13th Alternative Mining Indaba
10 May 2022
By Shamiso Mtisi
It’s good to be back at the Alternative Mining Indaba (AMI). I was last on this stage exactly eight years ago. But since yesterday I have been hearing the same community related problems we heard eight years ago. But now we have a new mantra Just Transition or energy transition.
I will approach this topic from two angles: One, the right to participation in decision making and before decisions are made. Two, participation in economic activity-or what I can loosely call benefit sharing. Below are my key points;
Participation in decision making;
1. The key attributes to Local participation include Access to information, public consultation, access to remedies and the broader discussions around transparency and accountability. The Free Prior Informed Consent (FPIC) in discussions on renewable energies, energy minerals or generally energy transition becomes important.
2. FPIC, access rights and public participation should be underpinned by a good legislative framework that provides access to information, public consultation, administrative remedies, including transparency and accountability provisions. In many legal frameworks, depending on country context, objections to proposed projects by citizens or communities or any persons with objections may be perfectly legal and provided for —whether in the Constitution, mining legislation, environmental legislation, energy laws, administrative laws or climate change legislation. These rights in the absence of specific legislation on climate change or energy laws may be useful for communities.
3. On transparency and accountability, the call by the Extractive Industries Transparency Initiative yesterday puts to the fore the need for increased CSO and community demands for revenue, contract and environmental and gender related disclosure within the renewable energy or climate smart technologies including solar farms, wind turbine farms or battery energy from energy minerals projects that may displace communities or have same impact with fossil fuels—decarbonisation projects. More mining will happen i.e 17 minerals will be mined as part of energy transition.
4. To help promote local participation in Africa there is need to develop legal frameworks that protect environmental human rights defenders against Strategic Litigation Against Public Participation (SLAPP) suits. For the benefit of others SLAPP suits are lawsuits brought by companies to frustrate or harass human rights defenders. It means Strategic Litigation Against Public Participation. Adoption of an Environmental Rights Treaty in Africa, based on evidence and research gathered in Africa through a WRI research study, can help. Such a treaty can provide environmental human rights defenders with legal protections against such law suits. It can be supported by passage of national legislation. The treaty can provide procedural rights and substantive rights for communities and activists.
In addition, a binding Environmental Rights Treaty may help answer questions from yesterday on how best rights of communities in an energy transition phase can best be enforced and protected.
Just for your information I remember when we had just launched AMI 13 years ago, the private sector Mining Indaba wrote a letter threatening legal action against AMI claiming breach of intellectual property rights over the appellation Alternative Mining Indaba. Economic Justice Network and Norwegian Church Aid as conveners were the targets. ZELA was first called by Moreblessings seeking legal advice. I know again Southern Africa Resource Watch is being sued. And I am sure the comrade—Mathews if I am not mistaken. So just transition entails providing these protections.
5. To empower communities there is need to push up the ability of communities to demand and enforce their rights through training, litigation and negotiation in a just transition phase. Combining advocacy, engagement and litigation strategies may help promote public participation.