Judge gives mining communities more power

The people of Xolobeni in the Eastern Cape are celebrating a landmark court victory after the Pretoria High Court handed down a judgment favouring prospective mining communities.

This week Judge Tan Makhubele forced the department of mineral resources and energy (DMRE) to give a copy of a mining or prospecting application to interested and affected parties on demand. Companies can now only hide sensitive financial information from communities, but have to disclose all other information laid out in the application, including project plans and compensation for the community.

According to the group’s lawyer Johan Lorenzen of Richard Spoor Attorneys, the judgment gives long-awaited clarity on whose responsibility it is to provide critical information about a mining project to communities before they hand over their land.

“It levels the playing field. The judgment talks about how you can only have a negotiation between two parties who are on an equal footing and both sides have the opportunity to consider the advantages and disadvantages and that can only be better for these communities.”

According to Lorenzen, the judgment puts the onus on the DMRE and not the applying company to furnish the affected community with a copy of the mining or prospecting licence application upon request.

Spokesperson for the Amadiba Crisis Committee Nontle Mbuthuma said this judgment was a hard-won victory after a five-year battle by the people of Xolobeni.

It was in March 2015, a subsidiary of the Australian mining company MRC: ‘Transworld Energy and Minerals’ (TEM), filed their second mining application. The plan was to do opencast mining for titanium minerals along a 22km-long stretch on the Amadiba coast. The mining area goes 1.5-2km inland from the shore.

The year 2015 was the beginning of a bloody war, as executives from MRC allegedly drove a wedge between the community which resulted in violence between disagreeing residents. In 2016, things took an ugly turn when the leader of the Committee, Sikhosiphi Bazooka Rhadebe died in a hail of bullets after being lured by unknown gunmen outside his home. It was a tragedy which brought international attention to the people of this village and their battle for land and prosperity.

“We have been waiting for five years for this information and the company and the department was refusing to give us a reply. It doesn’t make sense to me how it took a whole five years for us to even get to see this mining application. It was five years just back and forth,” she recalls.

“When we would go to the DMRE, they say we must go to the company and the company would send us back to the DMRE, which would tell us they have no rights to give us the application. We really need to have a copy of the application so that we know what they want to do with our land and it gives us direction for us to plan for our livelihoods.”

Judge Makhubele also ruled on the need for meaningful consultation with affected communities.

“Meaningful consultation entails discussion of ideas on an equal footing, considering the advantages and disadvantages of each course and making concessions where necessary.”

What is still hanging on the lurch at the moment is the mysterious dynamic between MRC and its BEE partner Xolobeni Prospecting Company.

After the company announced plans to divest from the project last year, the community asked for details of such divestment and where it would leave them. No explanation was given and instead, according to Lorenzen, the company has said it will sell its shares in the joint venture to the BEE company which comprises of Xolobeni community members. Both companies have refused to disclose any information on this, he says.

– Simnikiweh@citizen.co.za

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