Conflict resolution between holders of prospecting or mining rights and owners (or occupiers) of land or traditional communities: What is not good for the goose is good for the gander
Authors P J Badenhorst, C N van Heerden
Affiliations: Associate Professor of Law, Deakin University; Visiting Professor, Nelson Mandela University; Advocate of the High Court of South Africa; Member of the National Bar Council of South Africa
Source: South African Law Journal, Volume 136 Issue 2, p. 303-327
This article deals with conflict resolution in disputes between: (a) holders of prospecting or mining rights; and (b)(i) common-law owners or occupiers of land; or (ii) traditional communities holding informal customary rights to land. The different legal rules for consent to and/or consultation about prospecting and mining with owners of land and holders of informal customary rights are examined and discussed. An owner or occupier of land is entitled to be notified about an application for prospecting or mining rights, comment about it and raise objections against it, take part in a consultation process and be notified before operations take place. In the case of land that is subject to the Interim Protection of Informal Land Rights Act 31 of 1996 (‘IPILRA’), the consent of the majority of the community is also required before a prospecting or mining right is granted. In terms of the common law, the exercise of the respective rights of the parties must take place in a reasonable manner. Compulsory conflict resolution in terms of the administrative procedures of s 54 of the Mineral and Petroleum Resources Development Act 28 of 2002 (‘MPRDA’), and the common-law remedies that may have been ousted by s 54, are discussed.