BLOOD, SWEAT, AND TEARS: COMMUNITY REDRESS STRATEGIES AND THEIR EFFECTIVENESS IN MITIGATING THE IMPACTS OF EXTRACTIVES AND RELATED INFRASTRUCTURE PROJECTS IN SOUTH AFRICA: 2008–2018 | 1 2 CONTENTS PREFACE List of Acronyms and Abbreviations 4 Acknowledgements 7 Summary and Conclusions 9 Key Findings and Recommendations 11 CHAPTER ONE 1. Background to the Study 15 1.1. Introduction 16 1.2. Background to South Africa (Country Analysis) 16 1.3. Statement of the Problem 18 1.4. Research Objectives 20 1.5. Literature Review 21 CHAPTER TWO 2. The Legislative Architecture of the MPRDA 23 2.1. Analysis of SA Mining Environmental Legislation 24 2.2. Regulatory Governance Framework Undermined 28 CHAPTER THREE 3. Impacts 41 3.1. Water 46 3.2. Air pollution 47 3.3. Dust Pollution 47 3.4. Health and well-being of communities 48 3.5. Socio-Economic Impacts 49 3.6. Illegitimate/Illegal Business Operations 50 3.7. Grave Sites 50 CHAPTER FOUR 4. Strategic Interventions 51 4.1. Mitigating Mining Impacts 52 4.2. Barriers Restricting Effective Implementation of Strategies Addressing Negative 70 Impacts Associated with Mining References 78 Appendices 82 LIST OF ABBREVIATIONS/ ACRONYMS ACC Amadiba Crisis Committee AECA Australia’s Export Credit Agency AMD Acid Mine Drainage AMI Alternative Mining Indaba BBKTA Bakgatla Ba Kgafela Traditional Administration CALS Centre for Applied Legal Studies CBOs Community-based Organisations CER Centre for Environmental Rights CSR Corporate Social Responsibility CWP Coal Workers’ Pneumoconiosis DEA Department of Environmental Affairs DWS Department of Water and Sanitation EAPs Environmental Authorisation Practitioners EESG Economic, Environmental, Social and Governance EIA Environmental Impact Assessment EMI Environmental Management Inspectorate EMP Environmental Management Plan EMPR Environmental Mining Processing Rehabilitation GDP Gross Domestic Product GHG Green House Gas HEJN Highveld Environmental Justice Network IAPs Interested and Affected Parties ICMM International Council on Metals and Mining ICWA iMfolozi Community Wilderness Alliance IDPs Integrated Development Plans IFI International Finance Watcher Toolkit IP Inspection Panel IPSS Independent Problems Solving Service ISS Institute for Security Studies LHR Lawyers for Human Rights MACUA Mining Affected Communities United in Action MCEJO iMfolozi Community Environmental Justice Organisation MEJCON Mining and Environmental Justice Community Network of South Africa MPRDA Mineral and Petroleum Resources Development Act MSR Mineral Sands Resource MW Mega Watt NEMA National Environmental Management Ac NERSA National Energy Regulator of South Africa 4 NGOs Non-governmental Organisations OES One Environment System PAIA Promotion of Access to Information Act PBC Push Back Coal PIL Public Interest Lawyers PMGs Platinum Group Metals RBM Richards Bay Minerals RMDEC Regional Mining Development and Environmental Committee RMI Responsible Mining Index ROM Run-of-mine SAGRC Southern African Green Revolutionary Council SAHRC South African Human Rights Commission SAPS South African Police Services SLPs Social Labour Plans Stats SA Statistics South Africa TB Tuberculosis TEM Transworld Energy and Minerals UNGP United Nations Guiding Principles on Business and Human Rights WB World Bank WHO World Health Organisation WoMin Women in Mining WWF World Wide Fund | 5 ACKNOWLEDGEMENTS We would like to thank the following individuals and organisations for their valuable comments and input: Matthews Hlabane of South African Green Revolutionary Council (SAGRC), Meschak Mbangula of Mining Affected Communities United in Action (MACUA), Fatima Valley of Action Aid, Thembinkosi Dlamini of Oxfam South Africa (OZA), Jochen Luckscheiter of Heinrich Böll Stiftung Southern Africa, Thobeka Gumede and Matome Kapa of Centre for Environmental Rights (CER), Bobby Marie of Bench Marks Foundation, and Fiona Macleod of Oxpeckers Environmental Investigative Journalists. A special acknowledgement to our provincial coordinators and members of MACUA who assisted us during our site visits: Mahadio Mohapi of Kanana, Milicent Nomfundo Shungube of Ogies, Mokete Khoda of Mokopane and Talita Mogolegeng of Dominionville. This report has been published thanks to the generous support of Open Society Foundation for South Africa (OSF-SA). We are also grateful for the support of Heinrich Böll Stiftung Southern Africa, and to Kanchi Kohli and Manju Menon of Namati Environmental Justice Program for their guidance on the formulation of this publication. Authors: Allan Basajjasubi, Johnlyn van Reenen, Gino Cocchiaro. This work is licensed under the Creative Commons Attribution-NonCommercial- NoDerivatives 4.0 International License. To view a copy of this license, visit http://creativecommons. org/ licenses/by-nc-nd/4.0/ or send a letter to Creative Commons, PO Box 1866, Mountain View, CA 94042, USA 6 7 8 SUMMARY AND CONCLUSIONS The present study examines the extent to which increasingly adopting other strategies communities have utilised redress strategies such as the use of petitions, memoranda, and their effectiveness in mitigating impacts of public campaigns, social audits, community extractives and related infrastructure projects in trainings, and monitoring networks, to South Africa during the period of 2008–2018. collect and collate information about environmental, social, and economic The recent victory in the Pretoria High Court by impacts for the purposes of presenting the Xolobeni community has set a precedent these findings to mining management, the for community rights. For years, communities DMR, and parliamentarians. Findings from have used, with “blood, sweat, and tears”, the data indicated the following: various strategies to mitigate against the impact a. It would appear from the research that of mining. We are noticing a turn in the tide campaigns, petitions, and memoranda as the extractive industry becomes a highly have been effective strategies that litigious arena. This study highlights a number of community-based organisations different strategies that have been employed by and civil society have used to draw community-based organisations, civil society, and awareness to the negative impacts mining-affected communities to raise awareness of mining on communities, while of the economic, social, and environmental mobilising community participation impacts on their well-being and livelihood. From in attempts to engage with the the information obtained, it became apparent responsible authorities. that three main types of strategies have been employed consistently during the ten-year 2. Attempts by mining-affected communities period of observation. These include litigation, and community-based organisations media coverage, and protest action. Although to engage with international finance litigation seemingly has been the most effective institutions for the purposes of addressing in stopping operations or suspending application impacts by mining companies who have processes, our research results have indicated accessed finances were used in one that communities often feel that litigation fails to instance of the sample of 31 case studies. address effectively their challenges and transform Findings were made by an inspection panel their circumstances when utilised by civil society of the World Bank, which did not translate and legal firms. In recent times, however, into directives to remedy harms mentioned research and interview results have revealed that by communities. The results in this mining-affected communities and community- particular strategy proved to be ineffective 1 based organisations have become increasingly in the circumstances . Our research further more mobilised around other types of strategies substantiates why this strategy is not that best articulate their grievances, and that best commonly utilised by communities. From try to resolve their circumstances in a manner our discussions with community members, consistent to their context. community-based organisations, and other NGOs, this strategy requires a specific The following results were found: skill set of knowledge, expertise, and the strength of a well-established NGO that has 1. Community-based organisations and mining-affected communities have taken 1 http://www.bateleurs.co.za/assessment-of-the-medupi- power-station-for-groundwork-and-the-world-bank/; ownership of their circumstances by http://www.groundwork.org.za/EskomFinalDocs/ ResponsetotheWorldBankpanelreportandFactSheet.pdf. 9 the necessary financial clout for continued engagement on an international level with international finance institutions, while also having the ability to deal with day-to-day challenges, as they arise, as experienced by communities. It must be noted, however, that this finding is limited, in that information around international finance mechanisms was difficult to obtain. Our research did indicate that, when it comes to the implementation of these overall strategies/interventions, their effectiveness is limited occasionally due to specific barriers, such as: legislative restrictions placed on community consultation proceedings; mining sector being shrouded in secrecy; division and contestation within mining-affected communities; inaccessible and ineffective community company dialogue mechanisms; and use of force and intimidation by mining companies, DMR, and local government. All this emphasises the urgent need for community capacity strengthening around other strategies that can be utilised directly by communities, thus enhancing their