New mining law headed for the bin or court
A flawed public participation process in the Mineral and Petroleum Resources Development Amendment Bill has created a serious dilemma for legislators
Having already spent five years in the legislative pipeline, the Mineral and Petroleum Resources Development Amendment Bill (MPRDA) looks like it is headed for the Constitutional Court or the rubbish bin. Parliament should have seen it coming.
The MPRDA, introduced in 2013 and passed six months later by both Houses of Parliament, was returned by the President. The President was concerned about “procedural” defects, which had to do with inadequate public participation, as well as “substantive” flaws concerning its possible incompatibility with the General Agreement on Trade and Tariffs (GATT) and the Trade, Development and Cooperation Agreement (TDCA).
By “inadequate public participation” what the President really meant is that he wanted the House of Traditional Leaders to have their say, and they did. But that wasn’t the last word from the public.
Mining Affected Communities United in Action (MACUA), which represents more than 150 communities across South Africa, took up the issue and slammed the failure of legislators to consult with mining communities.
Submissions by a range of legal, environmental and human rights groups followed. The Land and Accountability Research Centre (LARC) in the Public Law Department of the University of Cape Town, the Centre for Environmental Rights (CER), the Centre for Applied Legal Studies (CALS), the SA Institute of Race Relations (SAIRR) and others have since had their say in Parliament’s Committee on Mineral Resources.
The LARC, CER and CALS have all complained in the most recent Committee hearings that none of their recommendations are included in the revised Bill.
Some 57 amendments have been proposed on the MPRDA, but all of them come from the Department of Mineral Resources (DMR) and not from what civil society had to say.
However, the only amendments permitted at this stage are those that directly respond to the President’s concerns. The rules of Parliament make this clear. All amendments other than those that address the reservations raised by the President, are therefore invalid ‑ including at least some of the 57 amendments proposed by the DMR.
Opponents of the Bill are now suggesting that the only answer is to scrap the Bill and start all over again.
But that’s not all. There is another even bigger headache for the legislators. If the President rejects a Bill because of inadequate public participation, what happens if the people’s demands require amendments over and above what the President intended?
This is exactly what has happened in the protracted process of drawing up the MPRDA and it presents a real dilemma: a genuine citizen consultation process is very likely to come up with proposals that require entirely new amendments, but what is the point if no amendments can be permitted at this stage? And what of the dozens of public submissions already heard by the NCOP’s Select Committee on Land and Mineral Resources?
“Back door amendments”
In March 2015, MACUA compiled a People’s Mining Charter and called for it to be incorporated into the MPRDA. It stated: “It is the people’s, specifically occupiers of the land`s, fundamental right to decide if any extractives/mining can take place on their land or not”.
This message was echoed in repeated submissions to the Select Committee on Land and Mineral Resources.
Action Aid told the Committee hearing that despite its active involvement during 2015 and 2016 “the further amendments do not address the concerns of communities. They actually dilute the little community participation currently provided for in the MPRDA.”
The most recent Committee hearings heard legal, environmental and human rights organisations expressing scepticism about the MPRDA’s capacity to improve conditions in mining-affected communities.
The DMR amendments have become known at the Select Committee hearings as the “back door” amendments, and civil society organisations are universal in their condemnation.
In the latest round of public hearings the Chamber of Mines weighed in, warning that recent amendments have included the controversial Mining Charter, effectively making it into law.
This would give the Minister of Mineral Resources the power to amend or repeal legislation in the sector, which is a power that falls to Parliament alone.
In its submission the Chamber declared: “The legislature would have no control or oversight and would delegate its legislative obligations by giving a blank cheque to the executive”. This would make nonsense of the principle of the separation of powers.
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