Part 1: Mine(d) Over Matter: A Marriage of High Theory and Deep Practice in South African Mining

Part one will briefly explain the current culture of mining and how this culture needs to transform to respond to climate change. Part two will present the philosophy of restorative justice in the context of mining and how a more forward-thinking culture could heal the wounds caused by the negative mining legacies seen throughout Africa. Part three introduces the Fibrous Future Initiative (the FFI) which looks towards how to put a circular economy into practice. An FFI would do this by introducing specific fibrous plants on degraded mine land to remediate the soil and create industry after mining operations have ceased. 

In part four, the FFI concept will be placed in the South African legal context, exclusively looking at the host community and employees. How would an FFI mitigate the impacts of the economic vacuum left once the mine has gone? How could the mine prepare the host community to undertake such an endeavour? Lastly in part five, a further contextualisation of the law, but looking specifically at the Social Labour Plan as a tool to prepare the employees and surrounding community for a fibrous future.[1]  

The purpose of the series is to contribute to the transformation of an unsustainable culture of mining towards more circular thinking. The circular economy is used to encourage the repurposing, reuse, and recycling of goods to stop the production of end-of-life items and to avoid the accumulation of waste. The concept seeks to reinstitute a philosophy of reducing, reuse and recycle, which we had before mass consumption became the norm. In the context of mining, a circular economy of the mine would span decades, functioning at the macroscale of mining operations and reinventing the industry after the traditional mine closes. 

The hope is that circular thinking would enlist the mining company into a more public role, internalising the profit and cost of their actions. The legal identity of the mining company as a juristic person should seek to understand the true cost of mining. This public role would look beyond the legal mandates, to understand the need for redress in an inherently skewed global system of mineral extraction - hence underpinning a ‘restorative mining’ philosophy.

Restorative justice is a normative construct, identifying a process of making things ‘right’ between two people by more creative means, moving away from traditional punitive measures. To ‘restore’ is to bring something back to its original state – which is a rather impossible task in many cases, but it functions off the assumption that something has the potential to be fixed. ‘Restorative’ is a process of correction that incorporates ‘healing’ but goes further looking towards personal growth. 

‘Personal growth’ is an interesting idea to try and associate with a mining company. Ideals of morality, self-consciousness and learning from your mistakes (some might call it institutional memory) within a company is a bizarre and counterintuitive process – after all, companies aren’t people. But in law, they are. 

Companies have personhood, they can sue, be sued and enforce their rights. They are powerful and impact the world around them. They make decisions, have guiding principles and influence their environment. Many companies are more powerful than states and governments, and certainly more powerful than individual people, communities and the environment. 

Personhood is granted, separating the company from its directors, allowing a personality to develop. In the mining context, this personality is driven by profit, and decisions are made to benefit the investors, the employees and the directors – the company comes first. If all individuals acted in such a manner, one would probably fear the Hobbesian truth of human nature as inherently selfish and rather cruel. 

I, on the other hand, am a fan of Locke, and would like to consider cooperation and empathy as the core functional tools of ‘personhood’. Humanity has survived thus far working in communities, without which we would not have flourished as a species. Now, more than ever, these tools need to be carried with strength and unbridled zealous passion – we need to sharpen them and carry them into battle against the various existential threats we encounter.  

The existential threat I am particularly concerned about is climate change. Although often thought of as a debatable topic, climate change is one of the most pressing challenges my generation needs to face. All persons need to play a role, collectively, to avoid and mitigate the effects of climate change. 

The mining industry has a big part to play in this battle. The mining industry has a legacy of negative environmental and social impacts. The impacts have been largely destructive, despite various legal interventions. Mining places a heavy burden on the immediate environment and the host communities. This burden ripples out into other sectors of life; impacting political powers and creating economic vacuums. 

However, without mining, we would not have modern technologies, and the world we live in would that looks very different. Mining also plays a crucial role in providing solutions to climate problems through green technology. Environmentally safe technologies rely on the minerals we mine from the earth. Minerals are required to develop solar panels, batteries, wind turbines, and countless other green further green tech. 

To combat the existential crisis that is climate change, mining is required – even though mining industries are arguably what got us into this crisis in the first place. By being the core industry for the industrial revolution by providing power, mining companies have to transform if we have any chance of living out the century. We need a global concerted effort to develop sustainable life cycles of the mine, and mining houses have a choice to make.

Some companies have made this choice by initiating sustainable policies, investing in green tech, and encouraging the culture of extraction to change. They are carrying a cooperative banner and seek to communicate with communities, address environmental concerns and instil a progressive corporate culture. In so doing, they choose to address the mining industry’s questionable history on the African continent.

Everything that cannot be grown, must be mined. Mined by large companies imbued with personhood. Now is the time to put ‘mine(d) over matter’ and realise a more progressive, sustainable use of natural resources by using high theory and embed it in deep practice. It is important to conceptualise the core existential threat of climate change as the impetus for change – but the next parts of the series will consider the nature of mining companies and how they carry themselves as juristic persons with rights and obligations.

The next part will invite the theory of restorative justice into the mining context – looking at what is currently an approach to justice in criminal law which focuses on alternatives to the punitive structure. Where one has done harm, the aim is to restore balance by learning from the harm caused and restoring the balance between the parties. This will be done by looking at the mining industry as the ‘perpetrator’, and the environment and communities as the ‘victim’ of harm.

Written by Aysha Lotter.

Continue to Part 2.

 

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