A legal analysis of the relationship between, and role of, Consultation under the MPRDA and Public Participation under NEMA in safeguarding the environmental and health rights of mining communities

Mothudi, Tlamelo

A legal analysis of the relationship between, and role of, Consultation under the MPRDA and Public Participation under NEMA in safeguarding the environmental and health rights of mining communities

Thesis / Dissertation

2023

Abstract

Mining activities, while of huge national economic benefit, severely disrupt traditional land usage, possession and ownership and severely pollute the natural environment. The Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) and the National Environmental Management Act 107 of 1998 (NEMA) aim to ensure meaningful public participation of members of the community, lawful owners of land and interested and affected persons. This minor dissertation aims to unpack and analyse the role of consultation and public participation (PP) in upholding and protecting the environmental and health rights of mining affected communities. It explores consultation as conducted under the public participation provisions of NEMA, and whether the lack of meaningful consultation by mining applicants results in mining affected communities lacking proper understanding and appreciation of issues surrounding the health, environmental and other risks associated with mining. The dissertation considers how the granting of the mining or prospecting rights and mining permits without meaningful consultation contributes to environmental degradation as well as the ill health of mining affected communities and other undesirable health outcomes. Consultation and PP alone cannot guarantee the protection of environmental and health rights of communities. Where rights have been infringed, at the application stage or after the granting of mining and prospecting rights and permits, another inquiry of the dissertation is the availability of mechanisms that can be used by mining-affected communities in the enforcement of their rights. Throughout the dissertation, the role of a sound governance structure is explored in mitigating the negative impacts of mining on communities and promoting social, economic, and environmental outcomes. The dissertation argues that while mandated, consultation and PP are conducted as tick box exercises failing to properly engage with mining-affected communities allowing them to be part of decision making. It questions whether Consultation conducted as part of PP in terms of environmental legislation ensures that questions around the health impacts of the project are included in the consultation or whether independent Health Impact Assessments are needed. Ultimately, the discussions around the mining legislation, Consultation and PP, and the enforcement of community rights are all discussions centred on governance. The protection of environmental, social and health rights are dependent on social justice centred policies, regulations, laws and institutions and their implementation.

Keywords

Private Law

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