Glencore’s Umsimbithi mine is involuntarily relocating farm workers from the Wonderfontein area close to Belfast, so that the land can be mined. The villagers have not yet been relocated, but Glencore has already started mining. Although Glencore can provide evidence of public consultation , many villagers have not given free prior consent for the “involuntary relocations”.
“The mine told us that there was coal here, we must relocate and they will give us a place to stay. They have suggested many places but it’s unsuitable for us," stated retired farmworker, Bhekumuzi Phakathis. "I said I will agree on the one [place"> suitable for me. They are not responding, but they continue to mine. What do they want to do with us?" he said.

Peter Leon, from Webber Wentzel Attorneys, addressed a panel at the Public Interest Law Group of the University of the Witwatersrand, Johannesburg, on 12 July 2013.

THE PRINCIPLE OF FREE, PRIOR AND INFORMED CONSENT

Leon stated that as was evidenced at Marikana, a regulatory license to operate is only one of a number of elements ensuring sustainable mining. “One of the ways that a 'social licence to operate' may be acquired is by acquiring the communities’ full consent and approval for a mining project prior to the development of such project, this is also known as the principle of free, prior and informed consent.”

Leon explains that various international mechanisms exist to promote free, prior and informed consent. These include The Framework for Responsible Mining, The United Nations Policy on Indigenous Populations, ILO Convention 169. Various financial institutions have also implemented a policy of consent as a prerequisite to funding, including the World Bank.

The International Labour Organization’s Convention 169, named the Indigenous and Tribal Peoples Convention recognises tribal and indigenous people’s right to self-determination within a nation state.

WHY HAS SOUTH AFRICA NOT YET RATIFIED THE CONVENTION?

South Africa, a founding member of the International Labour Organization has not ratified this convention. It may be because they perceive this to be a threat to the lucrative coal mining industry exploding in the Mpumalanga Highveld. Various government departments have been approached for comment on this. Those that responded simply referred the enquiry to another department. The Departments of International Relations, Rural Development, Labour, Mineral Resources, and Trade & Industry have yet to respond to the matter.
Coal mining companies in South Africa seemingly have no interest in community upliftment and creating benefit for the immediate communities they affect. Their acts of community upliftment seem only to start at the nearest large towns, often under external pressure. They leave in their wake a wave of desperate, unemployed and destitute people, robbed of a sustainable future in agriculture.

BEAUTIFUL LAWS THAT ARE NOT IMPLEMENTED

Inkhosi Mnisi of the Mpumalanga House of Traditional Leaders explains: “South Africa has beautiful laws, but the question is in implementing the laws…when mining comes around, you always think that it’s going to bring bread and butter, it’s going to change your life from bad to better. [but when the mining comes they say"> ‘can you move, so that we can tap the wealth that belongs to you?’ In as much as we want to continue with mining, we still have people [that must"> live.”

About 75 kilometers East of Witbank is the old railway settlement of Wonderfontein (Afrikaans for Miracle Fountain). The name gives a hint that this is a water rich area, ideal for agriculture. A few kilometres outside Wonderfontein a new mine under Umsimbithi Mining is planned. Umsimbithi is owned by the Shanduka Group and Glencore, with Glencore being the managing shareholder with a 49 percent share.

The Wonderfontein Colliery has a life of mine of 16 to 20 years, with annual production of 3.6Million Tonnes per Annum (metric) of which 45 percent is exported. They employ 511 people and claim that 45 percent of their staff comes from “neighbouring communities” within a 45 kilometer radius of the mine, which just includes the large coal mining town of Middelburg. The mine is projected to contribute R1.1billion to South Africa’s export earnings.
In their official response Glencore explains their system of interaction with communities, making great effort to engage and consult with traditional peoples and other stakeholders, but in their response they failed to recognise the ILO169 or the concept of consent. Glencore did not comment on the villagers’ security of tenure.

Based on the response by Glencore’s Gugulethu Maqetuka it is only on rare occasions that Glencore “might be unable to continue without the resettlement of local inhabitants.” In such cases they strive to comply with international standards. Glencore subscribes to the World Bank Policy on Involuntary Resettlement, which they explain as “public consultation with all relevant stakeholders to ensure that the human rights of the affected communities are respected.”

Maqetuka explains that villagers were given an opportunity to relocate to the town of their choosing, and that those who wish to continue farming will be relocated to an area known as Generaalsdraai. “All households will move to brick structures that are, at minimum, equal in size to their current dwellings.”

PERCEPTION AND REALITY

In reality they pre-emptively started mining even though the outcome of their public participation process has not yet been finalised. Villagers who reside on the farm have not yet been relocated, and they are still uncertain of their future while the mine’s operations gradually close in on them.

The mine’s first dumps are visible from the courtyard of his traditional clay house. Close by his ancestors are resting in their graves, watching over him and protecting him. At his age Bhekumuzi should be relaxing and enjoying the fruits of his labour in the company of his loved ones, but he is restless: “Wherever I go I must live with my children. I want my own place where I will not be disturbed, where I can stay forever and ever and where nobody can force me again to relocate. No. The place must be my own.” There is disparity between Bhekumuzi’s perception and Glencore’s promises.

EMPLOYING OUTSIDERS

The Kwaspofana villagers complain that Umsimbithi is employing people from far away, and bringing them to the mining site in busloads, apparently from Middelburg.

Mr. Maqetuka explains that 229 of the 511 people employed at Wonderfontein Colliery come from within a 45 kilometer radius of the mine. This would include the large mining town of Middelburg which borders Witbank, an area with a high concentration of skilled mineworkers, that Glencore’s Umsimbithi mine employs twenty people from the thirty nine affected households.

“As mining is a specialised function, it is impossible to expect that the company would source all required skills from surrounding communities.”
But Glencore claims to be making some progress towards upskilling these villagers: “The company has also provided two bursaries for full-time tertiary study to members of the affected households. Skills training has also been provided to 10 people from the affected households and a further 18 from within a 45km radius of the operation.” Glencore did not elaborate on the type of skills training the villagers received, nor its applicability to mining.
To date the actual skill level of the original immediately affected communities at Umsimbithi remain mostly unchanged.

According to the villagers the latest offer is that once they relocate to low-cost RDP houses the mine will employ two people per household so that they can afford the municipal services, but the villagers are sceptic. “What the mine is doing now has tricks among it.” They wonder what will happen if they fail the pre-employment medical checks after relocating.

A few locals from the main village called Kwaspofana on the farm also agreed to be interviewed. The tension is tangible in the group. According to them, new people arrived in the village, some of whom are employed by the mine. The air is heavy with distrust and suspicion: “What is important is the mine, not us.” Many of the original villagers have been living there for more than thirty years, some for more than one generation. “No matter if we say they cannot mine, they have already started mining.”

Across the dirt road gravediggers are resting in the shade of a huge tree; they also live in the village of the ancestors whose graves they are exhuming, while living amongst their descendants. Glencore explains that people know where their ancestors, a primary part of their religion, will be reburied.
But some locals still do not know where the remains will be laid to rest. In their culture their ancestors will trouble them if they do not make regular offerings to them to ensure their blessing. The ancestors may never be forgotten.

According to Glencore “…this process is handled with dignity and all cultural rights are respected.”

FEELINGS OF BEING CHEATED

The villagers feel the mine has deceived them: In community meetings the mine promised an improved life for all, but later changing this to say that they would only compensate for that which the villagers currently have and no more. “So when we asked them: ‘How can you change your statement?‘ No one answers that. So they suggested dropping the meetings. There are no longer meetings we used to hold at the schools. They are going house to house speaking with everyone in his [own"> house without consulting us that there are no longer meetings going to be held. They are just doing some of the things behind our backs.”

It seems that Glencore has a long way to go to achieve World Bank requirements for participation of indigenous peoples, which requires an agreement on precautions, mitigation and compensation of affected communities.
Fortunately to Glencore’s benefit the World Bank has not yet completely implemented the actual consent as a prerequisite to all projects.
“Despite Marikana’s underlying tragedy, it is also an opportunity for government, labour and business to learn from its terrible lesson, and build a better, more inclusive and sustainable mining industry. The regulatory licence to operate is insufficient for sustainable mining operation, and mining companies can no longer continue to operate without the social licence to do so” explains Leon.

With the Farlam commission still wading through the dark marshes of the Marikana massacre, mining companies seem to continue undisturbed in their old ways, ignorant of the damage they cause to those living closest to their operations.

* Franz Fuls

*This article was grant-funded by Forum for African Investigative Reporters, and produced with Oxpeckers.org

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