Communiqué from The Collective for the Defense of Malagasy Lands - TANY
Landowners impacted by the Graphite Exploration Mining Project in Ambatolampy - Vohitsara, Brickaville District, have filed a complaint with the Toamasina District Court demanding the termination of DNI Metals' mining operations. The verdict of the Court of First Instance classifies the request of the owners as "unwelcome," whereas the history of the facts documented and the text of the "interim relief order" publicized by the court confirm the existence of dysfunctions and abuses in the activities and the authorizations of this company in relation to Malagasy legislation. The appeal hearing will take place this February 2018 *.
The TANY Collective calls on the citizens of the world, including the citizens of the countries from which the investors and shareholders of the mining company originate, to support the local communities victims of this project and herein shares some details about this conflict with the view of denouncing the arguments used by the defenders of DNI Metals Company but also of enabling everyone to be informed and to learn from this unacceptable experience lived by the inhabitants of the Fokontany of Vohitsara, Sahavalaina Commune, Brickaville District, Atsinanana Region.
In March 2017, the Canadian Mining Company DNI Metals began exploring graphite in Vohitsara without the proper consent of each individual owner. We are now in February 2018, almost a year since the start of DNI activities and all individual owners have still not been consulted; unfair compensation or no compensation at all has been given, and local communities are more and more desperate to save their land. DNI began its work in Vohitsara by declaring that it obtained a collective public consent, but the consent of each individual owner hasn’t been reached and remained problematic.
The purpose of the meeting is clear in the minutes of the meeting mentioned as a collection of consent.
The company DNI and its supporters insinuate that the company has obtained a consent from the local community for its exploration activities, based on a report of a meeting held on February 23, 2017 between the local authorities and the inhabitants concerned. However, for a number of reasons, the minutes do not in any way imply owners' consent to exploration activities, even though it was signed by the Mayor of the rural commune of Ambinaninony and followed by a list of attendants signed by the 142 people who attended the meeting.
First, there is no record of the presence of a representative of DNI in these minutes, which would have certified the company's search for consent to its exploration activities.
Secondly, the minutes do not expressly mention the consent of the owners to the graphite exploration but refers above all to an explanation of the different authorities concerning the construction of a road to allow access to the graphite search site by DNI, a 4 km road between Vohitsara and Ambatolampy.
Thirdly, the following paragraph of the minutes indicates, expressly this time, that it was agreed that landowners and farm owners ("tany sy voly") affected by the exploration would negotiate with the DNI officials to find an agreement on this exploration and on the value of agricultural property destroyed by exploration and road construction activities. The construction of the road began in March 2017. The agreement between DNI Company and the owners harmed by its exploration activities, the only ones whose consent is worth securing concerning these activities, has never been concluded, despite the fact that a negotiation was started in July 2017 under the pressure of the owners, but the negotiation failed because it was not one made in good faith, conducted with an intention to reach an agreement acceptable to all.
Finally, and on a subsidiary basis, in the event that the minutes of the meeting would have resulted in a semblance of consent, it cannot be an informed consent, given in full knowledge of the facts, since it is by no means indicated in the minutes that the 142 people present at the meeting who signed the document appended to the minutes did so after it was well explained that the minutes would be consent to the exploration of graphite on their respective lands. In the absence of such precision, it is necessary to take these signatures as a mere attendance certification—which is a common practice in meetings of this kind in Madagascar.
Only a part of the decisions agreed on at the meeting of February 23 was therefore applied, the individual rights of the owners were simply ignored and flouted. But in the face of this, the authorities who took part in this meeting and in taking these decisions, and who have signed them, are silent about DNI's non-fulfillment of its commitments. Authorities from the Region, the District and the Commune also participated in other meetings—from January to September 2017—between the mining company and the land owners, where DNI admitted and documented, among other problems, that the company has bungled things by not having sought the consent of each of the owners. The mining company continued its activities on the lands of the inhabitants for which it had not obtained their consent without any reaction on the part of the authorities. This passivity of the authorities raises questions and suspicions about the causes of this very worrying silence.
The other problem, obvious to all involved in this conflict, and already addressed in a previous communiqué, concerns the inconsistency and the contradiction at the level of the mining permits. (http://terresmalgaches.info/spip.php?article175)
Contradictions at the Level of Mining Permits
Originally, DNI bought a mining permit for craftsmen/small operators (PRE) from a Malagasy citizen. Later, DNI stated that they converted the PRE into a corporate mining license (PE = Exploitation License). DNI is a mining company, and yet in the court decision of December 8, 2017, it is written that DNI was working through the initial artisanal mining license, which demonstrates a contradiction between the statements of the company DNI and that of the court.
Serious questions about law enforcement, which is rather fanciful—to avoid using another word—arise here. While Articles 39 and 42 of the Mining Code specify that the PRE permit is "reserved for small farmers", the transfer of a PRE license to a mining company by the competent authorities - or the use of this PRE license by a company such as DNI Metals, without questioning but with the blessing of officials at all levels, raises once again doubts about the rule of law in Madagascar, about mining governance and rigor in the granting of permits in this area.
In any case, the contradiction between the statements of the company DNI and the data written by the court of Tamatave confirms the existence of a problem even at the level of the judicial authorities concerning the license from which the company works.
Exploitation and Abuse Concerning the Compensation Granted to the Inhabitants and the Right of the Owners.
The landowners of Vohitsara now end up with their cropland and crops destroyed, and a serious threat to their future. Although the farmers’ lands were used for DNI's mining research, the farmers did not receive adequate compensation for the use of their land and crops. It was only when the owners began to exercise pressure on DNI that the company began to compensate a few owners somehow: One of them has received only 30,000 Ariary in exchange of DNI’s use of his land for an indefinite period of time.
The owners who refused such measly compensation and did not want to undertake such an unfair contract with DNI, were threatened and intimidated by DNI and one of them was arrested without any explanation.
Due to the continuing spoliation of the rights of the owners and the continued exploitation of the farmers, five owners decided to file a complaint against the DNI Company in the Tamatave Regional Court. The court's decision of 27 November 2017 sided with DNI on the basis of Article 129 of the Mining Code, although stories, documents, reports and photos supported the landowners' complaints about multiple violations committed against the lands. Additionally, the judge advised the plaintiffs to seek compensation from DNI on the basis of Article 129 of the Mining Code which states that the mining company must give compensation.
However, the judge did not mention Article 125 which states that the holder of the mining permit must agree with each owner of a lease contract before the start of mining operations. (Article 125 of the Mining Code: "The holder of the mining permit and the landowner agree by lease agreement, with respect to their respective rights and obligations.")
A failure to respect the right of individual property in accordance with Article 34 of the Malagasy Constitution is flagrant in this case, and serious questions arise about securing the rights of the Malagasy people on their land when it is known that the owners concerned are holders of formal legal documents of ownership.
This statement is aimed primarily at alerting the public authorities and reminding them that it is unacceptable to trample on, and to ignore the rights of the population on their land. We also invite them to honor their international commitments to pursue human-centered economic development because no country can develop at the expense of the majority of its own people.
We invite the men and women of the law to give a just verdict and to solve the problems of exploitation, uncertainty and harassment that the farmers of Vohitsara and Ambatolampy have suffered during the past year.
We urge the public authorities at all levels to take their responsibilities by applying the law in a more rigorous and impartial manner and to order the shutdown of the DNI (exploration and exploitation) mining project in Vohitsara.
We call on citizens and organizations around the world to support the local communities struggling to defend their land and property rights in Madagascar.
Paris, January 14, 2018 *
* Original French version date: January 14, 2018. English translation dated of February 02, 2018: the Appeal Hearing will take place on February 20, 2018.