Abstract:
There is an on-going debate in Xolobeni, Eastern Cape, South Africa over the application of an exploration and mining right by Transworld Energy and Minerals (Pty) Limited (hereafter TEM). Community members and other interested parties lodged an application to the court to stop the Department of Mineral Resources from awarding TEM mining-related rights. The applicants against the granting of mining-related rights, argue that mere consultation with affected parties is not an adequate legal prerequisite to permit mining activity and have therefore submitted that community consent be adopted as an appropriate legal prerequisite. However, the respondents that constitute of the Department of Mineral Resources and TEM have argued that consultation is sufficient to permit mining activity, as gaining communities_ consent may disrupt the country_s effort to transform the economy which has an empowerment agenda for all its citizens based on constitutional values such as equality and dignity. Therefore, this court application constitutes a debate whether community consent is necessary to be obtained prior to the commencement of a mining project or if consultation with the community suffices. The current South African mineral law regime states that consultation is adequate to grant a mineral right, therefore if the court adopts community consensus as legal prerequisite this could set a precedence for future mining applicants and influence legislators to incorporate consent as a legal requirement. These preceding events have prompted the researcher to engage in the discourse of whether the South African mineral law regime must adopt community consensus or community consultation as a legal requirement before granting a mining right. This research unpacks the different approaches that mining companies use to engage with communities and the consequences of using such an approach. The researcher identifies and evaluates legal provisions that directly and indirectly affect communities and their expected involvement or participation before a mining life-cycle project commences. After evaluating the law, the researcher makes a comparative analysis between the adoption of community consent and community consultation as a legal requirement, therefore the benefits and challenges of each concept is evaluated. Lastly, the researcher suggests recommendations that future legislators and policy makers can embrace to bring about successful stakeholder relationships that benefit both government, mining companies and communities in a fair and equitable manner.
