The Right to Say No is about balancing power!

The Right to Say No is about balancing power!

Maxine Bezuidenhout | Dismantle Corporate Power Campaign | 05 October

A ground-breaking and power shifting ruling by the North Gauteng High Court on the 11th of September 2020 places the interests of affected communities at the center of decision-making processes regarding proposed mining projects and affirms their right to say no. 

In 2018 the Amadiba Crisis Committee lodged an application in the North Gauteng High Court to have the right to say no affirmed as they had not been consulted nor consented to a titanium mining project that was planned for the land on which their livelihoods are rooted.  This legal challenge was further forced by the fact the Government had up to then refused to listen to the voices of the community.

The court, after hearing arguments of the Department of Mineral Resources and the Umgungundlovu community, ruled in favour of the community, in declaring that “the First Respondent (Minister of Mineral Resources, Director-General Department of Mineral Resources) lacks any lawful authority to grant a mining right to the Fifth Respondent in terms of section 23, read with section 22 of the Mineral Petroleum Resources Development Act 28 of 2002, unless the First, Sixth and Seventh Respondents have complied with the provisions of the Interim Protection of Informal Rights to Land Act 31 of 1996”, and “that in terms of the Interim Protection of Informal Land Act 31 of 1996, the First Respondent is obliged to obtain the full and informed consent of the Applicants and the Umgungundlovu Community, as holder of rights in land, prior to granting any mining right to the Fifth Respondent in terms of section 23, read with section 22 of the Mineral Petroleum Resources Development Act 28 of 2002.” In doing so essentially bolstering the longstanding demand by communities for the Right to Say No.

The tenets of Free, Prior and Informed Consent require that affected communities must participate in development processes without coercion and with access to the full particulars of the proposed development, be it mining, the building of a road or dam, as it the basis on which to participate in an informed manner. The most important factor is the affected communities right to consent to a proposed development that will affect them. This means that affected communities have the right to say no or yes to whatever it is that will affect them and confirms that affected communities are active participants in development processes. 

In order to participate actively in development processes, affected communities must have access to all information relevant to the proposed project so as to make informed decisions that will impact their future and the future of generations to come. However, in this particular case, key information contained in the mining right application was withheld from the community. Similar instances have occurred in many other communities in the country. How is an affected community supposed to make an informed decision when they do not have access to key information? Is this then, real consent? 

This is what brought the Amadiba Crisis Committee back to court. In what can be deemed another landmark judgement, the court made a very important ruling that, 

“interested and affected parties as contemplated by the Mineral and Petroleum Resources Development Act are entitled on request to the relevant Regional Manager of the Department of Mineral Resources, to be furnished with a copy of an application for a mining right subject to the right of the applicant and/or the Department to redact financially sensitive aspects of the application.” 

This impacts significantly on the current power dynamics at play between communities, the state and large mining companies. It is a disruption of the business-as-usual approach of the state rolling out the red carpet for transnational corporations(TNC) through its departmental functions. The asymmetry of power which belies the current development model, unfairly grants TNCs insurmountable power over communities and to a degree, the state themselves. The development model allows TNCs to bid for and initiate domestic development projects under the auspices of advancing economic growth through employment and the social development and upliftment of the community that will be affected by the project. However, it is well documented through the work of the Southern Africa Campaign to Dismantle Corporate Power and the Permanent Peoples’ Tribunal on Transnational corporations in Southern Africa that the communities affected by current mining and other extractivist projects are often left worse off and bear the brunt of pollution, soil poisoning, devastating health conditions and a degraded natural environment. 

The other leg of the power horse lies with the state. Its heavily bureaucratic and laborious processes coupled with dodgy policies and background cronyism, means that it puts the economic interests of the TNCs above those who will be affected by these decisions – above the people. So when an application for a mining right lands up at the Department of Mineral Resources and Energy, it is already assumed that the application will be approved. Hence, an interception of this power dynamic ensures that affected communities must be able to put forward their proposals and alternatives so as to drive an alternative model of development in favour of livelihoods and the natural environment. For too long, mining corporations have bullied communities into accepting their promises of social upliftment programs and jobs or just refused to engage them at all. Mining corporations can no longer circumvent the lawful process of meaningfully engaging with affected communities in an effort to fast-track their operations. If they do, they can expect to be embroiled in lengthy and costly legal battles. 

It is common practice for affected communities to be deliberately sidelined from decision-making processes and to have their voices of dissent bulldozed by big corporations with access to a legal arsenal and private security militia. The Amadiba Crisis Committee are no strangers to this kind of violence and repression in an effort to quell their resistance. At the peak of violent repression in 2016, the then chairperson of ACC, Sikhosiphi “Bazooka” Radebe was brutally murdered at his home and in front of his son by men who claimed to be police officers. The Radebe family have yet to receive any form of justice for their slain family member. 

Declaring that affected communities are entitled to the Right to Say No and that they have access to full particulars of mining right applications significantly balances the very skewed power dynamics. It is an important recognition of the Right to Say No . The court in its handing down of this judgement supports the struggle of affected communities and their struggle for consent rights concerning projects that affect them, their environment, their land and their livelihoods. 

This compelling judgement is not only a victory for the community of Umgungundluvu but has far-reaching impacts for all communities affected by mining and extractivism. It’s powerful determinations start to lay the foundations for and secure the Right to Say No in common law as well as to bolster and legitimize the various struggles against  extractivism. Over and above its implications on law and practice in South Africa, it serves as a beacon of hope and fuel to continue to resist for affected communities throughout South Africa, the African continent as well as the rest of the world. 

This judgement is an inspiration and a show of what is possible in a culmination of resistance action, peoples’ power and the demand for the Right to Say No. It is especially so for affected communities, like the Ogiek people in Kenya, the Ogoni people in Nigeria, rural woman in Zambia, the Mikea people in Mozambique who have been embroiled in battles concerning the protection of the commons from the clutches of state and TNC collusion in the exploitation of natural resources, the degradation of the environment and the destruction of livelihoods. This victory is a battle won but the war is yet to be won.

Originnaly published as "High court ruling over titanium mining empowers communities" in the BusinessDay.