If someone claimed that they were the rightful owners of a piece land and that they could prospect for minerals there, you would expect that you would consent to them prospecting on your land. Civil society welcomed recent changes to the law that required consent from landowners.
However, there has been a mysterious backtracking by Environment Minister Barbara Creecy. An examination of the reasons behind this backtracking by Environment Minister Barbara Creecy reveals a predictable confirmation of the government’s mining policy.
Prior to October 2018, anyone could prospect or mine without permission from the owner of the land. South African minerals law recognizes the fact that the ownership and control of land does NOT include the rights to the mineral resources located below it. The state is the custodian for the country’s mineral resources. This role allows the state the right to extract minerals.
The Mineral and Petroleum Resources Development Act 28.02 (MPRDA), requires rights holders to consult with the lawful owner or landowner before applying for mining and related rights. They also have to give 21 days written notice to the landowner before prospecting or mining.
In 2010, the Constitutional Court highlighted the importance of proper consultation. Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd case. However, consultation does not require consent from the landowner despite prospecting, let alone mining, constituting a grave invasion of the use or enjoyment of the land where it is to take place, according to Judge Johan Froneman who delivered the ruling. Bengwenyama judgment.
All of this changed in 2018 for a particular type of landowner, at least with the decisions in the Constitutional Court in 2018. Maledu v Itereleng Bakgatla Minerals Resources (Pty) Ltd The Gauteng High Court followed. In Baleni and Others v Minister of Mineral Resources and Others. In the latter case Judge Annali Basson was confronted with the question of “Whether?” The Interim Protection of Land Rights Act 31 of 1997 (Ipilra), required holders of mining rights that they obtain the consent of owners of rights in land in traditional community to which the Ipilra was applied.
The court concluded that it was in keeping with The purpose of Ipilra was to protect informal rights of customary societies that were not protected by law. The applicants in this matter [and, by extension other holders of rights in land in traditional communities, have]The right to decide what happens to their land. As such, they cannot be taken from their land without their consent. Where the land is held on a communal basis – as in this matter – the community must be placed in a position to consider the proposed deprivation and be allowed to take a communal decision in terms of their custom and community on whether they consent or not to a proposal to dispose of their rights to their land. (The MaleduThe same decision was reached in the other case.
These decisions were not applicable to common law land owners, as opposed to customary land rights holders.
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Another legal responsibility for holders of mining rights is to apply for an environment authorisation for the activity. This is based on an environmental impact assessment (EIA), which is required under the National Environmental Management Act 107, 1998 (Nema).
Regulations under Nema from 2014 govern much of the EIA process. The decision to grant or deny authorisation is also governed by these regulations. Regulation 39 of Government Notice R982 (2014) states that the proponent (person applying for an EIA authorisation) must get the written consent from the landowner or other person responsible for the land in order to carry out the proposed activity.
This rule is applicable except in certain circumstances. The EIA regulations do NOT require consent from landowners for mining activities. All the rights holder to mine must consult and give the 21-day notice.
This exception in EIA regulations was however in conflict with the decisions. Maledu And BaleniIt was, at least as far as communal land owners were concerned. In June 2021, the minister for forestry, fisheries, and the environment published a number of amendments to 2014 EIA regulations. The 2014 regulations included 17 amendments, including regulation 39. Because of its inconsistency in relation to the decisions in, the mining exception in regulation 39 was removed. Maledu And Baleni.
The difficulty of distinguishing between different types of land rights holders meant that the exception was not only for communal land rights holders but also for all other holders. This change meant that any application for environmental authorization in respect to mining activities submitted after 11 Jun 2021 (the date of publication of the amendment) required the consent of the landowners if the applicant wasn’t the owner of the land. This was applicable to all landowners.
The change was welcomed by many, but Minister Creecy published a notice dated 3 March 2022 that rescinded the clause that had amended regulation 39 and reinstated the regulation to its original form. This in itself was not surprising, given that the supporters of mining in government (a significant force) would have regarded this legislative amendment as a further obstacle potentially a very difficult one – to commencing mining operations.
Surprisingly though, this amendments withdrawal was based on insufficient compliance with procedural requirements regarding public participation in Nema. Sections 44 and 47 of Nema provide for the general powers and process for making regulations. The act requires a notice and comment process, which is publishing draft regulations and inviting interested parties for comments. These comments are supposed to be used to inform the publication the final regulations.
The minister’s alleged reason for withdrawing is a question. If the public participation process failed, then the process failed for the entire government notice of June 2021 and amendments to all 17 regulations. This includes the clause containing the mine exception. Why was this clause removed and not the entire government notice?
Ministers may have disingenuously withdrawn this amendment despite not meeting the requirements. publicParticipation in section 47. However, a provision in Section 44 states that any regulation under this section must be approved after consultation with all Cabinet Members whose areas will be affected.
Given the potential implications for mining of the amendments to regulation 39, it seems likely that the minister of minerals resources was not consulted prior to the 2021 amendment. It is highly unlikely that any mining sector would allow this change to be made without resistance. If this was true, why did the minister not mention it as the reason for rescinding the amendment?
The amendment’s withdrawal is retroactive, meaning that any application for an environmental authorization for mining activities after 11 June 2021 doesn’t require the consent of the landowner. However, the Maledu BaleniJudgements still apply in relation communal land. It will therefore be interesting to see if the EIA regulations are amended to accommodate this change.
If the change is only in relation communal land rights holders, it could raise constitutional questions about equality and property rights. We will keep an eye on any further developments. DM
Michael Kidd is Professor of law at the University of KwaZulu–Natal in Pietermaritzburg. He is a specialist in administrative, environmental, and water law and has been working in these areas for more than 30 year.
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