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Transforming Society

Securing Rights

Restoring Dignity

SAHRC welcomes the Xolobeni judgment

26 November 2018

The South African Human Rights Commission (SAHRC or Commission) welcomes the Xolobeni judgment in which the High Court in Pretoria ruled that the permission of the community is required before mining rights are issued.
Community members have been demanding to assert their right to refuse mining companies the right to extract titanium at the Umgungundlovu area in Xolobeni on the Wild Coast, Eastern Cape. This community raised concerns regarding possible displacement from their homes and grazing lands, as well as environmental degradation.
Recently, the Commission released its National Investigative Hearing Report on the Underlying Socio-economic Challenges of Mining-affected Communities in South Africa in which it similarly found that during issuance of mining rights, communities were not adequately consulted and therefore, there was no meaningful participation. Collective consent had been accepted as a test for consent, but such consent was deficient for a number of reasons including a lack of representation of diverse groups, and groups which experience systemic disadvantage such as women.  This approach goes against the principles of free, prior and informed consent.

The Commission also found that participation and consultation processes were described as lacking in legitimate representation, not being sufficiently inclusive, not accommodating in terms of process, level and quality of information provided, and often not including key stakeholders, such as municipalities.

We, therefore, reiterate that in order for communities to give free, prior and informed consent, there must be meaningful participation. Meaningful participation must seek to legitimise and secure that the needs of communities are understood and addressed as between all stakeholders creating accessible open, representative and inclusive platforms through which consultation occurs for impact-driven outcomes. Meaningful consultation should not be confined to a tick-box exercise.

Furthermore, to enable communities to be in a position to give consent, access to information is important. This must include information regarding all short- and long-term risks and benefits of the proposed mining operations. Access to sufficient information includes the requirement that information is suited to the needs of communities and is easily accessible, and that interested and affected parties have sufficient time to consider it. Community consent implies that a decision made by the community must be free from any form of manipulation, coercion, or pressure; prior to the commencement of the activity; and with full, detailed and accurate information on the nature and scope of the proposed mining activity. This information is to include the reasonably foreseeable impacts on the community’s economic, social, environmental well-being, including the impact on women informed by the precautionary principle that the burden of proof falls on the applicant to establish that an activity is not harmful, and on development alternatives.

The Commission partly recommended that standards for consultation should ideally include opportunities for wider public participation in so far as the granting of mining licenses and evaluation of mining impacts are concerned.

Source: News Everyday

The South African Human Rights Commission.

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The Human Rights Commission is the national institution established to support constitutional democracy. It is committed to promote respect for, observance of and protection of human rights for everyone without fear or favour.

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