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August : Report on DRDLR conference 5-6 July

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7 August, 2018

Report on DRDLR conference 5-6 July

Dear members,

FSA was invited to participate in a DRDLR conference which took place in Kimberley last week.

Members will recall that the DRDRLR held a similar engagement in KZN last year, in which FSA declined to participate for several reasons, chief amongst which, was that the conference stated that its aims included developing models for land restitution for the forestry industry.  FSA wrote to the erstwhile acting Deputy Chief Land Claims Commissioner and informed her that we already had models which have been successfully implemented for nearly a decade and that if the DRDRL wished to discuss these, we would gladly do so in a bi-lateral engagement but not in a public platform, along with other commodities like sugar, other agricultural sectors and the conservation industry, as the nature of the land uses, required sector-specific models. We reported on this to members in the November 2017, Gencom and EXCO meetings.

After the DRDLR meeting last year however, some of FSA's members who attended that engagement, were insistent that FSA should convene a meeting to discuss the DRDLR meeting, as their staff reported to them that the DRDLR wanted to amend the FSA Land Claim models, to provide for equity in the forestry business for land claimants. FSA therefore convened a meeting of the Land Committee on 25 October 2017 but it became immediately apparent, from the reports by our members to our Land Committee meeting, that the DRDLR had not in fact been referring to the FSA Land Claim models at all but rather to the long term leases, which DAFF had set up with the DRDLR in respect of the restructured State plantations. This validated FSA's decision not to participate in the DRDLR meeting as it would have been dangerous to start discussing equity in the value chain, as a requirement for the settlement of land claims in forestry. We also reported on this to members in November last year.

In the case of last week's meeting however, the stated purpose of the engagement according to the DRDRL, was to discuss the Restitution of Land Rights Amendment Bill, currently being consulted in public. This is the Bill through which the State re-opened the land claims window and through which new claims (163 000 according to the CLCC) were received and subsequently suspended by the Constitutional Court.  For this reason, FSA believed that it was important to attend last week's engagement. We were surprised to learn from  Agrisa, that they had not been invited to last week's engagement but they nonetheless sent us their submission on the Restitution of Land Rights Amendment Bill to use in the engagement. FSA's own position on the Bill, when it was introduced in 2014 was similar, so we felt adequately prepared for the engagement. What transpired in last week's meeting however, was vastly different from what we expected and below is a summary of the event.

  • The officials of the DRDLR and the Office of the Chief Land Claims Commission had conflicting views on the purpose of the meeting as follows:
    • An official from the DRDLR (Mr Maputha) who was specifically tasked with explaining the purpose of the engagement, stated that it was aimed principally at discussing post-settlement support for land reform beneficiaries.
    • The Acting Deputy Land Claims Commissioner (Mr Bokgatsu) who facilitated the two-day meeting however, contradicted him, stating that engagement was actually supposed to be technical in nature and would deal with a wide range of matters, beyond that of the Restitution of Land Rights Amendment Bill and post-settlement support.
    • The Chief Land Claims Commissioner (Ms Goboda) however, then stated that the engagement was not to discuss the Bill, as it along with the Expropriation without Compensation motion, were both being dealt with, through the public consultative processes.
    • One of her senior members of staff (Ms Benyane), later explained that the purpose of the engagement, was actually to discuss a Land Restitution Strategic Framework which would form the basis for the DRDLR's and CLCC's work for the next five years and on which the Minister wanted to get agreement with Industry and heads of other government departments, before September of 2018.

  • FSA raised our objection to the process and the agenda as follows:
    • Forestry land claims models were once again on the agenda, as they had been in 2017. We reminded the meeting that FSA had written to the erstwhile Deputy Land Claims Commissioner (the same Ms Benyane in attendance) and invited the DRDLR to have a bi-lateral engagement with FSA on our models, if the department wished to discuss them. We re-iterated that as per our letter to the DRDLR, our models were not relevant to the sugar, conservation, game farming, urban, mining and other agricultural sectors, which were also in attendance in last week's meeting.
    • We informed the meeting that the Office of the CLCC had never replied to our letter of September 2017, nor sought to hold the bi-lateral which we invited and since our concerns around having discussions on our models in a public forum like this remained valid, we asked for the forestry land claims and the commission which as planned to discuss them, to be removed from the agenda.
    • This was accepted by the meeting but they urged us nonetheless to participate in the other commissions, to share our views on how models could be developed for other sectors.
    • The Chief LCC then responded to our points, stating that they still had concerns with the "forestry models" in which companies have 70 year leases but in which the equity which was provided in those transactions for communities and land reform beneficiaries, had not been transferred to them. It was immediately clear to us from this statement by the CLCC, that as we saw in 2017, government's concerns were not with FSA's land claim models but rather with the leases which DAFF and DRDLR had developed in the early 1990s to deal with the State plantations which were to be leased. This further supported our accepted request, to remove the FSA models from the agenda. We nonetheless used the opportunity to point out to the CLCC and DRDLR that addressing the issue of the equity raised by the CLCC, in respect of the leased State plantations, did not require amending those leases but rather that the relevant government departments of DPE, DAFF and DRDLR, needed to finalise their respective processes in this regard.  FSA's Executive Director serves as a Trustee of the Kabelo Land Restitution and Development Trust, so we are uniquely positioned to know that this assertion is true. The meeting was also attended by two of our members who are lessees in these leases and they too attested to this being the challenge, rather than the terms of the leases themselves.

  • The Chief LCC then gave a presentation on land restitution, the most important points of which are as follows:
    • About R30bn was needed to settle the remaining claims from the original (79 696) claims, which were lodged prior to 1998.
    • An estimated R180bn would be needed to settle the new (163 000) claims if and when the Constitutional Court ruled that the Bill should be passed and the claims settled. It is worth noting that neither FSA, Agrisa nor PLAAS, believe that this Bill will succeed after the latest round of public consultation, as there will almost certainly be another successful Constitutional Court challenge.
    • The LCC had been using just and equitable compensation as the measure for land values when concluding transactions and not simply the willing buyer, willing seller approach.
    • That EWC was not a new practice and that the LCC had previously expropriated 27 properties, using just and equitable compensation to determine the value.
    • Just and equitable compensation would be determined by the Valuer General and not the LCC
    • Post-settlement support would no longer come from the LCC or the DRDLR but rather from line departments like DAFF, DEA, DME, Human Settlements etc. We raised our concerns in respect of this point for the following reasons:
      • The lack of PSS was the biggest inhibiting factor in forestry, for claimants to derive even more benefit from their claimed land
      • That history has shown that when one department abdicates or transfers responsibility like this to another, as happed in the DST when they abolished the Science Vote, that the other departments are never able to provide the support required.
      • That without DAFF and the other departments budgeting adequately for PSS, that there is no way the LCC will be able to finalise the outstanding claims, let alone contemplate addressing the new (suspended) ones.
    • Neither the DRDLR nor the LCC have the requisite human or financial resources to deal with either the old or new claims and thus there should be a further review of the legislation. This statement alone, supports FSA's view that it is unlikely that the Restitution of Land Rights Amendment Bill will succeed following the current rounds of public consultation.

  • The planned commissions were then amended as per FSA's request and instead of having separate commissions dealing with each commodity/sector, they reformed the commissions to discuss the general obstacles to the settlement of claims in the various sectors and possible actions to address these. We participated in the relevant commission and the key outcomes as they relate to forestry, were captured in the plenary on the last day, as follows:
    • Other sectors are not as well-organised as the forestry and sugar cane industries
    • Work is needed on models for the mining, conservation, game farming and urban sectors
    • The commission recognised that there were different models for forestry claims, from the State leases which were raised by the CLCC, the models for dealing with claims on SAFCOL-owned plantations, the models for corporate and private timber growers, which were approved by the DRDLR ten years ago and the need to finalise models for DAFF's remaining Category B and C plantations.
    • PSS support grants still need to be paid to beneficiaries, as this would enable them to participate further in the forestry value chain, beyond what they are able to do, from having strategic partnerships with their tenants and in JVs with other actors in the private sector.

In summary, while the objectives and organisation of the engagement were poorly communicated and implemented, it was important that we were there, as it provided final confirmation that FSA's models have not been the main concern of the CLCC or the DRDLR and we were able to both demonstrate the relative success of land restitution in forestry and assist the LCC and the DRDLR in understanding land restitution as it relates to the forestry Industry.

Michael Peter
Executive Director

Forestry South Africa

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