Historic Xolobeni ruling will change the face of mineral regulation
A landmark court ruling not only gives the Eastern Cape community of Xolobeni the right to refuse mining in the pristine Wild Coast area but will extend this power to any community under customary law.
More than 15 years of fierce dispute over the potential mining of the titanium-rich dunes in the impoverished area culminated in a high court judgment that was handed down in just 40 seconds.
On Thursday judge Annelie Basson of the high court in Pretoria ruled that mining minister Gwede Mantashe had no lawful authority to grant a mining right to an Australian company, Transworld Energy and Mineral Resources, unless “full and informed” consent had been obtained from the surrounding Umgungundlovu community.
But the victory is bigger than just that, says Johan Lorenzen, associate at Richard Spoor Attorneys, which represented the community in its legal bid against the minister. “It’s not just for the Xolobeni community. It means communities that are under customary law have a right to say no before mining rights are granted,” he said.
Basson’s judgment said it was not disputed that the Umgungundlovu community held informal rights to the land in terms of the Interim Protection of Informal Land Rights Act (IPILRA), which protects the rights of customary communities.
She concluded that the Mineral and Petroleum Resources Development Act, under which mining rights are awarded, must be read together with the IPILRA. She ordered the minister to obtain consent from the community, as a holder of rights in land, before a mining right can be granted.
That the order requires “full and informed” consent be obtained is also of significance as it obliges the government to better engage with communities. Lorenzen said until now the department of rural development & land reform typically obtained consent by having the local chief hold a meeting where a resolution would be reached by majority vote, regardless of whether the attendees have land rights or not.
The department and the company were ordered to pay the community’s legal costs.
“We are very happy, we’ve been awaiting this judgment for a long time. At last we know we have a right to say ‘no’,” said Sibusiso Mqadi, chair of the Amadiba Crisis Committee, a community organisation.
“This is more than we could have hoped for and dreamed of,” said community social worker John Clarke. “That is a massive victory. It’s going to change the whole landscape of mineral regulation in this country.”
Mqadi said the battle is not over as the department could choose to appeal the ruling.
Lorenzen said the department has to date opposed the community’s right to refuse mining in the area. “Today is an opportunity to call upon Mantashe and his entire department to say: this stops now. Recognise people’s rights, protect communities in SA.”
The department said it is studying the judgment and will respond in due course.