Communities should be able to determine the terms on which minerals are extracted from their land
July 17, 2019
By Sonkita Conteh, Director, Namati Sierra Leone
The river died a while back- a victim of the quest for gold. Its muddy waters bereft of any life. For Mamanke and other villages, Pampana River was everything – a source of food and water, a meeting place of sorts for men, women and children. Part of the river is now covered with mud deposits. Soon, the murky water would stop flowing and for Mamanke, the shadow of Pampana would vanish, forever.
Minerals have been exploited in rural Sierra Leone for close to a century now with devastating consequences, Whole villages have been dislocated, livelihoods extinguished and valuable ecosystems destroyed. The benefits to communities directly affected are hard to pinpoint.
Successive governments have presided over a mining sector that puts communities’ interests and the environment second to revenue generation. Recalling the early days of the iron ore project in Tonkolili- site of the biggest ore deposit in the country- one of the chiefs reported that a government official told a community gathering that “…your community has to suffer so that the country would benefit. This is the price you have to pay, a sacrifice you have to make for Sierra Leone.” Should the discovery of minerals become a bane for the communities on whose lands they are found?
Over the years, “regulation” of mining was excessively centralised and largely ineffective. Offices in Freetown issued licences but retained no real oversight of daily operational activities. In the bushes, mining operations ran amok and communities bore the brunt of their transgressions. Even “protected areas” were not spared. Nothing was off-limit.
The passage of the Mines and Minerals Act 2009 was in part meant to improve the lot of communities directly affected by mining and to shore up regulation of the sector. This law requires evidence of “consent to use land for mining” from landowners or mining committees before a small-scale mining licence would be issued by the government. Large-scale miners are required “to obtain a land lease or other rights to use the land” from the owners of the land after they are granted mineral rights by the government. The 2009 law also provides for the regulation of the sector in accordance with “international best practices” but conflicted that mandate with investment promotion functions.
In practice and despite the provisions of the law, robust regulation remains unattainable and community consent has been more fiction than reality. The requirement of consent “after the fact” for large-scale mining is a fundamental flaw and takes away communities’ ability to set the terms for big mining projects. Once government issues a large-scale mining licence, communities are expected to fall in line. Little wonder why none of the big mining companies have actually negotiated land lease agreements with communities. Successive governments, have not been keen to enforce this requirement. As long as companies show that they pay some sort of surface rent, that has been deemed sufficient.
Agreements between small-scale miners and communities are mostly insubstantial and sometimes downright ludicrous. In one recent example, rent was locked in for 25 years (the duration of small scale licences is three years) and the community was not permitted, at the end of the lease period, to take the land back. To do so would require them to pay back all the rent to the company.
These agreements often only cover four issues- location, land size, rent and corporate social responsibility contribution. Companies have been virulently opposed to including provisions that hold them accountable for their land use and impact on the environment. In this they seem to have had the tacit support of the regulator.
“Why should communities have any role in matters concerning exploitation of minerals?” an investor once asked. “Where I come from, the government makes all the decisions.”
For starters, the government may have appropriated all minerals in the name of the republic but the land below which the minerals lie belong to communities. It is their most valuable asset.
Additionally, communities exist in the same vicinity as these concessions- where they choke on dust, get sleep-deprived by nightly cargo trains and live in houses constantly rattled by blasting. Their forests are destroyed, swamps polluted and rivers poisoned. They lose too much and gain very little in return.
When companies leave, as they invariably do once the resource is depleted or they run into financial troubles, communities have to pick up the pieces themselves and attempt to make something out of their broken landscape.
Treating communities as “poverty projects” concerned only about rent or the development that mining ostensibly brings, undermines their property rights and feeds the beast of irresponsible exploitation. Supporting communities on the other hand, to negotiate and enforce environmentally and socially responsible lease agreements is in compliance with law, sensible and necessary to filter out bad faith investors and maintain responsible corporate behaviour. In the absence, for the time being, of effective regulation of the sector, supporting communities to determine the terms on which minerals are exploited is a type of bottom-up regulation worth cultivating.
To negotiate effectively, communities would need help. They would require access to investment-related information in their local languages, non-conflicted legal and other professional assistance, time and space for community-wide discussions and resources to make all of these things possible. If communities don’t feel comfortable with a project after understanding its pros and cons, they should be able to reject it and have that outcome respected by both the government and the corporation. Empowering those who bear the greatest risk of harm in a transaction is a requirement of justice and an investment in long-term stewardship.
As the government embarks on a charm offensive- via investment conferences and bilateral engagements- to attract more investment into the country, it should not be tempted to downplay the importance of effective community participation. Sierra Leone stands to lose many more rivers and a whole lot more, if communities continue to be shut out of decision-making in the mining sector.