Traditional authorities in Namibia which approve mineral prospecting and mining applications in their areas have been criticised for issuing ‘consent letters’ for “hamburgers, chairs, N$20 000 or sitting allowances” without benefits accruing to their communities.
However, can they really be blamed if the line ministry responsible for issuing such licences, the Ministry of Mine and Energy (MME), doesn’t take a stance beyond an administrative role to ensure safety nets are in place to mitigate conflicts between mining/exploration companies and communities?
To answer the above, let’s highlight key provisions governing traditional authorities issuing ‘consent letters’ and the MME’s role in requesting them for issuing licences.
Section 30 (1) of the Communal Land Reform Act 5 of 2002 deals with conditions under which prospecting or mining operations may be carried out on communal land.
It merely states that an applicant should notify the chief or traditional authority (TA) or board of their intention to apply for a mineral or mining licence.
Although applications are made before such prior notice, the mining commissioner usually attaches preconditions for issuance of a “preparedness to grant” a licence before approving an application.
That triggers section 30 (2), which requires a chief, traditional authority or board to provide a “recommendation” on applications.
The key word here is recommendation rather than “consent”.
If the “recommendation” of the chief/TA or board is that the licence or mining claim should not be granted, section 30 (3) gives the minister of mines or mining commissioner the discretion to disregard such recommendation if he/she believes it is unreasonable.
Section 30 (3) therefore aims to ensure that recommendations do not go beyond the scope of the mining powers granted to chiefs or traditional authorities, so as not to prejudice an applicant’s right to have their submission considered.
DISARRAY
Of late, however, claims of chiefs or traditional authorities running consultancies for mining land use, “selling” consent letters for hamburgers or chiefs being paid sitting allowances, is throwing the industry into disarray.
If the MME requires a ‘consent letter’ from a chief or traditional authority, it begs the question: Who “holds” the authority on whether to grant a licence or mining claim application?
More so, which “community” is represented and how do they benefit and what input or participation does it have in the recommendation process?
Also, what training or advice do chiefs or traditional authority leaders receive from the MME or other stakeholders to hold meetings aimed at shared community benefit agendas in alignment with national mining policies?
The answer: Likely none.
Rather, we have a system lacking synergy in terms of administrative and customary law (among others), which negatively affects the mining sector.
Loopholes are being utilised by international and local parties to create a monopoly aimed at benefiting a few locals through applicants buying themselves into the mining industry through ‘consent letters’.
Worse still, mining officials claim that traditional authorities or chiefs are not prohibited from deciding what remuneration or benefit they should receive for issuing ‘consent letters’.
This happens when section 30 clearly not only restricts such participation in recommendations but allows the minister or mining commissioner to disregard them if they’re not soundly based.
ROAD MAPS
In the absence of section 30 being interpreted and applied (for whatever reason), traditional authorities (in alliance with the MME) should be encouraged to conduct an extensive stakeholder identification and engagement process with a holistic community-based benefit at heart.
This would ensure that the objectives of the TA or chief issuing ‘consent letters’, more so their custodianship on behalf of all inhabitants under their jurisdiction, are met beyond the scope of socio-economic benefits.
To that end, there should be a drive to develop community development plans (CDPs) to assist traditional authorities.
A CDP is largely a project-based approach aimed at creating a road map for improving the livelihoods of a community and affected stakeholders if commercial mineral deposits are discovered.
The milestones for benefits to be reaped depend on progress made by exploration companies in obtaining the required permits, and attracting the right technical and financial partners to the licence area.
CDPs will help identified stakeholders to understand the different stages within the mining value chain, and create realistic goals and expectations in line with the progress.
Only then will we see the creation of a situation not centred around a particular individual or cartels but where disadvantaged communities can benefit from natural resources in their area.
TRUST FUNDS ‘NOT TASSIES’
Further, in line with a section of the Local Authorities Act dealing with ‘Assets and Trust Funds of Traditional Authorities’, traditional authorities can set up Community Trust Funds as a central vehicle for community development.
The MME should therefore step in to ensure that traditional authorities and chiefs are well equipped to negotiate on behalf of their communities.
They should create a database (e.g. through the governor’s office) for mining proponents to clearly identify which marginalised communities fall within their application areas.
If not, the mining sector will reap nothing but a “hand-to-mouth” culture, where ‘consent letters’ may be bought for a bottle of Tassenburg (without coke).
Stanley L Kambonde is a mining professional with an LLM in Oil, Gas and Mining Law.
