Centre for Environmental Rights – Advancing Environmental Rights in South Africa

The Centre for Environmental Rights recently published two new resources for communities concerned about the impacts of mining on their environmental rights. These resources can be downloaded for free below.

Mining and your Community: Know your Environmental Rights, produced jointly with Lawyers for Human Rights (February 2014) is a short and simple introduction to environmental rights in the context of mining. It addresses the following frequently asked questions:

1. When mining is proposed in a community, what rights do the members of the community have?
2. What is the process a mining company must follow before it is permitted by the government to mine in or near your community?
3. How can you participate in the government’s decision whether or not to allow mining in or near your community?
4. How do you know if the mining is legal and your rights have been protected?
5. What do you do if the proper process was not followed by the mining company or the government?
6. What steps can you take to defend your rights when mining is proposed in your community?

This guide also introduces some of the important laws and documents that communities and individuals affected by mining should know about and have access to. It also tells you who to talk to when you need help.

Community Casebook on Mining and Environment (February 2014) was developed to empower communities faced with applications for prospecting or mining on their land, or who may be interested in applying for such prospecting or mining rights themselves. Specifically, it aims to empower communities through knowledge of the law.

The Casebook describes the most important law that applies to prospecting and mining in South Africa and what this law means from the community’s perspective. Thereafter, it shares the experience of four communities in South Africa who have successfully used law to challenge the way in which mining is taking place on their land or on land located close to where they live:

• The story of the Bengwenyama community shows how a community was successful in asking the Constitutional Court to set aside a prospecting right on their land. This story is important for understanding the meaning of consultation and a community’spreferent right to prospect or mine.

• The Maccsand story shows how a local authority, the City of Cape Town, successfully challenged a mining company and the Department of Mineral Resources in the Constitutional Court. This story is important for understanding how the law of mining works with other laws, such as laws about how land should be developed in an urban area.

• The story of the AmaDiba community shows how a community successfully appealed to the Minister of Mineral Resources against a mining right that had been granted to an Australian company on their land. This story is important for understanding how appeals work and what problems a community might experience in submitting an appeal.

• The story of the Bakgaga Ba-kopa community is important for showing how a community challenged their own chief and tribal authority. This case shows how the community used the law relating to trusts to force the chief and tribal authority to be transparent about how they were using money they had obtained from a mining company in exchange for using a part of the community’s land for mining purposes.

Although each of these stories is a success story in its own right, each case also shows that obtaining a legal victory is not always a complete victory. The law has its own limits because it depends on the willingness of government officials, tribal authorities and mining companies to abide by the law and the orders of the court. But if more and more people know what the law says and demand that people in powerful positions stick to the law, there is a greater chance that South Africa will be a country where the people use the law (rather than their own positions of power) to govern their behaviour. It is the hope that this casebook will contribute to this goal.

The Casebook concludes with two resource lists: A list of contact details of organisations that can assist communities with legal representation, and a list of the contact details of the offices of the Masters of the High Courts in South Africa.

The Centre thanks our funders the Ford Foundation and the National Lottery Distribution Trust Fund for their support for the publication of these two important resources.

Also see our popular February 2013 publication When Mines Break Environmental Laws: How to Use Criminal Prosecution to Enforce Environmental Rights, with Schedules: Offences and Penalties. Read more about this guide, and also see a recent case where a community used criminal prosecution to enforce their rights against a mining company director.

Visit our Publications page for a full list of all CER publications.