South Africa should consider signing the International Labour Organisation’s (ILO’s) Convention 169, which deals with the rights of mining communities, says Webber Wentzel Africa mining head Peter Leon.

Leon, who addressed the SAWEF 2013 conference in Johannesburg, believes that mining communities in South Africa need a better deal.

The issue of near-mine communities came to the fore in the Bengwenyama case involving Genorah Resources, when in 2010 the Con-stitutional Court set aside a prospecting right that the Department of Minerals Resources had granted, on the grounds that the Bengwenyama community had not been properly consulted.

With the Parliamentary Committee cur-rently putting the Minerals and Petroleum Resources Development Act under the spotlight, Leon sees an opportunity for South Africa to adopt a new approach to commu-nities.

“One of the issues I would flag is whether the time has not arisen for South Africa to sign up to the ILO Convention 169, which deals with the free, prior and informed consent of communities. “Essentially I think that mining com-munities in this country need a better deal,” Leon adds.

ILO Convention 169, which has been ratified in 20 countries, is a legally binding inter-national instrument, which deals specifically with the rights of indigenous people.

Once a country ratifies the convention, it has one year to align legislation, policies and programmes to the convention before it becomes legally binding.

Countries that have ratified the convention are subject to the supervision of its imple-mentation.

The convention does not define indigenous people but takes a practical approach, looking at aspects including how people are making a living and the impact on the historical continuities of lifestyles prior to mining.

Consultation constitutes the cornerstone of the convention, which also requires that communities are able to engage in free, prior and informed participation in policy and development processes that affect them.

In terms of the convention, affected com-munities should have the opportunity to par-ticipate freely at all levels in the formulation, implementation and evaluation of measures and programmes that affect them directly.

Another important component of the concept of consultation is determining a legiti-mate community representation.

Former Coal of Africa (CoAL) CEO John Wallington reports that the more mining companies engage with communities, the more divisive those communities can become.

As a result, CoAL facilitated an election pro- cess, which was declared free and fair, to give the community at its Makhado coal project a chance to vote in legitimate representation.

CoAL also concluded a water agreement with the farming community, which has as its major objective the “creation” by the mining company of its own water supply and the delivery of zero impact to local water users.

Leon and Wallington shared a platform with Gauteng province mining deputy director Rina Taviv, Agri-South Africa deputy president Dr Theo de Jager, Mintails CFO Eddie Milne and Democratic Socialist Movement executive member Liv Shange, who all suggested ele-ments that could be included in a new social compact for the mining sector.

Last year, Leon urged South Africa to join the global Extractive Industries Transparency Initiative (EITI), which promotes openness in mining.

The aim of EITI – which the South African government decided was not an appropriate organisation for a country like South Africa to join after its formation was announced in Johannesburg in 2002 – is to strengthen governance in mineral-rich countries by improving transparency and accountability.

A past chairperson of the International Bar Association’s mining law committee, Leon last year also suggested that South Africa should consider adopting the two-tier board system used in Germany, which allows for up to 50% worker representation on the supervisory board of companies.

Under the system, public companies have a management board responsible for day-to-day company operations made up of executive board members, and a supervisory board, which oversees the management board, and is nonexecutive in nature.

Crucially, and in contrast to the single-tier South African model, the supervisory boards of major German public companies are subject to the principle of employee codetermination, with the nonexecutive supervisory boards overseeing the management boards that run the company.

Such a step gives employees a voice in directing the operations of companies, and might help in attuning businesses to their broader social responsibilities.

Leon is also strong on government, labour and business crafting a new social compact for mining to avoid the risk of another Marikana.

Shange advocates that the mining industry should be a resource that develops society in a sustainable, long-term way, but complains that the sector is deteriorating in that respect, exemplified by the emergence of illegal mining in old mine shafts, which she alleges involves child labour, human trafficking and even slave labour.