Risk Management
Populist rhetoric is causing communities to
mobilise against mining companies
Populism and mining
A number of Bowmans Law partners from Africa recently took part in a panel discussion about populism
and how it affects mining. Penny Biram summarised the discussion.
T
he tide of populism sweeping the global political landscape
is starting to filter through to some of the local policies and
decisions made in various individual countries, including
African jurisdictions, sometimes challenging established economic
orthodoxies and even overlooking accepted legal principles.
In certain cases, especially where there may be tensions
between communities and business interests over red-
flag issues such as land rights, the courts have tended to
come down on the side of communities, defending their
situation rather than enforcing the law. This nascent trend
may understandably evoke concern among investors in
jurisdictions where such decisions have been handed down, as
legal and regulatory certainty and predictability are primary
considerations for investors universally.
The term ‘populism’ loosely refers to political approaches that
deliberately appeal to ‘the people’ and emerged in the late 19th
century in Europe and Russia. Whether defined along class, ethnic
or national lines, the people are often portrayed as morally good,
www.africanmining.co.za
pitted against a self-serving ‘elite’ that places its interests above
those of the greater good.
While this brief description of populism might be somewhat
simplistic, it seems apposite given the current global groundswell of
political approaches in the United States and Europe in particular.
Africa has not been untouched by the impact of global populism,
the effects of which are probably most apparent in economic
sectors such as mining, where land use and rights come to the fore.
A quick look at Kenya, South Africa and Tanzania shows that in
the mining sphere certainly, the rights of communities are enjoying
unprecedented attention.
The challenges of consulting communities in Kenya
In Kenya, new legislation has been passed to protect the rights of
individual land-owners and promote community participation in
mining and prospecting activities. The Mining Act, 2016 requires
that owners provide individual consent to mining activities prior to
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