Search

Part 4: Mine(d) Over Matter: South African Law and Policy in a Fibrous-Plant Future

5 Feb 2020 - 15:15

The mining industry in South Africa is the lifeblood of many unskilled labourers: foreign, migrant and locals alike. According to the Minerals Council of South Africa, each person employed by the mining sector has approximately nine direct and indirect dependents. Employment in the mining sector has been on a downward trajectory, as raw materials are exhausted and policy uncertainty fades investor confidence. As mines start to close, it becomes more crucial to have a contingency plan for those impacted. 

The focus of this part of the series is on how a Fibrous Futures Initiative (FFI), introduced in part three, could protect against the economic vacuum left by the mine using the existing legal framework. A brief highlight is also made on key laws (Mineral and Petroleum Development Act) and policy (the Mining Charter) which could be used to encourage a circular economy which empowers communities and remediates environmental damage. 

In part three, remediation was sketched in the context of the FFI, developed by a restorative mining culture using fibrous plants. In the last part of this series, I will look towards the empowerment element within the FFI, understanding how to grow a community through a restorative mining enterprise.

Employees and their dependants play a crucial role in the collective effort to mitigate environmental degradation. Not only are they crucial mitigators, but they would have to be actively involved in a new frontier of the mining industry – a transitional industry cognisant of the life cycle of the mine. Unskilled labourers can be introduced into the FFI and allow mining communities the opportunity to transfer into new ventures post mine. 

Before discussing how the community can benefit from an FFI, it should be acknowledged that there is uncertainty about the definition of community in the mining context.[1] It is unclear who qualifies as members of the community.[2] The Mineral and Petroleum Resources Development Act (MPRDA) is the primary legislation governing mining and mineral law in South Africa. The MPRDA defines community as “a group of historically disadvantaged persons with interest or rights in a particular area of land on which the members have or exercise communal rights in terms of an agreement, custom or law: Provided that, whereas a consequence of the provisions of this act, negotiations or consultations with the community is required, the community shall include the members or part of the community directly affected by mining on land occupied by such members or part of the community”.[3]

The MPRDA recognises the need to promote local and rural development in communities impacted by mining activities.[4] The Act aims to encourage the opportunities available to historically disadvantaged persons, women and communities to engage in the mining industry and benefit from the nation’s natural resources.[5] To ensure adequate development of a community, communities must be active participants in their own social upliftment. This would involve less linear thinking of the life of the mine. Communities do not just disappear after the mine leaves, and the vacuum left by the mine needs to be confronted to ensure the true promotion of local and rural development. 

The definition provided by the MPRDA is a good guide, however, to navigate this definition in practice is challenging. The result is a consultation process often resulting in a tick-boxing exercise rather than meaningful engagement. To receive informed and freely given input from people impacted by mining can be a difficult process, however, an FFI would hinge on the acceptance of the community to participate in such a venture. 

The first step would be to equip the community with the skills needed to take over such a venture. Empowerment in this manner aligns with principles set out in South African law and policy. Initially, the skills needed would be agricultural - farming fibrous plants to remediate the land. It is, however, important to move past this stage, into more beneficiation of the fibrous plants to create a more complex economy for the mining communities to explore. 

The Mining Charter, the key policy document for mineral law in South Africa, lends itself to the development of a post-mining FFI. The Charter encourages portable skills development, which aligns with an FFI. Portable skills development would allow the mining company to prepare their employees for an effective transition towards agriculture and downstream manufacturing initiatives for the FFI after mine closure. 

Encouraging the development of skills in an FFI opens the possibility of sustainable jobs for the community. It also has the potential to guide a cultural shift towards green jobs in mining areas, seeing agriculture and manufacturing as the next stage in the evolution of the mining community. 

Section 52 of MPRDA requires a notice of profitability and curtailment of mining operations affecting employment to be issued by the holder of the mining right.[6] The notice indicated the slowing down of the mine in its production stage. This notice could potentially serve as an invitation to become involved in an FFI. Instead of retrenchments, there could be a transfer of labour into a rehabilitation project. There are various ways in which the existing framework of mineral law could lay the foundation of an FFI.

The MPRDA established the Minerals and Petroleum Board which advises the Minister on sustainable development[7]and transforming and downscaling the mineral and petroleum industry.[8] The board must, in consultation with the Mining Qualifications Authority, ensure the promotion of human resource development in the mining sector.[9] The Minerals and Petroleum Board serves as a helpful platform for communication between the various stakeholders and could assist in structuring model agreements for the establishment of an FFI.

A plan to ameliorate the impact of the closure on employees should adhere to Section 52 (1) of the MPRDA,[10] and Section 189 of the LRA.[11] Mining companies are required to ameliorate the social and economic impact on individuals, regions and economies where retrenchment or closure of the operation is certain.[12] The process must include self-employment training programmes; training and re-employment programmes; and a portable skills development plan.[13] These plans must be submitted to the Department of Mineral Resources 2 years prior to the commencement of the downscaling process.[14]

The Social Labour Plan (SLP) is a tool that would provide the basis of skills development during the life cycle of the mine, preparing for the post-mining FFI. An SLP sets out certain targets for the mining company to enrich the skills of their employees – giving back to the mining community which allowed them to mine in the area. An SLP also serves as an aligning tool between the mining company and the local government for shared development goals for the area.

Regarding the management of retrenchments and potentially including this process into an FFI, the Social Labour Plan (SLP) guidelines already provide a legal platform to work from.[15] To manage retrenchments the company must consult with organised labour.[16] Therefore, there is a platform for engagement and could be extended to include community organisations and other stakeholders when considering retrenchments. 

Therefore, there are multiple legal mandates which aim to encourage the use of empowerment and remediation strategies. An FFI is one such strategy. The most important thing now is to try and prepare the reasoning for the shift and convince a critical mass of mining companies to commit to their role as ethical juristic persons. Persons who should maintain a level of ‘self-consciousness’ and morality in theory whilst using the legal tools at hand to encourage restoration and mitigate the harms they cause.

Written by Aysha Lotter.

Continue to Part 5.

 

[1] See, in general, Heyns A ‘Mining Community Development in South Africa: A Critical Consideration of How the Law and Development Approach the Concept of Community’ 2019 12 Law and Development Review 561; Heyns A &  Mostert H ‘Three Mining Charters and a Draft: How the Politics and Rhetoric of Development in the South African Mining Sector are Keeping Communities in Poverty’ (2018) 11 Law and Development Review 801 826-831.

[2] For example, is “community” in the mining context restricted to mine workers and their families; does it refer to people living in the immediate vicinity of the mine or does it extend to the larger mine area? Also, are people in the labour-sending areas included in the definition of community?

[3] MPRDA s 1.

[4] MPRDA, the preamble.

[5] MPRDA, s 2(d).

[6] MPRDA, s 52. 

[7] MPRDA, s 58(1)(a)(ii).

[8] MPRDA, s 58(1)(a)(iii).

[9] MPRDA, s 58(1)(b).

[10] MPRDA, s 52(1).

[11] Department of Mineral Resources, Guideline for the Submission of a Social and Labour Plan As Required in Terms of Regulation 46 of the Mineral and Pertoleum Resources Development Act (Act 28 of 2002)Government Gazette, 2010 at 22.

[12] Department of Mineral Resources, Guideline for the Submission of a Social and Labour Plan As Required in Terms of Regulation 46 of the Mineral and Pertoleum Resources Development Act (Act 28 of 2002)Government Gazette, 2010 at 23.

[13] Department of Mineral Resources, Guideline for the Submission of a Social and Labour Plan As Required in Terms of Regulation 46 of the Mineral and Pertoleum Resources Development Act (Act 28 of 2002)Government Gazette, 2010 at 23

[14] Department of Mineral Resources, Guideline for the Submission of a Social and Labour Plan As Required in Terms of Regulation 46 of the Mineral and Pertoleum Resources Development Act (Act 28 of 2002)Government Gazette, 2010 at 23.

[15] Department of Mineral Resources, Guideline for the Submission of a Social and Labour Plan As Required in Terms of Regulation 46 of the Mineral and Pertoleum Resources Development Act (Act 28 of 2002)Government Gazette, 2010 at 23

[16] Department of Mineral Resources, Guideline for the Submission of a Social and Labour Plan As Required in Terms of Regulation 46 of the Mineral and Pertoleum Resources Development Act (Act 28 of 2002)Government Gazette, 2010 at 23.