Other claims relating to the protection of public interest

In document The issue of cultural heritage protection in international investment in the mining and construction sectors (Page 182-187)

Chapter 4: Dealing with other claims relating to cultural heritage protection in the mining

4.3 Dealing with claims raised by parties other than the host state about cultural heritage

4.3.1 Case analysis

4.3.1.4 Other claims relating to the protection of public interest

Cases in which grounds of protecting environmental or human rights or public interest to interfere investment activities need to be taken into consideration. The way in which human rights or environmental preservation featured in permanent cases with the conduct of environmental impact assessment foreshadows the possibility that reliance may, in future, be placed on the protection of cultural heritage. Importantly, these cases can identify relevant issues such as potential adverse social effects when claims relating cultural heritage preservation are not dealt with promptly and adequately.

655 Plesch, note 8. 656 Benard, note 648, 18. 657 Daniel, note 647.

658 M. Amini, China’s plan to mine for copper beneath an ancient city get thrown off by corruption

charges (April, 2017), available at https://www.cnbc.com/2017/04/06/mes-aynak-chinese-copper- mine-disrupted-by-corruption-charge.html (accessed on 15/03/2019). For the issue of corruption, see section 4.4.2 of this chapter.

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The Wild Coast conflict in South Africa constitutes an example where the

environmental safeguarding and the protection of the Umgungundlovu community

were concerned.659 The Australian company Mineral Commodities (MRC)

requested permission to work on nearly 3,000 hectares of land. Nevertheless, anti- mining villagers and activists claimed that MRC is an exploitative international mining company set upon uprooting the community and destroying the environment. The local residents on the Wild Coast fiercely resisted mining on their

land.660 The foreign-invested company argued that only a third of the area

concerned would be disturbed and only about one-tenth actually mined. Government officials appeared to support the project, arguing that it is necessary for the nation’s development to allow investors to exploit a key resource in order to assist South Africa and develop an impoverished region.661 MRC has an obligation

to undertake an environmental impact assessment (EIA) and submit an EIA report inclusive of specialist reports and an Environmental Management Plan (EMP) to the Department of Mineral Resource. Anti-mining activists have invoked “Section 24 – Environment” of the 1996 South Africa Constitution662 about the right to a safe

environment and sustainable economic development. Their lawyers averred that the MRC had not fulfilled legal requirements to obtain the consent of the community in

and around Xolobeni.In March 2016 the company applied for a new permit to mine

all five blocks. However, the mining right application was frozen for 18 months in

June 2017 in order for the parties to reach an agreement.663 The Amadiba Crisis

Committee had launched a court battle against the Department of Mineral

659 S. Guyot, J. Dellier (eds), Rethinking the Wild Coast, South Africa: Eco-frontiers vs livelihoods

in Pondoland, 2009, available at https://hal-unilim.archives-ouvertes.fr/hal-00420064/document (accessed on 15/03/2019).

660 T. Ntongana, Battle over mining rights in remote Eastern Cape villages (February, 2018),

available at https://www.news24.com/SouthAfrica/News/battle-over-mining-rights-in-remote- eastern-cape-villages-20180220 (accessed on 15/03/2019).

661 J. Burke, The coastal village, the mining giant and the battle for South Arica’s soul (June,

2016), available at https://www.theguardian.com/world/2016/jun/12/south-africa-titanium-mining- giant-xolobeni (accessed on 15/03/2019).

662 The text is available at

https://www.ru.ac.za/media/rhodesuniversity/content/humanresources/documents/employmentequit y/Constitution%20of%20the%20Republic%20of%20South%20Africa%201.pdf (accessed on 15/03/2019).

663 A. Seccombe, Wild Coast mining case crystallises need to listen to communities (April, 2018),

available at https://www.businesslive.co.za/bd/companies/mining/2018-04-25-wild-coast-mining- case-crystallises-need-to-listen-to-communities/ (accessed on 15/03/2019).

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Resources and the Australian company over mining rights in the High Court in

Pretoria in April 2018.664

The possibility of lodging criminal proceedings by the local community has also been shown by a conflict concerning environmental protection in a mining project of South Africa. The Platreef mine in Limpopo was expected to bring prospect to the local economy and create direct and indirect jobs through the construction and production phases.665 Ndebele Vaaltyn Tribe alleged that Ivanplats, a Canadian

company is involved in illegal mining operations and violates rules on environmental safeguarding. The residents then brought criminal charges against Ivanplants in 2014.666

The South America Silver case was about an internal conflict concerning the termination of a mining project in Bolivia on the human rights basis. In this case, the Bolivian government initially supported the Malku Khota Mining project.667

However, indigenous people marched to express their opposition to the project. The uncontrollable conflict resulted in a declaration by the United Nations Higher Commissioner for Human Rights in Bolivia. The Bolivian Government did not have any other option but to declare the reversion to re-establish the public order.668

Another conflict relating to mining activities of the Harwar Colliery Project in South Africa needs to be highlighted through it was an internal conflict.669 From

664 J. Chabalala, Court hears Xolobeni community is in dark about Australian mining company’s

plans (April, 2018), available at https://www.news24.com/SouthAfrica/News/court-hears-xolobeni- community-is-in-dark-about-australian-mining-companys-plans-20180423 (accessed on 15/03/2019).

665 For more on the Platreef Project, see https://www.ivanhoemines.com/projects/platreef-project/

(accessed on 15/03/2019).

666 S. Liedtke, AfriForum’s prosecution unit considers possible legal action against Ivanplants

(May, 2018), available at http://www.miningweekly.com/article/afriforums-prosecution-unit- considers-possible-legal-action-against-ivanplats-2018-05-08/rep_id:3650 (accessed on 15/03/2019).

667 The Claimant’s Statement of Claim and Memorial, paras 51-53, available at

http://www.italaw.com/sites/default/files/case-documents/italaw4041.pdf (accessed on 15/03/2019).

668 The Respondent’s Counter-Memorial, para 84, available at

http://www.italaw.com/sites/default/files/case-documents/italaw4262_0.pdf (accessed on 15/03/2019).

669 F. Flus, Complete and utter chaos at Chrissiesmeer, South Africa (April, 2013), available at

http://www.ejolt.org/2013/04/complete-and-utter-chaos-at-chrissiesmeer-south-africa (accessed on 15/03/2019).

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March 2013, Msobo Coal proceeded with plans to build a new coal mine in the environmentally fragile Chrissiesmeer area - a site of significant beauty and biodiversity. The planned Harwar Colliery is an opencast mine which can produce 1Mt of coal per year for 15 to 20 years.670 Local farmers, businessmen and various

NGOs and represented government departments have lodged strong objections to the planned mine. Msobo Coal commissioned Digby Wells Environmental to conduct environmental and social studies in support of a mining right application in accordance with the 2002 Mineral and Petroleum Resources Development Act. An Environmental Impact Assessment (EIA) and Environmental Management Plan (EMP) must be compiled and submitted to the Department of Mineral Resources. The Heritage Impact Assessment Report which is a component of the EIA was publicised on 28 June 2013.671 However, the Environmental Impact Assessment and

Environmental Management Plan have not been reported to the public yet. New progress of this project has not updated in the media since December 2013 either.672

The Kakadu case serves as another example of internal conflict which was related to the opposition to a domestic mining project and the protection of both environment and cultural heritage.673 The explosion of three uranium enclaves

inside the Kakadu National Park was approved at the beginning of the 1970s. The first mining activity was undertaken in 1981 by an Australian company with the consent of the local indigenous community – the Mirrar people. The Aboriginal landowners after that did not agree on any project in the Jabiluka area to proceed at all. However, in October 1997, the Australian Government had approved the Jabiluka uranium mining project No.2 in the Northern Territory. The two decades following witnessed a controversy concerning the effects of the exploitation of the said uranium enclaves on Aboriginal sacred sites. The investor, the Australian government, UNESCO, local Aboriginal people, and a number of international

670 Mining upset in the lake district (October, 2013), available at

https://www.pressreader.com/south-africa/financial-mail/20131011/281565173479973 (accessed on 15/03/2019).

671 Heritage impact assessment for the proposed Harwar Colliery, available at

http://www.sahra.org.za/sahris/heritage-reports/heritage-impact-assessment-proposed-harwar- colliery (accessed on 15/03/2019).

672 C. Matthew, New coal mine for Chrissiesmeer (November, 2013), available at

http://thegreentimes.co.za/new-coal-mine-for-chrissiesmeer/ (accessed on 20/05/2018).

673 For more information about Jabiluka Uranium Mining Project (Northern Territory, Australia),

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nongovernmental organizations (NGOs) got involved.674 Indigenous groups

organized a blockade against the Jabiluka project from March to October 1998. In May 1998, construction of the mining project had been put on hold. A Federal Court judge had ordered the Territory's Minister for Mines and Energy not to approve the project as he found the Minister did not have enough information before making his decision to approve its construction. A month later, the Northern Territory Government had given final approval for the construction of a uranium mine and the mining activity started then though a decision on the mill location and an environmental assessment of the Jabiluka Mill Alternative are pending still. It should be noted that the proposal to add Kakadu National Park to the World Heritage In Danger List was strongly objected to by Australia, which engaged in a significant lobbying campaign to prevent the listing.675 The United Nations' World

Heritage Bureau has set up an inspection team to visit Jabiluka. A report has concluded that the mine should not go ahead as the Jabiluka uranium mine has been threatening the cultural and environmental values of Kakadu National Park.676 The

UN World Heritage Committee called for a halt to construction work at the Jabiluka mine site.677 However, mine constructions had continued with the support of the

Australian government.678 Finally, in August 2003, mining companies agreed not to

mine in the World Heritage cultural site because any development cannot proceed without the consent of the Northern Land Council and the area's traditional owners.679 The Kakadu case demonstrates the situation in which the host state-

supported investment activities while the local community and indigenous people opposed and the World Heritage Committee advised that all mine construction must stop immediately.

674 Lenzerini, note 58, 547.

675 G. Aplin, Kakadu National Park World Heritage site: Deconstructing the debate, 1997-2003, in

Autralia Geographical Studies, Vol 42 (2004), 160-170 cited by Litton, note 136, 220.

676 See Report on the mission to Kakadu National Park, Australia, 26 October to 1 November 1998

UNESCO Doc WHC-98/CONF.203/ INF.18 of 29 November 1998, available at http://www.wise- uranium.org/upjabw1.html (accessed on 15/03/2019).

677 The role of the World Heritage Committee has been discussed earlier in Chapter 2, section

2.2.1.1.3.

678 Kakadu – World Heritage in danger (updated July 2015), available at

https://www.wilderness.org.au/articles/kakadu-world-heritage-danger (accessed on 01/05/2018).

679 Jabiluka Uranium Mining Project (Northern Territory, Australia) (March, 2012), available at

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In case of construction work in Gaza, disputes between archaeologists and housing planners are common after Israeli bombing and artillery fire left tens of thousands homeless in 2014. Nevertheless, it was Gaza's citizens who raised the alarm about the destruction of the site. The local community posted on social media in order to draw the attention of the Gaza archaeology authority. After a lot of effort by archaeologists, academics and those concerned with Gaza's heritage, the authorities behind the housing program agreed to halt the construction.680

In short, concerns about cultural heritage preservation might be raised by anti- mining groups, archaeologists, activists, the local communities, indigenous people, administrative entities of the host state and nongovernmental organizations. The authorities such as the council, the Cultural Heritage Commission or the Environmental Division may ignore these concerns and not employ the grounds of safeguarding cultural heritage or the environment or human rights in order to have any interference in international investment activities.

4.3.2 Amicable approaches – an ideal way of dealing with claims raised by

In document The issue of cultural heritage protection in international investment in the mining and construction sectors (Page 182-187)