So. Africa: Court orders consultation with Xolobeni community prior to granting mining permission to Australian company

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Article
18 February 2020

So. Africa: Civil society calls on Minerals Act amendments to recognise land rights of local communities

Author: Sarah Smit, Mail & Guardian (South Africa)

‘Changes to mining Act need work’ 7 February 2020

Years of fighting by South African mining communities have shaped the changes to the Mineral and Petroleum Resources Development Act. But civic organisations say the recently released amendments need some work if these communities are to finally be heard. In his speech to delegates at the 26th annual Mining Indaba in Cape Town this week, Mineral Resources Minister Gwede Mantashe said that mining companies “must take seriously the communities on whose land they mine”.

The subject of community land rights has been a mainstay of Mantashe’s time as minister, as his department inched closer towards finalising the draft amendments to the Mineral and Petroleum Resources Development Act. The Act — which came into force in 2004 and vests all mineral rights in the state — governs who gets to mine. But in recent years litigation has exposed how the Act, in its initial form, has failed to address the tension between land rights and the rights of companies to mine that land.

In two court battles — over the informal land rights of the Bakgatla community in the North West and a community in Xolobeni in the Eastern Cape — judges found that the Act does not trump the rights of communities to decide what should happen to their land…For instance, in its submission on the amendments, Corruption Watch notes that the definition for meaningful consultation merely requires “good faith” on the part of the applicant. “While this requires the applicant to go further than mere notification of the affected and interested parties, the reality is that the guidelines have similar requirements, which has led to the limitation of participation rights of community members,” the submission reads. In its submission, The Centre for Applied Legal Studies takes issue with the phrasing of the requirements for initial consultation with interested parties.

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Article
18 September 2019

S.Africa: Xolobeni judgement interferes with the state’s role as the custodian of minerals; opinion

Author: Sabelo Ngubeni , Mail & Guardian (South Africa)

‘Xolobeni mining ruling compromises the state’ 13 September 2019

Many of South Africa’s mineral resources are found on communally owned and subject to customary law. As such, the discourse on land in South Africa is characterised by tensions between communities who hold informal land rights; the state, which is empowered to award mining rights; and those who seek to exploit the land and its mineral resources for financial gain.

…The judgment is indeed a victory for customary land rights holders in mining-affected communities. But, it has also created uncertainty in the mining industry, because it seems to interfere with the state’s role as the custodian of all minerals in South Africa. This raises the question of whether consent is absolute and whether there are other ways to protect holders of communal land rights without interfering with the state’s duty to issue mining rights.

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Article
3 December 2018

Australia: High Court orders mining co. to seek consent from Xolobeni community prior to granting mining rights

Author: Alex Mitchley, Mail & Guardian

"High Court rules in favour of Xolobeni community in historic mining rights case", 22 November 2018

The minister of mineral resources will have to obtain full and formal consent from the Xolobeni community prior to granting mining rights, the Pretoria High Court ordered....

...Transworld Energy and Mineral Resources (TEM)...filed an application for rights to mine the titanium-rich sands at the Umgungundlovu area of Xolobeni on the Wild Coast.

In her judgment, Judge Annali Basson declared that the mineral resources minister must obtain consent from the community, as the holder of rights on land, prior to granting any mining right to TEM.

In her conclusion, she stated that while the informal rights of customary communities were previously not protected by law, they now had the right to decide what happens with their land.

“As such they may not be deprived of their land without their consent,” said Basson in her judgment.

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Article
22 November 2018

DMR studying historic High Court ruling in favour of Xolobeni community

Author: David McKay, MiningMx

SOUTH Africa’s Department of Minerals Resources (DMR) was “studying” a landmark judgement by the High Court (Pretoria) today which ruled the DMR must obtain “full and formal” consent from the Xolobeni community before granting mining rights.  “The DME has noted the judgment by Judge Basson handed down in the Gauteng High Court in Pretoria in the matter: Duduzile Baleni & Others v DMR and others,” the DMR said in a statement.  “The department is studying the judgment, and will pronounce itself on the matter in due course,” it added.

The court case relates to an application by Australian firm, Transworld Energy and Mineral Resources for mining rights to the Xolobeni’s land in the Eastern Cape province which has resources of mineral sands...

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Article
22 November 2018

High Court rules in favour of Eastern Cape community in historic mining rights case

Author: Alex Mitchley, News 24

The minister of mineral resources will have to obtain full and formal consent from the Xolobeni community prior to granting mining rights, the North Gauteng High Court ordered on Thursday.  The Amadiba Crisis Committee launched a court battle against the Department of Mineral Resources and Australian company Transworld Energy and Mineral Resources (TEM) over mining rights earlier this year.  TEM...had filed an application for rights to mine the titanium-rich sands at the Umgungundlovu area of Xolobeni on the Wild Coast.

In her judgment, Judge Annali Basson declared that the mineral resources minister must obtain consent from the community, as the holder of rights on land, prior to granting any mining right to TEM...[S]he stated that while the informal rights of customary communities were previously not protected by law, they now had the right to decide what happens with their land...

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Article
22 November 2018

Xolobeni community scores huge victory against mining

Author: Zelda Venter, IOL

It was joy and jubilation for the Xolobeni community on Thursday as the Gauteng High Court, Pretoria, ruled that consent must be given by communities living on ancestral land before government can give the go-ahead for mining rights.  The Department of Mineral Resources cannot issue a mining right without the consent of the affected people in terms of existing legislation, Judge Anneli Basson ruled.

The Xolobeni community in the Eastern Cape, represented by the Amadiba Crisis Committee, turned to court to prevent the department from issuing a mining licence to Australian mining conglomerate Transworld Energy and Minerals (TEM) to mine the titanium-rich sand along the Wild Coast.  The proposed mining area comprises of about 2 859 hectares along coastal land which is 22 kilometres long and 1.5 km inland from the high water mark.  The majority of the affected community live within close proximity of the proposed mining area.  Most of the affected people in the area...have lived in the area for generations.  They have family graves in the area and it is considered to be essential sites for family and community rituals.

The community of Umgungundlovu do not want the company to mine on their ancestral land for a number of reasons, which also include that their cattle graze on the land...They argued that the granting of the mineral right constituted a deprivation of their land.  Judge Basson fully agreed with this. She said in terms of the law the community had a right to decide what should happen to their land...

This judgment was hailed as groundbreaking for other communities in a similar situation.

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