Existing legal and institutional frameworks

 

Mineral rights, land ownership and displacements

Claude Kabemba's picture

Director of the Southern Africa Resource Watch (SARW)

September 18th, 2013

 

Mineral rights, land ownership and displacements

From the three country studies, it emerged that national legislation and institutions that regulate and facilitate the monitoring of mining operations do exist. Some of the laws were developed during the colonial period, while others were formulated afterwards. However, colonial-era laws were chiefly aimed at facilitating the extraction of minerals, profit making and depriving indigenous populations of their resource wealth. In South Africa and Zimbabwe, during the apartheid and colonial eras, mining trumped surface land rights. Mining companies were given the legal power to acquire mineral rights over agricultural land and even in environmentally sensitive communal and tribal areas. Minerals were exploited without paying particular attention to social and environmental impacts or accountability.

From the studies it also emerged that most post-colonial and post-apartheid laws still vest mineral rights in the state. In communal areas, surface land rights are vested in the state. Private landowners enjoy title to their land, which has implications in terms of compensation for loss of land to mining operations. In South Africa, the Minerals and Petroleum Resources Development Act of 2004 vests mining rights in the state, which has a duty – through the Department of Mineral Regulation – to issue, regulate and administer mineral rights. Meanwhile, Zimbabwe’s Mines and Minerals Act (Chapter 21:05) vests mineral rights in the president, who has an obligation to fulfil the public good or hold the minerals in trust for the benefit of all citizens. In Botswana, the Mines and Minerals Act, as read together with the Mineral Rights in Tribal Territories Act, also vests mineral rights in the state. Indeed, the law in Botswana goes further since it compels all tribes to surrender mineral rights to the state – arguably a deprivation of community rights.

These laws require any company that intends to prospect, explore or mine to apply for a mining licence and give a mandate to governments to regulate and set standards and conditions under which mining can take place. Such conditions can be codified in mining contracts or agreements and may also be stated in national legislation. Depending on country practice, mining contracts may contain basic obligations that companies must comply with relating to issues such as revenue sharing, royalty payments, resettlement plans, environmental requirements, labour laws, mine closure, community development and employment of locals. These are contractual provisions that can be used by the state to promote environmental and social accountability and protect the land and its precious biodiversity.

Land ownership, displacement and compensation are some of the key legal issues that governments and mining companies in Zimbabwe, South Africa and Botswana often battle with. Due to the centrality of land to rural livelihoods, its ownership, tenure and related use rights regularly clash with the needs of the mining industry. Consequently, all the countries have legislation that provides for acquisition of land for different purposes. In Botswana, the modalities for acquisition of land for public interest and developmental purposes are set out in the Acquisition of Property Act, Tribal Land Act, State Land Act and the Land Control Act. In Zimbabwe, land for mining purposes is acquired in terms of the Mines and Minerals Act, Land Acquisition Act and the Constitution of Zimbabwe. Ideally, such legislation should be used to protect the social and environmental rights of communities but the implementation of these provisions remains problematic.

Depending on country legislation and practice, compensation for displacement may involve money, resettlement and the creation of jobs or alternative livelihood schemes. In Botswana, land acquisition and compensation is administered under the Acquisition of Property Act and compensation is confined solely to the value of the property on the land. However, Section 63 of the Mines and Minerals Act requires mineral concession holders to pay fair and reasonable compensation for any disturbance to the rights of the owner or lawful occupier. The concession holders are also required to pay for any damage done to the surface of the land or to crops, trees, buildings or other works. What is curious about Section 63 is that compensation for deprivation of rights is payable upon demand and that there is only a limited period of five years within which a claim can be laid. In Zimbabwe, the Mines and Minerals Act in Section 188 (2) provides for the payment of compensation by holders of mining rights to private landowners when a mining operation is established. However, the rights of communal residents are not protected since Section 188 (7) states that compensation will be paid to the Rural District Council acting as the landowner in communal lands. Nevertheless, in practice some mining companies in Zimbabwe have been compensating communities by directly providing them with money, houses and other social services – an example of how some mining companies promote social and environmental accountability and take steps to lessen the poverty burden on communities.

Despite the laws, there have been numerous instances of communities objecting to their treatment by mining companies. For example, there were allegations of the forced removal of San communities from the Central Kalahari Game Reserve in Botswana to pave the way for Gem Diamonds’ mining activities, while communities were also forcibly displaced to make way for diamond mining operations in Marange in Zimbabwe. The Marange communities did not receive the compensation they expected – ending up with what the government and the mining companies called disturbance allowances of US$1,000 per household and resettlement houses, some of which quickly developed cracks due to poor workmanship and materials. The government and mining companies argue that they are not obliged to compensate the communities since the land does not belong to them.

Environmental and biodiversity protection legislation  

The case studies revealed that all three countries have developed specific legislation and institutions to regulate the environmental and biodiversity impact of mining projects and most of the laws were passed after the 1992 Rio Earth Summit, which resulted in the adoption of the Rio Declaration. The environmental laws impose obligations on mining companies and establish bodies that are responsible for administering the laws and monitoring compliance. All the countries have a variety of legislation covering issues such as pollution prevention, control of hazardous waste and radioactive material, protection of wetlands, and conservation of plants and wildlife.

In South Africa, the National Environmental Management Act (NEMA) of 1998 regulates environmental issues. The Act is administered by the Department of Environmental Affairs (DEA), which issues environmental licences and monitors compliance. The NEMA is also supported by a suite of other laws that relate to environmental protection and conservation of biodiversity." name="_ftnref" title="">[1] Botswana has passed a number of statutes, including the Environmental Impact Assessment Act; Atmospheric (Pollution Prevention) Act; Mines, Quarries, Works and Machinery Act; Waste Management Act; and Mine and Minerals Act. Zimbabwe passed the Environmental Management Act, which is supported by a multiplicity of regulations and other Acts that regulate environmental management. Most of the environmental and mining laws contain expansive provisions that can be used to hold mining companies to account for their social and environmental impacts. In all the environmental legislation, mining companies are required to rehabilitate or reclaim mined out areas.

Arguably, one of the key legal tools found in all three countries’ environmental laws are the Environmental Impact Assessments (EIA), which are now legal as well as planning tools. EIA legislation requires a developer to carry out an environmental, social and economic assessment of the potential impacts of any project and state the measures proposed for preventing or mitigating any anticipated adverse effects to the environment. In particular, the impact of proposed projects on water resources, biodiversity, roads, settlements, land use, economy and culture among other factors are supposed to be identified.

If properly implemented, EIAs can be effectively used to promote social and environmental accountability as they are supposed to take account of the social, environmental, economic and cultural impacts of mining projects and are meant to be informed by the views of the affected communities. Mining companies are required to commission EIAs while government departments monitor compliance. In Botswana, for example, the Environmental Impact Assessment Act (2005)" name="_ftnref" title="">[2] requires the applicant to publicise the intended activity, its effects and benefits in the mass media using official languages and to hold meetings with the affected communities. All these measures are intended to promote genuine social and environmental accountability.

Constitutionalising environmental and social rights

The case studies noted that South Africa and Zimbabwe have included environmental, social, cultural, and economic rights in their national Constitutions, which is likely to influence the way extractive industries deal with communities’ social and environmental rights. Civil society organisations and community groups may also use the constitutional provisions to protect the rights of communities and to hold governments and mining companies to account by undertaking public interest litigation.

The South African Constitution gives every person the right to a healthy environment and to have his or her environment protected for the benefit of present and future generations." name="_ftnref" title="">[3] Zimbabwe’s 2103 Constitution protects the right to safe, clean and potable water and sufficient food." name="_ftnref" title="">[4] The state is also encouraged to adopt and implement policies and legislation to ensure that local communities benefit from the resources in their areas. Furthermore, every person has the right to an environment that is not harmful to his or her health." name="_ftnref" title="">[5]

In sum the Zimbabwean and South African constitutions encourage the state to take measures to prevent pollution, conserve the environment and promote sustainable development. These provisions strengthen the legal arsenal that can be used to increase social and environmental accountability in the extractive sector, especially around the protection of the land and biodiversity.   

Access to information and public participation

Theoretically, social and environmental accountability is anchored on access to information, disclosures laws and practices. The concept of free, prior and informed consent is therefore vital in the extractive sector, particularly for local communities, which need to be able to access information on the impacts of mining operations and their revenue streams.

The country reports indicate that Zimbabwe and South Africa have incorporated access to environmental information provisions in their environmental legislation. In Zimbabwe, the Environmental Management Act states in Section 4 that every person has a right to access environmental information. In addition, Zimbabwe and South Africa have developed specific legislation on access to information – the Promotion of Access to Information Act in South Africa and the Access to Information and Protection of Privacy Act in Zimbabwe. In essence, national laws in Zimbabwe and South Africa provide citizens with the right to access records in the custody, or under the control, of public bodies. If implemented and enforced, these laws can promote social and environmental accountability in the mining sector by ensuring that governments and mining companies have to provide information to local communities.

Protection of the health and safety of mine workers

Protecting the health and safety of mine workers is also of paramount importance in promoting social and environmental accountability. Mine workers are often exposed to diseases, hazards and unsafe working conditions. In all three case study countries, there is legislation compelling mining companies to adopt adequate measures to protect workers. In Botswana, the Mines, Quarries, Works and Machinery Act seeks to protect the safety, health and welfare of people engaged in mining operations and covers issues such as accidents, first aid, mine rescue and precautions among other safety issues. In many cases, health and safety legislation is complemented by labour legislation, which sets out the rights of workers in relation to collective bargaining, wages, working hours and termination of employment. In Botswana, the Employment Act is applicable, while in Zimbabwe the Labour Relations Act is applicable. It is the responsibility of mining companies to observe the requirements of labour laws and practices. However, the shooting of workers by the police at Lonmin’s Marikana mine in South Africa over a wage dispute is a clear indication of the failure by mining companies and government to protect and respect the rights of workers. The events at Marikana also show that mining companies remain largely unaccountable and appear to be protected by governments.

Empowerment of local communities

In some of the case study countries, economic empowerment or indigenisation laws and policies have been promulgated and these have implications for social and environmental accountability. Historically, indigenous communities have been sidelined and prevented from benefiting from their mineral resources in a sector dominated by foreign multinationals. However, countries like Zimbabwe have developed legal frameworks to empower local communities to derive direct economic benefits from the natural resources mined in their communities. Zimbabwe passed the Indigenisation and Economic Empowerment Act, which resulted in the establishment of Community Share Ownership Schemes giving at least a 10 percent shareholding in mines to the local communities. The main purpose of the schemes is to unlock revenue to enhance local education, agriculture, infrastructure, micro-enterprises and human resource development. In South Africa, big companies that acquired rights under the apartheid regime were given a chance to renew those rights as long as they met a certain target by allocating some of their shareholding to historically disadvantaged people. There are also communities that are already involved in the mining sector such as the Bafokeng and the Bakgatla. The social and environmental impacts of these measures are significant and should be analysed and documented.

Voluntary initiatives adopted by mining and financial companies

The case studies revealed that multinational mining companies and financial institutions were also adopting voluntary systems and measures to promote social and environmental accountability and to protect land and biodiversity. In South Africa, mining companies are becoming more aware of the risks associated with the impacts of their projects and non-compliance with social and environmental requirements. The South African King Committee Report on Corporate Governance (King III), which attempts to bring local businesses in line with international best practice in terms of the natural environment, social environment and the global economy, was an important step. Other measures adopted by mining companies to promote voluntary social and environmental accountability include the Global Reporting Initiative (GRI), stock exchange listings, the Sustainable Development Framework of the International Council on Mining and Metals (ICCM), the OECD Guidelines for Multinational Enterprises and the UN Global Compact among others. Most of these initiatives promote reporting by corporates of their economic, environmental, social, labour and human rights impact on communities. In South Africa and Zimbabwe, civil society organisations have also launched various efforts to influence mining companies to use the OECD standards and the GRI in relation to corporate social responsibility.

The promotion of social and environmental accountability in the mining sector also extends to financial institutions, which have developed voluntary methods to ensure that mineral industry investors adequately account for environmental and social impacts in their project evaluation frameworks – such as the International Finance Corporation (IFC) Performance Standards on Social and Environmental Sustainability (2006). The standards aim to minimise the investment impact on the environment and affected communities, while enhancing development outcomes. In Botswana, the Ghaghoo diamond-mining project in the Central Kalahari Game Reserve is being financed by international financial institutions and the project documents included annexures of the IFC standards. This shows that there are attempts to comply with the standards by the project proponents. 

International laws, principles and initiatives

A number of regional and international human rights instruments and standards are also in place to provide guidance on social and environmental accountability. Broadly, the key human rights instruments that are applicable include the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant of Economic, Social and Cultural Rights. These instruments enshrine a basket of rights, including decent standard of living, medical care, social services, employment, education, self-determination, food, freedom of expression and assembly among others. Theoretically, the economic, social and cultural rights in these international instruments were domesticated by Zimbabwe and South Africa in their Constitutions. However, implementation remains a challenge. In Botswana, where indigenous communities such as the San are found in areas like the Central Kalahari Game Reserve, the UN Declaration on the Rights of Indigenous Peoples and the ILO’s Convention 169, which address the rights of indigenous people, also apply.

The Extractive Industries Transparency Initiative (EITI) is another mechanism that can be used to promote social and environmental accountability, although it is mainly aimed at disclosure and the publication of mineral revenues and payments. In the SADC region, only Zambia, Mozambique and the Democratic Republic of Congo (DRC) are implementing EITI. Zimbabwe has been hesitant to join the EITI due to concerns by some politicians that it is an imposition of the West. However, a domestic version of EITI called the Zimbabwe Mining Revenue Transparency Initiative (ZMRTI) was launched to promote the disclosure of mineral revenues and payments. But the future of the ZMRTI is uncertain since it was being driven by the MDC-led Prime Minister’s office, which was abolished by the new constitution.

The UN Guiding Principles on Business and Human Rights is another important initiative that can be useful in promoting social and environmental accountability. The UN Framework establishes three pillars – the state’s duty to protect, corporate responsibility to respect and access by victims of human rights abuses to effective judicial and non-judicial remedies. All three pillars are directly connected to social accountability measures on the part of the state and mining companies. The Zimbabwe Environmental Law Association initiated discussions in 2013 with the Zimbabwe Human Rights Commission (ZHRC) on the application of the UN Framework in the mining sector and the ZHRC made a commitment to focus on promoting environmental, economic, social and cultural rights in the extractive sector.

From an environmental perspective, social and environmental accountability has also been promoted through the application of Agenda 21 and the Rio Declaration of 1992, which both promote sustainable development principles. Principle 10 of the Rio Declaration states that all citizens have the right to participate in natural resource development decisions, to access information and to seek appropriate forms of redress for environmental harm. The polluter pays principle is also captured in Principle 16 of the Rio Declaration, which calls on countries to ensure that polluters pay for the costs associated with development. Mining companies are some of the heaviest polluters and they are bound to comply and pay for clean-up and environmental remediation. Notably, all the case study countries have adopted – and incorporated into their national legislation and even constitutions – the concept of sustainable development as well as the precautionary principle and the polluter pays principle.

At the SADC and African Union level, there are instruments that are also vital in promoting social and environmental accountability and are applicable in the mining sector. The African Union adopted the African Charter on Human and Peoples' Rights, which encourages member states to protect people’s right to work, health, education, culture and freedom to freely dispose of their wealth and natural resources among others. Meanwhile, the African Mining Vision (AMV) seeks to promote a sustainable mining sector, which effectively garners and deploys resource rents in a manner that is environmentally friendly, socially responsible and appreciated by surrounding communities. The AMV advocates for access to information, recognition of resource user rights and public participation. Furthermore, the AMV supports the capacitation of parliaments to provide effective oversight over government and mining companies, which is particularly important in Botswana where the parliament is almost silent in relation to the environmental and social impacts of mining.

Meanwhile, the SADC Protocol on Mining seeks to create a thriving mining sector, which can contribute to economic development, alleviate poverty, and improve the standard and quality of life in the region through the harmonisation of national and regional policies, strategies and programmes. It also includes provisions on the need to observe internationally accepted standards of health, mining safety and environmental protection as well as promote the empowerment of historically disadvantaged people in the sector. These regional instruments could provide vital guidance to SADC states and mining companies about how best to promote social and environmental accountability.




" name="_ftn1" title="">[1] Other environmental laws in South Africa include the Biodiversity Act, National Water Act, National Conservation Act, Air Quality Act, Protected Areas Act, Waste Act, National Forest Act, National Heritage Resources Act, Land Integrated Coastal Management Act and Conservation of Agricultural Resources Act among others.

" name="_ftn2" title="">[2] Sections 6 and 7 of the Environmental Impact Assessment Act in Botswana state that every application made to obtain authorisation for a proposed activity shall contain or be accompanied by a preliminary Environmental Impact Assessment

" name="_ftn3" title="">[3] Section 24 (b) (i)

" name="_ftn4" title="">[4] Section 4.34

" name="_ftn5" title="">[5] Environmental rights are included in Section 4.30 (1).

 

About the author(s)

Claude Kabemba is the Director of the Southern Africa Resource Watch (SARW). In 2006, the Open Society Initiative for Southern Africa (OSISA) asked him to spearhead the formation of SARW. He holds a PhD in International Relations (Political economy) at the University of the Witwatersrand (Thesis: Democratisation and the Political Economy of a Dysfunctional State: The Case of the Democratic Republic of Congo). Before joining SARW, he worked at the Human Sciences Research Council and the Electoral institute of Southern Africa as a Chief Research Manager and Research Manager respectively. He has also worked at the Development Bank of Southern Africa and the Centre for Policy Studies as Policy Analyst. Dr. Kabemba’s main areas of research interest include: Political economy of Sub Saharan Africa with focus on Southern and Central Africa looking specifically on issues of democratization and governance, natural resources governance, election politics, citizen participation, conflicts, media, political parties, civil society and social policies. He has consulted for international organizations such Oxfam, UNHCR, The Norwegian People’s Aid, Electoral Commissions and the African Union. He has undertaken various evaluations related to the work of Electoral Commissions and civil society groups interventions in the electoral process in many African countries. He is regularly approached by both local and international media for comments on political and social issues on the continent. His publication record spans from books (as editor), book chapters, journal articles, monographs, research reports, and newspaper articles.

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