In September 2020, the High Court of South Africa considered and made a notable determination in a matter involving the Umgungundlovu (Xolobeni) community and its right to access information contained in a mining application.
The reading of the judgement is very instructive to any mineral rich government as it highlights the issues that arise in the practical implementation of the right.
While it is a notable achievement in itself to crystalize this right in legislation, the case exposes the corresponding need to ensure effective and timeous access to the information as this consequently has a bearing on the process of consultation, dialogue and arriving at prior informed consent.
Read more analysis articles
The right to information is an established pre-requisite in facilitating the inclusive and constructive participation of affected persons in mining projects.
However, it is apparent that the right requires anyone intending to use it to have the resources and supporting expertise to activate its full potency and impact.
Following from the same, it is important to discuss the circumstances that may enable communities to make effective use of the right of access to information.
In its ideal form, the right of access to information should include access to information of the applicant’s ownership structure, the nature of the proposed mine, its extent, accompanying development, environmental, social and labour plans.
The final environmental and social impact assessment should also be shared with affected persons in order for these groups to be able to assess the points of impact, the plans of the mine to mitigate the impact and whether the proposed plans sufficiently cater for the preservation of their rights as prescribed by the law.
Read more articles about the environment
The sharing of such information is pivotal to creating constructive and informed dialogue between the government, mining rights applicants and the affected persons.
Done correctly it yields a positive environment for development and sustainable co-existence between mining investors and surrounding communities.
In the court case referenced above, the community sought the intervention of the court to access information in mining applications directly from the Department of Mineral Resources and not through various other pieces of legislation or auxiliary procedures.
The Court duly established that the prevailing administrative procedures for requesting such information was ineffective and prolonged thus resulting in very few positive results for requesting parties.
The interrogation of the Court establishes an important issue to reflect upon as regards the enforcement of the right.
While disclosure of such information is usually a consequence of a request being made for it, it is a considered view that the application and all relevant ancillary information should be made available to affected parties automatically once an application has been lodged and a notification issued.
The issuance of a notification by the state to announce the lodging of a mining application should actually result in the automatic disclosure and release of all information which is relevant to affected parties without having to wait for a request for the same.
In accordance with the basic tenets of consultation and prior informed consent, the provision of such information is central to the participation of the affected parties and therefore should not require a separate process for its acquisition.
Allowing the immediate release of all relevant information ensures that communities and any affected parties immediately have access to information without having to expend resources and time trying to acquire the same.
The issues ventilated within the aforementioned matter also showed that it is important for affected persons to have access to expertise, resources or relevant assistance from third parties where a dispute arises in the enforcement of any of their rights or to enable them to fully evaluate the information received in the disclosure process.
It is trite that information is only as useful as one can interpret and ventilate its veracity in relation to their interests.
In the absence of such ability the community needs to procure the assistance of experts to assist them with the same. In the case of the Xolobeni community, the participation of the Amicus Curiae which in this case was the Centre for Applied Legal Studies became pivotal to case.
The Centre was enjoined to the proceedings to provide statistical evidence on the veracity of the prevailing administrative relief procedures.
Such evidence would not have been ordinarily available to the community, yet it eventually had a significant bearing on the findings of the court and placed the community’s complaint into clear perspective.
Such expertise or information comes at a cost and is required even in instances where there are no disputes because affected persons would still need to procure independent advice on the information contained in mining applications.
However, how many communities or interest groups have the resources to acquire such ancillary information?
It is a considered view that communities should have equal access to support and expertise relating to any process which requires their informed participation in proposed mining plans.
Such support should be proactively built into the regulatory system that guarantees the right of access to information. While some communities can acquire or mobilize funds to procure specialists and legal experts it is important to acknowledge that some communities do not have such capacity and thus should not be left disadvantaged if they fail to get sponsorship or support to facilitate the same.
It is important for every community to be empowered to enforce or utilize the rights available to them in development dialogue.
This brings to bear another important remark the Court made as regards the status of the community and the state in the evaluation of applications for mining rights.
The Court noted that the Mineral and Petroleum Resources Development Act stipulates that state land is co-owned by the state together with the occupants of the land thus placing government and communities in an equal position of interest.
Whether or not a mineral rich country specifies this in its legislation the import of this position holds true for any land owned by the state.
The consequence of this position is that the input made by communities in response to mining applications is complimentary to the function of the state because it also intends to inform the state on whether the application meets all the prescribed requirements in terms of the objectives of the law and the necessary consultation processes.
Simply put, the state and the community are on the same side and share the same interests.
However, in many contentious mining projects, communities and governments appear to take an adversarial stance. This is a wrong approach.
The state and the occupiers of the land ultimately represent the same interests therefore, when a mining application is received the participation and interrogation of the community or an affected party is not antagonistic but in fact complimentary to the preservation of national rights and aspirations and should always find support from all available government capacity.
Resultantly, it is a measured view that in the absence of capacity to procure resources or alternative funding sources for expertise and an independent analysis of the application documents and plans, an affected community should be able to tap into public funds to facilitate the same.
It is the duty of every mineral rich government to ensure that affected communities have the right to access all relevant information in a timeous manner.
Further to this right, governments should envisage provisions to ensure that communities have equal access and opportunity to acquire support that enables them to effectively utilize this right.
The right on its own will not immediately empower the position of communities unless it is accompanied by favourable conditions which assist in bringing the intention of this right to life.