Comments regarding the Mineral and Petroleum Resources Development Amendment Bill (B15-D), as amended by the Portfolio Committee on Mineral Resources 27 June 2017 By the Centre for Applied Legal Studies

Introduction Introductions The Centre for Applied Legal Studies (CALS) is a human rights organisation and registered law clinic based at the School of Law at the University of the Witwatersrand. CALS’ consists of lawyers and legal researchers that support affected communities to attain a more socially, economically and politically just society. Focus areas of the Programme have included public participation in the minerals regime, mine closure and the Social and Labour Plan (SLP) system. Endorsing of comments Main areas of submission Procedural irregularity Substantive comments SLPs

Introduction Endorses MPRDA Coalition position - set of min reqmnts Berea Declaration and the Peoples Mining Charter: Community decision-making through negotiation- FPIC Democratic Community representation (not undem TA) Benefits should be shared equitably Free and accessible access to information Independent, accessible, speedy, and effective recourse mechanisms Rehabilitation standards should ensure that the land is no worse than when mining started Restitution and Reparations to correct historical wrongs Compensation- loss of livelihoods & eco, env, cul harms Empowerment, respect and inclusion of women

LEGALITY OF AMENDMENTS EFFECTED TO THE BILL AND PROCESS OF ADOPTION No broad-based community participation From the initial release of the draft Bill for comments (27/11/12-?) New proposed amendments have not been meaningfully negotiated Failure to consider and incorporate, previous comments Notice periods for oral hearings and opportunities to submit written comments in adequate given significance and complexity Incorrect and irregular incorporation of 54 new amendments proposed by the Department of Mineral Resources The NCOP cannot consider amendments that fall outside the referral mandate of the President.

THE APPROACH OF THE BILL TO HISTORICAL REDRESS AND DISTRIBUTIVE ISSUES S2(d) included “historically disadvantaged persons, including women…”(expansion of opportunities) Amended by 2008 Amendment Act to say “historically disadvantaged persons including women & communities” Bill proposes removing “including women & communities” Many organisations raised issue at the hearings, we regret the Bill still makes no mention of women and communities The emphasis is appropriate and necessary given significant exclusion from benefit sharing The decision to amend the section to exclude women and communities is not justifiable; and as no reasons have been given for this deletion, it is not rational.

THE APPROACH OF THE BILL TO SOCIAL AND LABOUR PLANS CALS SLP research Number of systemic design and implementation problems Failing to provide detailed processes for consultation with communities (design/implementation) Consultations beyond TA representative of the entire affected community. Responsible, equitable & inclusive Communities should be formal parties in a negotiation process that precedes the submission of the plan Legislation must require a robust participation process for the design, monitoring and implementation of SLPs. Adequate notification of meetings in the first language/s of community members and legislation must specify that consultation with TA does not exhaust companies’ consultation obligations.

THE APPROACH OF THE BILL TO SOCIAL AND LABOUR PLANS Mandatory for mining companies to capacitate communities with the tools necessary for such involvement: awareness strategies / workshops access to experts Mining processes are often not transparent and communities are precluded from mining documents environmental impact assessment mining right licenses annual reports and SLPs Communities have to utilise the Promotion of Access to Information Act - lengthy, inaccessible and confidential Position to inform themselves of the nature and impact and proposed mining and local economic development

THE APPROACH OF THE BILL TO SOCIAL AND LABOUR PLANS DMR is failing to protect community interests in the licensing and monitoring compliance (SLPs) DMR officials are rarely seen in mine-affected communities and are thus perceived as unaccountable for decisions To ensure adequate involvement and oversight of the DMR in mining processes, stakeholders from relevant departments must be a part of the design, implementation and monitoring of mining activities Visibility of DMR officials must improve

THE APPROACH OF THE BILL TO SOCIAL AND LABOUR PLANS Community consultation needs to extend much further than to the designing of SLPs on a 5 year rotational basis Bill and Regulations should compel mining companies to consult communities during the amendment of SLPs as well As it stands, the Regulations permit the amendment of SLPs on consent from the Minister There are no provisions relating to: Nature or extent of amendments Need and process for community consultation during amendments of SLPs and Legal effect of amending existing SLP provisions and undertakings Whether an amendment extinguishes an existing obligation in the SLP

THE APPROACH OF THE BILL TO SOCIAL AND LABOUR PLANS A major omission is the absence of a requirement to consult with mine-affected communities in the review process One cannot have an accurate picture of whether a SLP is responding to community needs and achieving its goals without obtaining the perspectives of the intended beneficiaries of an SLP The Bill should require notice to communities of the review and the opportunity to make both written and oral comments on the existing SLP and the ways it should be improved

THE APPROACH OF THE BILL TO SOCIAL AND LABOUR PLANS SLP financial provision to be ring-fenced, ensuring that there are sufficient funds available irrespective of: Market conditions Company liquidity and Fluctuating commodity prices (unlink as impact persists) Establishment of a reserve fund

Thank you Environmental Justice and Mining Programme Centre for Applied Legal Studies Wits University