Impact of traditional governance law's on communities rights to participate in mineral approval processes

Abstract

The growth of mining situated in traditional communities, and the traditional governance laws has left those most affected by mineral operations behind. This paper illustrates that the mining laws and customary land rights in South Africa provide the right to meaningful engagement and consent in mineral approval processes to local communities. However, as this research explains, the ability for local communities to exercise these rights is limited given the enactment of the Traditional Leadership Khoi- San Act which enables traditional leadership structures to unilaterally consent on the local communities behalf. The research analyses the implication of this by focusing on the Amadiba people (Umgungundlovu mining community in Xolobeni in particular) in the Eastern Cape as case a study. This case study involves the local community against a proposal for open cast mining on their land and withholding consent under customary law, while traditional leaders in support of the application thereby providing consent under traditional governance laws. The analysis showcases the key determinants within traditional authorities when local community are exercising participation rights, and the fundamental role of customary law. This research explores the relationship between traditional governance legal frameworks and customary law through examining the jurisprudence and the subsequent codification of customary laws. The findings reveal the emphasis of democratisation of traditional governance and Ubuntu as foundational principles of customary law. This interpretation empowers local communities to participation rights even where traditional governance laws depart or limits this empowerment. This research demonstrates a misalignment between traditional governance laws and customary laws has far-reaching implications for the local communities to participate in mineral approvals processes, and the broader operability of the mineral licensing.