Xolobeni mining ruling compromises the state

 

 

LAND

Many of South Africa’s mineral resources are found on communally owned and subject to customary law. As such, the discourse on land in South Africa is characterised by tensions between communities who hold informal land rights; the state, which is empowered to award mining rights; and those who seek to exploit the land and its mineral resources for financial gain.

The recent Xolobeni judgment sought to ameliorate these tensions by requiring that the Minerals and Petroleum Resources Development Act and the Interim Protection of Informal Land Rights Act (Ipilra) be read together to ensure that, prior to awarding a right to mine, the minister of minerals and energy gets the full and informed consent from the community involved as opposed to mere consultation, as is required by the minerals Act.

The judgment is indeed a victory for customary land rights holders in mining-affected communities. But, it has also created uncertainty in the mining industry, because it seems to interfere with the state’s role as the custodian of all minerals in South Africa.

This raises the question of whether consent is absolute and whether there are other ways to protect holders of communal land rights without interfering with the state’s duty to issue mining rights.

I argue that the consent requirement casts the net too wide and that it is characterised by many challenges that render its implementation difficult, if not impossible. The following is a brief exposition of some of these challenges.

First, no regulations were ever enacted to give content to Ipilra and its consent requirement. This means there are no guidelines on how consent should be dealt with.

The only step taken by the department of rural development and land affairs in 1997 was to develop a policy document titled Interim Procedures Governing Land Development Decisions, in terms of which the minister would be required to take steps to ensure the fairness and inclusivity of the process of the consultation and the procurement of consent in cases of land development.

But the policy document has never been implemented and the department of rural development and land affairs says it has no record of ever dealing with community opposition to the granting of rights to mine.

This is contrary to the 2016 South African Human Rights Commission report, which dealt with socioeconomic issues in mining-affected communities. It found many cases of communities being opposed to the granting of rights to mine in their areas.

Furthermore, the idea of consent is known to lack diversity and inclusivity in the representation of stakeholders, because it reflects only the ideas of the elite and powerful in society at the expense of people who experience systematic disadvantage, such as women, youth and persons with disabilities.

The last challenge is that Ipilra itself provides in section 2 that the period of adequate notice within which consultation must take place as being 21 calendar days. When considering the complexities of the issues involved in consultative processes, including the vast amount of information about the potential effects of mining, the interests of community members coupled with those of the state and mining rights applicants as well as the need to negotiate special terms of agreement, it is almost impossible for 21 calendar days to constitute an adequate notice period.

In fact, this period may well defeat the purpose of meaningful participation, because it can never allow for the proper ventilation and settlement of issues.

But not all is lost. The consent requirement may be dispensed with in favour of free, prior and informed consultation. This approach would ensure that affected communities are free to voice their views without any form of coercion, intimidation or undue influence, that such consultations are in good faith and occur prior to the granting of rights to mine and that affected communities are provided with adequate information that takes into account their language and customs.

Moreover, this would ensure that the state retains sovereignty over the allocation of mining rights as well as being able to limit the possibility for individuals to halt mining activities.

Sabelo Ngubeni is a final-year law student at the University of the Witwatersrand

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever. But it comes at a cost. Advertisers are cancelling campaigns, and our live events have come to an abrupt halt. Our income has been slashed.

The Mail & Guardian is a proud news publisher with roots stretching back 35 years. We’ve survived thanks to the support of our readers, we will need you to help us get through this.

To help us ensure another 35 future years of fiercely independent journalism, please subscribe.

Sabelo Ngubeni
Guest Author
Advertisting

Stella set to retain her perks

Communication minister will keep Cabinet perks during her two months of special leave

Not a sweet deal, Mister

Mister Sweet workers say they will not risk their health, and the lives of others, to continue producing and packaging confectionaries

Covid-19 grounds Nigeria’s medical tourists

The country’s elites, including the president, travelled abroad for treatment but now they must use the country’s neglected health system

Nehawu launches urgent court bid over protective gear for health...

The health workers’ union says the government has rebuffed its attempts to meet about mitigating risks to workers

Press Releases

Rahima Moosa Hospital nursing college introduces no-touch facial recognition access system

The new system allows the hospital to enrol people’s faces immediately, using artificial intelligence, and integrates easily with existing access control infrastructure, including card readers and biometrics

Everyone’s talking about it. Even Kentucky

Earlier this year South African fried chicken fast-food chain, Chicken Licken®, launched a campaign for their wallet-friendly EasyBucks® meals, based on the idea of ‘Everyone’s talking about it.’

New energy mix on the cards

REI4P already has and will continue to yield thousands of employment opportunities

The online value of executive education in a Covid-19 world

Executive education courses further develop the skills of leaders in the workplace

Sisa Ntshona urges everyone to stay home, and consider travelling later

Sisa Ntshona has urged everyone to limit their movements in line with government’s request

SAB Zenzele’s special AGM postponed until further notice

An arrangement has been announced for shareholders and retailers to receive a 77.5% cash payout

20th Edition of the National Teaching Awards

Teachers are seldom recognised but they are indispensable to the country's education system

Awards affirm the vital work that teachers do

Government is committed to empowering South Africa’s teachers with skills, knowledge and techniques for a changing world