Complex Commons under Threat of Mining: The Process for and Content of Community Consent

Abstract

"The Sekuruwe community of Mokopane district lost much of its land to an international mining company when the cabinet member responsible for communal trust land leased the valuable agricultural land with the approval of the distant leadership of the larger tribe, but without talking to or negotiating with the community itself. Three hundred families lost their best mealie fields and vegetable gardens, and their best communal grazing land, springs and dams. Their gravesites were moved, and they lost access to their sacred places to make place for a tailings dam of the world’s richest platinum mine. They would never have agreed to sell or lease their land. The community lost most of its commons and is now challenging the minister’s decision in the South African law courts. It is fighting to retain its soul. The Protection of Land Rights Act requires that communal land cannot be disposed without a decision in terms of its customary law and the consent of a general meeting of affected community members, and the South African constitution insists on the recognition of customary law. The minerals act (MPRDA supersedes the tenure laws and allows the state to authorise mining with minimal recognition of the rights of owners and occupiers. In the court litigation proceedings and other advocacy measures adopted by the community leadership, like elsewhere, customary law is pitted against the powerful external driver in the form of national state law designed to further class interests. The stories of the Sekuruwe and Endorois communities are replete, and the urgent project at hand is to guide and debate the rules and procedure of engagement between miners, developers and the owners/users of commons. The paper will explore: the voices of owners, users and occupiers of commons; the boundaries of their authority; their living local or customary rules, procedures and institutions; equality of arms and bargaining strengths; ecological, sustainability and other interests. All of these must be considered to give substance to the demand that any disposal of commons must be subject to the consent and veto power of its users, and the concomitant implications for governance of commons. A veto power gives legal political impetus and grounding for governance arrangements. The paper will also cover developments in international soft law on the application of the FPIC principle to commons and community property."