FOR IMMEDIATE RELEASE
Uranium doesn’t grow on trees
Press release to Rectify Malawi’s Mines and Minerals Bill
A press release from the 36 civil society organisations represented under the
Natural Resources Justice Network & Publish What you Pay Malawi
LILONGWE, 9 December 2018 – The Mines and Minerals Bill is slated to be discussed in Parliament this week. However, we, the abovementioned, strongly recommend that the Bill is not passed in its current proposed form.
Minerals are part of our national wealth and once we allow uranium, gold, coal, and other resources to be mined, they will be gone. Forever. We have one chance to get it right for this and future generations.
We, the 36 civil society organisations that form NRJN-PWYP, stand for the fair, transparent and equitable use of our minerals, oil and gas to ensure these resources contribute to economic transformation and national development, leaving no one behind.
We believe the Mines and Minerals Bill that will replace the 1981 Mines and Minerals Act is an opportunity to redress inequality, injustice and corruption that has come to be associated with mining.
However, despite being involved in consultations since 2015, key recommendations we have put forward have not been take on board.
Objectives of the Bill include ensuring mining benefits Malawi’s economy and protecting the welfare of all citizens, their livelihoods and environment for today and tomorrow. In fact, the Attorney General states the reason for the new law: “a new law that will ensure sustainable exploration and exploitation of minerals in line with the African Mining Vision, modern and international best practices such as transparency initiatives”. However, if the Bill is passed in its current form we will fall short of these objectives.
Indeed, the government has taken laudable steps through joining the Extractive Industries Transparency Initiative and initiating the development of a Country Mining Vision under Malawi’s endorsement of the African Union Africa Mining Vision in 2009. NRJN-PWYP urges the government to continue the good work it has started by making changes to the Bill.
Realizing its duty towards overseeing the sector’s governance, NRJN-PWYP met to analyse the Mines and Minerals Bill with various stakeholders. After intensive meetings, herewith are our top recommendations for the bill:
1. Oversight and accountability. The Mineral Resources Committee will oversee the issuance of licences to companies and individuals that applies to mine. This only comprises senior civil servants who can chose which external experts participate. Key problems arise in the mining sector at the licensing and application stage – strange and hidden terms have been awarded in the past behind the backs of Malawians and other civil servants, and companies have lost out unfairly.
Therefore, meetings of the Minerals Resources Committee should be public or at least open to communities, traditional leaders, members of parliament, councillors, and non-governmental organisations. The Committee should also include these stakeholders among its members. All meeting minutes documenting any decisions taken should also be made public. Transparency and public meetings will improve the situation for all players involved, allow parliamentary oversight, create a more level playing field for companies and protect members of the Commission from corruption.
2. Land rights and free, prior and informed consent. Safeguarding Malawi’s land for our farming, housing, business activity and wildlife is vital. However, the Bill allows for mining to take place anywhere at the discretion of the Minister on advice from the Minerals Resources Committee, therein prejudicing provisions in favour of community rights to land as prescribed by the principal Law on Land. Therefore, on community land rights, the Bill should be aligned with the provisions in the Land Law.
While the Bill requires lawful occupiers of land to give consent and be compensated, the Minerals Resources Committee is able to dispense with consent (Section 222(4)) even when they deem it being ‘unreasonably withheld’. This means someone’s land can ultimately be taken away against their will, counter to the principle of allowing communities and individual land owners and users the right of free, prior and informed consent. This principle is enshrined in the United Nations Declaration on the Rights of Indigenous People and should be reflected in the Bill to uphold and safeguard rights, especially of the most vulnerable in our society that will not have the means to access legal recourse.
Wildlife protected areas as enshrined by the Wildlife Act should be sustained meaning no mining licenses should be granted in jurisdictions governed by the Act.
3. Community rights. A Bill introduces Community Development Agreements to be signed between large-scale mining companies and so-called qualified communities. The company has to spend no less than 0.45% of annual gross sales revenue on community development. This is far too low, especially when there are several communities that might be affected and communities often bear the greatest burden of negative impacts of mining. The responsible Parliamentary Committee must review the percentage dedicated to communities. In addition, medium-scale mining companies must also be required to enter into Community Development Agreements because the majority of mining in the country as medium-scale.
4. Contract transparency. Licenses and contracts should all be public so corporate compliance can be monitored to avoid backdoor deals being made. The government only officially released the agreement we signed for Kayelekera Uranium Mine last year. But already in 2007 shareholders in Australia and across the world knew the key financial provisions in the contract. 10 years before we did! We have committed to now make all agreements public through the Extractive Industries Transparency Initiative that Malawi joined following His Excellency President Arthur Peter Mutharika’s pronouncement in 2014. However, the initiative is voluntary and disclosing contracts is a voluntary provision of the initiative. We need to make sure all contracts relating to mining licences are always public. A provision should be included in the Bill, otherwise we put contract transparency at risk if a less favourable administration is in place or we were to leave the Extractive Industries Transparency Initiative. We note provisions in the Bill for the disclosure of beneficial owners as per the initiative so we need to do the same for contract transparency.
5. Access to information. We need to be able to access information about mining and exploration taking place near to us or that might affect us. The Bill makes improvements on public access to information, but it should be explicit about what information is public and where it is accessed. For example, Section 233(2) should be changed to make all government monitoring reports public to any member of the public. And all corporate submissions that affect the public interest (environmental, social, occupational health and safety) and especially those communities defined as ‘qualified community’ should be public. This means the wording of Section 38 must be addressed to ensure sharing these corporate reports is not restricted. While Section 268 provides for fiscal transparency, the power to decide mandatory and voluntary guidelines to disclose fiscal information lies with the Commissioner of Mines with the Commission General of the Malawi Revenue Authority. This is limited and should include at least the Ministry of Finance, Economic Planning and Development as the host for the Malawi Extractive Industries Transparency Initiative.
6. Managing money from mining. Revenue is one of the primary benefits we receive as a country for allowing companies and individuals the right to extract our mineral wealth. We need to make sure this is managed well and strategically. Right now, all revenue flows into account number one and is not traceable. We ask that the Bill includes a provision to enable financing to be collected and kept in separate accounts so a section should make provisions for a Mines and Minerals Fund. We recognise that changes would also be required to the Malawi Revenue Authority Act which is responsible for collection of taxes and royalty from the sector.
7. Decentralisation. Mining of all scales and of all types takes place across the country, yet the Department of Mines only has officers at the regional level. This means it cannot respond to issues as they emerge. Frequently information is passed on from the District Commissioner to residents near mining sites causing problems because the District Commissioner may not understand the mining process and provide incorrect and incoherent information. The Bill must provide for district level mining officers in any district where there is exploration and mining.
8. Local content. Mining must do more than generate revenue for Malawi. Mining can be transformative by contributing to the entire economy through fostering linkages with other businesses, investing in infrastructure that can be used for other purposes beyond mining, and facilitating research, technology transfer and skills development. The Bill requires large-scale mining companies to develop a business development assistance plan to show how it will assist Malawian businesses in providing goods and services to the mine so that it does not rely on foreign exports. However, the Bill should be explicit about what qualifies as a local business and move to include mandatory local procurement rates for goods and services to ensure Malawian companies benefit.
We believe the above observations and recommendations will assist in making the Bill a community-centered law that puts the lives of the citizens at the heart and contributes to economic transformation with consideration to the investor’s interests.
|Kossam Jomo Munthali
Foundation for Community Support Services
Steering Committee Chairperson
Livingstonia CCAP Church & Society