Date: March 30, 2022 Type: Country: By: MARIKE KELLER AND KATLEGO MALESA

Law meant to fix damage to communities due to mining makes little difference

Mining in SA has a history of dispossession, exploitation and discrimination. The post-apartheid government has made attempts to deal with and correct this history by introducing legislation that aims to offset the environmental and socioeconomic impacts of mining on surrounding communities. This legislation includes social and labour plans (SLPs), legally binding mechanisms required for operating licences to be issued.

Project commitments contained in SLPs must align with community development needs and local integrated development plans — for example, infrastructure such as roads, schools, or for water — and companies are required to submit annual compliance reports to the department of mineral resources & energy indicating the progress made with these commitments.

Yet a growing body of research shows that this legislation has done little to transform the way in which mining companies operate — due to the failure of companies to abide by the obligations contained in their SLPs and the state’s failure to provide adequate oversight and monitoring of these obligations. When making investments or becoming shareholders, the human rights track record of companies in the past does not appear to feature as a top priority in the decision-making process.

However, there is ostensibly a growing consideration of environmental, social and governance metrics in the investment world. The Organisation for Economic Co-operation & Development (OECD) Guidelines for Multinational Enterprises, and the UN’s Guiding Principles on Business & Human Rights (UNGPs) have created standards for responsible conduct by businesses.

The OECD guidelines place a responsibility on investor companies to respect human rights, prevent harm and undertake human rights due diligence on the potential or actual human rights impacts of companies they choose to support through financial investment. The UN Guiding Principles on Business & Human Rights provide that “business enterprises should respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.”

A new report jointly published by Amnesty International SA, the Sekhukhune Combined Mining-Affected Communities and the Centre for Applied Legal Studies, adds to the body of research on the way mining companies operate. It reveals the extent to which the failure to abide by SLP commitments, coupled with a lack of state oversight, leave communities feeling disenfranchised and unable to fully realise their basic human rights, such as the rights to education and access to health care, livelihoods and water.

The research focused on the Fetakgomo Tubatse local municipality in the Sekhukhune region of Limpopo. People in this area suffer poor access to services, including health care and water, and score poorly on development indicators such as education and literacy levels. While mining is an increasingly dominant source of employment in the province, unemployment in the region remains staggeringly high at 47%, and is expected to increase to 52% by 2025. In stark contrast, mining is forecast to grow from R12.6bn to R16.3bn in 2023. Growth in the industry is therefore not translating to an increase in employment, nor developmental improvements in surrounding communities.

The research delves into three mining companies’ compliance with projects contained in each of their respective SLPs. These mines are Twickenham Platinum Mine, owned by Anglo American Platinum; Marula Platinum Mine, owned by Impala Platinum Holdings; and Sefateng Chrome Mine, owned by the Limpopo Economic Development Agency. The research found varying degrees of compliance. Twickenham failed to complete a project related to water and sanitation in schools, and the project remains incomplete three years later. When pressed for answers about this lack of compliance, representatives of Anglo American cited problems with procurement.

While Marula is in compliance with, and completed, projects on electrification and water supply and reticulation, the mine also reported that it had completed a project aimed at rehabilitating a road in one of the affected villages. But site visits by the research team could not confirm this. Sefateng was in partial compliance with its water and school support project, but the department of mineral resources & energy said that the company has not been submitting annual compliance reports. Mine representatives deny this, saying they have been submitting reports regularly.

The report also gives a platform to the lived experience of community members living near various mining operations. These were not confined to the three mines the SLP findings pertain to but represent the experiences of mining in the area more broadly, with 19 mines having been identified in the integrated development plan of the Fetakgomo Tubatse local municipality as “key actors”.

The lived experience of communities in the region is inextricably linked to mining operations. Our research found that the failure by mining companies to implement their SLPs was a compounding factor in the challenges communities face. Community interviewees paint a disturbing picture of negative environmental, social and economic outcomes.

One interviewee spoke of the impact mining has had on livelihoods, stating that “now there’s no other way of making a living, because those farms are now polluted with mining rubble and waste from the mines, which was dumped on their farms and there’s nothing they can do. We’re trying to negotiate with the mine and they are not willing to listen to the plight of those families.”

While no formal medical link has been established, many suggested that they, and their livestock, suffered serious health complications from using polluted water, including miscarriages, stillbirths and even death. The poor condition of roads, in part due to frequent use by heavy trucks from mining companies, has resulted in mobile clinics refusing to enter certain villages and increasing the time it takes to get to clinics and hospitals — at times with fatal results.

Interviewees also spoke of the discrimination women face, with very limited employment opportunities and an alarming pattern of “sex for jobs” at mining operations. Effective grievance mechanisms are nonexistent and elected representatives are allegedly co-opted by the mines, resulting in communities lacking proper representation to voice their concerns and needs.

The research report makes specific concrete recommendations for all relevant role players. Mining companies must urgently comply with their legally binding obligations contained in their respective SLPs without further delay. They must also furnish communities with the information required for transparent, informed and consent-based participation in consultation processes.

As per the OECD guidelines, investors have a responsibility to engage with the company in which they have invested and exert their influence to alleviate these negative effects should they have identified possible or real adverse impacts by the company. Pressure is required from all sides. It is not up to civil society to hold mining companies accountable to their obligations. Investors have a social and human rights responsibility too.

• Keller is a researcher at Amnesty International SA, and Malesa is deputy chair of Sekhukhune Combined Mining-Affected Communities.

This opinion piece was first published in Business Day on 14 March 2022