Judgment reserved in Xolobeni mining case
Publish date: 01 May 2018
Issue Number: 554
Diary: Legalbrief Environmental
Category: General
Judgment was reserved last week in an important mining case pitting an Australian miner Transworld Energy and Mineral Resources (TEM) against the Xolobeni community who are resisting TEM's efforts to mine their ecologically pristine area on the Wild Coast, writes Legalbrief. Advocate Tembeka Ngcukaitobi has argued that ‘free, prior and informed consent’ from a community was required before the Department of Mineral Resources granted a company mining rights in an area. A GroundUp report notes Ngcukaitobi represented the Amadiba Crisis Committee in the three-day Gauteng High Court (Pretoria) case between the committee and the department. This follows a long battle to prevent TEM, a subsidiary of Mineral Commodities Resources (MCR) from getting titanium mining rights in Xolobeni on the Wild Coast. ‘The mine is presented as a developmental project but it is undisputed that there will be a radical alteration of land usage,’ Ngcukaitobi told the court. ‘If the mining project is going to develop the community, why should it be without their consent or input,’ he asked. However, Advocate Vincent Maleka, for the department, argued that section 23 of the Mineral and Petroleum Resources Development Act (MPRDA) clearly outlined the criteria for when the Minister should grant mining rights to a company. He said consent from the community was not listed as one of the criteria in the Act. ‘It would mean inserting words into the Act and there is no legal basis to superimpose this requirement of consent. Consent may come into play at a later stage once the mining right has been awarded and the implementation phase begins, but consent is not required to grant mining rights,’ said Maleka. He said if the mining project fulfilled all the requirements listed in the Act, the Minister was obliged to grant the company mining rights. Maleka said the Act already obliged the Minister to ensure that the mining would not result in ‘unacceptable pollution, ecological degradation or damage to the environment’. He said this addressed the core issues raised by the Xolobeni community.
Central to the argument is whether the 1996 Interim Protection of Informal Rights to Land Act (IPILRA) has equal weighting or overrides the MPRDA, which allows the Department of Mineral Resources to grant mining rights over land without the consent of land owners, says a Business Day report. ‘The effect of the declaratory relief will prohibit the first to fourth respondents as custodians of the South African mineral wealth in terms of the MPRDA, from granting any prospecting and mining right to a new entrant in the mining industry without the consent from a community holding an informal right to land in terms of IPILRA,’ the department argued. ‘The applicants construe the IPILRA together with customary law to the effect that a community with an informal right to land has an unconverted undivided share of the mineral resources in the land which inure, felicitously and exclusively to the community and as a result, the community has the right to sterilise the extraction of the minerals,’ it said.
The Department of Mineral Resources failed to make a distinction between ‘legal deprivation and physical deprivation’, the Gauteng High Court (Pretoria) heard. A GroundUp report notes that Maleka argued that the award of a mining right cannot qualify as deprivation because the community would not experience any harm or loss. He said Ngcukaitobi could not argue that the community would be deprived just because mining rights were awarded. But Ngcukaitobi said the award of a mining right constituted legal deprivation because the rights of indigenous people to the land were taken away. ‘When the trucks actually come into the area and the implementation begins, that will be an extension of the legal deprivation into physical deprivation,’ said Ngcukaitobi. Ngcukaitobi also said that granting mining rights before the legal conditions are decided would create ‘conditions of conflict’. He said the community would defend their land when the excavation trucks from the mining company arrived. Although the case was scheduled to continue until Wednesday, by Tuesday afternoon both sides had concluded their arguments. The court adjourned and Judge Annali Basson said she would consult widely and take her time in making the judgment because it was an important case. While the court was in session, about 200 people from mining affected communities across the country picketed outside the court in support of the Right To Say No to Mining Campaign. A memorandum was handed to the department's deputy DG, the report states.
Richard Spoor, lawyer for the Amadiba Crisis Committee, said their main argument in court was focused on the right of the people of Xolobeni to say ‘no’ to mining of any kind on their land. A News24 report notes that Spoor questioned the state’s argument that proposed mining in Xolobeni was in national interests, saying the government cared only about profits, and not about people’s lives. He said whatever decision the court made on the matter was bound to be challenged, but they were confident the court would come to the community’s assistance. The Mineral Resources Department said the matter was still subject to the court’s decision. Nonhle Mbuthuma, Amadiba Crisis Committee spokesperson, who travelled to Gauteng last week to attend the court case, said she was relieved their voices were heard in court. ‘We are happy the courts have finally listened to us and heard what we had to say,’ she said.
Meanwhile, the Australian mining company seeking the right to mine in Xolobeni has been lashed for its treatment of a community in the Western Cape where it is now shutting down a mining operation. According to a Mail & Guardian Online report, in the small community of the Matzikama Local Municipality, along the West Coast and some 300km away from Cape Town, resentment still lingers against MCR. In 2015, the company’s Tormin mine began operations with the rights to mine 15km of beach along the coast of the municipality. It mined minerals contained in the sand that are used in industry, including zircon and magnetite. Within three years, the mine had breached that 15km boundary to the point where a 17m cliff below it collapsed. A new report by Oxfam, which was spurred by the Xolobeni community’s resistance to MCR, has shown the extent to which the mine failed in its duties to assist people in the Matzikama local municipality, and how it breached the terms of its own mining licence. Oxfam found that MCR had not delivered on its community upliftment programme, despite making revenues of R750m, and a profit of R150m after tax in the 2017 financial year. Oxfam described Tormin’s social upliftment projects as ‘tokenistic’ and ‘welfarist initiatives’ where its own interests and cost-cutting measures were prioritised.
