CSOs 4 Tailings Justice

Subtitle: Developing Strategies for Monitoring, Advocacy, and Action 

Hassen Lorgat:  (CSO’s Tailings Working Group. https://csos4tailingsjustice.org/about/)

This workshop marks the finalization of our pilot project aimed at building community awareness and power regarding tailings and mine waste. It excludes for instance our work around advocacy for timeous and inclusive inquiries when disasters take place and general advocacy with chapter 9 organisations in particular the SAHRC to advance knowledge about safety and security for communities living near mine waste and tailings  dams facilities in particular. We commit never to become exhausted in pointing out the devastation of human and animal life and the wider ecology including livelihoods when these dams fail. They fail not only the business but us all.

1. Introduction & Context

When we talk about mining and extractivism, we must start with the glaring asymmetries of power: Our work is premised on the understanding that communities face significant structural and systemic disadvantages in resources, knowledge, and influence. This leaves them at the mercy of the bosses. This imbalance is deadly; tailings disasters cause catastrophic devastation, as seen in Brumadinho (Brazil) and Jagersfontein (South Africa).

The Jagersfontein Catalyst: The 2022 Jagersfontein disaster, which killed five people, renewed the urgent need for greater transparency to enhance accountability.

After the Jagersfontein mine disaster where 5 people were killed, there was a renewed interest in the need for greater accountability around tailings. See here,  and here and finally here.

Remember the climate crisis?

It is clear that we must increasingly – and upfront factor in climate change concerns when dealing with large scale dams and tailings facilities. Unpredictable and increased extreme weather, such as intense rainfall, raises the risk of overtopping and failure.  We are experiencing the impacts like extreme heat, drought, and melting permafrost destabilize structures and their foundations. This must put a challenge on how tailings dams are built and if they are resistant to climate change pressures as the failure to adopt and to adapt to mitigate these will lead to catastrophic human, societal let alone  environmental contamination, loss of life, and major financial liabilities. 

We will put these questions to our regulators as to how these factors are for instance included when dams register compliance in terms of the dam register.

To be proactive means adopting a climate-resilient approach with citizens and experts. It also means adopting new and  improved water management, enhanced monitoring (e.g., satellite technology), and designs which are not only technical but includes human and the wider ecology to ensure long-term stability.

Existing law and policies

Talking particularly of people living adjacent to these facilities, they often explain that they are at a loss about how the law, policies, and governance tailings and mine waste may protect them. We understand that this is a gigantic task but we have begun to make headway with small steps but the biggest problem is the government’s lack of effective coordination amongst its one environmental system. To add salt to injury there is no place for civil society participation in this already inchoate structure and system. The negative social, health and environmental  impacts on the poor and working people have often been organised around and rarely documented by the authorities.

The renewed, though belated, focus on tailings management—especially after the 270 fatalities of the Brumadinho disaster—has driven a critical need for greater transparency and accountability. Systems and platforms like the Global Tailings Portal exemplify this shift. Launched in 2020, it is a free, searchable database containing detailed information on over 1,800 mine tailings dams worldwide, allowing users to sort data by location, company, dam type, height, volume, and risk. Despite these, implementation and inclusion of civil society is uneven or non-existent.

The pressing challenge for civil society now is to secure accountability, both at the global and national levels.

2. The Community Tailings Literacy Programme

This initiative serves as a foundation for communities living near the 5,000+ derelict or ownerless mines in South Africa, as well as new re-mining operations.

Core Activities:

• Facility Mapping: Using available data and community knowledge to map local tailings facilities.
• Toxic Tours: Visiting mine dumps and impacted areas to document health and environmental effects.
• Civic Organizing: Revisiting history to find ways of stemming marginalization, poverty, and inequality.
• Literacy: Educating residents on the Bill of Rights and global safety standards.

3. Interim Measures for Empowerment and Redress

We have learnt that securing redress is a challenge. We are therefore engaging with Chapter 9 institutions and other forums as interim measures to keep corporations accountable.

• South African Human Rights Commission (SAHRC): Their seminal report on mining-affected communities is a useful document, even if weak on tailings specifically.
  → SAHRC Mining Communities Report (Final PDF)
• Industry Standards & Corporate Policies: We analyze these to understand professed commitments and identify leverage points.
  • Initiatives for Responsible Mining Assurance (IRMA): IRMA Standard | Grievance Mechanism Chapter
  • Corporate Example (Harmony Gold): Whistle-blowing Policy
• Broader Context: The societal problems caused by large extractive projects extend beyond tailings to include displacement and livelihood loss.
  → Fighting Big Dams Report (WoMin)

4. The Legal & Constitutional Framework

What is undeniable is that we take our power from the Constitution. Our rights are affirmed but are often inaccessible because they are dispersed across multiple, siloed departments.

Key Responsible Departments:

• Department of Mineral Resources and Energy (DMRE)
• Department of Water and Sanitation (DWS)
• Department of Forestry, Fisheries and the Environment (DFFE)

Key Legislation & Mandates:

Statute / Source	Core Focus
Constitution (Section 24)	The right to an environment not harmful to health or well-being.
National Water Act (1998)	Protection of water resources and pollution control.
NEMA	Principles of sustainable development and the “Duty of Care.”
Waste Act (59 of 2008)	Regulations regarding residue stockpiles and deposits.

The fault line: There is currently no formalized space for civil society participation in the “One Environmental System,” leaving governance inchoate and uncoordinated.

5. Technical Accountability Mechanisms: Tools for Oversight

Two critical registers maintained by the Department of Water and Sanitation (DWS) are essential levers for community oversight.

A. The Dam Safety Register (DSO)

• Purpose: A legally required register of dams with a safety risk (height >5m, capacity >50,000 m³).
• The Reality: Only about 29 out of 337 tailings dams that are legally obliged to register have done so. This was at a last reading of the dam register in 2024.
• The Goal: Simplify access to this register for community use and advocate for full compliance.
• Resource: Department of Water & Sanitation: Dam Safety Office (DSO)

B. The Water Use License Register (WARMS)

• Purpose: The national database (Water Use Authorization & Registration Management System) tracks who is using water, where, and for what purpose.
• The Problem: The Protection of Personal Information Act (POPIA) is often incorrectly used to restrict public access to this data.
• The Goal: Ensure transparency so communities can monitor water extraction volumes and associated pollution risks.
• Application Portal: e-WULAAS System

Both the Water User Licence Register and the Dams Safety Register must talk to each other more coherently and consistently. There are  different laws and approaches, including work cultures does not permit us to delve deeper or coordinate more efficiently and effectively The lack of a public, itemized list of all compliant water users on South Africa’s Water Use Authorization and Registration Management System (WARMS) is laid largely due to laws such as Protection of Personal Information Act (POPIA), which restrict the public dissemination of personal and private body information. 

These challenges especially when information is shared for public interest use makes it imperative that the knowledge held by public bodies be made available to us all.

We all know that water is essential for life, and large-scale users have a significant impact—both in the volume they use and the potential harm from its denial or pollution—a proactive solution is needed.Furthermore it is our view based on our limited learnings on the operations of these accountability mechanisms, the dam register and e-Wulaas system, we will have to find ways to make them user friendly to communities and others whose first language is not engineering, law or English.

Before concluding it is important to reflect on the role of the company or corporation as the duty to comply as responsible citizens lay on these entities in terms of the constitution, rights as owners and the South African Companies Act which I discuss next.

6. Ownership, Standards, and Enforcement

The South African Companies (Act 71 of 2008) imposes obligations on companies towards citizens, including:

– Socially responsible operation (Section 7)

– Director’s fiduciary duties (Sections 76 & 77)

– Stakeholder considerations and reporting (King IV & Section 72)

– Duty of care and skill to mitigate risks to communities

– Remedial pathways for citizens to enforce duties (Sections 164 & 165)

In all the standards and guidelines above there is an assumption of good corporate governance.  Increasingly, I propose that we use the Companies Act that compels companies to  operate responsibly, considering community impacts. Directors can be held liable for breaches. Citizens can use these laws to challenge companies and hold them accountable.

It is true that we need to contest and expand interpretations that will include us. If we look at (Remedial Action) Section 164/5 remedial pathways quoted which envisages that or permits a shareholder or director to apply to court for relief if company conduct is oppressive, unfairly prejudicial, or unfairly disregards their interests.  We can justly argue for inclusion under this clause as the systematic disregard for community safety and rights constitutes “unfairly prejudicial” conduct toward the company’s long-term interests.

The owner of the Tailings Dam is legally responsible for its safety. They are guided by voluntary international standards, making awareness of these standards crucial for activists.

• Key Standards & Frameworks:
  • Global Industry Standard on Tailings Management (GISTM): Global Tailings Review
  • The GISTM Training Institute (GTMI): The GTMI
  • ICMM Principles & UN Guiding Principles on Business and Human Rights (UNGPs)
  • South African National Standards (SANS 10286) & Mine Codes of Practice.

Soft and hard: it is important to realise that some voluntary instruments play an important role of building consensus that enhances the potential for greater transparency and in the future greater accountability. This accountability can be via self-regulation of external by government directly or through one of its agencies. Take the case of IRMA on critical raw materials.  

Germany for instance has said that it regards the certification process by IRMA as a basis for them to approve whether a mineral is clean and therefore not tainted by any violations of human rights in terms of their laws. This automatically renders the soft law process binding and therefore it is vital for civil society groups participating in IRMA (unions and NGOs) to keep fighting to realise the aspiration of their constituencies. 

In this regard IRMA’s response to civil society concerns that they were greenwashing they replied in September 2023 that their uphold standards and their tool is voluntary. In that they did add that their standards are based on key international principles, including Indigenous rights (ILO 169, UNDRIP) and the IFC’s expectation for companies to secure “broad community support” for their operations. Through the IFC Policy on Environmental and Social Sustainability companies are guided and supported to “ensure, through its due diligence, monitoring, and supervision efforts, that the business activities it finances are implemented in accordance with the requirements of the Performance Standards.”

They reiterated “ It is not intended to replace or interfere with government oversight. We agree that no voluntary initiative has enforcement power to hold mining companies financially or legally accountable for infractions. “

7. Conclusion: The Way Forward & Community Action Plan

This workshop aims to consolidate our learning into a Workable Community Action Plan based on a “Safety First” philosophy. We must rebuild a culture of learning and organization before the emergency phase.

A civil society and community oriented way-forward. Our demands:

1. Openness: From tailings owners and regulatory bodies regarding data and decision-making.
2. Simplification: Translating engineering and legal jargon into accessible, local languages.
3. Activation: Ensuring sustained community involvement precedes any crisis.

This workshop is the final stage of consolidating our guidelines into a plan for developing a programme that includes citizens participation in monitoring, advocacy, and engagement with the authorities. We are building power to ensure that those living in the shadow of mine waste are never left alone and are part of the solution in their own safety.

Note to the reader: this note will be used to assist participants in the workshop on February 5 & 6, 2026 in the  Far West Rand, Gauteng, but is aimed at a long term strategy for citizens, activists and those living near tailings and mine dam facilities.