What’s behind Creecy’s legal backtracking on protecting communal land right holders against mining?

Minister of Forestry, Fisheries and the Environment Barbara Creecy has withdrawn an amendment to legislation that helped protect, among others, communal land rights holders from unwanted mining on their land. Was this because of Cabinet pressure from the mining ministry?

If you were the owner of a piece of land and someone told you that they had rights to prospect for minerals on your land, you would expect (unless you knew differently) that you would have to consent to that person carrying out prospecting activities on your land. Recent changes to the relevant law did require the landowner’s consent and were welcomed by civil society.

There has, however, been a recent and somewhat mysterious backtracking by Environment Minister Barbara Creecy. A look into the apparent reasons for this unfortunately reveal a somewhat predictable confirmation of the government’s stance on mining.

Before October 2018, any holder of a right to carry out prospecting or mining activities could perform those activities without the permission of the owner of the land to which those mining rights related. South African minerals law recognises that the ownership of land does not include the ownership of the minerals located below that land. The state is the custodian of the country’s mineral resources, and this role allows the state to allocate rights to exploit minerals.

The Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) requires a rights holder to consult with the landowner or lawful occupier in the process of applying for mining and related rights and to give the owner of the land 21 days’ written notice before commencing mining or prospecting operations.

The importance of appropriate consultation was highlighted by the Constitutional Court in the 2010 Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd case. Consultation, however, does not require the consent of the landowner, despite prospecting (let alone mining) constituting a “grave and considerable invasion of the use and enjoyment of the land on which the prospecting is to happen”, in the words of Judge Johan Froneman delivering the Bengwenyama judgment.

This all changed in late 2018 – at least for a certain type of landowner – with the decisions in, first, the Constitutional Court in Maledu v Itereleng Bakgatla Minerals Resources (Pty) Ltd and then the Gauteng High Court in Baleni and Others v Minister of Mineral Resources and Others. In the latter case, Judge Annali Basson was faced with the question of whether the Interim Protection of Land Rights Act 31 of 1996 (Ipilra) required holders of mining rights to obtain the consent of holders of rights in land in traditional communities to whom the Ipilra applied.

The court concluded that in keeping with “the purpose of Ipilra to protect the informal rights of customary communities that were previously not protected by the 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 with their land. As such they may not be deprived of 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 Maledu case reached the same decision).

These decisions, however, did not extend to common law land rights holders (as opposed to customary law holders of rights in land).

Another legal responsibility of the holder of mining rights is that they are required to apply for an environmental authorisation for the activity, which is considered on the basis of an environmental impact assessment (EIA) carried out in terms of the National Environmental Management Act 107 of 1998 (Nema).

Much of the detail of the EIA process and the decision (whether to grant the authorisation or not) is governed by regulations in terms of Nema made in 2014. These regulations (in Government Notice R982 of 2014) provide in regulation 39 that if the person intending to apply for an environmental authorisation (the proponent) is not the owner or person in control of the land on which the activity is to be undertaken, the proponent must obtain the written consent of the landowner or person in control of the land to undertake the intended activity.

This rule applies save in certain specified circumstances, one of which is any activity “directly related to prospecting or exploration of a mineral and petroleum resource or extraction and primary processing of a mineral resource”. In short, the EIA regulations do not require the landowner’s consent in mining activities and all the mining rights holder need do is consult and provide the 21 days’ notice.

This exception in the EIA regulations, however, was in conflict with the decisions in Maledu and Baleni, certainly as far as communal land rights holders were concerned. In June 2021, the minister of forestry, fisheries and the environment published a set of amendments to the 2014 EIA regulations. A total of 17 regulations in the 2014 regulations were amended, including regulation 39. The mining exception in regulation 39 mentioned above was removed, because of its inconsistency with the decisions in Maledu and Baleni.

Because of the difficulty of distinguishing between different categories of holders of rights in land, the exception was removed in its entirety, not just for holders of rights in communal land. The upshot of this change was that any application for environmental authorisation in respect of mining activities submitted after 11 June 2021 (the date the amendment was published) now required the landowner’s consent if the applicant was not the owner of the land. This applied to any landowner.

People who welcomed this change were somewhat taken aback when Minister Creecy published a notice on 3 March 2022 withdrawing the clause that amended regulation 39, and reinstating the regulation to what it was before the amendment. 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.

What was surprising, however, was the reason given for this amendment’s withdrawal – that there was inadequate compliance with “procedural requirements of public participation” in Nema. The relevant sections of Nema, 44 and 47, provide, respectively, for general powers of making regulations and the process for making regulations. Before making regulations, the act requires what is known as a notice and comment procedure, publishing draft regulations and inviting interested parties to comment. Those comments are then supposed to inform the publication of the final regulations.

But the purported reason given by the minister for withdrawal begs an important question. If the public participation process was flawed, then the process was flawed for the entire government notice in June 2021 and the amendments to all 17 regulations that were amended, not just the clause containing the mining exception. Why was just this one clause withdrawn and not the whole government notice?

The explanation for the minister’s disingenuous withdrawal of this amendment may lie, not in the stated requirements of public participation in section 47, but a provision in section 44 that says that any regulation made under that section “must be made after consultation with all Cabinet members whose areas of responsibility will be affected”.

It seems likely, given the far-reaching potential consequences for mining of the amendment to regulation 39, that the minister of mineral resources and energy was not consulted before the 2021 amendment. It is highly improbable that the mining sector would have let that change happen without a struggle. If that was the case – why did the minister not give this as the reason for withdrawing the amendment?

The withdrawal of the amendment is retrospective, meaning that any application for environmental authorisation since 11 June 2021 does not require the landowner’s consent for an environmental authorisation for mining activities. But the Maledu and ­Baleni judgments still apply in relation to communal land and it will be interesting to see how the EIA regulations will be amended, as they will have to be, to accommodate this change in the law.

If there is a change only in relation to communal land rights holders, this may raise constitutional questions in relation to equality and property rights. Further developments will be watched with keen interest. DM 

Michael Kidd is Professor of Law at the University of KwaZulu-Natal in Pietermaritzburg. He specialises in environmental law, administrative law and water law, and has been working in these fields for more than 30 years.