SOUTH AFRICA: THE RISING COMPLEXITIES OF CONSULTATION AND PUBLIC PARTICIPATION REQUIREMENTS IN THE MINING SECTOR
Public consultation requirements in the mining sector are becoming more complex as a result of new regulations being published, and recent decisions of the courts including the Constitutional Court.
More than before, this requires that mining companies plan for, and have a clear programme of managing community engagements and interactions. These are critical to the sustainability of any operation especially taking into account persistent attempts of mining communities to test the evolving principle of ‘prior informed consent’ through litigation.
Consultation /consent requirements in the Mineral and Petroleum Resources Development Act, 2002
Various provisions of the Mineral and Petroleum Resources Development Act, 2002 (MPRDA) require the holder of a right or an applicant for such a right to notify or consult with the affected landowners or communities.
The relevant provisions include section 5A(c), which prohibits anyone from prospecting or mining in an area without giving the landowner or lawful occupier of the land in question notice of impending operations; and the requirements in sections 16, 22 and 27, which require the applicant for a right or permit to consult with the landowner, lawful occupier and any interested and affected party.
The rationale for the consultative process was recognised in Bengwenyama where the Constitutional Court held that: ‘One of the purposes of consultation with the [lawful occupier] must surely be to see whether some accommodation is possible between the applicant for a [mining] right and the [lawful occupier] insofar as the interference with the [lawful occupier’s] rights to use the property is concerned.’
The importance of consultation was similarly recognised in the Meepo v Kotze and Others  judgment, where the court held that the consultative process in the MPRDA is intended to afford a landowner the opportunity of ‘softening the blow’ inevitably suffered as a consequence of the granting of a prospecting or other right under the MPRDA.
None of the MPRDA consultation provisions require the consent of the landowner, lawful occupier and any interested and affected party. Notwithstanding this, the requirement to provide notification to come onto the land after the grant of the mining right, means that the holders of the rights usually seek to come to a land use agreement that practically sets terms for access, including the applicable consultation.
To minimise the potential of disputes during the permitting stage and to ensure good relations during the operating phase, it is essential that the consultation with the landowner, lawful occupier and any interested and affected party is meaningful and in good faith. This means the stakeholders must be given adequate information to enable them to meaningfully engage and the applicant must avoid the lure of a tick box consultative process. That said, meaningful participation does not equate to consent.
Despite the importance of consultation being well established, recently the courts have taken far reaching decisions which alter the law related to land access and surface use between mining companies and landowners or lawful occupiers. These include Baleni and Others v Minister of Mineral Resources and Others 2019 2 SA 453 (GP) (Xolobeni) and Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and Another 2019 (2) SA 1 (CC) (Maledu).
In the Xolobeni case, a mining company applied for a mining right on land that included an area occupied by a community that held informal land rights to the land.
Some members of the community objected to the granting of the mining right and argued that it would deprive them of their rights to the land, which they argued was an important resource and central to their livelihood through grazing, cultivation, tourism, cultural heritage, and ability to continue with subsistence farming, among others.
Following a protracted dispute, the aggrieved members of the community approached the court for an order to, inter alia, declare that the mining right was unlawfully granted because they did not consent to their land being used for mining. The main issue which the court had to consider was the level of engagement that must be achieved prior to the grant of a mineral right (i.e. ‘consent’ as opposed to ‘consultation’).
To argue that their consent was required, the community relied on the Interim Protection of Informal Land Rights Act, 1996 (IPILRA), while the mining company and other respondents relied on the MPRDA to argue that only consultation was required.
In the end, the court declared that a mining right may not be granted unless the applicant has complied with the provisions of section 2 of IPILRA (i.e. unless the applicant has obtained the consent of the community as the holder of the right to the land).
More specifically, the court found that where the land is held on a communal basis - as in this case - the community must be placed in a position to consider the proposed depravation (i.e. granting of the mining right) 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 (i.e. whether they consent to mining on their land).
In coming to this decision, the court considered whether the grant of a mining right constituted deprivation of a right to the land. Having regard to the invasive nature of the proposed opencast mining, the court accepted that the grant of a mining right would amount to the community being deprived of their right to the land and therefore triggered the consent requirement provided for in section 2(1) of IPILRA.
A similar approach was taken by the Constitutional Court in the Maledu case, where the Court accepted that the granting of a mining right over communal land may, in appropriate circumstances, constitute deprivation or disposal of communal rights to the land in question.
The practical implication of these decisions is that during the application stage, an applicant for a right will, inter alia, has to conscientiously assess the community’s title to the land in question. If the title is found to amount to communal informal rights to land as protected by the IPILRA, in addition to meaningful consultation of stakeholders as required by the MPRDA and endorsed in Bengwenyama case, the applicant may have to ensure that the informal rights are only disposed of in compliance with the provisions of section 2(4) of IPILRA.
In this regard one will, inter alia, need evidence of notice of a meeting; evidence that it was clear that the meeting was called for purposes of disposing of the informal rights; and evidence demonstrating that the affected land rights holders were given sufficient notice of the meeting and had a reasonable opportunity to participate. One may also have to retain the attendance register so it can be shown that the attendees were the people who had a right to participate.
Once the right has been granted, if the holder of a mineral right is prevented from commencing or conducting its operations because the landowner or community refuses to allow such holder to enter the land or places unreasonable demands in return for access to the land, the holder of the right may be precluded from instituting interdictory proceedings until it has exhausted the dispute resolution mechanism in section 54 of the MPRDA.
Of course, if the holder of the right engages in good faith, but the landowner and/or community engages in a manner that is aimed at frustrating the section 54 process (i.e. if the landowner or the community is obstructive), the holder may approach the court for an interdict before exhausting the section 54 process.
Consent requirement in the mining environmental authorisation processes
The Environmental Impact Assessment Regulations, 2014 (EIA Regulations) have recently been amended to, inter alia, make landowner consent necessary to apply for an environmental authorisation for prospecting and mining rights.
In this regard, regulation 16(1)(b) states that unless the exemption in regulation 39(2) applies, if an applicant for an environmental authorisation is not the owner or person in control of the land on which the activity is to be undertaken, the applicant must, before applying for an environmental authorisation in respect of such activity, obtain the written consent of the landowner or person in control of the land to undertake such activity on that land.
The only exception to the landowner consent requirement in the EIA Regulations is where an application for environmental authorisation is in respect of linear activities. Until 11 June 2021 (when this amendment was introduced), regulation 39(2) included other exemptions including applications for environmental authorisation relating to mining and mining-related activities.
The exemption relating to mining and mining-related activities has been repealed. In the mining sector, the landowner consent requirement will apply to new applications for environmental authorisations but may also include applications for amendments, especially where the amendment application relates to an expansion of a mining right area or when an amendment triggers a listed activity and thus cannot be amended in terms of Chapter 5 of the EIA Regulations.
This requirement is wider than the IPLRA landowner consent requirement. The EIA Regulations landowner consent requirement amounts to a veto by any landowner, which directly conflicts with the MPRDA. The MPRDA requires meaningful consultation and not landowner consent.
The EIA Regulations landowner requirement may mean that without the landowner consent (where required), the application for environmental authorisation cannot be accepted or processed. This is because the EIA Regulations state that an applicant must, before applying for an environmental authorisation in respect of such activity, obtain the written consent of the landowner or person in control of the land to undertake such activity on that land. Except in respect of linear activities, this requirement is expressed in absolute terms, and it is not qualified in anyway.
This provision of the EIA Regulations is in stark contrast to section 5 of the MPRDA 3which gives holders of prospecting or mining rights extensive rights to enter the relevant mining or prospecting area, subject to the MPRDA.
The EIA Regulations may be open to challenge on the basis that these entrenched rights cannot be arbitrarily withdrawn through the EIA Regulations. It is also an established principle of our law that a statute does not alter the existing law more than is necessary, in such a circumstance the requirement for landowner consent may be ‘read down’ such that, if no consent is given, the reason for this could be provided with the application together with a request, based on section 5 of the MPRDA for the application to be considered regardless of this.
Unlike IPLRA, which includes internal limitations, the landowner consent requirement in the EIA Regulations is stated to be absolute and the EIA Regulations have no clear dispute resolution mechanisms to deal with situations where the consent is unreasonably withheld.
This may cause significant delays to environmental authorisations for prospecting and mining right/projects applications. A mining company affected by this requirement will have to plan for this possible delay and/or dispute. In addition, whenever a mine negotiates and agrees a lease or land access agreement it should ensure that such an agreement includes consent for any further applications such as EIA or rezoning upfront.
 Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others 2011 (4) SA 113 (CC) at paragraph 65 (Bengwenyama).
 2008(1) SA 104 (NC).
 Xolobeni at paragraph 58 and 61.