1. 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

2. 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

3. 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

4. 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.

5. 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.

6. 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.

7. 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

8. 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

9. 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

10. 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

11. 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

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