Mining companies often find themselves in a difficult position when communities or landowners ask them to share or disclose certain information to them as interested and affected persons. The difficulty that arises for the mine is that very often the information, which is requested, may contain commercial, confidential or sensitive information.
In our experience, one of the most requested documents is the approved Social and Labour Plan (“SLP”) applicable to the mine. We are often asked by our clients whether the SLP can and should in fact be shared with community members and other interested and affected persons. The very simple answer to this question is (at this stage) YES!
In March 2020, the Mineral and Petroleum Resources Development Regulations, 2004 (“the Regulations”) were substantially amended. One of the key amendments introduced into the Regulations is the insertion of regulation 46A, which provides that a mining right holder must publish the approved SLP in English and one other dominant official language used within the mine community.
The regulation goes on to prescribe that an approved SLP must be published by the mining right holder within 30 days of approval by using the following avenues:
- The company website;
- Placing hard copies in local schools, public libraries, municipal offices and Traditional Council offices; and
- Making announcements on local radio stations and local newspapers about the availability and content of the approved SLP.
It is clear from the wording of this regulation that there is a requirement to publish the SLP and make it readily accessible and available to the public.
This may give rise to a number of problematic practical scenarios for the mine, especially in instances where for example, (i) there may be a misunderstanding of what the commitments in the SLP are; (ii) the commitments in the SLP may not provide for all of the communities’ needs; (iii) the mine has not been able to completely fulfil its SLP commitments, for any reason; and (iv) there may be personal information of individuals contained in the SLP itself.
The inclusion of this obligation in the Regulations, also brings about the question as to whether it was appropriate for the Minister to introduce this obligation by means of an amendment to the Regulations, as opposed to an amendment to the Mineral and Petroleum Resources Development Act, 2002 (“the MPRDA”) itself.
There is evidently an obvious conflict between the interests of the mine, who may wish to keep the SLP (or at least the sensitive information contained therein) confidential and those interests of a community, landowner or other interested and affected person.
Until this provision in the Regulations is challenged and set aside, however, it remains an obligation which a mining right holder is obliged to comply with.