(Par 10.4 ) The state of public participation in the EIA process and its role in South Africa a case of Xolobeni

The state of public participation in the EIA process and its role in South Africa: a case of Xolobeni

https://www.tandfonline.com/doi/full/10.1080/03736245.2022.2087726

By Thabang Maphanga, Karabo Shale, Babalwa Gqomfa & Vincent Mduduzi Zungu

Received 19 Jul 2020, Accepted 30 May 2022, Published online: 14 Jun 2022

In this article

Public participation is an integral part of the Environmental Impact Assessment (EIA) process, as it provides opportunities for interested and affected parties (I&APs) to participate in the decision making process. This process is part of the legislative regime in South Africa and recognized as the main instrument to ensure that the proposed development is sustainable from a triple-helix perspective (i.e., ecological, socially, and economically sustainable).

Therefore, the paper describes a case of public engagement in Xolobeni, located in the Eastern Cape Province of South Africa, as well as the environmental politics that evolved from arguments that favoured development over environmental conservation. The proposed mining project was known as the Xolobeni mining development project. The Department of Minerals and Petroleum Resources announced in 2005 that an Australian company, Transworld Energy and Minerals (TEM), would establish a mining development project in Xolobeni to mine red sand dunes contained within five blocks, each named after the river that runs through it on its southern border. The Department of Minerals and Energy is the exclusive custodian of mining licences and thus the only Department that issues them, according to the Minerals and Petroleum Resources Development Act (Act 28 of 2002).

When seeking mining rights, it also requires corporations to consult with local populations. The Amadiba Crisis Committee filed a mining licence appeal based on a lack of consultation. One of the complications was also brought about by the divided community. TEM’s solicitors sent a redacted copy of the mining right application to the community on 3 February 2016. The community was informed that drilling would begin on February 22nd, and that force would be employed if access was not granted. Following the receipt of the mining rights copy, an objection was lodged under section 10 of the MPRDA. The people resisted because they did not want their land, to be taken away. The community also opposed the proposed mining because they were concerned about the negative social, economic, and environmental effects.

The land in Xolobeni was also used by the community for agriculture, or tourism and they did not want to lose that. The community also resists the migration of foreigners who wish to dwell in their village, fearing that they will overrun their way of life and impose a social lifestyle commonly connected with mining activity. The preceding study highlights the potential for conflict when communities reject the establishment of mining enterprises. As a result, the goal of this study is to see if incorporating community agreement into South Africa’s legal requirements for granting a mining licence could help to reduce community unrest. The High Court ruled in favour of Xolobeni residents in this mining rights case

KEYWORDS:

Introduction

Environmental management is growing fast and is a rapidly concerning field, which involves all human beings and plays a critical role in the pursuit of sustainable development. Environmental Impact Assessment (EIA) and Strategic Environmental Assessment (SEA) are the two instruments used for environmental management to prevent adverse and harmful environmental impacts. SEA provides information for devising a strategy for local participation in a project and broadly assesses the ability of local institutions to support a proposed development (Devuyst, Citation2000). EIA is the tool that is most commonly utilized across Africa and in most developing countries to integrate environmental concerns in development projects. EIA is defined as a systematic framework for identifying, predicting, and evaluating the environmental effects of proposed actions and projects (United Nations Environmental Programme (UNEP), Citation2002). The sole purpose of the framework is to provide information for decision making on the environmental consequences of proposed actions; and to promote environmental sustainability through the identification of appreciating enhancement and mitigation measures as part of sustainable development.

Over the past decades, EIA has proven to be an effective tool for raising developers’ and administrative authorities’ awareness of the essential environmental issues that deserve attention; and for ensuring efficient coordination as well as public opinion. The UNEP elaborates that for good governance and fundamental rights; EIA is based on, and seeks to promote, principles of good governance should be addressed explicitly. Therefore, one of the principles is participative; it provides appropriate opportunities to inform and involve the interested and affected parties and their inputs. Following the principles set by the UNEP, the South African government has introduced various initiatives to try and involve citizens in a participatory democracy. To reach out to communities, the government has established open government participation, community development workers, imbizos, and ward committees as platforms of engagement (South Africa. Department of Public Service and Administration, Citation2014). In South Africa the environment is held in public trust for the people, the beneficial use of environmental resources must serve the public interest and the environment must be protected as the people’s common heritage. Hence Public participation is an integral part of the EIA) process, as it provides opportunities for interested and affected parties (I&APs) to participate in the decision making process. This ensures that all people must have the opportunity to develop the understanding, skills and, capacity necessary for achieving equitable and effective participation, and participation by vulnerable and disadvantaged persons must be ensured.

Public participation within the principality of the EIA legislative regime in South Africa is recognized as the main instrument to ensure that the proposed development is sustainable.

In Africa suggest that EIA remains a controversial policy tool. People in authority have, on various occasions, disparagingly referred to EIA as a ‘green hand break’ in the development process, ‘unethical and anti-human policy tool,’ and ‘development speed hump,’ to mention but a few examples of negative references (Saidi, Citation2010). In South Africa, EIA regulations stipulate consultation with a range of interested and affected parties as to the minimum conditions for acceptance of EIA reports by the relevant authorities. Despite these regulations, communities have accused the government of bypassing the public participation step in the EIA processes. This further raises a question on whether EIA and public participation for proposed development (such as mining) are effective from a sustainable development perspective. South Africa’s exceptional mineralization has been an enormously influential factor in the laws that underpin them (Sandham et al., Citation2013). The entitlements which flow from a prospecting and mining right are so far-reaching, and because the consent of the surface owner and occupiers is not required, the law makes provision for an extensive variety of balancing mechanisms that are aimed at reducing and managing the impacts of mining on the environment, socio-economic conditions and cultural heritage still within the context of Sustainable development (Atkinson, Citation2018). The national mining industry enjoys an elevated or even preferential status in public and official opinion based on the perceived benefits mining brings relative to its costs.

Often than not disempowered, disadvantaged and often poor communities lose the level of agricultural jobs which get replaced by mine employment. Evidence of such is the judgement in the Xolobeni mining case. According to the Department of Mineral Resources, mining provides benefits to the community. This proposal has resulted in a highly disputed process, with residents declining the proposal due to several fears such as social, cultural, economic, and ecological impact. If the mining is granted, it would directly have a bearing on areas of wild coasts known as UMgungundlovu (Loewe, Citation2018).

Legislation – public participation and EIA

The environmental management policy and legislative framework in South Africa stipulate that participation be carried out through the EIA process for all development projects especially those that have significant effects on the environment. Bennie, Citation2019) stated that the “requirement for participation should be viewed as part of a broader thrust to deepen democracy in post-apartheid South Africa as well as part of the context of environmental justice that the National Environmental Management Act No. 107 of 1998 also known as NEMA Act advocates ensuring that the ecological effects of projects are not inordinately placed on the poorer and less powerful segments of society (Scott & Oelofse, Citation2005). The fast-emerging sustainable development in the early 1990s concomitant with the introduction of NEMA in the mid-2000s both continue to set a tone by stating that ‘Environmental management must place people and their needs at the forefront of its concern, and serve their physical, psychological, developmental, cultural and social interests equitably’ (DEAT, Citation2010).

In Section (2) (4) F (0) of the South African National Environmental Management Act No. 107 of 1998 (henceforth referred to as ‘the Act’), the contribution of all interested and affected parties in environmental governance must be promoted. The environment is held in public trust for the benefit of the people; the use of the environmental and natural resources must serve the public trust and the environment must not be harmed, but protected as the people’s common heritage. Section (24) (A) (C) of the Act permits for this participation by necessitating that the person who facilitates public participation should comply with any regulated actions related to public consultation and information gathering through the public participation process (South Africa. Department of Public Service and Administration, Citation1997). The Batho Pele White Paper states that service to people is a guiding principle of public service in South Africa. It also puts people as vital and central to service delivery to meet their basic needs (Department of Public Service and Administration, Citation1997). This implies that there is a need to consult the citizens at all times to guarantee that the government is true of the type of standard that meets the basic needs of South African people. According to Batho Pele, public services are not a pleasure or a privilege in a civilized and democratic society; they are legitimate expectations (Tshoose, Citation2015).

South Africa adopted the process of EIA in 1989 in the Environmental Conservation Act No. 73 of 1989. However, regulations specific to EIA were first passed in 1997. While the EIA procedure for other EIA activities has a clear legislative framework and guidelines for public participation, the same does not apply to mining activities. It is because in terms of this institutional context, the Department of Mineral Resources (DMR) is responsible for the implementation of the Mineral and Petroleum Resources Development Act, 2002 (MPRDA) and it is this legislative instrument that empowers the minister of the DMR to review and grant approval for mining activities governed in terms of this act. Also to note that currently, the department of environmental affairs does not have specific jurisdiction to regulate environmental management in the mining industry. However, it is crucial to mention that the amendment of 2014ʹs environmental legislation regarding mining activities has further given the DMR more powers to preside over any mining activities and any other activities associated with mining. Consequently, these recent changes in the environmental regulations for mining have further caused division between the operationalization of MPRDA and NEMA. As S. Leonard (Citation2016); argued the NEMA has created an ongoing struggle over whether environmental decisions for mining projects should be made by the environmental or minerals authorities is growing.

Broadly speaking, the first momentum of changes in EIA regulations since the mid-1990s occurred in 2006 when the Department of Environmental Affairs and Tourism (DEAT) introduced a set of new EIA regulations with somehow streamlined stipulations for environmental impact assessment required by the NEMA Act, in terms of Chapter 5 of the National Environmental Management Act‟. Similar to the previous regulations, the 2006 amendment was set up to further regulate the relevant processes for activities requiring environmental authorization, including public participation processes. Unlike Contrary to in the old EIA regime, where public participation was part of the scoping phase of the EIA process, in the new amendments public participation was mandated as the first phase of the IEA process, especially for activities that require basic assessment (Notice 1 of the NEMA EIA regulations). While subsequent various literature painted positive remarks of public participation that emerged out of these EIA developments, it is crucial to mention that these trends came with some fundamental challenges.

According to the Mineral and Petroleum Resources Development (MPRDA) Act 28 of 2002, Chapter 4, Section 16, 22, and 27, a permit is issued before consultation (South Africa, Citation2002). It calls upon interested and affected persons to submit their comments regarding the applications within 30 days from the date of the notice. Interim Protection of Informal Land Rights Act (IPILRA) 31 OF 1996, on the other hand, provides that those who are directly affected by mining must consent to changes to the land rights, or be expropriated with compensation where they do not (Republic of South Africa, Citation1996). The disparities between the NEMA, MPRDA, and IPILRA as one strongly promotes environmental protection, while promoting optimal exploitation of environmental resources (S. Leonard, Citation2016). Therefore, EIA regulations have experienced numerous replacements, the most recent being in 2014. The purpose of these regulations is to avoid negative impacts on the environment or, where they cannot be avoided, to make certain that mitigation and management of the impacts to tolerable levels are achieved, while also ensuring optimization of the positive environmental impact (Gondwana Environmental Solutions, Citation2016).

A notice needs to be given by an applicant conducting a public participation process to all interested and affected persons. There is an expectation that this notification should be done by fixing a notice board at a place that is visible to the interested and affected people. The place may be at the borderline or fence on the site where the development will be undertaken and on other sites being considered. Owners of the land, occupiers of neighbouring land, and municipal authorities from which the development will be done should receive written notices. There should also be adverts placed in the local newspapers written in a language understood by interested and affected parties. Other alternative methods to use for communication will be gazettes and any other agreed alternative. The goal of early communication is to build trust among the involved parties while allowing more time for public participation, a community analysis that is improved, and increased chances to amend the proposal to be in line with comments and information gathered.

The level of public participation must be informed by the scale of expected impacts of the proposed project and the degree to which the environment is sensitive. It must also be informed by the degree of the controversy of the project and the characteristics of the potentially affected parties. The communication tools used, such as the notifications, have to be clear, informative and provide adequate detail so that the affected parties fairly understand it to be involved. The notifications must also reflect the location and nature of the action, including significant and exact activities. It should also be able to diffuse simple and reasonable information to concerned groups in a way that stimulates interest and engagement. The mechanisms must also be inclusive to all concerned parties who may be uneducated, incapacitated, or physically challenged, or may be challenged in any way.

In addition to the placement of notices during the application process, other stakeholders such as government departments, owners, and people in control of the land, may be directly contacted. To identify the main stakeholders, appropriate methods should be used. Social profiles and brainstorming profiles will aid in giving a complete summary of the significant characteristics of the community and can serve as an important element in stakeholder identification. Established lists and databases held by consultancies, authorities, research institutions, will provide important information such as contact details of residents, non-governmental organizations, and community-based organizations. They will also provide a chain of referral systems according to which stakeholders are requested to help in identifying stakeholders.

Public participation in the EIA process and public participation in MPRDA

Since democracy, the South African government has developed a method to get the public to participate in the progress of the country. Today South Africa has sound environmental legislation that is aimed at achieving sustainable development focusing on the three legs social, economic, and environmental. Despite the advent of democracy witnessing the government making considerable progress in developing the legal frameworks to manage mining development and include citizens in decision-making processes, this has largely been unsuccessful (Dupuy, Citation2014; Leonard, Citation2017). The country has laws that support public participation, impact assessment, and environmental management. The existing legislation forms a network that helps South Africa geared towards sustainable development and conservation and management of the country’s rich biodiversity, culture, and heritage. Public participation is based on the notion that the public must be included in both economic and political processes (Dupuy, Citation2014). It is well established that mining plays a pivotal role in South Africa’s economy. However, mining comes at a cost, by its nature mining is destructive and causes several environmental problems. Mining companies are always looking for new places to mine and of course, these new areas are encroaching on agricultural land and untouched biodiversity areas. The Constitution of the Republic of South Africa enshrines the right ‘to an environment that is not harmful to their health or well-being.

As a response to the constitutional right ‘to an environment that is not harmful to their health or well-being, the South African Mining and Biodiversity Forum, and the South African National Biodiversity Institute in partnership with the DEA and DMR came up with ‘Mining and Biodiversity Guidelines’. The purpose of the guidelines is not to introduce new requirement or new concepts but to gather all necessary information and present it in a user-friendly format. The aim of the guidelines is to be used as a tool to facilitate sustainable development of South Africa’s mineral resources in a way that minimizes the impacts which are associated with mining on the natural environment. Also to note every industry, in addition to generic environmental complications, faces industry-specific challenges that require careful planning, tactical investment, and strategic management to overcome. From a business perspective, the Guideline explains the value for mining companies of adopting a risk-based approach to managing biodiversity. For further information about these guidelines see mining and biodiversity guidelines 2013; Mansoor and Maroun (Citation2016).

Public participation in the EIA is done before the development project and it is beneficial to EIA as it provides the public to raise concerns questions or opinions about the proposed project. Not only does it assist in determining the common development goals or minimize the negative impact should also strive to maximize positive impacts (Peterlin et al., Citation2008). Doelle and Sinclair (Citation2006) agree with this by stating that EIA will contribute more effectively to sustainability by identifying the net positive contribution of the proposed development by considering the interests of affected parties equally and fairly instead of only focusing on mitigating the impacts. This is in contrast to participation in mining development in South Africa even during democracy it continues to be conducted as trivial by mining companies and government (Baumann, Citation2004; Leonard, Citation2017); with concern surrounding the extent to which the public participate in the EIA process to ensure that developments are sustainable and public concerns are taken into account (Murombo, Citation2008).

However, it is crucial to mention that the amendment of 2014ʹs environmental legislation regarding mining activities has further given the Department of Mineral Resources (DMR) more powers to preside over any mining activities and any other activities associated with mining. Consequently, these recent changes in the environmental regulations for mining have further caused division between the operationalization of MPRDA and NEMA. As S. Leonard (Citation2016) argued, the NEMA has created an ongoing struggle over whether environmental decisions for mining projects should be made by the environmental or minerals authorities is growing. Currently, the department of environmental affairs does not have specific jurisdiction to regulate environmental management in the mining industry. It is startling that such contradictions prevail even though NEMA is the primary source of environmental regulation in South Africa and environmental impact assessments (EIAs) are regulated by the EIA regulations published in terms of NEMA.

The MPRDA makes provision for consultation of IAPs to submit comments regarding a mining application within 30 days from the date of notification. Thou the new EIA regulations (2014) have tried to improve the provision it has provided a narrow meaning to the term participation (Ridl & Couzens, Citation2010) which under the NEMA EIA Regulations 2014 (see EIA regulations 2014) is broadly defined under the term ‘IAPs’ as being ‘entitled to comment on all information that reasonably has or may have the potential of influencing any decision concerning an application unless access to that information is protected by law.

Stakeholders in EIA

The term ‘Stakeholders’ refers to all those people and institutions that are interested in the successful design, implementation, and sustainability of the project (Lee & Abbot, Citation2003). This includes both positively and negatively affected by the project. Stakeholder participation is a process in which all those with a take in an outcome of development can actively participate in decisions on planning and management. They share information and knowledge and contribute to the development to enhance the success of the development.

Stakeholder interests may be considered at different levels. At a local level, the interests may include land, water access rights, and pollution or market opportunities. At a regional level, stakeholder involvement may include the use of non-renewable sources of energy, for example, the controversies surrounding coal-fired power generation in Mpumalanga. At a global level, stakeholder interests may be more concerned with climate change, biodiversity loss, and deforestation. There are various stakeholder groups in an Environmental Impact Assessment. Some of the role players in a typical EIA are Organizations, Coordinators, Advisors, Regulators, Public and community stakeholder groups, Political groups, Cultural groups, Business groups, and Environmental interest groups.

Coordinators deal with planning commissions and departments; these are government agencies at national, regional, district, and village levels. Advisory is made up of research institutes universities, colleges.
Regulatory is made up of government authorities at national, regional, district, and village levels. Implementation is concerned with relevant ministries/departments at national, regional, and district levels, training organizations, private companies, NGOs.
Funding deals with financial development assistance, consisting of agencies, banks, entrepreneurs, taxpayers, and Conservation: environment departments, museums, zoos, botanical gardens. Political groups are members of parliament (MPs) local councillors’ party functionaries, lobbying groups. Cultural groups involve the community and religious leader’s

Public participation and EIA

The public generally comprises more than one group of stakeholders who may not always have the same opinion, but perhaps different and conflicting opinions and goals. Powerful groups have a habit of dominating, and weaker people get sidelined; the environmental manager has to establish the needs of all groups and ensure that no group is marginalized (Barrow, Citation2006). Public participation is required by the NEMA EIA Regulations in South Africa and forms a fundamental part of the phases of the EIA process. Environmental calamities that have occurred over the years have intensified awareness of the environmental state and brought about increased awareness of people’s rights (Glazewski, Citation2005). Involving the public in issues and decisions that impact their lives has become a paramount significant issue. Rights and principles are now being merged into international agreements, planning, and policy tools such as the Rio Declaration, the Aarhus Convention, Agenda 21, and the Johannesburg Implementation Plan (Lindeque & Cloete, Citation2005). Environmental Impact Assessment is a critical tool for planning and managing sustainable development envisioned to give decision-makers information on the possible impacts of their activities (Fiorino, Citation1990).

Bingham (Citation1986); defines EIA as an effective instrument that can be used to predict environmental impacts of development or projects before decisions are taken by those in power on whether to agree or disagree with the proposed development or project. EIA provides a yardstick to monitor that proponents adhere to the legal requirements. It plays an important function in scrutinizing whether the development implementation considers different elements of sustainable development. The Rio Declaration further affirms that public involvement plays a vital role to incorporate environmental and economic factors, to become sustainable (Environmental Law Institute, Citation1991). The involvement of the public in both administrative and legislative decision-making has become an important element of environmental governance internationally. Advocates for development derive an inexpensive basis of information through public participation.

Public participation aims to provide a source of information for EIA (Western Cape Government Environmental Affairs and Development Planning, Citation2015). Its objectives are to notify stakeholders about the proposed development and possible environmental impact, to provide a chance for the public to present their opinions, fears, and values and to influence the development design positively. It also seeks to gain local customary knowledge and increase community confidence in the process, while ensuring that there are transparency and accountability in decision making by the project advocates and those in power (Western Cape Government Environmental Affairs and Development Planning, Citation2015). To improve the lawfulness of the process, the principles of the actors must be made transparent so that vibrant dialogue can take place. Public participation and transparency assist this objective. Wilkins (Citation2003); stipulates that if EIA is a process to bring community planning following changing public opinions, then it is a beneficiary and legitimate tool in itself. The public participation process needs to be examined by proficient environmental authorities, to ensure that it complies with legal requirements. The process should be accessible and of a quality standard. The timing should be appropriate and the venue should encourage maximum participation (Western Cape Government Environmental Affairs and Development Planning, Citation2015). There are various types of participation in EIA as stated by (Adnan et al., Citation1996). Passive Participation is when consultants or extension workers go to the village and inform villagers that there will be an irrigation scheme construction to improve crop yields. The second kind is called Participation in Information Giving. This involves consultants or extension workers who go to villagers to question them about their crops and seasonal water flows. They get the information recorded. The third one is referred to as Participation by Consultant, and it applies when a consultant or extension worker explains to the villagers that there is a need for crop production improvement and that the government intends to build an irrigation scheme. They seek the opinions and reactions from villagers; for example, how they feel it might cause an increase in soil erosion.

Functional Participation is the fourth kind. It is when consultants or extension workers notify village dwellers that they plan to build an irrigation development. The consultants then facilitate the project of a village committee to discuss specific phases of the projects such as ways to minimize soil erosion or to agree on water management methods. Next is Interactive Participation, in which local villagers identify their specific needs and external facilitators collaborate with them to find solutions to the possible adverse impacts. New institutions will develop at the local level in some cases; this may imply that villagers might then play a role in the management of their development and its impacts. Villagers then have a part to play in maintaining structures or practices. The sixth kind is Self-Mobilized participation. Villagers who have perhaps learned from previous project experiences plan and identify their irrigation structures. They may have contacts with outside organizations for resources and technical advice they need, but maintain control over the resources usage (Adnan et al., Citation1996).

Constraints bearers to public involvement in the EIA process

Public participation in EIA can be affected by many aspects that differ according to situations and context. Some of these factors include time, funding, level of literacy language, and public presentation. Numerous stakeholders may not have sufficient time and funds to engage in an EIA process. Lack of proper planning may be one of the issues. Non-literate groups may be sidelined from the EIA process through the use of media as a tool for communication. Literature has shown that mining companies have often opted to do public participation with only traditional leaders and challenges from biasness to corruption have been well documented Moyo et al. (Citation2017) and Glucker et al. (Citation2013). ‘In essence, participation without redistribution of power is an empty and frustrating process for the powerless’ (Leonard, Citation2019). Currently, numerous scholars are proposing a different way to make sure we attain holistic public participation. The local community is better able to understand the environment and intervene in environmental problems by applying past experiences. As a result of a poor understanding of issues and a lack of direction concerning how and where to participate, the community may lack enthusiasm about the planning process. (South Africa. Department of Public Service and Administration, Citation1997)

Insufficient public participation in the EIA process may have negative outcomes, including conflicts between spheres of government or between government agencies, and failure to attract local support and customize projects according to local needs and main concerns. It could also result in a lack of accountability, leading to unproductive or incompetent working practices and corruption. The failure to communicate may result in division within local communities and may course resentment between local communities and project proponents. The social, environmental and health impacts may be overlooked or there may be ignorance concerning the impacts by the local community. Inadequate public involvement could lead to a disregard of local skills, knowledge, and energy, and this could signify a possible lost opportunity for making a good development even better (Great Britain. Overseas Development Administration (ODA), Citation1996). For further insight on how the involvement of the public can better the environmental decision while improving public participation see, (Coenen, Citation2009).

EIA issues and challenges

Corruption in government is one of the EIA challenges, and Williams and Dupuy (Citation2017) have identified corruption risks such as conflicts of interest between, and undue influence by, the public and private participants taking part in an EIA process. EIAs are crucial for the exercise of authority over the environment (Cashmore and Richardson, Citation2013). Private expert consultants are employed by mining firms to conduct EIAs in various countries, including Guatemala, Bangladesh, and India, resulting in a ant conflict of interest (Dougherty, Citation2015, Paliwal, Citation2006). The Corruption Eradication Commission (KPK) earlier detained the Mayor of Cilegon TIA (Tubagus Iman Ariyad), the Head of the Integrated and Investment Cilegon Licencing Agency Ahmad Dita Prawira, and three top officials from PT Krakatau Industrial Estate Cilegon. They were accused of bribery to ease the EIA recommendation for the Transmart shopping mall development. The TIA approved an EIA licence for the building of Transmart, which previously asked for Rp 2.5 billion. The deal was finally agreed upon for Rp 1.5 billion (Muslihudin et al., Citation2018).

Another challenge is the lack of promotion of public participation by the government, the marginalizing of certain groups by using language that is not understood by the public, and advertising in platforms that are not accessible to the disadvantaged groups. On 11 April 2020, the Union government of India released the Draft EIA 2020 Notification in the official gazette. (According to its statutory mandate, a 60-day notice period for objections was set to expire on June 11). This notice was only available online and in English and Hindi, with no translations into any of India’s other languages. According to the 2011 population census, only 43.65% of the Indian people spoke Hindi or English as their first language. Furthermore, according to data given by the Telecom Department of India in 2019, just 25.36 percent of India’s rural population (those most affected by EIA 2020) had access to the internet (Narsaria, Citation2020).

The weakness in environmental regulation in some countries is a limitation for EIA. Some of the weaknesses of Bangladesh’s EIA system include the absence of explicit provisions for undertaking all stages of EIA, the absence of explicit provisions for public participation in the EIA process, and the absence of EIA provisions for the expansion of new projects and the renovation of old projects. Furthermore, the issuance of site clearance jeopardizes the effectiveness of the EIA report evaluation (ECC needs to be renewed every year) and there is no provision for impacted communities to go to court directly (Zobaidul and Momtaz, Citation2011).

In the EIA process and government, a lack of expertise and skilled personnel can also be a hindrance. Good EIA practices necessitate the collection and presentation of accurate information in a timely way (Kabera, Citation2017). The public did not have easy access to information, and it was difficult to obtain the full EIA report.

Benefits of stakeholder involvement in EIA

Public involvement assists EIA in addressing applicable problems or concerns, including those observed as being important by other sectors, agencies, the public, local communities, affected groups, and others. It also helps to connect traditional knowledge that conventional methods often overlooked. There is bound to be an improvement in the flow of information between proponents and different participants, thus resulting in the improvement, awareness, understanding, and ownership of development. Stakeholder involvement enables project proponents to respond well to the diverse needs of stakeholders and helps in identifying crucial environmental characteristics or mitigation opportunities that could be overlooked. It also ensures that the significance and extent of impacts have been correctly assessed and that the acceptability and quality of the mitigation and monitoring process is improved (Great Britain. Overseas Development Administration (ODA), Citation1996)

Other benefits of stakeholder involvement include developing citizens that are capable and responsible, and that can attain valuable skills like problem-solving, creative thinking, and active listening. It may also improve transparency and accountability in public institutions by ensuring that the culture of openness is embedded as a result of public participation. This, in turn, will enhance the quality of democratic governance in South Africa. (South Africa. Department of Public Service and Administration, Citation2014).

Sustainable development and EIA

The rapid growth in industrialization and urbanization in a developing world has a huge impact on anthropogenic and natural resources. The world and its resources are limited, yet human demands continue to multiply (Barrow, Citation2006). Charles (Citation2018); states that, in a decision-making process, sustainability would imply that societies that enjoy a good quality of life have a responsibility to make sure those future societies, and less affluent societies, can attain and enjoy a better standard of living which meets their basic needs. The aims of sustainable development (SD), and how they are expressed in Sustainable Development Goals (SDGs), enhance the discussion on a better world. These aims emphasize the significance of human rights, justice, health, and wellbeing. Ecology, social, and economic development are also taken into account (Keitsch, Citation2018).

Agenda 21 recognizes the need for indicators of sustainable development for the use of decision making. Those that have been established are not easy to apply in project-level environmental assessment. The solution to these problems is to return to the fundamental principles of sustainable development (George, Citation1999). Sustainable development is defined as ‘developments that meet the need of the present without compromising the ability of future generations to meet their needs’ (World Commission on Environmental Development, Citation1987). Environmental Impact Assessment (EIA) is a process that seeks to merge administration, planning, analysis, and public involvement in pre-decision assessment (Goodland & Emundson, Citation1994). According to Barrow (Citation2006), EIA should be introduced before development decisions are made because it is a proactive assessment.

Environmental Impact Assessment (EIA) and Strategic Environmental Assessment (SEA) are two instruments for environmental management to prevent harmful environmental impacts and may be useful in promoting sustainable development (Devuyst, Citation2000). EIA in South Africa aims to follow a process that will determine the greatest feasible environmental options. These include the promotion of sustainable development through effective management of social, environmental justice, and economic impact to safeguard valuable resources, enhance social and economic dimensions of the proposed development and protect human health and promote safety (Western Cape Government Environmental Affairs and Development Planning, Citation2015). EIA is thus considered a very important tool in accomplishing sustainable development (Wilkins, Citation2003).

According to Hardcastle and Gerber (Citation2011), as referred by Van Wyk (Citation2012), sustainable development needs to be addressed in planning and EIA practices. Although some researchers agree that EIA significantly addresses sustainable development, the sustainability criteria must go further than adherence to procedure and address fundamental considerations such as sustainable usage of resources, poverty, and inequality. This will help to measure the degree to which EIA significantly addresses sustainability (Van Wyk, Citation2012). The vision of the South African Developmental Community (SADC) for sustainable development is to fast-track economic development with more fairness and self-reliance, improve health, income and living circumstances of the underprivileged majority, and ensure unbiased and sustainable use of environmental resources for the present and future generations (Weaver, Citation2003).

EIA sometimes may be inaccurate, resulting in over-consumption of South African renewable resources and poor health. As a result, the ability to sustain the future may be unclear and be compromised. Poverty is worsening in many developing countries and this undermines sustainable development. Environmental managers can support sustainable development through the identification of fundamental issues, establishing feasible limitations and strategies, and monitoring to decrease the chance of surprise (Pearce & Barbier, Citation2002). According to Connor and Dovers (Citation2004), many may debate that continued careful observations and ongoing learning of the management, especially those working close to citizens, could improve sustainable development. More approaches and tools have been developed, for example, the Sustainable Developmental Goals, which emphasize a holistic approach to achieving sustainable development for all

Relationship between public participating & democratic

As referred to by Moyo et al. (Citation2017), public engagement in deliberative democracy has been theorized using the Rawlsian and Habermasian theories of deliberation. The Rawlsian paradigm promotes a logical kind of civic engagement in which members of various groups come together to discuss the best possible outcome for all parties involved. This paradigm places a premium on fairness. The speech act is highly valued in the Habermasian discussion paradigm. All participants must be allowed to voice their viewpoints and formulate the deliberation’s main issues. The importance of legitimacy is emphasized in this approach.

Lafont (Citation2019) emphasizes citizen-to-citizen and citizen-to-government mutual justification, especially for enforceable judgements. First, democratic institutions, such as legislatures and courts, should maintain and empower places for discourse in public spheres and inside government institutions that make binding decisions. Lafont also emphasizes the fundamental rights and liberties that underpin public space and encourage participation, providing the institutional framework for mutual justifications. As a result of this focus, Lafont sees constitutional concerns, rights advocacy, and judicial review processes as the most significant venues of participatory deliberative democracy. If you are looking for a unique way to express yourself, Lafont sees constitutional concerns, rights advocacy, and judicial review processes as the most essential venues of participatory deliberative democracy as a result of this focus. Lafont is correct in insisting that we must consider involvement from the perspective of citizens. According to Lafont (Citation2019), participatory deliberative democracy should cultivate and realize ‘the two moral powers of citizens, namely their capacity for a sense of justice and a conception of the good’ – that is, it should achieve both justice and a sense of identity linked to the good by cultivating citizen capacities (Lafont, Citation2019). Participation should foster a sense of ownership over both the laws and the process.

Functional justifications for public engagement were another important analytical category, with 31 examples. Participation by indigenous communities in Mapela, Limpopo Province, is seen as a pragmatic process to increase legitimacy, provide information to participants and the government, and improve community knowledge of environmental issues; and normative arguments, which emphasize the potency of indigenous communities (Moyo et al., Citation2017).

Wagner (Citation2004) defines public participation as a process in which stakeholders have a say in and share control over key decision-making processes. The process of public engagement should involve what is known as democratic discussion, which allows people from various backgrounds to express their opinions and come up with mutually accepted answers (Cornwell & Coelho, Citation2007; Gunderson, Citation1995). Different viewpoints and ideals can make this more difficult, especially in instances where the agendas of participating parties are at odds with one another, and power dynamics are at play. In theory, when issues that impact local communities are under consideration, the public participation process becomes critical, as both experts and residents should work collectively, with joint decisions resulting in a better outcome than if the experts had worked independently (Greyling, Citation2005). However, for this kind of public participation to occur, both locals and experts are required to be open to having their beliefs challenged, shifting their perceptions, and rethinking their values to connect and work together (Cornwell & Coelho, Citation2007; Gunderson, Citation1995). In theory, when issues affecting local communities are being considered, the public involvement process becomes crucial, as both specialists and local inhabitants should collaborate, with combined decisions yielding a better result than if the specialists worked independently (Greyling, Citation2005).

Citizens are likewise concerned about the legality of the laws and regulations they must follow. Citizens’ fundamental interest in preserving their sense of justice is their interest in avoiding being forced to wrong themselves or others by having to blindly obey laws that, in their own eyes, violate fundamental rights can not be compensated or substituted by any amount of political power equalization.

The Xolobeni community members have raised their objections to the mining project but there was a lack of engagement and they were forced to give up their land. They were also denied crucial information to assist them in the decision-making process. The process of public engagement did not involve democratic discussion, which allows people from various backgrounds to express their opinions and come up with mutually accepted answers. This process of public engagement was also complicated by divisions among the community members. There were allegations that iNkosi Lunga Baleni (‘Baleni’), who was formerly a staunch opponent of the proposed mine, had changed to support it, further exacerbating the community’s tensions. He had accepted a TEM vehicle and was a director of both XolCo and TEM, according to the documents. It was discovered in March 2016 that mining opponents were on a hit list. That same evening, two unidentified assailants shot and killed a man named Mr Radebe, prompting community discussion about the motives for the murder (SAFLII (South African Legal Information Institute), Citation2018). This is evidence that diverse viewpoints and ideas can make the process difficult, particularly when the interests of the persons involved are at odds with one another and power dynamics are at work.

Study area and research design

Description of the study area

Xolobeni is part of the Mbizana Municipality and is situated in the Eastern Cape’s Wild coast region. The area covered covers 8.46 km2 and had a population of 324 during the 2011 Census, but its population has increased to more than 600, and consists of 70 to 75 households (Baleni and Others vs Minister of Mineral Resources and Others Citation2016(1) SA 73768 (CC) (Hereinafter referred to as the Xolobeni Case)). On the Wild Coast, there is an area called UMgungundlovu which is rich in titanium (Xolobeni Case). Xolobeni has approximately 200 small farmers, running herds of cattle and farming patchwork of fields of crops at homes (Loewe, Citation2018). The community of Xolobeni depends on Agriculture for living. A significant number of the community also relies on tourism and tourism-related activities taking place within the proposed mining area.

Research design

A systematic review method was adopted for the study, utilizing the principles and methods. The use of systematic reviews enabled the researchers to collate evidence that fits pre-specified eligibility criteria to answer a specific research question of this study. The rationale for the use of systematic reviews is that it is considered the highest level of evidence for a particular research question. Furthermore, the survey and influence framework that was developed is explained. Generally, a purposefully selected sampling process concentrated on selecting information-rich cases and publications that can provide comprehensive details on a central issue for research.

Aims and objectives

This paper aims to evaluate the state of public participation and see’s if the public participation process was followed in the case of Xolobeni. The study also seeks to see if incorporating community agreement into South Africa’s legal requirements for granting a mining licence could help to reduce community unrest. Objective: to investigate the role of public participation during the EIA process.

The core question that is being answered

Did a lack of consultation result in resistance to the proposed mining development and did the relevant authorities achieve meaningful involvement from the public?

Data collection methods

The literature search included English peer-reviews articles and relevant reports. All information used in the evaluation and review was collected from the extensive project reports, published papers, unpublished papers and websites. Firstly, a systematic method was used in the selection of these articles by looking at related cases covering issues around public participation in areas where mining is to take place. Moreover, legal requirements and regulations governing public consultation were also covered. The possible causes or lack thereof of this phenomenon in both developed and developing countries although the focus was more in South Africa was followed. Furthermore, a total of 84 publications within the following range from 1986 to 2020 were reviewed to provide and support the perspectives presented in the paper. Secondly, a systematic review was used, drawing on our experiences and good practice in the conduct and reporting are described. The process of identifying and appraising all published reviews enabled the researchers to describe the quality of this evidence base, summarize, and compare the reviews’ conclusions and discuss the strength of these conclusions. When searching from related publications, the following key terms were used to retrieve relevant materials: public participation in the EIA process; sustainable development and EIA; public participation in mining; public participation history amongst others. The study also used the recent social media discussion which was found on Twitter with the hashtag ‘Xolobeni’ which occurred around September 2020. The latter was more directly linked with the study area. As such, this study contains a case and is therefore regarded as a single- case study that enables the researchers to investigate and analyse an individual case setting in light of other related cases as supporting publications.

The EIAs were searched from the South African context looking at the national department and to be able to place boundaries. The primary focus of the study was based on the high court judgement of eXolobeni which was between Baleni and Others vs Minister of Mineral Resources and Others (22 November 2018). The National Environmental Management Act (NEMA) regulations (EIA) guideline and information document series were consulted. EIAs and associated environmental authorizations were sourced from DEA as well as the websites of environmental consulting companies. A Practical Guide for Mining-Affected Communities was consulted together with the Minerals and Petroleum Resources Development Act 28 of 2002 (MPRDA). Interim Protection of Informal Land Rights Act 31 OF 1996 (IPILRA) was also consulted and for a better understanding of the dynamics which lead to the case of eXolobeni.

Role players

The Amadiba Crisis Committee (ACC) launched a court battle against the department of mineral resources and Australian company
Transworld Energy and Mineral Resources (TEM) The company that received mining rights
Department of mineral resources, the department that is the exclusive custodian of mining licences
Department of Economic Development and Environmental Affairs, the Advisory department (specialized studies)
The Directorate of Authorization and Waste Disposal of Dead, as well as the Chief Directorate of Transfrontier Conservation Areas and Protected Areas and the Directorate of Biodiversity Conservation Advisory department (specialized studies)
The Pretoria High Court The court that ruled in favour of Xolobeni mining rights

Data analyses and interpretation

Process

According to the MPRDA, a company that wishes to start mining activities must apply to the regional manager of the Department of Mineral Resources. The application must also include a social and labour plan, which explains how mining operations will impact the local community, as well as a mining work programme, which explains how the firm wants to undertake mining activities and the market to which extracted minerals will be sold.

If the application is approved by the regional manager, the company must hold meaningful consultations with any community that would be impacted by the planned mining operation. Xolobeni community disputed the development and raised concerns that were not addressed. Within 30 days of the mining application being granted, the community can file an objection with the regional manager Residents of Xolobeni requested a copy of TEM’s application after learning about it from the regional manager. The information was requested so that the community may hold meaningful consultations on proposed mining operations and make informed objections to the department about why the mining right should not be granted. The regional manager responded that the application had already been approved and refused to give a copy, recommending that the community request a copy from TEM directly or lodge a request to access the application by submitting a Promotion of Access to Information Act (PAIA) request to the department.

The community’s lawyers then requested that TEM furnish them with a copy of the mining application. TEM also rejected, stating that the community should approach the department and request the application. There was also a lack of transparency in the process (Allsop, Citation2020). To increase the process’s legality, the actors’ principles must be made transparent, allowing for lively debate. The procedure must also be informative and detailed enough so that the impacted parties understand what is going on and are willing to participate. The specialized reports were also incomplete, and problems were expressed but not addressed.

Why community disputed development

The Amadiba Crisis Committee filed a mining licence appeal in early 2009, citing a lack of consultation as a reason (Coleman, Citation2018). The specialized studies were partial and inadequate, according to the Department of Economic Development and Environmental Affairs in December last year, adding that revegetation of the mined dunes would restore some visual impacts but not the loss of biodiversity and ecological function. The Directorate of Authorization and Waste Disposal of Dead, as well as the Chief Directorate of Transfrontier Conservation Areas and Protected Areas and the Directorate of Biodiversity Conservation, raised several critical concerns (Prinsloo, Citation2008).

The question raised was ‘On what basis was the mining right awarded without an approved environmental impact assessment and an approved environmental management program?’ (Coleman, Citation2018). Aside from the fact that several hundred individuals live within or near the proposed mining region, the land that makes up the proposed mining area is a valuable resource and vital to the applicants’ livelihoods and assets. Many of the applicants use the area for grazing their animals and crop cultivation, and they rely on the water supply. Their labour’s fruits are used to support their families. Any surplus is sold to create cash. As a result, the natural resources extracted from this region are used for housing and other reasons. A large portion of the community also depends on tourism and tourism-related enterprises in the planned mining region. However, the tourism potential has not been realized because of TEM’s repeated prospecting and mining licence applications (SAFLII (South African Legal Information Institute), Citation2018).

According to the applicants, this acts as a barrier to tourist and eco-tourism investments, both of which are dependent on the preservation of the area’s natural beauty and ecological diversity. Imizi networks of mutual assistance and reliance linked to the sharing of food and other natural resources are so vital to this community’s survival. During times of adversity and scarcity, these reciprocal ties are critical for the individual imizi and the community’s survival. The social and economic interconnectedness of this community has imprinted this way of life in the residents. The community also opposes the proposed mining because they are concerned about the negative social, economic, and environmental effects. The community also resists the migration of foreigners who wish to dwell in their village, fearing that they will overrun their way of life and impose social problems commonly connected with mining activity (SAFLII (South African Legal Information Institute), Citation2018).

The issue with the EIA participatory process

Lack of consultation

Project documents are frequently written in technical jargon, making accurate comprehension difficult for everyone except for the well-educated elite. Such a lack of comprehension may benefit government officials who want to postpone or delay completion by limiting participation to educated minorities.

There was no meaningful engagement since the Xolobeni communities were not appropriately consulted. Collective consent has previously been regarded as a test for consent, but it was defective for a variety of reasons, including a lack of representation of diverse groups and groups that face structural disadvantages, such as women. This method contradicts the free, prior, and informed consent principles. Meaningful participation must attempt to legitimize and ensure that the concerns of communities are understood and addressed as a result of all stakeholders working together to provide open, representational, and inclusive platforms for a consultation to achieve impact-driven solutions. Meaningful consultation should not be limited to a check-the-box activity (SAHRC, Citation2018).

Lack of communication

Projects are developed without the government disseminating information to residents, which is vital to avoid any misunderstanding of project initiatives. The Specialist Studies Phase’s goal is to give information on both the positive and negative aspects of the project alternatives. The studies also include recommendations for activities that could be taken. The studies also make recommendations for interventions that could either increase possible benefits or reduce negative consequences (Western Cape Government Environmental Affairs and Development Planning, Citation2015). The Xolobeni community members had raised their objections to the mining project but there was a lack of engagement and they were being forced to give up their land. Despite requesting specialized EIA results, they were also denied crucial information to assist them in the decision-making process.

Lack of transparency

The EIA procedure for the main projects does not include enough provisions for notifying the public. For example, the designation of papers as confidential might limit public dissemination, and in the lack of transparency, meaningful public engagement is difficult to achieve. Furthermore, a lack of transparency generates mistrust and misunderstanding between project administrators and community members. The inclusion of the impacted and interested public’s perspectives contributes to the open, transparent, and robust nature of the EIA process. Project proponents must be willing to evaluate the community’s knowledge, values, and concerns, and to revise the proposal as needed to address community objections. Public participation promotes the transparency and accountability of decision-making processes, resulting in equitable and fair decision-making that is well informed and leads to positive environmental outcomes (Western Cape Government Environmental Affairs and Development Planning, Citation2015). Furthermore, access to information is critical for communities to be able to consent. This must include information on all the proposed project’s short- and long-term risks and rewards. Access to appropriate information necessitates that information is tailored to the requirements of communities, that it be easily accessible, and that interested and affected parties have enough time to consider it. Community consent implies that a decision made by the community must be devoid of any type of manipulation, coercion, or pressure and must be before the start of the activity with complete, thorough, and accurate information on the nature and scope of the proposed mining operation. This information must include reasonably foreseeable impacts on the community’s economic, social, and environmental well-being, as well as the impact on women, following the precautionary principle which states that the applicant bears the burden of proving that an activity is not harmful, and development alternatives (SAHRC, Citation2018).

Corruption and abuse of power

Even though EIAs are a critical component of environmental decision-making for new projects in most countries, and despite the tremendous potential for public harm from corrupt decision-making linked to EIAs, there is still relatively little study on corruption and EIAs (Williams & Dupuy, Citation2017). Existing empirical research suggests that corruption is prevalent in many nations’ construction, procurement, and natural resource sectors, all of which are relevant to EIAs (Neu et al., Citation2015). According to (Welsch Citation2004; Pellegrini and Gerlagh, Citation2006) corruption decreases the stringency and enforcement of environmental legislation

There were accusations that iNkosi Lunga Baleni (‘Baleni’) of Xolobeni, who had previously been an ardent opponent of the proposed mine, had changed his mind and now supports it, and is further dividing the community’s concerns. According to the records, he accepted a TEM vehicle and was a director of both XolCo and TEM. In March 2016, it was reported that mining opponents were on a hit list and that two unidentified perpetrators shot and killed a man named Mr Radebe, sparking community debate regarding the murder’s motivations (SAFLII (South African Legal Information Institute), Citation2018).

Explain how the framework discussed may assist in examining EIAs and the topic at hand

The fast-emerging sustainable development in the early 1990s concomitant with the introduction of NEMA in the mid-2000s both continue to set a tone by stating that ‘Environmental management must place people and their needs at the forefront of its concern, and serve their physical, psychological, developmental, cultural and social interests equitably’ (DEAT, 2010). As a result, the government has a responsibility to establish a balance between the preservation of current lifestyles for today’s generation and future generations, as well as the environment. Environmental Impact Assessment is a tool used in South Africa to ensure sustainable development under the Minerals and Petroleum Resources Development Act 28 of 2002 to ensure sustainability and full community engagement in all development initiatives.

In Section (2) (4) F (0) of the South African National Environmental Management Act No. 107 of 1998 (henceforth referred to as ‘the Act’), the contribution of all interested and affected parties in environmental governance must be promoted. The environment is held in public trust for the benefit of the people; the use of the environmental and natural resources must serve the public trust and the environment must not be harmed but protected as the people’s common heritage. Section (24) (A) (C) of the Act permits for this participation by necessitating that the person who facilitates public participation should comply with any regulated actions related to public consultation and information gathering through the public participation process (South Africa. Department of Public Service and Administration, Citation1997). The Batho Pele White Paper states that service to people is a guiding principle of public service in South Africa. It also puts people as vital and central to service delivery to meet their basic needs (Department of Public Service and Administration, Citation1997). This implies that there is a need to always consult the citizens to guarantee that the government is true of the type of standard that meets the basic needs of South African people. According to Batho Pele, public services are not a pleasure or a privilege in a civilized and democratic society; they are legitimate expectations (Tshoose, Citation2015).

Xolobeni requested that the National DEAT comment on the EIA/EMP report that TEM provided to the DME. This was following the processes outlined in the Minerals and Energy Act 28 of 2002. National departments that occasionally leverage the fact that their laws surpass those of the provinces find themselves in court on occasion to solve the conflict (Fuggle & Rabie, Citation2009). Even if national departments have the authority to enact legislation, communities must be appropriately consulted to avoid avoidable confrontation between them and the state. Proper consultation is required because communities have rights that must be respected, and these rights are enshrined in the Bill of Rights. The Amadiba Crisis Committee (ACC), a group opposed to mining in the area, and the Xolobeni Local Communities raised concerns about a lack of engagement, sustainable development against environmental conservation, and worries for ancestral territory and future generations. These are by no means unique problems.

The rehabilitation measures that will be implemented in Xolobeni when the mining time expires were not disclosed. This is also one of the mining company’s limitations in attempting to mine sand dunes in Xolobeni. Carrier (Citation2011) attests to this when he states that most Australian mining businesses do not complete the mining period for a variety of reasons, including a slowing economy and a failure to demonstrate that the mining development will help in poverty reduction. South Africa enacted the Minerals and Petroleum Resources Development Act 28 of 2002 to ensure that mining companies commit themselves.

The tension between culture, land and economic development

There is a need to be in contact with people to get a full picture of their needs, capability, limiting factors, opportunities, and threats. The state is the custodian of national minerals and petroleum resources and may award mineral rights within the legislative constraints of the MPRDA, and may award such rights to an applicant after consultation with the landowners (Xolobeni Case). In the case of Xolobeni, TEM failed to consult with the public before the development. The community owns houses and will be strongly affected by the development, so TEM needed to consult with them and get to understand their fears and concerns, and then try and address them by giving them a plan of how they will mitigate health, social-economic, cultural and environmental impacts.

The majority of the communities live close to the proposed development. The proposed mining operation will be conducted using an open cast mining method which involves clearing vegetation and stripping the topsoil and overburden over a large area to expose the targeted material for mining. This will mean that the community will be directly affected by air pollution, airborne diseases, contamination of soil and water, loss of biodiversity, acid generation and toxicity, and huge holes left in the area. The community felt that their natural environment will be destroyed without being provided with a better alternative as their livelihood heavily depend upon a healthy environment. The anxiety of the community members emanated from that many issues which are that; Xolobeni residents also fear the loss of their farms and grazing land and forced displacement (Farming in Xolobeni in the way of living). The community use land for crop farming and grazing. They also generate income from selling farming products. Mining will have a huge impact as there will not be enough land for such purposes. Should they be displaced, there is no compensation offer and this is not a fair practice. TEM has failed to alter its development plan in such a way as to address the needs and concerns of the community. This community is no stranger to adversity and in earlier years this community was also faced with attempts to remove them from their land and to relocate them. But the community of eXolobeni relies on IPILRA to justify their view that their consent is required in terms of section 2(1) of IPILRA before they may be deprived of their land. Given that from the start of the whole process, the public participation was poor and they further argue that such consent must be free and informed.

Cultural and traditional issues are some of the Xolobeni community’s concerns. They will refuse to leave the graves of their ancestors behind. The majority of the residents in Xolobeni are Black people and they have strong beliefs regarding ancestors and their final resting place. They will not want the dead to be disturbed in any way. The proponents of the development also needed to address such concerns. Some of the residents benefit from tourism activities in this area. If the land is taken for mining then they will no longer benefit from tourism activities. The village is also characterized as having a Ubuntu spirit, meaning that there is a bond within the community. They can share and help each other even with food. Residents are comfortable staying in their land as they know that they will assist each other in times of difficulty. The Xolobeni community as opposed to the influx of outsiders coming to live in their community and who may overwhelm their way of life. They also strongly oppose mining for fear of social, ecological, and economic mining consequences. It is of serious note that despite the studies conducted by scholars to try and show that the destruction of heritage sites have a negative impact on the community from a social and spiritual level as cited in Moyo et al. (Citation2017) and Leonard (Citation2019).

This was of great concern that a similar incident happened in the Western Cape even though the Environmental Department had raised several concerns regarding compliance of this Australian Company mining called Tormin mine. The Department of Mineral Resources is still in favour of granting its mining rights. The unfulfilled promises of uplifting the community are also of great concern. It simply means that there is no consideration for the public and the environment as long as there is economic profit. Therefore, one cannot blame the Xolobeni community for fearing the social, ecological, and economic mining consequences.

The Minister of Mineral Resources announced that an independent survey needs to be done to solve Xolobeni’s problems, saying that if the community is opposed to mining, then there will be no mining. The minister has been determined to ensure that the whole community voices out its opinions on the chances of mining in the region. This, however, has been slammed by the Amadiba Crises Committee (ACC; McKay, Citation2019). The ACC banned the Minister of Mineral Resources(Mr. Mantashe) from visiting Xolobeni, claiming that the community has been in dispute with the Mineral Resources department for more than 15 years against the practice of handing out mining licences (McKay, Citation2019). Communities that will be affected by mining activities still need to be consulted, and they need to give consent. Voting is not the correct way to do things as concerns on impacts will not be raised and addressed on a ballot paper. Already out of 72 households in the mining tenant area, 68 signed up as applicants in the courts against mining. In other words, 94% already did not want mining.

The protest of eXolobeni community has not stopped as recent as September 2020 some people took it to social media (Twitter) to reiterate their stance against the development of the mine see figure 1. This attracted attention to the general public some did not know the background of the story but they should solidary with the community. One of the social media users tweeted ‘Xolobeni community struggles are similar to that of Amazon natives in Peru fighting to their land that government has sold to their highest bidder for oil and mining’@Nkanyiso_ngqulu 13 September 2020 time 11:32 CAT. This study resorted to including the social media part to show that the issue surrounding the community of Xolobeni and the mining project looks far from over despite the court ruling. For more reactions from the general public see visit twitter search for Xolobeni. The image below just gives a snapshot of the reaction that we came across as we were researching for more information on this case.

Figure 1. Mckay, D. (2019, January 16). Mantashe unveils community poll in effort to end the Xolobeni mining saga. Composite of images of [@Umbuyi;@Maseko80913622 and @mdukuphela] taken from Twitter under #Xolobeni.

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TEM argued that the MPRDA gives them the right not to have consent from the public. TEM wanted to impose beneficial occupation of land without registered consent from owners in the case of Xolobeni. However, the rights granted in terms of MPRDA should not outdo or undermine the land tenure rights in the temporary protection of the informal land rights Act 31 of 1996 (IPILRA). Mr Mantashe believes that mining will result in job opportunities, investments, and other benefits. No research backs up this notion. Mining jobs need people with a specific skill and Xolobeni residents do not have the skill and will not benefit from the mining.

Conclusion

The purpose of this study was to investigate the nature of the conflict that erupted in Xolobeni over the proposed mining of red dunes in the area. The conflict sparked a debate on environmental politics that included several actors, namely the National Department of Minerals and Energy, the National Department of Environmental Affairs and Tourism (DEAT), and the Provincial Department of Economic Development and Environment (DEDEA), traditional authorities, environmentalists, and the area’s two opposing groups. The mining project at Xolobeni was eventually halted for a variety of reasons, including a lack of consultation.

According to the findings of the study, South Africa’s intergovernmental relations require more attention. As stated by the South African Constitution, the Portfolio Committee on Economic Development and Environmental Affairs oversee the departments (Act 108 of 1996). The portfolio committee was made aware of the conflicts in Xolobeni by one of its members, whose constituency was Xolobeni, following the resignation of Buyel, the then Minister of 92 Minerals and Energy. The portfolio committee would have been aware of the proposed mining project in Xolobeni if there had been greater intergovernmental ties between the national department and the provinces. The intervention of the portfolio committee at a time when unrest had erupted produced more concerns than answers among the tribes of Xolobeni.

Legislation in South Africa plays a crucial role in protecting the rights of the people and ensuring that environmental disputes are resolved. The Constitution, the MPRDA, and the IPILRA all recognize the necessity to right the wrongs of previous racial laws. Nonetheless, there was an issue because the TEM relied on Section 5 of the MDRDA, which states that approval from landowners is not required, and they also argued that the MPRDA triumphs against the IPILRA. Therefore, the high court ruling was that the MPRDA and IPILRA must be read holistically. In keeping with the purpose of IPILRA to protect the informal rights of customary communities that were previously not protected by the law, the Xolobeni community in this matter, therefore, has the right to decide what happens with their land. As such they may not be deprived of their land without their consent. Environmental resources, economics, and human beings are interrelated to promote sustainable development.

The public can play a huge role in ensuring the sustainability of resources, and so should not be disregarded or sidelined. To resolve and reduce environmental controversies, public participation is a vital tool as it makes all stakeholders and affected people to be aware of their surroundings and impacts that may result from development. Effective public awareness requires dialogue, the provision of relevant information, and adequate resource allocation. For sustainability to be reached in South Africa, there is a need to connect the social and economic pillars to get equity since the environment provides minerals.

Supplemental material

xolobeni_judgment.pdf

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Disclosure statement

No potential conflict of interest was reported by the author(s).

Recommendations

Public participation is a process and consultation should adequate and be inclusive
The public should be provided with sufficient information for better decision making
Legislation should be read in context and interpreted correctly for example, the MPRDA and IPILRA should not be read in isolation.
The involved government needs to work together to promote sustainability. Department of Minerals should not decide alone whether mining rights should be awarded or not. (may need to be elaboration) This will ensure that our future economic progress does not jeopardize the integrity of our environment
There is a need for more research on issues of corruption during EIA

Study limitations

Due to the lack of resources, the researchers were not able to conduct a field study in the form of questionnaires and interviews.

Supplementary material

Supplemental data for this article can be accessed online at https://doi.org/10.1080/03736245.2022.2087726

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