality liquefied natural gas, resulting in the single-largest dose of Foreign Direct Investment (FDI) on the African continent. But the quality of its governing institutions leaves much to be desired. In the forgotten province of Cabo Delgado, for instance, an utter lack of governance and service delivery, combined with the arrival of commercial oil extractors and local grievances, has proved an explosive cocktail for extremist insurgency and shocking violence. (See our latest multimedia story for in-depth insight into the Cabo Delgado tragedy: http://gga.org/multimedia/aif-57/

For many African countries, Covid-19 has provided a useful cover for leaders to advance authoritarian ends, consolidate their autocracies and undermine whatever rule of law existed before.

It is fitting to reflect on Mozambique as we close out our campaign to reverse the resource curse (Watch our introductory vodcast here: https://gga.org/reversing-the-resource-curse-mining-vodcast/). Much of what we have advocated from a governance perspective would likely have ameliorated the current chaos in Mozambique. In our vodcast with Deji Haastrup, formerly of Chevron, Deji emphasises the importance of engaging authentically with local communities well in advance of moving to commercial production. 

Watch the full vodcast with Deji Haastrup here.

 

If the commercial operators off the Cabo Delgado coast had seen local communities as investment partners instead of nuisances to be appeased, or had mainstreamed social performance, it is hard to imagine that the situation would have unfolded the way it has. The days of seeing corporate social responsibility as some kind of tick-box compliance exercise are over. Deji rightly asserts that, increasingly, business performance will depend on social and environmental performance. The growing Environment, Social and Governance (ESG) movement in the investment world will no longer tolerate greenwashing or mere side payments masquerading as social responsibility. For the private sector, the future lies in becoming development partners instead of mere resource extractors. As Dr David Matsinhe makes clear, investment will have to be conceptualised differently if we are to overturn the paradox of plenty. The best way to de-risk one’s asset is to invest in the long-run wellbeing of local host communities and governance institutions. 

In the forgotten province of Cabo Delgado, an utter lack of governance and service delivery, combined with the arrival of commercial oil extractors and local grievances, has proved an explosive cocktail for extremist insurgency and shocking violence.

Even in the very different context of the Xolobeni community on South Africa’s wild coast, the principle remains the same. The foreign mining company that has been trying to extract titanium since 2002 might have made more progress had they engaged the local communities instead of trying to strike a bargain between the local traditional authorities and the governing entity (the Department of Mineral Resources). Nonhle Mbuthuma, the co-founder of the Amadiba Crisis Committee in Xolobeni, walked us through the history and context of the community struggles against this foreign company, emphasising the importance of free speech and community rights. Professor Tracy-Lynn Field outlines the history of the legal battles – and victories – that have been waged by the Xolobeni communities. She demonstrates that the rule of law matters and profoundly prohibits abuse, though it has come at high cost in the case of Xolobeni. In South Africa, the rule of law is hardly exemplary. Nonetheless, that we know about abuse (through the Zondo Commision, for instance, and the media) and have a judiciary that often functions as a check against the abuse of power is ironically evidence that the rule of law exists. Such institutional mechanisms are often non-existent in places like Mozambique and Zimbabwe. Busisipho Siyobi, for instance, shows that in Zimbabwe, rent-seeking has consolidated the power of a rapacious elite who use illicit mineral rents to solidify a military-securocrat state. 

The days of seeing corporate social responsibility as some kind of tick-box compliance exercise are over.

Strengthening institutional quality, then, is evidently critical if the resource curse is to be reversed. As mining lawyer Peter Leon points out, natural resource wealth will simply accrue to the ruling coalition if mechanisms are not established to ensure secure property rights and transparency over how resource rents are distributed. Transparency, of course, has been at the heart of most governance initiatives crafted to try and rectify the institutional deficiencies associated with resource wealth. James Gordon, executive director of Concentric Alliance, makes it clear that ‘transparency is an absolute necessity for companies if they are to be regarded as good neighbours and avoid becoming embroiled in destructive conflict’. Similarly, Dr Ishmael Ackah notes that the commitment to transparency has to be genuine and sufficient deterrence mechanisms have to be created to credibly ensure that transparency will lead to real accountability. Civil society activism will be increasingly integral to the success of transparency initiatives. In her outstanding policy briefing on the Extractive Industries Transparency Initiative (EITI), Busisipho Siyobi makes the point that strong civil society representation in the EITI’s multi-stakeholder groups is critical to obtaining local legitimacy for the Initiative. There is also no legitimate reason for governments of resource-wealthy countries to avoid signing up to the EITI. 

There is also no legitimate reason for governments of resource-wealthy countries to avoid signing up to the EITI. 

Responsible mining is not a far-fetched idea, either. Dr David Anaafo shows how companies that commit to it will likely yield the kind of returns that Deji Haastrup asserts are possible. Newmont’s initiatives in Ghana are not without their flaws, but nonetheless provide a transposable blueprint for other companies operating in contexts where local host communities are underdeveloped. The case simply solidifies the point that genuine inclusiveness not only crowds out unproductive rent-seekers; it can generate shared value for both firms and people. Emmanuel Graham puts it perfectly: ‘Any solution [to the resource curse] that is not genuinely multi-stakeholder, in my view, would be an exercise in futility.’  

The resource curse is a blight on Africa’s development ambitions. Natural resource wealth should be a catalyst for broad-based development, and indeed can be. Too often, its abuse by unscrupulous elites has undermined that end. Governance initiatives devised to reverse the institutional decay that animates the curse have merit, though work remains to help us move from transparency to real accountability. Finally, if we are to achieve the Africa Mining Vision – where resources are transparently and equitably used to achieve structural economic transformation – we have to not only build appropriate institutions, but also craft strategies that connect mining to green industrialisation. The global energy and transport revolutions towards renewables hold great promise for Africa’s development future given the sheer volume of non-fossil minerals and metals with which we are endowed. We simply cannot afford to lose out on this opportunity. 

 

Dr Ross Harvey is Director of Research & Programmes at GGA. Ross is a natural resource economist and policy analyst, and he has been dealing with governance issues in various forms across this sector since 2007. He has a PhD in economics from the University of Cape Town, and his thesis research focused on the political economy of oil and institutional development in Angola and Nigeria.

Overturning the injustices of development economics in resource extraction

 

Is there a convincing reason why communities who host resource extraction projects in their ecosystems are not considered investors in development economics? Is it fair or just to think that, in welcoming and hosting mining, oil and gas companies into their ecosystems, local communities have nothing to lose but everything to gain? Attempts to end the resource curse on the African continent must wrestle with these questions.

The design and implementation of collaborative interventions to reverse the resource curse must permanently dismantle a deeply ingrained bias that distorts the prevailing economic development discourse and practice: the pro-investor bias. With this distortion, economic development can privilege the investor and his/her capital in decision making spaces over and above the local communities that often host the investor’s business projects. From this vantage point, the investor appears as the developer and local communities as the developed—passive development recipients. Thus, power asymmetries and social injustice are built into development economics itself. Let us closely consider these power asymmetries and injustices.

Is it fair to think that, in welcoming and hosting mining, oil and gas companies into their ecosystems, local communities have nothing to lose but everything to gain?

The idea of the investor in its current shape carries certain connotations, values and beliefs that often confer privileges on the investor and his/her capital. The idea of the investor—the person who commits his/her capital to productive use with the expectation of making profits—presupposes that only those with capital (money) can invest. Without capital, one cannot be an investor. Want of money prevents entry into this category. Further, by assuming the risk of losing his/her capital, by putting his/her money on the line for the good of the economy (everyone) without guarantees, the investor displays selfless bravery. With this behaviour, the investor creates jobs and grows the economy. His/her selfless risk-taking behaviour, habits and practices must be nurtured, rewarded, and protected. This understanding drives many resource extraction projects in Africa.

Where does this traditional, narrow view of the investor leave the local people expected to host the investor’s extractive business projects in their rural communities? What happens to local communities that must make room to accommodate the investor’s risk-taking behaviour? We need a new paradigm in which investment is understood as an activity undertaken by all affected stakeholders and not only those seeking monetary profits.

The design and implementation of collaborative interventions to reverse the resource curse must permanently dismantle a deeply ingrained bias that distorts the prevailing economic development discourse and practice: the pro-investor bias.

In Africa, resource extraction projects are invariably developed in natural ecosystems where local communities have developed their means and ways of life over centuries. The UN Millennium Ecosystem Assessment (or MA) describes ecosystems as “dynamic complex[es] of plant, animal, and microorganism communities and the non-living environment interacting as a functional unit.” Such ecosystems range from the “relatively undisturbed, such as natural forests, to landscapes with mixed patterns of human use, to ecosystems intensively managed and modified by humans, such as agricultural land and urban areas.”[1] Mainstream development economics tends to position local communities as passive recipients of development at best or a nuisance standing in the way of economic progress at worst. They must be sacrificed or removed from their home ecosystems to enable investors to develop their extractive business operations.

In Africa, resource extraction projects are invariably developed in natural ecosystems where local communities have developed their means and ways of life over centuries.

Due to the services they provide, however, ecosystems are crucial to the survival of communities expected to host resource extraction projects. Precisely for this reason, the MA stresses the centrality of ecosystem services to communities, which include:

  • “provisioning services such as food, water, timber, and fibre.
  • “regulating services that affect climate, floods, disease, wastes, and water quality.
  • “cultural services that provide recreational, aesthetic, and spiritual benefits.
  • “supporting services such as soil formation, photosynthesis, and nutrient cycling.”[2]

The MA goes on to underscore that “the human species… is fundamentally dependent on the flow of ecosystem services” for its ultimate survival. This is true in the ecosystems coveted by resource extraction companies, where communities are often barely “buffered against environmental changes.”[3] As carbon sinks, ecosystems absorb and store more carbon from the atmosphere than they release into it. The value of ecosystems is far too complex, profound, primordial and transcendental to be reduced to merely economic calculations and profits. For host communities, home ecosystems are the first and the last types of capital and value.

The value of ecosystems is far too complex, profound, primordial and transcendental to be reduced to merely economic calculations and profits.

The pro-investor bias in economic development tends not to recognise community ecosystems as economic assets that must be paid for at a fair price and often fails to consider – from local community standpoints – the risks of welcoming and hosting resource extraction projects. By rejecting the provisioning, regulating, cultural, and supporting services of natural ecosystems that sustain communities, the pro-investor bias within which extractives industries operate negates human rights and human dignity. Ecosystem services fulfil economic, social, cultural, and environmental rights, the very elements and conditions for human dignity and meaningful life. This is certainly the case in countries such as Angola and Mozambique. The real possibility that extraction operations may alter, damage or end ecosystem services is not regarded as a risk to these communities. The fact that by hosting resource extraction projects, these communities are putting everything they own and everything they are on the line is not sufficiently considered. Risk is risk in so far as the investor puts his/her capital on the line. In the same way that investment needs to be reconceptualised to reflect mutual benefit to all stakeholders, so risk needs to be understood more broadly. Ultimately, as pointed out by Deji Haastrup in this vodcast, companies that mainstream social and environmental performance ultimately de-risk their assets and authentically see host communities as partner investors.

Collaborative initiatives to reverse the resource curse must approach community assets—natural ecosystems and services—as economic development factors without which the investor’s capital is meaningless. In resource extraction, communities invest and take serious risks, and they should therefore see a return. Failure to do so will continue to fuel the resource curse throughout the African continent.

________________________________________________________________________________________________________________________________________

[1] UN Millennium Ecosystem Assessment, 2005. Ecosystems and Human Well-being: Synthesis. Island Press, Washington, DC. Available at: https://www.millenniumassessment.org/documents/document.356.aspx.pdf, p. v.

[2] Ibid.

[3] Ibid.

 

Dr David Matsinhe is a southern Africa researcher at Amnesty International and Adjunct Professor of African Studies at Carleton University, Canada. Prior to joining Amnesty International, Dr Matsinhe was senior lecturer of social innovation and development studies at the University of Johannesburg, World Bank senior adviser on change management in the Ministry of Education in Mozambique, and social innovation analyst for the Federal Government of Canada.

Reversing the Resource Curse – The Importance of Mainstreaming Social Performance with Deji Haastrup

 

Our latest vodcast in our Reversing the Resource Curse series is now out. We’re pleased to welcome Chief Consultant and CEO of Strategic Communications Solutions, Deji Haastrup, alongside our Director of Research and Programmes, Dr Ross Harvey, and Lead Researcher in our Natural Resource Governance Programme, Busisipho Siyobi, to help us unpack the wicked problem that is Africa’s resource curse.

Don’t miss this fascinating episode in which we discuss the importance of mainstreaming social performance in the mining and extractives industries as part of our commitment to bettering the state of governance across the continent.

#WickedProblem #ResourceCurse #NaturalResources #Mining #Energy #Africa

 

Deji Haastrup has occupied several positions of increasing responsibility at global oil multinational Chevron, working with the team that developed Chevron’s human rights policy for its global operations. He also led the team that developed Chevron’s Global MoU, a community-led, multi-stakeholder sustainable development model credited for its effectiveness in conflict management and sustainable development in the Niger Delta communities. Deji served as Chevron’s General Manager for policy, government, and public affairs until November, 2016. He is now the Chief Consultant and CEO of Strategic Communications Solutions.

Mining with Community Development: The Experience of the Newmont Ahafo Development Foundation in Ghana

 

Development is fraught with several “backs-and-forth”, leaving us with no universally accepted way to realise development aspirations. Scholar Jean-Pierre Olivier de-Sardan contends that development professionals situate development practice within two paradigms: “Development seeks the welfare of others, hence its strong moral connotation; and development implies technical and economic progress, hence its strong evolutionist and technicist connotation”. Olivier de-Sadan’s position resonates with the approaches employed by development actors in the international development space. Instructively, his notion of development as “actions for change” in a given system has wide applicability. These actions can be initiated either by various actors alone, or in collaboration with others. An important case in point is the Newmont Ahafo Development Foundation (NADeF), exemplary of actions by a private mining entity with the active support of local actors for change in the Ahafo mine area of Ghana.

Mining, contrary to development, is typically perceived as destructive; an extraction of communal resources for corporate and individual benefits. Development experts Bebbington et al describe mining as ambiguous and contentious. It is ambiguous because of the latent optimism among the general public that perhaps mining could contribute more than it does. It is contentious because it leads to adverse environmental, social and economic impacts for the many and significant gains for a few. Bebbington et al conclude that: “in the coexistence of such divergent feelings about mining and its human and environmental impacts lie the seeds of much conflict”.

Mining, contrary to development, is typically perceived as destructive; an extraction of communal resources for corporate and individual benefits.

Development is so piously construed, and mining perceived to be so deleterious that it is almost impossible to reconcile the two. The NADeF case suggests, however, that mining can be undertaken with the community to attain goals that are mutually beneficial and sustainable. Through the NADeF case study, this briefing challenges the notion that mining is destructive; and describes a successful case of the application of “mining-with-communities” as best practice on the global discourse on sustainable mining.

 

NADeF’s approach to sustainable development in “mine-take” communities

NADeF was a commitment by the then Chief Executive Officer (CEO) of Newmont Mining Corporation, Wayne W. Murdy. During a visit to Ghana, he made a public commitment to contribute $1 per ounce of gold sold and 1% of net pre-tax annual profit from its mining operation in Ahafo for the sustainable development of the mine area. This commitment culminated in the formation of the Ahafo Social Responsibility Forum (ASRF). The ASRF was composed of 53 members, drawn from representative groups. The ASRF processes were led by an independent moderator and a co-moderator for over two years, resulting in 3 main agreements:

  • Relationship Agreement: strengthens the relationship between Newmont Ghana Gold Limited (NGGL), the Ghanaian subsidiary of Newmont Mining Corporation and the Community
  • Employment Agreement: spells out modalities governing the employment of locals by NGGL; and
  • Foundation Agreement: focuses on the funding and implementation of sustainable development projects within the communities.

The NADeF was subsequently incorporated as a trust limited by guarantee with a nine-member Board of Trustees. Since then NADeF has ensured shared value between corporate Newmont and the mine-take communities.  The Ahafo operations of NGGL are located in ten communities in the Ahafo Region of Ghana. The Communities were all supported by NGGL’s community development unit and the NADeF secretariat to establish Sustainable Development Committees (SDCs). Each committee was composed of two representatives from the traditional council, a representative of the youth, one representative of the unit committees, a representative of women and one person nominated by the Traditional Authority but who is not a member of the traditional authority in question.

This commitment culminated in the formation of the Ahafo Social Responsibility Forum (ASRF). The ASRF was composed of 53 members, drawn from representative groups.

The SDCs prepare project proposals on an annual basis for onward submission to the NADeF secretariat for approval and implementation. As a result, the members of the SDCs have been taken through capacity building programmes on defining and identifying community problems and needs; prioritizing community needs; resource mobilization; identification of potential projects, opportunities, constraints and challenges; visioning; objectives and target setting; and project implementation (NADeF, 2009).

 

NADeF’s success stories and challenges

The NADeF has proved to be a success. It generates about $4million annually to support the development of the “mine-take” communities. Beyond financial commitments, NADeF has set-up SDCs to initiate and manage local development concerns. The capacities of these committee members have been enhanced to enable them take up higher community development responsibilities when the mine finally closes.

NADeF currently invests 15% of its annual income into high interest yielding financial instruments to be used for community development interventions in the future, when NGGL exits. This is expected to rise to 25% five years into the operations of NADeF. While the development concerns of the present are being addressed, measures are also in place to address the needs of future generations.

The NADeF has proved to be a success. It generates about $4million annually to support the development of the “mine-take” communities.

On the physical development front, NADeF has in the past few years invested over $9,236,070.39 on various projects in the communities. These range from schools through to teachers’ quarters, libraries, water systems, electricity/power projects, health facilities, community festivals and other socio-cultural activities.

Notwithstanding the successes outlined above, remaining challenges need to be addressed. There are instances where people who are gainfully employed have been granted NADeF scholarships, when indeed they are not, by any objective criteria, financially needy. There is also increasing reliance of communities on NADeF for almost everything. Communities which were initially self-mobilising now rely entirely on NADeF and NGGL to meet their development needs. This level of dependence needs to be reversed as an integral part of NADeF’s strategy going forward.

NADeF has in the past few years invested over $9,236,070.39 on various projects in the communities.

The relative success of NADeF initiative has attracted the attention of industry actors and other stakeholders. In the past few years, the Foundation has been visited by high profile personalities such as the US ambassador to Ghana, and Jennifer Barsky of the International Finance Corporation. These visits were in recognition of the outstanding role the Foundation is playing in the development of host communities. The Foundation has also been invited to present details of its approach at high level conferences, to help improve best practices within the mining industry. Key among these were the Foundation’s participation in the Pan African grant-makers assembly in Kenya in 2010; and the African Community Foundations Peer Learning and Exchange, also in Kenya in 2010.

NADeF is on the right track towards achieving sustainable development for the “mine-take” communities in the Ahafo area. However, the emerging challenges need to be seriously addressed so that NADeF’s activities can be generationally and sustainably beneficial well beyond the life of any given mine.

 

David is an urban/regional planner, a senior lecturer and the Head of the Department of Planning and Sustainability of the University of Energy and Natural Resources, in Sunyani, Ghana. He holds a BSc in Planning from the Kwame Nkrumah University of Science and Technology (KNUST), a MSc in Development Planning and Management from TU (1) Dortmund/KNUST and PhD in Regional Development from the University of Tasmania in 2015. With research interests in sustainable and pro-poor land policy, decentralisation and local governance, among other topics, David has a wealth of knowledge and expertise to bring to our conversation.

Busisipho Siyobi in conversation with Nonhle Mbuthuma

Lead Researcher in the Natural Resource Governance Programme at Good Governance Africa, Busisipho Siyobi speaks to Co-founder and Spokesperson of the Amadiba Crisis Committee, Nonhle Mbuthuma, who represents the Xolobeni community.

Mbuthuma says, “We are not anti-development. We are for development, but mining is not the type of development that we want to see take place here. We do have agriculture here. We do have eco-tourism here. We have reasons why we chose those two. Those two are sustainable. They will sustain us. We know that once you allow mining, it’s short term, it doesn’t matter if it employs so many people, but the damage it is going to leave behind is too much and is irreversible. That is why we said we are not looking for benefits from mining, and we are hoping that the Australian company are going to listen when we say it, because we told them that we are not interested in this type of development. If they want to develop us, they must develop the eco-tourism and agriculture that we have here, not put a new development that is going to destroy the existing development that we have here.”

#WickedProblem #ResourceCurse #NaturalResources #Mining #Energy #Africa

 

Nonhle Mbuthuma is the spokesperson of the Amadiba Crisis Committee of the Xolobeni community, situated on the Wild Coast, in the Eastern Cape. The Xolobeni community’s struggle began early in 1996 when a foreign mining company discovered titanium along the coast. The committee, formed in 2007, is fighting for community land rights and the environment, as well as trying to ensure human rights are not violated in the name of development. So far, the committee has triumphed in two cases against the mining company.

Social licences and community rights: An assessment of the Xolobeni community

 

The Xolobeni community refers to a group of people from five coastal villages on South Africa’s Wild Coast who have been resisting plans to exploit world-class deposits of titanium-bearing minerals on a section of this coastline for almost fifteen years. Over this time, they have become organized (the Amadiba Crisis Committee leads local resistance to the mine), garnered support, and used public interest litigation under South Africa’s Constitution to advance their cause: The recognition of community vision and rights in relation to mining, sustainability, development and land.

Their cause: The recognition of community vision and rights in relation to mining, sustainability, development and land.

They have suffered violence in their community (between groups for and against the development of the region as a mining area and the construction of a major toll road) and personal loss: One of their leaders was assassinated in 2016, a second died after a short illness in November 2020, and a third received a death threat in the same month. And yet they continue to fight.

 

From the perspective of the proponents of the Xolobeni Mineral Sands project – various pockets of the State, some traditional authorities, the Australian ASX-Listed Mineral Resources Commodities Ltd (MRC), its subsidiary TEM and empowerment partner “Xolco” – the Xolobeni community is a massive obstacle to gaining a social licence to operate: A mining industry term of art denoting an informal social contract between a mining company and the communities surrounding its operations. The terms of that social contract are variously defined but include community support and co-operation in exchange for stakeholder recognition, infrastructure development, economic opportunity and jobs.

The case of the Xolobeni community, however, exposes the clay feet of the social licence model, which is the blank refusal of many powerful State and corporate actors to recognize any strong form of community rights over land and the right to determine particular local development trajectories.

From the perspective of the proponents of the Xolobeni Mineral Sands project, the Xolobeni community is a massive obstacle to gaining a social licence to operate.

A social licence to operate fits within a paradigm for mining-led development in resource rich developing countries that has its roots in colonial patterns of exploitation, production and consumption; the drive to liberalize, privatize and globalize in the 1980s and 90s; and the turn to sustainable development in the early 2000s. A key tenet of this paradigm, which I have elsewhere called the sustainable mineral development consensus, is that mining can catalyse sustainable development that alleviates poverty and promotes economic growth if resource rich countries take on board a package of economic and institutional reforms: Instituting the State as the central custodian of mineral rights, protecting investor rights through security of mineral tenure, charging profit – rather than production-based taxes – and “managing” environmental impacts, amongst others. Under this paradigm, communities are stakeholders and interlocutors. They are not protagonists and they are certainly not rights-bearers.

But despite implementing these reforms, Richard Auty’s “resource curse” still dogs the economic performance and development outcomes of some countries with a significant natural resource endowment. Some, but not all. As a recent review of the resource curse theory points out, the presence of a natural resource sector does not necessarily translate into worse development outcomes. Much turns on the type of States and political institutions in which resource-abundant economies develop, with political and economic inclusion being key.

A social licence to operate fits within a paradigm for mining-led development in resource rich developing countries that has its roots in colonial patterns of exploitation, production and consumption.

The question is: Would greater recognition of community rights ground a social licence to operate that could reverse the resource curse?

In South Africa, public interest litigation has led to growing recognition of community rights in a mining context. In the 2010 case of Bengwenyama Minerals (Pty) Ltd v Genorah Resources, the Constitutional Court expounded the meaning of “consultation” between mining companies and communities, holding that landowners must be informed in sufficient detail of prospecting or mining operations that will take place on their land, and that there must be a good faith attempt to reach agreement with landowners on the impact of extractive operations. In the more recent case of Maledu & others v Itereleng Bakgatla Mineral Resources (Pty) Ltd the Constitutional Court held that the granting of a mining right under the Mineral and Petroleum Resources Development Act, 2002 did not nullify communities’ informal land rights under the Interim Protection of Informal Land Rights Act (IPILRA), 1996 and that the two statutes must be read in a manner that permits each to serve their underlying purpose.

Further compounding the problem is that the former ‘homelands’ (like the Transkei) are characterised by insecure communal land tenure, a problem that remains unresolved despite constitutional provision for greater security. The upshot of this injustice is that traditional leaders tend to hold disproportionate levels of power and may be susceptible to striking bargains with mining companies and state departments that prove destructive to communities and their environments.

In South Africa, public interest litigation has led to growing recognition of community rights in a mining context.

The Xolobeni community has been at the forefront of the fight to secure judicial recognition of community rights. In the 2019 case of Baleni & others v Minister of Mineral Resources the High Court decided that community members could not be deprived of their land rights under IPILRA without their full, prior and informed consent (although this judgment is being appealed). And in a judgment handed down in September 2020, the High Court agreed that communities had a right of access to the information in a prospecting or mining right application without needing to submit a request under the Promotion of Access to Information Act.

And in February 2021, Judge Goliath of the Western Cape High Court handed environmental activists a momentous legal victory when she recognized that MRC’s claim for defamatory damages against a few activists for statements they had made criticizing the company’s operations in the Eastern and Western Cape matched the “DNA” of a SLAPP suit (Strategic Litigation Against Public Participation). Speaking out against any attempt to “weaponise” the South African legal system she underlined the essential role that freedom of expression, robust public debate, and the ability to participate in those debates without fear, played in a democratic society and recognized a “SLAPP suit defence” in South African law.

In a judgment handed down in September 2020, the High Court agreed that communities had a right of access to the information in a prospecting or mining right application without needing to submit a request under the Promotion of Access to Information Act.

Taken together, these individual court victories for community and activist rights are establishing the bedrock for a more authentic social licence to operate in South Africa. Over the long term, greater recognition of community rights in a mining context could strengthen the inclusivity of political and economic institutions necessary to start addressing the tragic legacy of the resource curse, not only in South Africa but throughout the continent.

 

Tracy-Lynn Field is a full professor at the School of Law at the University of the Witwatersrand (Wits), and advocate of the High Court of South Africa. Professor Field’s work focuses on the law and governance of extractives-based development, climate change, water, and Earth stewardship. She’s also the author of ‘State Governance of Mining, Development and Sustainability’, and has chaired the board of the Centre for Environmental Rights since 2017, actively supporting civil society organisations to secure climate-resilient development for Africa.
error: Content is protected !!