The purpose of the Draft Guidelines is to provide guidelines to be applied by applicants or holders of prospecting rights, mining rights or mining permits ("Applicants and Holders") when their application for or the relevant right or permit, will have the effect of resettlement of landowners, lawful occupiers, holders of informal and communal land rights, mine communities and host communities ("Affected Persons"). The Draft Guidelines also outline the process and requirements to be compiled with by Applicants and Holders when such application or right will result in physical resettlement of Affected Persons, from their land.

The Salient features of the Draft Guidelines are set out below.

The Draft Guidelines require 'meaningful consultation' with Affected Persons. They also list the various stakeholders to be consulted, which include, but is not limited to, host community, mine community, landowners (traditional and title deed owners), lawful occupiers, holders of informal land rights, holders of communal land rights, traditional authority, land claimants, non-governmental organisations, community based organisation, the Department of Rural Development an Land Affairs, any other person (including on adjacent and non-adjacent properties) whose socio-economic conditions may be directly affected by the proposed mining operation, the local municipality and the relevant government department, agencies and institutions responsible for the various aspects of environment and infrastructure which may be affected by the proposed project.

According to the Draft Guidelines, Applicants and Holders may use appropriate tools and platforms to engage Affected Persons about the proposed mining development, which may include regular meetings or workshops, surveys or roadshows, and announcements of the consultation process in local radio stations, newspapers and relevant media.

The Draft Guidelines provide that Applicants and Holders are required to prepare a 'resettlement plan' and 'resettlement action plan' and that these documents must be prepared under 'meaningful consultation' with Affected Persons. The Draft Guidelines also set out guidelines on the contents of the relevant documents. A resettlement plan is a broader consultative document which is concerned with project description, impact analyses, costs and budgetary considerations and consultation mechanisms. The resettlement action plan on the other hand is a document that lists the steps to be taken in order to achieve the goals set out in the resettlement plan.

Moreover, the Draft Guidelines call upon the Applicant or Holder to conclude a 'resettlement agreement' with the Affected Persons. The resettlement agreement serves to record in full all the commitments made by mining company in relation to the resettlement. The resettlement agreement must be in writing and signed by authorised representatives of the Affected Persons for it to be valid. Once signed, the resettlement agreement must be submitted to the Regional Manager for noting.

In terms of the Draft Guidelines, no mining activity shall commence until a resettlement agreement is reached on the appropriate amount of compensation as a result of the resettlement of Affected Persons. It seems that the Draft Guidelines seek to compel the reaching of agreement between mining companies and Affected Persons before mining activity can commence. However, the reaching of such agreement is dependent on the willingness of the Affected Persons to reach agreement, failing which it will be impossible for mining right holders to adhere to this requirement. This guideline is inconsistent with the provisions of sections 5 and 54 of the Minerals and Petroleum Resources Development Act 28 of 2002 ("MPRDA"). Moreover, this guideline fails to take into account that holders of rights have obligations to commence operations within stipulated periods which appear in the MPRDA itself.

In order to facilitate process for reaching the resettlement agreement, Applicants and Holders are required to amongst others:

  • engage in meaningful consultations with Affected Persons;
  • provide Affected Persons the opportunity to comment, and obtain clear, accurate and understandable information about the impact of the proposed mining activity or implications of a decision on resettlement;
  • ·offer Affected Persons choices and options that are practical and economically suitable in respect of resettlement;
  • provide Affected Persons with compensation for losses to their property and livelihoods;
  • assist with the resettlement by providing financial and related support to Affected Persons;
  • provide Affected Persons with residential housing, housing sites or agricultural land;
  • ·offer support after resettlement to ensure livelihoods and standards of living are restored;
  • assist with sustained development within the resettled mine community or host community after resettlement;
  • consider amongst others, enabling resettled people to appropriately share in benefits for example, project related employment;
  • establish a Resettlement Monitoring and Evaluation Committee (RMEC), which shall comprise representation from the stakeholders referred to in Draft Guidelines.

According to the Draft Guidelines, the mining company will bear the costs of the resettlement.

In addition, the resettlement of Affected Persons must as far as possible enhance and improve affected communities livelihoods, such as housing, schools, health facilities and recreational facilities; and resettlement sites and designs should be developed and agreed with all stakeholders, not just community leaders and statutory authorities.

The Draft Guidelines provide that the types of resettlement packages for Affected Persons may include (i) cash compensation for assets, including crops and structures; (ii) provision of resettlement housing; (iii) provision of a resettlement site; (iv) allowances to facilitate the moving process; and (v) livelihood restoration programmes.

There is no standard formula for determination of sufficient compensation as a result of resettlement. According to the Draft Guidelines compensation rates should be determined based on the local context and current full replacement values. A transparent, participatory approach to determining compensation should be undertaken and an experienced 'Independent Valuer' deemed acceptable to companies and communities should be used.

Further, the Draft Guidelines provide that the resettlement compensation and related benefits for Affected Persons should be clearly distinguishable from and accordingly not be conflated with the Social and Labour Plan and Mining Charter commitments.

Under the Draft Guidelines the Holder will be responsible for reporting progress with implementation of the resettlement plan periodically to the DMR. The DMR, through the Regional Manager will monitor and evaluate implementation of the resettlement plan, which monitoring and evaluation is to be done for the duration of the mining right.

The Draft Guidelines proposes a dispute resolution mechanism if there is a dispute about any aspect of the resettlement. In such circumstances, an Applicant or Holder must firstly, endeavour to resolve the dispute amicably through engagements and mutual agreement with Affected Persons. Applicants and Holders will be required to create grievance management mechanism and an effective, formal and structured grievance procedure to track and attend to the project and resettlement related grievances from the start of the resettlement planning. If the resettlement dispute is not resolved amicably, the Applicant or Holder must notify the Regional Manager about the dispute and the Regional Manager must initiate a negotiation process as contemplated in section 54(3) of the MPRDA. Section 54 of the MPRDA provides for a mechanism to resolve disputes between landowners or lawful occupiers and mining right holders when the former prevents the latter from commencing with mining operations. The section set outs the manner and process that the Regional Manager must follow in attempting to resolve the dispute. In terms of the Draft Guidelines if the dispute cannot be resolved by the Regional Manager led process, the parties will be required to refer the matter to either an arbitration or conciliation process. Only in circumstances where the arbitration or conciliation process fails, will an aggrieved party be entitled to refer the dispute to a competent court for determination.

In terms of the Draft Guidelines, Applicants and Holders will be required to, where feasible, provide financial assistance to Affected Persons to obtain competent representation in the dispute resolution processes.

The Draft Guidelines will apply to an application for prospecting right, mining right and mining permit. Applicants and/or holders of prospecting rights, mining rights and mining permits will be required to comply with the Draft Guidelines at all stages of development, when such development will have the effect of displacement or resettlement of Affected Persons. Accordingly, the Draft Guidelines extend to existing prospecting rights, mining rights or mining permits where incremental project expansion will have the effect of displacement or resettlement of Affected Persons.

The Draft Guidelines do not constitute regulations and do not constitute legislation. Instead, it constitutes formal guidelines of policy. A policy, formal or otherwise, is not legislation and remains a guideline. It could never be applied so as to have the force of law or to preclude a prospecting right, mining right or mining permit holder or applicant from adopting other means in regard to resettlement of Affected Persons when their mining operations will result in physical resettlement of Affected Persons, from their land.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.