The mining industry must work harder on implementing human rights programmes to prevent the exploitation of unhappy communities for narrow self-defeating motives, Minerals Council South Africa senior executive Tebello Chabana commented during a Human Rights Dialogue on March 17.

He noted that South African communities had been “stranded by failing and failed local governments”, which had created a “hotbed for discontent that is easily stoked by unscrupulous third parties”.

Richard Spoor Attorneys associate Johan Lorenzen noted that communities were looking for “basic recognition” and cautioned that “the more they are disrespected, the more communities get radicalised.”

He pointed to the fact many communities have gone to court over, among other issues, a lack of free, prior and informed consent, which arose from a lack of adequate consultation with mine-affected communities.

“We're seeing a Department of Mineral Resources and Energy (DMRE) that is less and less interested in protecting community rights.” He said the actions of the DMRE, in granting mining rights without looking at the consultation process and without moving towards free, prior and informed consent, blocked off an avenue that empowered all parties to reach reasonable agreements in advance.

Such an avenue would ultimately derisk the investment, while protecting basic human rights.

Lorenzen said both the State and the industry should consider the environment they were creating when ignoring communities. He noted that there had been increased complaints from mining companies about “mafias” trying to benefit from mining contracts.

“Certainly, this is the case and it's certainly wrong. But communities who partner with these so-called mafias do so because they feel that this is a remedy available to them in the absence of remedies provided by mining companies.”

He noted that the United Nations Guiding Principles on Business and Human Rights envisaged companies enabling remedies to human rights abuses and other challenges through grievance and other mechanisms.

“Access to remedies is one of the central principles in the Guiding Principles,” Lorenzen said.

Further, he stressed that, while changing expectations and scrutiny from society on corporate practices had resulted in increased litigation as a means of enforcing accountability, “litigation is incredibly expensive and can only be accessed by a select few”.

He stressed the need for active mechanisms that did not require the use of courts. “We shouldn't need lawyers to provide remedies for communities, because in my experience, communities are incredibly reasonable.”

Lorenzen stated that industry must internalise the Guiding Principles and should look to changing its approach, as the tools and mechanisms used to successfully manage a mining operation are not necessarily useful in addressing human rights issues and community engagement.

Further, the structural issues that are deeply entrenched in South African society would not be solved with a ‘project-management approach’.

“Every day, I deal with good, moral and righteous people in the mining sector. But the [challenge], for my clients, isn't about whether there are good or bad people engaging with them, it's about what structures we set up to create a more just world.”

He agreed with Chabana that companies were increasingly being asked to ‘step up’ their human rights recognition and protection, and that this was “principally a product of the failure of the State”.

Lorenzen added that it was not sustainable to ask companies to lead on protecting rights. As such, he noted, “we are collectively calling on the State to protect human rights so that we eliminate a race to the bottom for companies and force them to compete on a level playing field where human rights are respected across the board. That can only be done if we are all standing up and demanding that the State does its job.”

LEARNED HELPLESSNESS

On the issue of holding the State to account,  Cape Town Archbishop Thabo Makgobo reflected on the research of American psychologist Martin Seligman.

“He and others ran experiments where, when the ability to effect change on something discomforting was taken away, people did not try to effect change in other bad situations. They learned and they were taught that nothing they did could change their circumstances. So, they did nothing. I often wonder to what degree we as a nation are suffering under this learned helplessness.”

Having noted the aptness of the topic ahead of Human Rights Day, Makgobo commented that citizens had an opportunity to undo the harm of structural inequality and stressed that this would be rooted in “small, purposeful actions, driven by an honest intention to create a fairer, and more just society for all”.

Chabana added that, “the mining industry has a blemished human rights history. We're taking lessons from our past, bringing in leading global practice and holding our members to the highest standards to ensure we don't repeat the mistakes of the past.”

He stressed that, although the mining industry could not change the past, companies’ conduct must now be guided by the commitment of building an industry that is rooted in the fundamental principle of respect for human rights.  

The dialogue was hosted by the Minerals Council in collaboration with diversified miner Anglo American and Global Compact Network South Africa. It was facilitated by Synergy Global Consulting.