Residential and Agricultural Relocation
Beyond section 54 of the MPRDA, there is no mining or mining-related legislation regarding the process of relocating households that live upon or next to land that is to be mined. Section 54 deals with compensation more generally and is elaborated upon here. There are no explicit guidelines that must be complied with in terms of South African law regarding the relocation of households and compensation for loss of agricultural land. However the compulsory EIA process (see here for more info) requires research by mining companies and consultation with affected parties regarding social impacts of mining operations. The mining company must then produce and EMP which must show how it intends to deal with the social impacts identified. Through these mechanisms, it is clear that consultation and compensation for residential and agricultural relocation are compulsory obligations for mining companies to carry out.
Compliance with the 2010 Charter requires consistency with international best practices in terms of rules of engagement. An example of widely used international best practice is the International Finance Corporation (IFC) guidelines. The guidelines are spread out among multiple documents and are extensive in nature. The IFC Performance Standard 5 contains the following objectives regarding relocation: forced or involuntary relocation should be avoided where possible, livelihoods and standards of living of relocated people should be improved or restored, adequate compensation for the loss of assets should be provided and that relocations should be carried out with the “appropriate disclosure of information, consultation and the informed participation of those affected.”[1] The IFC Handbook for Preparing a Resettlement Action Plan provides a series of steps for fair resettlement: detailed maps of the area regarding population, infrastructure and environmental features, a census of the affected people, an inventory of lost and affected assets of the community and of each household, surveys of the socioeconomic impact of the relocation, analysis of the surveys to create adequate compensation and income restoration strategies and, lastly, consultation with affected parties regarding the mitigation of negative impacts and opportunities for development.[2]
The IFC guidelines do not require the consent of the affected parties before relocation is to occur. As is shown in another section (here), the Interim Protection of Informal Land Rights Act (IPILRA) fills this gap. It explicitly requires the consent of the majority of members of a community before that community’s land rights can be negatively affected.[3]
However, IPILRA is often ignored by mining companies and by government. Mining companies operate as if communities’ consent is not needed for them to infringe on communities’ land rights. Communities often feel that they have no chose but to accept an offer by mining companies, even if they do not wish to relocate or feel that the alternative location, compensation or agricultural lands are inadequate.
[1] IFC Performance Standard 5, pgs 1-2
[2] IFC Handbook for Preparing a Resettlement Action Plan, pg 13
[3] IPILRA, section 2
Beyond section 54 of the MPRDA, there is no mining or mining-related legislation regarding the process of relocating households that live upon or next to land that is to be mined. Section 54 deals with compensation more generally and is elaborated upon here. There are no explicit guidelines that must be complied with in terms of South African law regarding the relocation of households and compensation for loss of agricultural land. However the compulsory EIA process (see here for more info) requires research by mining companies and consultation with affected parties regarding social impacts of mining operations. The mining company must then produce and EMP which must show how it intends to deal with the social impacts identified. Through these mechanisms, it is clear that consultation and compensation for residential and agricultural relocation are compulsory obligations for mining companies to carry out.
Compliance with the 2010 Charter requires consistency with international best practices in terms of rules of engagement. An example of widely used international best practice is the International Finance Corporation (IFC) guidelines. The guidelines are spread out among multiple documents and are extensive in nature. The IFC Performance Standard 5 contains the following objectives regarding relocation: forced or involuntary relocation should be avoided where possible, livelihoods and standards of living of relocated people should be improved or restored, adequate compensation for the loss of assets should be provided and that relocations should be carried out with the “appropriate disclosure of information, consultation and the informed participation of those affected.”[1] The IFC Handbook for Preparing a Resettlement Action Plan provides a series of steps for fair resettlement: detailed maps of the area regarding population, infrastructure and environmental features, a census of the affected people, an inventory of lost and affected assets of the community and of each household, surveys of the socioeconomic impact of the relocation, analysis of the surveys to create adequate compensation and income restoration strategies and, lastly, consultation with affected parties regarding the mitigation of negative impacts and opportunities for development.[2]
The IFC guidelines do not require the consent of the affected parties before relocation is to occur. As is shown in another section (here), the Interim Protection of Informal Land Rights Act (IPILRA) fills this gap. It explicitly requires the consent of the majority of members of a community before that community’s land rights can be negatively affected.[3]
However, IPILRA is often ignored by mining companies and by government. Mining companies operate as if communities’ consent is not needed for them to infringe on communities’ land rights. Communities often feel that they have no chose but to accept an offer by mining companies, even if they do not wish to relocate or feel that the alternative location, compensation or agricultural lands are inadequate.
[1] IFC Performance Standard 5, pgs 1-2
[2] IFC Handbook for Preparing a Resettlement Action Plan, pg 13
[3] IPILRA, section 2
Grave Relocation
Mining takes place in rural areas where people bury their ancestors on the properties that they live. Thus, when residential relocation is necessary, grave relocation is often necessary as well. Grave relocation is, therefore, a frequent side-effect of mining. The primary source of legislation regarding grave relocations is the National Heritage Resources Act 25 of 1999 (NHRA).
An application for environmental authorisation must include an evaluation of the impact of ancestral grave relocation, via an EIA, and the method of relocation must approved as part of an EMP.[1] Thus, environmental authorisation must be approved before ancestral graves can be moved. If graves are older than 60 years and are situated outside a formal cemetery, then additional authorisation is required. A mining company will then have to obtain a permit granted by the South African Heritage Resources Agency (SAHRA).[2]
In order for it to issue a permit for the relocation of a grave older than 60 years, the SAHRA must be satisfied that the mining company applying for such a permit has “made a concerted effort to contact and consult communities and individuals who by tradition have an interest in such grave or burial ground; and reached agreements with such communities and individuals regarding the future of such grave or burial ground.”[3] In this regard, the mining company must do extensive documentary research regarding grave origins; it must consult directly with local community organisations and/or members; it must give notice of the proposed relocation by erecting a notice board at the graves or burial grounds for 60 days and by advertisement in a local newspaper. However, if the mining company and community members are not able to agree on the terms of the grave relocation, the mining company must submit records of the consultation and the comments of all interested parties as part of the application to the SAHRA.[4]
There is a contradiction between the applicable legislation and resultant regulations. The regulations do not seem to require the consent of affected parties in order to relocate their graves. They do not say that agreement is not necessary, only that an applicant for a permit to relocate graves must attempt agreement, whereas the legislation seems to require actual agreement.[5] It seems that the regulations are at odds with the legislation. The latter is the more powerful legal object. The legal existence of the regulations flows from the existence of the legislation. The regulations should be amended to be in line with the legislation. Despite this, recent case laws shows that courts, perhaps erroneously, are willing to favour the lesser requirements of the regulations and overlook the legislation.[6]
“[T]here is a very real potential for the infringement of cultural and other human rights as a result of inappropriate grave relocation practices that are carried out by mining companies. Many mining companies appear to overlook or undervalue the sanctity and importance of grave relocations.”[7] The SAHRC has recorded that general practice by mining companies is to provide a ‘wake fee’ covering “exhumation, transportation, temporary storage, re-internment of the remains, as well as any associated cost for conducting cultural practices” but not covering additional compensation for emotional hardship.[8]
[1] NEMA, section 24(4)(b)(iii) read with the NHRA, section 3(2)(g)
[2] NHRA, section 36(3)(b)
[3] NHRA, section 36(5)
[4] NHRA Regulations GNR 548 (2 June of 2000), regulation 40(3)
[5] NHRA, section 36(5)(b)
[6] See Langa v Ivanplats [2017] JOL 37388 (GP)
[7] SAHRC. 2017. National Hearing on the Underlying Socio-economic Challenges of Mining-affected Communities in South Africa, p.7
[8] SAHRC. 2017. National Hearing on the Underlying Socio-economic Challenges of Mining-affected Communities in South Africa, p24
Mining takes place in rural areas where people bury their ancestors on the properties that they live. Thus, when residential relocation is necessary, grave relocation is often necessary as well. Grave relocation is, therefore, a frequent side-effect of mining. The primary source of legislation regarding grave relocations is the National Heritage Resources Act 25 of 1999 (NHRA).
An application for environmental authorisation must include an evaluation of the impact of ancestral grave relocation, via an EIA, and the method of relocation must approved as part of an EMP.[1] Thus, environmental authorisation must be approved before ancestral graves can be moved. If graves are older than 60 years and are situated outside a formal cemetery, then additional authorisation is required. A mining company will then have to obtain a permit granted by the South African Heritage Resources Agency (SAHRA).[2]
In order for it to issue a permit for the relocation of a grave older than 60 years, the SAHRA must be satisfied that the mining company applying for such a permit has “made a concerted effort to contact and consult communities and individuals who by tradition have an interest in such grave or burial ground; and reached agreements with such communities and individuals regarding the future of such grave or burial ground.”[3] In this regard, the mining company must do extensive documentary research regarding grave origins; it must consult directly with local community organisations and/or members; it must give notice of the proposed relocation by erecting a notice board at the graves or burial grounds for 60 days and by advertisement in a local newspaper. However, if the mining company and community members are not able to agree on the terms of the grave relocation, the mining company must submit records of the consultation and the comments of all interested parties as part of the application to the SAHRA.[4]
There is a contradiction between the applicable legislation and resultant regulations. The regulations do not seem to require the consent of affected parties in order to relocate their graves. They do not say that agreement is not necessary, only that an applicant for a permit to relocate graves must attempt agreement, whereas the legislation seems to require actual agreement.[5] It seems that the regulations are at odds with the legislation. The latter is the more powerful legal object. The legal existence of the regulations flows from the existence of the legislation. The regulations should be amended to be in line with the legislation. Despite this, recent case laws shows that courts, perhaps erroneously, are willing to favour the lesser requirements of the regulations and overlook the legislation.[6]
“[T]here is a very real potential for the infringement of cultural and other human rights as a result of inappropriate grave relocation practices that are carried out by mining companies. Many mining companies appear to overlook or undervalue the sanctity and importance of grave relocations.”[7] The SAHRC has recorded that general practice by mining companies is to provide a ‘wake fee’ covering “exhumation, transportation, temporary storage, re-internment of the remains, as well as any associated cost for conducting cultural practices” but not covering additional compensation for emotional hardship.[8]
[1] NEMA, section 24(4)(b)(iii) read with the NHRA, section 3(2)(g)
[2] NHRA, section 36(3)(b)
[3] NHRA, section 36(5)
[4] NHRA Regulations GNR 548 (2 June of 2000), regulation 40(3)
[5] NHRA, section 36(5)(b)
[6] See Langa v Ivanplats [2017] JOL 37388 (GP)
[7] SAHRC. 2017. National Hearing on the Underlying Socio-economic Challenges of Mining-affected Communities in South Africa, p.7
[8] SAHRC. 2017. National Hearing on the Underlying Socio-economic Challenges of Mining-affected Communities in South Africa, p24