Mining laws changing
COURT JUDGMENTS: PUTTING LOCAL COMMUNITIES IN THE DRIVING SEAT
Three recent court judgments have radically altered the mining landscape.
Now there is greater legal protection for residents against mining companies. Moneyweb
Three recent court judgments have radically altered the mining landscape.
Ancestral land
The Constitutional Court overturned an eviction order against 37 Lesetlheng community members in the North West to mine land they had occupied for generations.
The judgment requires mining companies to consult communities before mining starts, and to obtain written consent from those directly affected.
The “Maledu case” occupants say their ancestors bought the land in 1919, but couldn’t legally obtain title due to racial discrimination. So the land was registered in the rural development minister’s name. A separate case is establishing ownership of the land.
Respondents Itireleng Bakgatla Mineral Resources and Pilanesberg Platinum Mines, which have mining rights, argued they had complied with the Mineral and Petroleum Resources Development Act (MPRDA) requirement to consult with the Bakgatla ba Kgafela community before mining and received the necessary permissions.
But the 37 applicants argued they formed a subset of the wider Bakgatla ba Kgafela,and it was their forebears who bought the land. The wider community had no right to dispose of the land rights. The Constituional Court agreed.
Sordid practice
SA mining companies are reputed for playing off one part of a community against another. This happened in a case brought by 128 Amadiba community members in Xolobeni on the Wild Coast. They fought for years to stop titanium sands mining on their traditional land. Transworld Energy and Mineral Resources (TEM) had applied for mining rights: one community faction is in favour, another is not.
Even the majority of those supporting mining aren’t sufficient to consent to mining on ancestral land under customary law. The High Court in Pretoria outlined the importance of land under the Xolobeni indigenous inhabitants’ customs and traditions.
The mining minister imposed a moratorium in June 2017 on TEM’s mining rights application, due to the volatility following the killing of antimining activist Bazooka Rhadebe in 2016.
Consent
The Amadiba community rely on the Interim Protection of In- formal Land Rights Act’s (Ipilra) consent clause. The ministers of mining and rural development and land reform must obtain the affected community’s full and informed written consent before mining rights are granted, in terms of the MPRDA.
TEM argued the MPRDA trumps the Ipilra, and no land owner can have the right to refuse mining. The high court said the MPRDA must be read with the Ipilra to protect customary communities’ informal rights.
Dingleton eviction attempt
Then there is Sishen Iron Ore’s attempt to evict people who had lived on a proposed mining site in Dingleton, Northern Cape, for 30 years.
The families claimed Sishen was attempting to “creatively evict” them by blasting nearby. It applied for an eviction order, claiming this was necessary for the homes’ safety. The High Court in Kimberley threw out Sishen’s case as it lacked urgency.