Protecting ancestral land from the pursuit of profit

In November 2018 the community of uMgungundlovu, which has called the Xolobeni area of the Eastern Cape in South Africa home since the early 1800s, secured a critical legal victory to stop planned mining activities on its ancestral land.

Previously it had been accepted that the landowners and communities only had to be consulted before a mining right is granted. The purpose was to inform them of the planned activities and the potential impacts. It wasn't necessary to get their consent – the landowner and communities could object but, ultimately, they couldn't prevent the granting of a mining licence. Their only recourse was a claim for damages if no agreement could be reached with the mining company. 

Faced with the loss of access to their land and their way of life, the uMgungundlovu traditional community approached the court for an order declaring that without their consent a mining right cannot be granted over their ancestral land. They argued that the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA) required the free and informed consent of traditional communities before they could be deprived of their land. 

The mining company (Transworld Energy and Mineral Resources) disagreed. It relied on the Mineral and Petroleum Resources Development Act 28 of 2002 (MRPDA), which does not require "consent", only "consultation". The company argued that the MPRDA trumps the IPILRA, and that no-one has a right to refuse consent to mine. The South African High Court disagreed with the mining company and held that a mining right could not be granted over a community's land unless the community had first granted their free and informed consent. 

The court said that the question at the heart of the case was: 

"Who gets to decide whether mining activities take place on this area – the community which has lived there for centuries, or the [mining company]?" 

It was not disputed that the uMgungundlovu community was indeed a "community" and held informal rights to the land in terms of the IPILRA. What was in dispute was whether the requirements of both the IPILRA and the MPRDA must be complied with in circumstances where land falls under the IPILRA. 

The court accepted that the IPILRA and MPRDA had different thresholds when it came to engaging with communities and landowners. The IPILRA needs "consent", which equates to an agreement between the parties. In terms of international law, consent needs to be "free, prior and informed". The MPRDA, however, only needs "consultation", which is merely a process of consensus seeking. The aim of consultation isn't to reach an agreement but only to involve the landowner and inform them of possible interference with their property rights. 

The court rejected the mining company's argument that there was a conflict between the two Acts. The IPILRA specifically regulates South African customary law, while the MPRDA regulates mining activities while being silent on customary law. The court applied the recent decision of the South African Constitutional Court in the Maledu case (Maledu and others v Itereleng Bakgatla Mineral Resources and Another [2018] SACC 41), where it was held that the MPRDA and the IPILRA were not conflicting and must be interpreted and read harmoniously. 

The purpose of the IPILRA is to protect traditional communities' informal rights to land, which were not previously protected under racially discriminatory laws. It gives traditional communities greater protection than the protection enjoyed by common law landowners. This is justified because a traditional community's way of life is intrinsically linked to their ancestral land: 

"… the communal land and the residential plots (umzi) of each imzi [household] forms an inextricable and integral part of this community's way of life. … a residential plot represents far more than merely a place to live: it is a symbol of social maturity and social dignity. Each residential plot further serves as a critical conduit for the preservation of relations of inter-linkage and mutual dependence between the living and the dead and is critically important for the wellbeing of each imzi. 

… the proposed mining activities … will not only bring about a physical displacement from their homes, but will lead to an economic displacement of the community and bring about a complete destruction of their cultural way of life." 

The court accordingly held that without the community's prior consent, the Minister of Mineral Resources did not have the legal power to grant a mining right over a community's land that is protected by the IPILRA. This judgment was hailed by Amnesty International as "a clear message that multinational mining companies cannot trample over people's rights in the pursuit of profit". However, it was quickly condemned by the Minister of Mineral Resources for impeding government's ability to grant mining rights to companies. The Minister has indicated the intention to appeal the decision, so this will not be the end of the uMgungundlovu community's legal battle. 

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