PAYING THE PIPER (IN ABSENTIA) SFF Association v Xstrata 2011 JDR 0407 (GSJ)

This decision focused on the impact of the Mineral and Petroleum Resources Development Act (28 of 2002, hereinafter “MPRDA”) on an old-order mining right (based upon a mineral lease) which had been converted into a mining right in terms of the transitional arrangements of Schedule II of the MPRDA. In particular, the court held that consideration in the form of a (contractual) royalty, as provided for in the mineral lease, remains payable upon conversion of an old-order mining right by its former holder (miner) to the grantor of the common-law mining right. The outcome of the decision, namely, continued liability for contractual royalties, has far-reaching consequences for such former holders of old-order mining rights. Continued liability would result in double payment of royalties by miners. This is because under the new dispensation, statutory royalties can be imposed by the state (s 3(1)(b) of the MPRDA) and were imposed and became payable upon commencement of the Mineral and Petroleum Resources Royalty Act (28 of 2008) on 1 March 2010. From the said date, in terms of this decision, double royalties would be payable by miners. If correct, it can be taken one step further. Owing to continued receipt of contractual royalties, former holders of common-law mineral rights would not have suffered an expropriation of property by virtue of the provisions of the MPRDA for purposes of item 12(1) of Schedule II of theMPRDA. Such expropriation would have taken place if the contractual duties to pay royalties had indeed been terminated upon cessation of old-order mining rights (as to such a possible claim, see further, Badenhorst and Mostert Mineral and Petroleum Law of South Africa 2004 (Revision service 7) 25–53). These consequences will be explained in more detail in this discussion as well as the correctness or not of the decision. I have written about the acquisition, nature, content, transfer and loss of old order rights before (see Badenhorst “The Make-up of Transitional Rights to Minerals: Something Old, Something New, Something Borrowed, SomethingBlue …? 2011 4 SALJ 763–784) to which the reader is referred. This decision sheds new light on this topic.

PAYING THE PIPER (IN PRAESENTIA) Xstrata South Africa (Pty) v SFF Association 2012 (5) SA 60 (SCA)

This decision is an appeal from the decision of the South Gauteng High Court in SFF Association v Xstrata (2011 JDR 0407 (GSJ)). The court a quo decided incorrectly that the holder of an old-order mining right, which was converted into a (new) mining right in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 (the “Act”), remains liable upon conversion for the payment of (contractual) royalties in terms of a mineral lease, which was concluded prior to enactment of the Act. The appeal was upheld by the Supreme Court of Appeal (“SCA”) (2012 (5) SA 60 (SCA) par 27). The decision was rendered by Wallis JA with the other judges concurring with his judgment. Prior to the Act mineral-right holders could grant a mining right to a miner against payment of royalties or other forms of consideration. At issue on appeal was whether the obligation to pay royalties in terms of a mineral lease “survives the introduction of the new regime in respect of mining rights brought about by the Act”. As indicated by the SCA, the Act fundamentally changed the legal basis upon which rights to minerals are acquired and exercised. Previously mineral rights were vested in the owner of land or the holder of mineral rights, which rights could be exercised upon acquisition of a statutory authorization to exploit the minerals. In terms of the new regime, common-law mineral rights were destroyed and “all mineral resources vested in the state as the custodian of such resources on behalf of all South Africans”, whereupon the state could confer the right to exploit such resources to applicants. Upon granting a mining right in terms of the Act (statutory) royalties have become payable to the state since 1 March 2010 of the Act and the Mineral and Petroleum Resources Royalty Act 28 of 2008. In order to prevent disruption of the mining industry, provision was made in the Act for the continuation of old-order rights for different transitional periods ranging from one to five years and conversion of such rights during the periods of transition. The transitional arrangements in Schedule II of the Act (“transitional arrangements”) inter alia ensured security of tenure of prospecting rights and mining rights and enabled holders thereof to comply with the Act. In particular, an old-order mining right remained valid for five years “subject to the terms and conditions under which it was granted” (item 7(1) of the transitional arrangements) and could be converted into a new mining right (item 7(2) of the transitional arrangements) if certain requirements were met. The applicant had to have: (a) met the requirements for lodgement of application for conversion; (b) conducted mining operations in respect of the mining right; (c) indicated that he would continue to conduct such mining operations upon conversion of the mining right; (d) had an approved environmental management programme; and (e) paid the prescribed conversion fee (item 7(3) of the transitional arrangements). To recap, the Xstrata decision dealt with an old-order mining right that had been converted into a (new) mining right and the effect of these statutory changes on rights to royalties which accrued to a former holder of mineral rights by virtue of a mineral lease.

Staking a Claim: Mineral Mining, Prospecting Logics, and Settler Infrastructures

Background: Various jurisdictions around the world have adopted online mineral staking platforms, designed to create a seamless process for acquiring mineral rights. This article considers how territory is mediated through staking practices and emerging digital prospecting procedures by tracing the implementation of Mineral Titles Online, Canada’s first web-based mineral title interface. Analysis: The article draws on archival materials, explores legal cases, and analyzes the staking application to examine how this practice reconstructs settler colonial logics. Conclusion and implications: The staking application operates as an infrastructure of ongoing colonial extractivism, yet is open to various forms of political intervention—as demonstrated by communities who undermine its intended use. Contexte : Diverses juridictions dans le monde ont établi des plateformes en ligne pour gérer les titres miniers; ces plateformes sont conçues de manière à faciliter la revendication d’un titre. Cet article considère les effets sur le territoire qu’ont les demandes de droits miniers et les récentes procédures en ligne pour faire ces demandes. Il le fait en examinant la mise en place de Mineral Titles Online, la première interface en ligne au Canada consacrée à la gestion de titres miniers. Analyse : Cet article passe en revue du matériel d’archives, explore des affaires judiciaires, et analyse le processus de revendication d’un titre afin d’évaluer dans quelle mesure les plateformes pour gérer les titres reproduisent une logique de colonialisme de peuplement. Conclusion et implications : Le processus pour déposer une demande de droits miniers perpétue un extractivisme colonial tout en restant exposé à diverses interventions politiques, tel que démontré par certaines communautés qui parviennent à miner le processus désiré.

Fighting for black stone: extractive conflict, institutional change and peacebuilding in Sierra Leone

Environmental governance reform—especially in the minerals sector—has featured prominently in Sierra Leone's peacebuilding agenda. While reform has enhanced environmental governance capacity in ways that foster peace, it has also exacerbated conflict over the redistribution of extractive rights. This article examines one such conflict over tantalite in northern Sierra Leone. In the chiefdom of Sella Limba, violence erupted as local landowners and a multinational company utilized institutional hybridity—or the blending of informal–indigenous institutions with liberal reforms—to construct competing claims over mineral rights. The resulting uncertainty over the extractive ‘rules of the game’ accelerated conflict as stakeholders attempted to (re)negotiate the distributional consequences of institutional change in real time. International and national actors ultimately rejected hybrid institutional arrangements on the grounds that they distorted post-conflict reforms and undermined peace. Drawing on in-depth fieldwork, I retrace the conflict to provide an alternative perspective. I contend that institutional hybridity served as a necessary component of, rather than barrier to, peacebuilding because it 1) opened space for diverse political participation in post-conflict environmental governance and 2) promoted greater political accountability and integration. These outcomes have been theorized as ways in which environmental reform can facilitate post-conflict peace. This argument aims to advance environmental peacebuilding theory by examining the conditions under which environmental governance reform contributes to post-conflict peacebuilding.

Conflicting Levels of Engagement under the Interim Protection of Informal Land Rights Act and the Minerals and Petroleum Development Act: A Closer Look at the Xolobeni Community Dispute

The South African customary land tenure system is currently administered in terms of the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA). As the name suggests, this is a temporary measure to protect vulnerable customary land rights while awaiting permanent communal land tenure legislation. In terms of section 2(1) of the IPILRA, no person may be deprived of any informal right to land without his or her consent. This provision is subject to subsection (4) of the IPILRA, the Expropriation Act 63 of 1975 or any other law that provides for the expropriation of land rights. Accordingly, section 2(4) states that no one may be deprived of his or her informal rights in land unless it is through the Expropriation Act, any valid land expropriation legislation or through custom that is endorsed by a majority of the community members. Nevertheless, the Department of Mineral Resources (DMR) and the mineral right applicants habitually contravene this consent provision by not including the beneficiaries of the IPILRA in the mineral right application process. The DMR awards licences without the communities' consent because the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) authorises it to act as the custodian of mineral resources on behalf of all South Africans. When an application for mineral rights is received, it is the DMR's duty as a custodian to ensure that all the requirements of the MPRDA have been complied with. These levels of engagement, consent under the IPILRA and consultation in terms of the MPRDA, form the basis of the analysis of the decision of Baleni v Minister of Mineral Resources. Although the court decided that the acceptable level of engagement is consent in terms of the IPILRA, this article argues that consultation and consent are not mutually exclusive, and hence require reading the two pieces of legislation together.

The Politics of Free, Prior and Informed Consent: Indigenous Rights and Resource Governance in Ecuador and Yukon, Canada

What are the institutional arrangements required to implement a genuine process of free, prior and informed consent (fpic)? This article provides a comparative perspective on the politics of consent in the context of relations between Indigenous peoples, states and extractive industries in Canada and Latin America. The case of Ecuador is presented as an emblematic example of a hybrid regime in which Indigenous communities have the right to free, prior and informed consultation, not consent, concerning planned measures affecting them, such as mineral, oil and gas exploitation. In the case of Yukon, Canada, the settlement of a comprehensive land claim with sub-surface mineral rights has provided the institutional basis for the implementation of a genuine fpic process, one that includes participatory decision-making power over natural resource development projects. The article concludes with a discussion on the necessary conditions for moving governments from a consultation to a consent regime.