NATURAL RESOURCE OWNERSHIP PILLAR OF ASM & PROPOSED OPERATIONAL GUIDELINES IN SADC

1. NATURAL RESOURCE OWNERSHIP PILLAR OF ASM & PROPOSED OPERATIONAL GUIDELINES IN SADC Presented by Mkhokheli Sithole ADRN ASM Manual Validation Meeting, Holiday Inn Bulawayo 28-29 September 2017

2. Structure of the presentation • Natural resource ownership issues in formalisation • Proposed operational guidelines Dr M Sithole2017

3. Natural resource ownership &ASM • Limited attention in research and policy on the significant role of ASM with regards to land tenure practices in traditional sub- Saharan African societies (Nyame and Blocher, 2009). • The role of land rights and tenure security not been sufficiently addressed. • Weak land governance systems limit economic growth in the minerals sector • They sustain conflict; • Pose special problems for vulnerable group; including minorities, indigenous people, the poor, and women. Dr M Sithole2017

4. Statutory institutions structure access to subsurface minerals in many developing countries • Customary tenure arrangements are often more prevalent and dominant in determining sub-surface rights. • Customary tenure: governs seasonal access to resources -sets up nuanced agreements to deal with competing resource user groups such as gatherers, cultivators, and herders. -customary tenure arrangements: well defined for surface resources but rarely for sub-surface mineral resources. • Tensions arise between land rights holders and artisanal miners Dr M Sithole2017

5. Proposed operational guidelines i. Clarity on surface and sub-surface rights • National policy reforms on land tenure should promote the clarification of statutory and customary sub-soil rights • These reforms need to consider the interface between complex bundles of rights to surface resources and those below the ground. There is need to confront the complex challenge of integrating statutory with customary tenure Example: Ghana: • The Minerals and Mining Act of 2006 provides strong incentives for mining companies to negotiate with all customary landowners and pay fair compensation. • The legal principle is based on the precept that the mining company is the intruder into the territory of the local community. • Fair compensation must be paid to registered customary owners of land at market value (Hilson and Banchirigah 2009). Dr M Sithole2017

6. ii. Decentralised legal control to customary institutions (creation of localized by-laws and structures). • Simplify and decentralize procedures for acquiring ASM rights. • Devolve enough control powers to local government structures • Need for a legal regime that gives ASM right holders enough land, duration of rights and security of tenure. • Need for platforms where appropriate rights can be debated by multiple stakeholders that include people from local communities and civil society organisations. Dr M Sithole2017

7. The persistence of land disputes between large-and small-scale miners: suggests the importance of systematically defining and recognizing customary claims so that the ASM and LSM sectors can better coexist if not eventually integrate. • This, could be made easier if the procedure for obtaining an individual license for small-scale mining were streamlined and made more attractive to ASM miners. • Currently, they have little incentive to abandon the customary system and engage in a licensing procedure which ‘‘is tedious, requiring the completion of several forms, and final approval from governmental authorities’’ Dr M Sithole2017

8. Senegalese example • Customary authority over resources has evolved to meet specific local conditions, particularly where ASM is involved. • customary governance structures that are in place in ASM villages in Senegal result in an evolved and sophisticated mode of organization and governance specific to the gold resource: one that allows for a direct taxation and for local administration of mining that responds to the needs of miners, provides services, and helps to maintain a sense of order and control of an otherwise highly informal activity. • Although the village chiefs are the ultimate authority in rural Senegal, the overseeing of the mine site is delegated to the Diourakountigui, who are the mine site chiefs, the Tombouloma, who are responsible for ASM site and village security, and the Tombouloma assistants, who enforce rules and ensure safety. Dr M Sithole2017

9. iii. Benefit sharing: Governments should come up with Systems that enforce benefit sharing on resources extracted from communal land managed under common property ownership. Dr M Sithole2017

10. iii. Regular updates of national geological surveys • An updated geological survey: To be aware of areas that are potentially rich in minerals. • Settlements in such areas should be discouraged to prevent destruction of homes and infrastructure Dr M Sithole2017

11. Community Based Natural Resource Management systems that would see local communities empowered to control minerals within their geographic boundaries. Dr M Sithole2017

12. Advantages of clear tenure • Clear Tenure Encourages Investment: Clear tenure lowers the risk of investment for local brokers and miners while improving the legal status of artisanal miners. • Clear Tenure Encourages Environmental rehabilitation: Clarifying and recognizing the rights of miners to continue using land from which they have extracted minerals encourages rehabilitation and conversion to other economic uses. • Allocating Secure Tenure Rights Reduces Likelihood of Conflict: Clarifying and securing property rights is essential for reducing the potential destabilizing effect of ASM by offering a framework to negotiate and optimize the resource needs of ASM miners, governments, and other stakeholders. • Clarification of Rights Helps Inform Royalty Payments: Mining companies and artisanal miners alike are often required by law to pay license fees and royalties. - By having clear property rights and knowing who is mining where, it becomes clearer where such royalties should be reinvested. Source: Freudenberger et al., (2013)

13. Thank you Siyabonga M. Maphosa and N.. Ndlovu 2017