Part 2: Mine(d) Over Matter: Restorative Justice in the Mining Industry

In the age of the existential threat of climate change, the future of mining depends on finding ways beyond the extractive stages of the mine, towards ‘restorative mining’ practices. Mining as we see it today will need to adapt to the new political, economic, social, and ultimately environmental climate. Restorative mining would be guided by the fundamentals of restorative justice and would need to be conceptualised alongside all stakeholders in the mining sector. This is the aim of the five-part series – first to explain the philosophy of restorative justice and then to apply the philosophy in the mining sector. The focus will be on why there is a moral and ethical imperative to do so, and how the approach would require context-specific application in South Africa.

By adopting restorative practices and avoiding the linear life of the mine, one will be mitigating the issues associated with mining and will provide economic incentive through secondary activities and more complex enterprises.[1] Growing a new circular culture in mining will require the industry to wake up to is role and responsibility in South Africa. Restorative justice is a helpful paradigm to understand why the responsibility is placed on them, and how to start the conversation of undoing harm.

Restorative justice is a relatively new legal philosophy that has emerged in the criminal justice system in South Africa. Restorative justice has its roots in African Customary Law and has been a principal in the Southern African community ‘legal’ systems for generations. Restorative justice requires the offender to take responsibility for the harm caused and proactively address the harm to mitigate the effects as far as possible. 

The aim of the philosophy is to move away from restitutive principles, to rely less on punishment and more on improvement. In theory, restorative justice is guided by the question – how do we balance the scales of justice using the tools of empathy, cooperation and personal growth? 

When answering this question, it is important to not erase or replace experiences, but rather to encourage a conversation and paint a clear narrative of the harm caused. This is in no way a simple task and cannot be solved in a five-part opinion series – but this will not stop me from humbly putting forward my thoughts.

A fundamental part of restorative justice would be to acknowledge and accept responsibility and to go beyond the call of duty to mitigate and encourage transformation. Unfortunately, in the context of criminal law, this philosophy requires a fair amount of conceptualisation in law, work which requires a fair amount of political will and public participation. It is therefore not a functional model in practice, but the theory has clear founding principles of cooperation, empathy and self-consciousness. Using these principles will help in acknowledging the role you play in transforming to heal the harms of the past. 

‘Restorative mining’ is a term I would like to put forward to mean the following: a culture adopted by extractive industries which seek to internalise the current externalised political, social and environmental costs of mining, by establishing a circular economy in the life of the mine. The circular economy will mitigate the costs by changing the current nature of ‘business as usual’ to be more forward-thinking and ‘close the loop’ of mining. This culture is in term a form of ‘personality’ for the personhood attached to mining companies.

Restorative mining would change depending on the state of the mine. If the mine is at its inception stages, active steps can be taken to avoid costs from the beginning of the mining process. If the mine is waiting for a closure certificate, or in the worst case abandoned, the nature of restorative justice changes considerably. If looking to close, the mine would have to consider rehabilitation measures and mitigate the existing consequences of mining.[2] Therefore, how to prevent or ‘undo’ harm to the community and environment would need a case-by-case strategy.

If abandoned, the case is particularly difficult because the ‘perpetrator’ is absent. A historical account would be necessary to pinpoint who is responsible for the abandoned mine. The account would have to consider where the benefits of those mines pooled and who should then ‘restore’ the area. Thus, the balancing conversation will look beyond traditional legal frameworks, towards creative solutions that would facilitate restorative justice. One such potential solution will be unpacked in parts three, four and five of this series. 

Restorative mining would need to be an inclusive process which comes from the mining company initially and would actively involve the host, labour sending communities, and the surrounding environment. Responsibility must be taken by mining companies beyond the existing frameworks (SLPs, EIAs and EMPs). The call is to go beyond legal duties and to bring the environment and the communities into the process. 

Restoration requires a conversation between those who have been harmed and the offender. The benefit of restorative justice for the ‘offender’ is growing beyond the punitive nature of the law – a threat that often does not serve to deter mining companies from contravening the law in the first place. 

Another element that restorative justice could mitigate is the issue of mining industries having impunity for damages caused before there were environmental laws to protect against the harm. The principle of non-retrospectivity, although vital for the rule of law, protect mining companies against the environmental costs done in the 1800 and 1900s. Hence the call to go beyond the legal duties.  

Restoration could potentially provide a platform for conversations beyond the immediate legal paradigm. To solve issues creatively, issues caused by the mining sector which harm the environment and people is a global imperative. An imperative that will not be able to maintain the status quo of the mining industry. Transforming a mining culture is the only way mining will be able to grow in the coming century – and mining companies know this, people know this – now is the time to act. 

Written by Aysha Lotter.

Continue to Part 3.