LEGAL RESOURCES CENTRE 25 MAY 2010 PORTFOLIO COMMITTEE: Public Hearings on the establishment of State-Owned Mining Company LEGAL RESOURCES CENTRE 25 MAY 2010 Legal Resources Centre 25 May 2010

Legal Resources Centre 25 May 2010 AFRICAN CHARTER - 1986 Article 21 1. All peoples shall freely dispose of their wealth and natural resources. 5. States parties to the present Charter shall undertake to eliminate all forms of foreign economic exploitation particularly that practiced by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources. Article 22 2. States shall have the duty … to ensure the exercise of the right to development. Legal Resources Centre 25 May 2010

Legal Resources Centre 25 May 2010 POLOKWANE 2007 2.10 The use of natural resources of which the state is the custodian on behalf of the people, including our minerals, water, marine resources in a manner that promotes the sustainability and development of local communities and also realises the economic and social needs of the whole nation. In this regard, we must continue to strengthen the implementation of the Mineral and Petroleum Resources Development Act (MPRDA), which seeks to realise some of these goals. Legal Resources Centre 25 May 2010

Legal Resources Centre 25 May 2010 Centre for Minority Rights Development (Kenya) on behalf of Endorois Welfare Council - March 2010 Africa Commission and General Assembly of AU the African Commission finds that the Respondent State is in violation of Articles 1, 8, 14, 17, 21 and 22 of the African Charter. The African Commission recommends that the Respondent State: Recognise rights of ownership to the Endorois and restitute Endorois ancestral land. Pay adequate compensation to the community for all the loss suffered. Pay royalties to the Endorois from existing economic activities and ensure that they benefit from employment possibilities within the Reserve. Legal Resources Centre 25 May 2010

Legal Resources Centre 25 May 2010 Centre for Minority Rights Development (Kenya) on behalf of Endorois Welfare Council - March 2010 Africa Commission and General Assembly of AU Para 290: the African Commission is of the view that in any development or investment projects that would have a major impact within the Endorois territory, the State has a duty not only to consult with the community, but also to obtain their free, prior, and informed consent, according to their customs and traditions. Legal Resources Centre 25 May 2010

Legal Resources Centre 25 May 2010 Centre for Minority Rights Development (Kenya) on behalf of Endorois Welfare Council - March 2010 Africa Commission and General Assembly of AU 298. The African Commission is of the view that the Respondent State bears the burden for creating conditions favourable to a people’s development…. The Respondent State, instead, is obligated to ensure that the Endorois are not left out of the development process or benefits. Legal Resources Centre 25 May 2010

Legal Resources Centre 25 May 2010 Act 49 of 2008: Mineral and Petroleum Resources Development Amendment Act, 2008. 21 April 2009 “shall come into operation on the date fixed by the President” Amends sections 17 and 23 “If the application relates to land occupied by a community, the Minister may impose such conditions as are necessary to promote the rights and interests of the community, including conditions requiring the participation of the community.’’ Legal Resources Centre 25 May 2010

Legal Resources Centre 25 May 2010 Act 49 of 2008: Mineral and Petroleum Resources Development Amendment Act, 2008. shall come into operation on the date fixed by the President Section 2 amended: substantially and meaningfully expand opportunities for historically disadvantaged persons, including women and communities, to enter into and actively participate in the mineral and petroleum industries and to benefit from the exploitation of the nation’s mineral and petroleum resources Legal Resources Centre 25 May 2010

Act 28 of 2002: Mineral and Petroleum Resources Development Act Assistance to historically disadvantaged persons 12. (1) The Minister may facilitate assistance to any historically disadvantaged person to conduct prospecting or mining operations. …the Minister must take into account all relevant factors, including the need to promote equitable access to the nation's mineral resources; the financial position of the applicant; the need to transform the ownership structure of the minerals and mining industry; and 30 the extent to which the proposed prospecting or milling project meets the objects referred to in section 2(c), (d), (e), (f) and (i). When considering the assistance referred to in subsection (1). the Minister may request any relevant organ of State to assist the applicant concerned in the development of his or her prospecting or mining project. Legal Resources Centre 25 May 2010

Legal Resources Centre 25 May 2010 exemption No. 31485 GOVERNMENT GAZETTE, 10 OCTOBER 2008 No. 1081 10 October 2008 MINERAL AND PETROLEUM RESOURCES DEVELOPMENT ACT, 2002 (ACT NO. 28 OF 2002) EXEMPTION OF AN ORGAN OF STATE FROM CERTAIN PROVISIONS OF THE MINERAL AND PETROLEUM RESOURCES DEVELOPMENT ACT, 2002 (ACT NO. 28 OF 2002) I Buyelwa Patience Sonjica, Minister of Minerals and Energy, acting in terms of the provisions of section 106 (1) of the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002), hereby exempt African Exploration Mining Finance Corporation Reg. No. U.C. 18018 from the provisions of sections 16,20,22 and 27 of the said Act in so far as it relates to any activity to prospect, mine and the removal of any mineral for accumulating and stockpiling for purposes of security of supply and purposes incidental thereto. Legal Resources Centre 25 May 2010