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National Human Rights Commission
Mozambican justice and the rights of the communities affected by the activities of Jindal Mozambique Minerais, Ltd
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On the 11 th and on the 18 th of March 2015, by mean of requisitions, JA denounced to the Ombudsman and the National Human Rights Commission (Comissão Nacional de Direitos Humanos - CNDH), respectively, the existence of serious illegalities in the implementation and operation of the mining company JINDAL and the violation of the rights of the local communities affected by the exploitation of mineral coal.
This decision was essentially based on the fact that – not withstand that the resettlement plan for those communities was approved by the Govern
ment in 2010 and was not materialized thus far – despite the numerous complaints made by us and other non-governmental organizations, there is no apparent effort to even hold the parties concerned accountable, let alone solve the problem.
JA made this complaint based on information obtained from its research and fieldwork, as well as on documented complaints from affected communities – the same ones that still share their living space with JINDAL’s mining concession area, its pollution and the public health risks that result from its activities, in a clear situation of continuous violation of their rights to land and the environment, including their right to adequate housing and free movement.
MITADER’s response to the Ombudsman
The Ombudsman, in response to JA’s complaint, urged MITADER to respond to this complaint, and MITADER, by letter nº 076/MITADER/GM/019/2015, replied as follows: • Regarding the EIA, it cannot be provided to JA because of copyright protection, and therefore it can only be consulted in MITADER’s library.
Alternatively, JA can ask the owner of the study – in this case JINDAL – for a copy. 8 • Regarding the environmental degradation caused by JINDAL’s activities, MITADER said that JINDAL had a poor environmental performance, reason why an infraction order was issued and the company was notified to act in conformity with the recommendations provided by the Ministry after conducting its monitoring work. Furthermore, it stated that the Administrative Court of the Province of Tete (Tribunal
Administrativo da Província de Tete – TAPT), through Judgment 1/TAP/2015, of January 29 th
Jindal - A Classic Example of Corporate Impunity
8 This position violates the Right to Information Law, which advocates the principle of maximum disclosure of information of public interest in cases such as this. In addition, it violates other administrative legislation on the performance of the Public Administration, as is the case of Law 14/2011 of August 10th, concerning provisions on the right to information, the principle of transparency, the pursuit of the public interest and the principle of collaboration between those who govern with those who are governed.
Mozambican justice and the rights of the communities affected by the activities of Jindal Mozambique Minerais, Ltd
2015, ordered JINDAL to, within 30 days, comply with the recommendations to protect the affected populations and the environment. 9 • MITADER also said that it is engaged in the search for effective solutions for the protection of populations and the environment and that it wishes to fortify its cooperation links with JA in favour of sustainable development.
It should be noted that, to date, at the Ombudsman level, this process has not yet come to an end.
The CNDH - an institution whose purpose is the promotion and protection of human rights in Mozambique - did not even deign to respond to the complaint made by JA, choosing to remain silent.
9 However, there is no evidence that JINDAL complied with this judgment, since it continues to commit the same infringement.
Jindal - A Classic Example of Corporate Impunity
Complaints to the Attorney General’s Office 5
Mozambican justice and the rights of the communities affected by the activities of Jindal Mozambique Minerais, Ltd
5.Complaints to the
Attorney General’s Office
In December 2014, JA filed a complaint at the Attorney General’s Office regarding the serious illegalities in the establishment and operation of the mining company JINDAL, and its violation of the rights of local communities affected by the project, as explained above.
Attorney General’s Office response to JA
In response to JA’s complaint, the PGR clarified – through Note 457/GAB-PGR/2015 – that an investigation took place and concluded that JINDAL was only implemented for the purpose of its main activity at the end of an environmental licensing process. However, it did not provide any details of this environmental licensing process.
In addition, it recommended that JA request the Administrative Court of the Province of Tete for
Jindal - A Classic Example of Corporate Impunity
further information, under the Administrative Litigation Procedure Law – which came to happen as we will explain below.
In this context, in October 2015 JA denounced to the Tete Provincial Prosecution Office the existence of illegalities and injustices regarding a Memorandum of Understanding (Agreement) signed between the Governor of the Province of Tete, Civil Society, the community of Cassoca and the mining company JINDAL. 10
10 The Memorandum/ Agreement was celebrated on the 2 nd of June, 2015, and it established that JINDAL would pay each family a monthly income of 2,000 MT for “temporary resettlement” for a period of two years. In return, the communities pledged not to paralyze JINDAL’s activities at any time.
Mozambican justice and the rights of the communities affected by the activities of Jindal Mozambique Minerais, Ltd
Tete Provincial Prosecution Office’s response to JA
In response, through Official Letter 2000/PPT/ SA/091/2015, the Provincial Prosecution Office stated that, as a result of queries made to the Government of the District of Marara, to the Provincial Directorate for Environmental Coordination and to JINDAL, it established the following: • That there are approximately 289 families in the Community of Cassoca who are directly affected by pollution due to JINDAL’s activity and have not yet been resettled in compliance with their fundamental rights. • That the celebrated Memorandum cannot contradict the provisions of the law on resettlement matters. Therefore, both JINDAL and central and local level entities should not be relieved of their responsibilities regarding the law on community resettlement. • That the Memorandum in question, in its paragraph 12, violates the constitutional right to demonstrate, provided for in Law 19/91, of July 18 th and therefore should not be applied. • That the resettlement process that is being implemented by JINDAL in Cassoca began in May 2010 and was subject to public consultation prior to its approval in 2011, and that the envi
ronmental certificate regarding the resettlement plan for the population in JINDAL’s concession area nr 3605 was issued in February 2012. • That, in December 2012, a new resettlement area – whose Right to Use and Exploit the Land (Direito de Uso e Aproveitamento da Terra –
DUAT) belonged to JINDAL – was announced, and in 2013 its disengagement from the mining concession area in favour of the community was approved. • That, in May 2015, the construction of houses began, as well as the clearing of an area for the construction of a school and a health unit – which makes this resettlement of the communities affected by the activities of this mining company an ongoing process.
Jindal - A Classic Example of Corporate Impunity
Actions in the Administrative Courts 6
