CHALLENGING UNCOMPENSATED DISTURBANCES, DAMAGES, LOSS AND SUFFERING DUE EXTENSIVE MINING AND PROSPECTING OPERATIONS

> Land and Property Rights, Business and Human Rights, Access to Justice and Ongoing cases > Malawi, Regional
Salc : Staff Writer

SALC is assisting the Kanyika Community based at Kanyika in the Mzimba District of Malawi to recover damages and compensation arising from extensive mining and prospecting operations conducted by Globe Metals and Mining (Africa) Limited (Globe Metals) with the authority of the Mzimba District Commissioner.

The Kanyika Community—consisting of 1042 individuals—and their forefathers have occupied and used the customary land at Kanyika Area since time immemorial; growing seasonal and perennial crops, rearing animals, residing within the Area and maintaining cemeteries and burial sites to which they attach great sentimental, religious and cultural value. An important river on which they almost absolutely relied for their water supply also passed through the area.

In 2006, Globe Metals commenced the Kanyika Niobium Project (the Project) to prospect, mine and process minerals in the Kanyika Area, claiming it had been granted a mineral right to do so by the Government of Malawi and was acting with the permission of the Mzimba District Commissioner. The Kanyika Community was not consulted by either Globe Metals or the Government of Malawi before commencement of operations in the Area. In 2011 Globe Metals entered into negotiations and consultations for the resettlement of the Kanyika Community and the payment of compensation for any loss and damage occasioned to the Community as a result of the implementation of the Project. The following undertakings were allegedly made:

    1. that Globe Metals would resettle all members of the Kanyika Community adversely affected by their operations by the year 2012 (the ‘resettlement undertaking’) and compensate any loss and damage suffered as a result of the project (the ‘compensation undertaking’);
    2. the Mzimba District Commissioner is alleged to have given assurances to the Kanyika Community that he would ensure they were paid compensation and relocated from the Kanyika Area by the year 2012.

 

In return, the Kanyika Community significantly laid off their use of their land, ceased long term activities such as the growing and maintenance of perennial crops and ceased maintaining their homes which were marked for demolition by Globe Metals. In the mean-time, Globe Metals with the authorization, approval and full knowledge of the Mzimba District Commissioner, continued with the Project for over five years without paying any compensation to the Kanyika Community and without effecting their resettlement from the Kanyika Area contrary to what had been promised. During the same period, the Mzimba District Commissioner did not withdraw his permit granted to Globe Metals to operate in the Kanyika Area or take any effective step to compel it to honour its undertakings.

As a result of the activities of Globe Metals, the Community has suffered the following loss and damage:

  1. They have been led to gross poverty, deprivation and perpetual food insecurity;
  2. Their houses are severely dilapidated and will require substantial investment to be restored to a habitable state;
  3. The drying up of the river which passed through the Area and on which the Community heavily relied as a source of water for domestic, agricultural and other purposes;
  4. Croplands in the Kanyika Area have either been directly impacted by the prospecting, mining, extraction and processing activities;
  5. the soil in the area has been rendered less fertile and less suitable for agricultural production;
  6. several burial grounds, which are of cultural, religious and sentimental value to the Kanyika Community have been negatively impacted;
  7. several heritage sites in the area which are of both community and national importance have been adversely affected;
  8. Globe Metals has dug huge trenches in the Kanyika Area from which it has extracted huge tonnages of earth substantially reducing the aesthetic appeal of the area and rendering large portions of it unsuitable for habitation and agricultural production.

 

On 28th August 2017, the Kanyika Community commenced an action in the High Court seeking constitutional and common law damages and compensation. On 11th September 2017, the Attorney General, on behalf of the second defendants filed a Defence denying the Kanyika Community’s Claims. The first defendants also filed its Defence denying the allegation. The matter has since been referred to mediation.

Writ of Summons and Statement of Claim

1st Defendant’s Defence

2nd Defendant’s Defence