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