Environmental and Mining


Posted 01 February 2020

Kenneth Cameron

The Mineral and Petroleum Resources Development Act (28 of 1991) (MPRDA) recognises the need for sustainable development of mineral and petroleum resources while simultaneously promoting economic and social development, local and rural development and the social upliftment of communities affected by mining. It contains, however, no stated objective to maintain tenure and, at best, recognises the need for redress in instances where the inherent objectives of the MPRDA clash with the unavoidable contesting contesting interests flowing from land ownership. In fact, the MPRDA's mechanisms for access to natural resources are so deliberate that when all landowner compensation options fail, it may culminate in an expropriation determination under s55.

In the context of informal land ownership, two other legislative imperatives accompany mining right applications. Those are, firstly, the impact assessment processes set out in the National Environmental Management Act (107 of 1998) (NEMA). It is trite that aspects such as "need and desirability" and socio-economic impacts are, by law, required to form part and parcel of impact assessments under the NEMA. Secondly, the Interim Protection of Informal Land Rights Act (31 of 1996) (IPILRA) serves to ensure that communal land rights by customary law also assumes its rightful place at the constitutional table of protection. The decision in Baleni and others v Minister of Mineral Resources and others [2018] JOL 40654 (GP), which seeks to interpret the application of the IPILRA in a mining context, may, however, be a bridge too far.

The judgment held, amongst others, that the Department of Mineral Resources (DMR) cannot approve a mining right over communal land unless it had obtained consent from the community. The finding is premised predominantly on s2(1) of the IPILRA, which states that "Subject to the provisions of subsection (4), and the provisions of the Expropriation Act, 1975 (Act No. 63 of 1975), or any other law which provides for the expropriation of land or rights in land, no person may be deprived of any informal right to land without his or her consent". This stands, on face value, in contrast to the MPRDA, which merely requires that a landowner (or community) must be consulted before, in the words of the court, "the Minister awards a mining right to an applicant". The fact that there is an entirely separate body of law regulating the assessment and consideration of socio-economic impacts, to inform any such decision, is not noted.

The judgment elucidates the rich history of the Umgungundlovu community, their spiritual connection to the land and various aspects of communal customs that evidently supersede a mere affinity for property or transient sentiment. It is evident that mining as envisaged would lead to reduction of grazing areas and areas harvested for building material and the like. Evidently, the prospect of mining dampened tourism potential in the area, which the community apparently pursues as a vessel of possible future income. Other aspects include the community's fear of adverse impacts on their way of life due to an influx of outsiders. The court concludes that a "complete destruction" of the community's cultural way of life is in the offing. The veracity of these deductions is not the subject of this article, but rather the statutory process in terms of which such evaluations are performed, how these assessments feed into the consideration of mining right applications and the implication thereof for purposes of an alternative approach to the IPILRA.

The IPILRA clearly gives informal landowners a voice, which enhances rights to consultation, objection, appeal and other administrative or judicial remedies. If mining impacts are such that it cannot be appositely ameliorated either by management or compensation, the right may not be granted. Hence also the appeal procedures under the MPRDA, supported by the basic tenets of administrative law and subsequent review options to court.

The court rejected a proposition by the respondents that the IPILRA was not enacted with a view to elevate communal rights above that of common law ownership but rather to ensure that communal and traditional rights to land received their proper place in the South African context with all other land rights. However, the court's references to other case law in this respect do not convincingly make the point in contradistinction to common law ownership rights. The court appropriately highlights the importance of pursuing an interpretation that is cognisant of the social and historical context of a statute. In so doing, the court refers to concepts of redress. However, the community is evidently not seeking redress, but rather preservation of the status quo. While these aspects may be debatable, the court's reference to s23(2A) of the MPRDA to support a consent approach is misplaced. That provision merely empowers the Minister to insert conditions into an already granted mining right, which promotes the interest of an occupying community. Since the section relates to the advancement of communities consequential to the awarding of a mining right, it can have no bearing on the question as to whether any community is, under the IPILRA, at liberty to refuse a mining right to be processed in the first instance.

Importantly, in partial support of the notion that, in effect, the IPILRA confers a veto right to informal landowners vis mining, the court argues that the reference in s2(1) to "any other law" does not include a reference to the MPRDA. This inference, however, hinges on an apparent misreading of the judgment in Agri South Africa v Minister for Minerals and Energy 2013 (4) SA 1 (CC). In coming to the critical conclusion that the MPRDA does not envisage expropriation for purposes of s2(1) of the IPILRA, the court conflates two distinct concepts. That is, the inherent dispossession of mineral rights occasioned by the promulgation of the MPRDA as such on the one hand, and expropriation of property consequential to the granting of a mining right, on the other. While the Constitutional Court had ruled that the former does not constitute expropriation, the latter concept clearly remains expropriation, which is also the trajectory on which the Umgungundlovu community finds itself. If there is any reason why s2(1) of the IPILRA requires community consent for purposes of mining rights, it cannot be for the reasons proffered by the court in this respect.

Moreover, the judgment cites an extract from the same judgment in Agri South Africa v Minister for Minerals and Energy, endorsing the court's view that "Many people have an attachment to land for its own sake and would prefer not to see the surface of their land disturbed through the exploitation of minerals ...". However, if the court rendered its decision, in part, on the basis that the connection of a community of informal landowners to land is unique and therefore requires an equally unique treatment under the law, this notion is eroded by a reference to the general aversion of all landowners against invasive mining.

Much was also made of various, and admittedly important, concepts of international law and the concept of informed consent where mining significantly affects communities. However, the "significance" of socio-economic impacts is a function of statutory assessments under the NEMA that had, by the time the community approached the court, not been completed. Further, it is not convincing to argue that merely because the concept of informed consent exists in international law, it automatically trumps an assessment and decision-making process entrenched in South African law, which is (at least on paper) cognisant of the historical, cultural and socio-political setting of a particular community community. Many of the community-specific considerations ventilated before the court are the very matters that stand to be administratively evaluated in the course of the mining right application itself. In any event, even if it is to be concluded that s2(1) of the IPILRA does indeed trump the MPRDA by requiring informed consent, the argument should arguably not be rooted in an overreliance on facts and factors which are unique to a specific community.

Assessments on social impact, a project's "need and desirability", as well as the subsequent evaluation of these assessments by a competent regulatory authority within the bounds of administrative law, remain the fulcrum of any mining rights application. The particular vulnerability of a community from a consultative, historical and cultural point of view is the subject matter that colours these assessments and evaluations. If it is so that the granting of rights will lead to unacceptable socio-economic and cultural impacts or if such assessments are lacking in depth or inclusion, then the application should fail, either out of hand or on appeal, with the courts at the ready thereafter.

The court reveals a doubtful premise in stating: "Who gets to decide whether mining activities can take place on this area – the community which has lived there for centuries or the [mine]?". The exclusion of the regulator in this question arguably points to the answer. If the writer's position on s2(1) of the IPILRA is correct, the answer is, neither. It may be so that certain minerals should remain untouched, and some for pure socio-economic reasons. These abatements should, however, be gleaned from the MPRDA and the NEMA, and not s2 of the IPILRA.

The court correctly points out that both the IPILRA and MPRDA "seek to restore land and resources to Black people who were the victims of historical discrimination" and consequently must be read together. The irony is that an overbroad application of s2(1) of the IPILRA may well act to the detriment of these very objectives. Even unjustified community objections against empowered mining will win the day. Beneficial mining, which would otherwise have optimised mineral exploitation and facilitated the empowerment objectives set out in the mining charter, as well as compulsory social and labour initiatives, will stand or fall at the whim of communal consent. This outcome does not bode well for an industry that is critical to the circular flow of the economy and one of the major vessels for socio-economic transformation.

The question remains whether the criticisms mentioned, and proposed interpretation, would aid to alleviate the plight of vulnerable communities of informal landowners. It is true that the mandated assessments under the NEMA, administrative appeals and subsequent review options could save the day, but perhaps the DMR, as both wolf and herder under the MPRDA, might not be the appropriate initial arbiter in these matters. This points to the need for improved policy and jurisdictional adjustments, rather than a complete abandonment of administrative discretion in similar mining right applications.

Article published in Without Prejudice Mining Feature February 2020