Mining companies and governments need to understand and respect the right to free, prior, and informed consent. The lives of activists are on the line. New research from an Oxfam partner provides a compelling starting point for defending community consent in Southern Africa.
Last year, at least 207 land and environmental activists across 22 countries were reportedly killed for defending their lands, waters, and homes. That is almost four killings a week. It is the worst year on record.
We know it does not have to be like this.
These land and environmental activists are targeted for demanding a say in whether—and, if so, how—mining, oil, gas, and other large development projects affect their communities. Many of these activists represent populations that depend on the land for subsistence and cultural survival. Of course, these struggles are nothing new, but as global demand for raw materials continues to grow, the stakes are getting higher.
For more than 15 years, Oxfam has worked alongside indigenous partners to defend community consent for proposed mining, oil, gas, and other land projects. If companies and governments finally recognize and respect these rights, this will go a long way to stopping the violence.
For indigenous peoples, free, prior, and informed consent (FPIC) is a right under international law that reflects their self-determination and collective rights.
FPIC is not only a right, but a best practice for sustainable development and conflict mitigation. FPIC ensures that local communities, not only those who self-identify as indigenous, have a say in decisions that affect them, a critical step for reducing social tension, cultural upheaval, and economic instability.
This is particularly true in Southern Africa, where local communities are demanding that companies and governments recognize and defend their power to say no to mining.
Take, for example, the case of activists in Xolobeni, South Africa. For more than a decade, community members from Xolobeni, a region on South Africa’s Eastern Cape, have campaigned to defend their lands from a proposed titanium mine. They say their chief approved the deal against the will of the community, accepting a directorship with the mining company and a new car in exchange for his support. Two years ago, Sikhosiphi “Bazooka” Rhadebe, the leader of the movement against the mine, was assassinated. Other leaders have been assaulted. In April, local activists appeared in Pretoria’s High Court, arguing mining rights cannot be issued without their consent. They said the company failed to seek their consent in terms of their customary laws.
New research published by South Africa’s Legal Resources Centre (LRC) and Oxfam examines the laws and policies relevant to community consent, and the challenges to implementing those rights, in Malawi, Mozambique, South Africa, Zambia, and Zimbabwe. Since the late 1970s, LRC has used the law as an instrument of justice for those who suffer discrimination by reason of race, class, gender, disability, or social, economic, and historical circumstances. Oxfam commissioned this research in response to demand from our local partners to help them identify practical opportunities for rural communities to protect their rights to decide. The report states:
“In the African context, recognizing the unique histories of colonialism and post-colonialism across the continent, FPIC is increasingly interpreted as a standard for affected local communities who do not fit the international law definitions of rights holding indigenous entities.”
While none of these countries explicitly include FPIC in their national laws, the research finds that in all countries (except Mozambique) the written consent of “lawful occupiers” is needed before mining rights can be conferred. Lawful occupiers include those who hold customary rights because customary rights are constitutionally protected across all these countries.
Why is this important? It means that the right to give or withhold consent exists in most customary land and mining related legal framework across Southern Africa. Over time, these consent rights have largely been ignored or distorted, to the detriment of most community members.
LRC provides country specific recommendations for how the implementation of customary land protections can be strengthened. A number of recommendations stand out:
- Women’s equal rights to land tenure as well as their effective participation in consent processes must be guaranteed (custom cannot be used to deny gender justice).
- Full and timely disclosure of all information about the likely impacts and benefits of a project. (Without this, communities cannot make fully informed decisions.)
- Decisions of traditional leaders cannot be assumed to reflect the consensus views of all community members.
- Adequate financial and human resources are needed so that government departments can coordinate effectively, properly assess projects in terms of social and environmental requirements, and enforce compliance with laws and policies.
- Cheap, fast, and equal access to legal advice and representation is needed so that redress can be secured when consent processes are not followed correctly (these remain prohibitive).
Overcoming these obstacles is not easy. But as the struggle in Xolobeni shows, more and more communities are finding ways to take action to protect their customary land rights and defend their rights to give or withhold consent to mining, oil, gas, and other development projects.