Mining in Nature Reserves – Providing Partial Legal Certainty where Ambiguity Prevailed
Authors Alexander Paterson
Affiliations: Professor, Faculty of Law, University of Cape Town
Source: Stellenbosch Law Review, Volume 29 Issue 2, 2018, p. 199 – 219
Protected areas form a central element of South Africa’s conservation strategy. Certain activities hold great potential to undermine the conservation objectives underlying protected areas, and the Government has accordingly imposed prohibitions on these activities taking place within certain categories of protected areas. One such prohibition imposed by both the National Environmental Management: Protected Areas Act 57 of 2003 and the Mineral and Petroleum Resources Development Act 28 of 2002 ("MPRD") relates to prospecting and mining activities within nature reserves. Notwithstanding the apparent simplicity of its design, the implementation of this legal mechanism has proven problematic in practice and triggered several recent court battles. One of the most prominent of these related to an attempt by Barberton Mines (Pty) Ltd to undertake prospecting activities in the Barberton Nature Reserve situated in Mpumalanga. The dispute traversed through the North Gauteng High Court and the Supreme Court of Appeal ("SCA"), with the Constitutional Court ultimately declining leave to appeal in July 2017. One would anticipate that determining the existence and legal boundaries of a nature reserve to be a relatively simple task, but what this series of judgments clearly illustrates is that this is not the case. They provide evidence of the potential confusion caused by both legislative drafting anomalies and the manner in which some authorities exercise their executive powers in terms of the applicable legislative framework. Cumulatively, the judgments held potential to resolve this confusion, but as this note seeks to highlight, perhaps they only partially did so, a concerning reality given the prevalence of many yet to be exercised prospecting and mining rights having been granted within the boundaries of the country’s nature reserves.