The Negative Aspect of Divide and Rule Concept on Stakeholders as a Tool of Land Access Mechanism and Consequent Public Acceptability of Uranium Projects:

Case of Malawi

AUTHOR AND PRESENTER: CASSIUS CHIWAMBO

LLM M &P, BSC ENG.

VIENNA, AUSTRIA

8 TH DECEMBER, 2015

Understanding Social License To Operate (SLTO):

Evolves from a broader notion of Corporate Social Responsibility (CSR)

Generally, it refers to the level of acceptance or approval by local communities and stakeholders in mining companies and their operations. Legal term which is basically non binding between parties involved Abstract in nature ‘not in a printed form’ or ‘formal agreement’, but influenced by acts of

Host Nations and MNCs through their activities in a licensed area It is based on the idea that MNCs/Companies need not only government permission

(normal legal permits), but also ‘social permission’ to conduct their business Mostly ensures that mining is done in a sustainable way: Focuses on Social,

Economical/Financial and Environmental (ecological) SLTO hinges on these three pillars of sustainability which can also be referred to as

People, Profit and Planet (3 Ps)

Understanding SLTO …:

These include: Philanthropic activities, ethical, legal (land access and ownership, relocations and compensations) and economic;

Is based on the degree to which a corporation and its activities meets the expectations of local communities, the wider society, and all other stakeholders

It is dynamic since peoples expectations and perceptions can change over time due to factors such as unforeseen environmental damages, commodity price at international market, dissatisfaction with the implementations of promises and obligations.

SLTO has to be obtained from day one (site entry/ pre-mining phase) and efforts to maintain it have to be considered seriously to avoid revocation.

Government Versus Corporations on SLTO:

Legally, Host States are obliged to ensure that the Company accesses the land and gets an initial SLTO

It is a voluntary (not mandatory) initiative for the Company to maintain the SLTO basing on their conduct and activities with regards to the social communities which includes indigenous people.

Note: ◦ The key responsibility of Companies is to generate revenue and profits for their

shareholders; as such, any activities done beyond this, the company is normally NOT obliged unless otherwise. It implements extraordinary activities just to build its reputation.

GEOSPATIAL LOCATION OF MALAWI

Figure 1:Location of Malawi

Malawi is located in the south-eastern part of Africa, within the East African Rift System, between latitudes 9o S and 17o S and longitudes 32o E and 36o E. The country is landlocked between Mozambique to the south and east, Zambia to the west and Tanzania to the north (Figure 1). It has the third largest lake in Africa which is filled with Fresh Water.

URANIUM MINING IN MALAWI

Malawi is one of the few Uranium Producing countries;

Mhuju, Livingstonia, Ilomba, Kayelekera, Phalombe (from Phosphate deposits) etc Airborne Geophysical Survey Results-anomalies

Who owns the land and minerals in Malawi? Land can belong to the State, Private, Community (customary land) or Indigenous

People; Minerals belong to the State which is obliged to develop mechanisms on how best

the licensed operator can access the land for easy tapping of the mineral resource. According to the Land Principles, the assumption is that Mining is the highest and

best use of land wherever minerals are found and they can be found at any type of Land. The laws are clearly provided in the Constitution, 1981 Mines and Minerals Act and

2015 MMA.

Figure 2: Kayelekera Uranium Mine in Malawi

Categories of Surface Lands in Malawi:

Land is categorised mainly in four:

State land- owned by State: The 1981 mining laws provided for outright access and use of State barren lands;

Private land- owned by private landowners with legally recognised title;

Customary Land – owned by customary landowners, or otherwise landholders occupying lands with title recognised under their customary law but lacking of formal title

Land owned or held by indigenous peoples

Accessing land: Rules and Procedures in Malawi:

Worldwide, there are different definitions of rights to access land, depending on jurisdiction: In Malawi, if mining is to be done on surface of Customary, Private lands and

Indigenous Peoples’ Lands, the Mineral Right Holder has the right to enter & occupy land to conduct exploration or operations, in accordance with mineral right/licence where conditions are included after thorough negotiations led by the State If mining on State or Public Land, there is;

Free transfer of public land to mineral rights holders Authorisation from other government agencies: Environment Department and

Labour and Lands Information- are people merely informed? Are people consulted? Role of environmentalists, Politicians/Parliament, the

people, NGOs, Academia, Media,

Accessing land: Rules and Procedures in Malawi...

Are there proper negotiations among all stallholders including previous landholders before licensing?

Prior notice to landowner? Negotiation with landowner? Agreement required with landowner? Has the landowner veto power?

The LAW provides for Free, Informed, Prior Consent (FPIC) as enshrined in the ILO Conventions which Malawi ratified.

Challenges with Land Access:

Shift of values ◦ Mining v protected areas – Majete Game Reserve ◦ Mining v areas owned/held by indigenous peoples’ groups – Karonga and Mulanje

residents ◦ Mining v agricultural areas – Kanyika Niobium (Uranium) Prospect ◦ Mining v urban areas

Mining of such mineral deposits faces both Legal and SLTO challenges.

E.g:

Intersections between mining law and other regimes and regulations: often contradictory- Mining Sector allows Mining in Majete Game Reserve whilst Forestry Act and Environmental Laws restrains this activity from being undertaken.

Land Access Steps: First and Leading Player: Government

Ensures that MNC obligations and commitments are met/done as enshrined in the Laws; Vis-à-vis: Resettlements, Compensations, Environment, Employment, Direct local community benefits where applicable such as employment and CSR activities.

Parties involved: all stakeholders which includes local communities, NGOs, Human Rights Watchdogs, Chiefs, Politicians where necessary, MNCs – to ensure that the LSTO is secured from day 1 etc

Second Main Player: The MNC

Mainly to ensure project acceptability by the communities and other stakeholders

To put in place measures which can control local community over-expectation in terms of benefits

Once the project commences, there is need to maintain the SLTO

Most experienced threats to SLTO:

Lack of proper information disbursement by key players during the project on-set

Failure to meet minimum standards of certain prescribed conditions such as compensation packages

Lack of awareness on benefits and negatives raises much speculation and assumptions amongst stakeholders

MNCs deliberately ignoring requests and demands of the other parties

Deliberate information distortions by other stakeholders such as Media and NGOs acting in the name of fighting for the locals

Lack of serious commitments by the MNC to preserve/protect some culturally valued items affected by the license such as heritage sites.

Land access mechanisms used by some investors:

Selective treatment of locals and various stakeholders to gain sympathy – divide and rule principle: Rafik Hajat (2010); Blessings Chinsinga (2013)

Few individuals benefiting and these benefits are mostly temporary and unsustainable

Kangankunde, Kayelekera, Mulanje, Kanyika projects facing resistance due to the influence of the ‘side-lined’ group.

Projects staying in limbo hence delays at various stages of the mine life cycle

Consultations made as just rubber stamps whilst decisions have already been made… CFJ and CCJP joint report (2014).

Lack of community involvement prior to project commencement, Rafik Hajat (2010)

Restrictive consultation which is characterised by lack of transparency – FPIC ignored- Cassius Chiwambo (2015);

Consequences of Divide and Rule Land Access Approach on the Project:

Contradictory perception of the project amongst stakeholders which might lead to mine site conflicts. In most cases, all parties loose; Anna Littleboy, Posted: (October 2015);

Loss of direction on sustainable operations by the company which leads to gross blindness of MNC with regards to Economical, Social, Cultural, Political and Environmental Gains and Losses at the local level. These endangers the SLTO.

There is a ‘negative maximisation’ of mining contribution to communities in terms of revenue distribution and usage, gender disparities, employment and skills development, conflict and dispute resolutions, community health initiatives, Mine Closure, Community Participation in Decision-making and improved Social Impact Assessment among others.

Most investors loose the much needed ‘SLTO Resources’, and these include: Physical resources e.g. Land, natural resources, environmental services; Financial Resources; Human Resources; Information - about the area, technical, obligations etc; Community Values and knowledge; looses support of legitimate and reputable community and sectoral institutions; Case of CFJ and IPI; and holistic individual and community powers.

Consequences of Divide and Rule Land Access Approach on the Project…

Quality, legitimacy and fairness of the engagement between Industry and Community are significant predictors of project acceptability; Moffat and Zhang (2014). Lack of these from the project onset or within the project implementation phase seriously affects the LSTO – Mwaulabo Project.

The created divisions un-levels the performance ground for players hence un-levels the performance of the investor who runs the project at risk.

Issues Vs Non Issues:

The Land and Mineral Ownership Laws are clear but mechanisms used to access the minerals vary amongst the investors so as to gain public project acceptability.

Currently, legacy issues have no major impact on project acceptability but unequal treatment of players in the sector.

The non uniqueness of the project due to the nature of minerals and consequent operations can lead to variation in strategies but the ‘divide and rule principle’ creates a volatile environment when conflicts emerges amongst the stakeholders which usually spills over to the investor.

Projects which follows the laid laws and regulation and utilises an all-inclusive community engagement strategy have been able to develop successful projects.

Government Strategies to overcome the Divide and Rule approach:

Development of a Community Engagement Framework which guides all investors

Setting up Government/ Investor and Community Liaison Committees which are accountable to the general public

Ensuring enforcement of all SLTO related Clauses in the applicable Laws – Land access, project operations which leads to project acceptability

Ensuring community sensitization campaigns – critical to manage community over-expectation so as to achieve a ‘Win – Win’ Situation other than the ‘Loose – Loose’ Situation

UNDER DISCUSSION:

Recognising and where possible, awarding the best performing investors in the field of community engagement – criteria for assessment is in progress.

CONCLUSION:

Malawi is currently in a transforming stage: from being a non mining country to the adoption of a culture.

Economically, Malawi has a desire to diversify its agro-based economy to a mineral based on through fostering collaboration with other key economic sectors.

Addressing the prevailing challenges which includes Project Acceptability by the communities is a key to achieve sustainable mining in Malawi which can help all stakeholders achieve the three pillars of it_ Social, Environment and Economy.

THANK YOU FOR YOUR ATTENTION!