The case for community consent as a requirement for the award of mining licences in South Africa

Abstract

Mining is a capital intensive economic activity that is invasive to the environment and requires skilled labour. As a result of potentially significant changes to the immediate area, communities in close proximity to the mining operations are often some of the most affected stakeholders. Accordingly, the Mineral and Petroleum Resources Development Act 28 of 2002 requires companies to consult with communities when applying for mining rights. The Xolobeni Mineral Sands Project is a proposed mining project located in Xolobeni in the Eastern Cape in South Africa. The project is proposed by Mineral Commodities (MRC). MRC has partnered with a local company called Transworld Energy and Minerals Resources. On 14 July 2008 the Director-General of the DME granted a mining right to TEM despite on-going community resistance to the proposed mining project. The AmaDiba Crisis Committee was subsequently established by villagers of Xolobeni to confront the development of the mining project. Indications are that the community would prefer eco-tourism to be established in the area, in lieu of mining activities. The legal regime in South Africa only requires a mining company to consult with affected communities before a mining right can be granted. The respective mining right can be granted despite apparent opposition to the operations by communities. Conversely, communities in Argentina and Peru have been able to successfully fend off proposed mining projects from taking place. Communities in Peru were able to successfully oppose the Tambogrande mining project from proceeding. The proposed project would have destroyed the agricultural economy that had been around in the area for decades. The Esquel Gold Project in Argentina is another project that was not developed due to community reservations regarding the way mining would affect the tourism industry in the area. Accordingly, this research aims to examine the role of community consent in mitigating or aggravating unrest at mine sites in South Africa. The findings suggest that certain lacunae exist in the current South African legislative regime, which in turn frustrates the relationship between mining operations and neighbouring communities. As such, certain recommendations are suggested which may assist in rectifying these oversights.