Scrutiny of mining right applications by mining-affected communities: a reflective note on the Xolobeni judgement

Mining-affected communities once again secured a victory on 14 September 2020 when the Pretoria High Court handed down a landmark judgment in Baleni v Regional Manager: Eastern Cape DMR.[1] This judgement confirms that mining-affected communities have the right of access to information about the mining projects that impact them. This finding means, in particular, that mining-affected communities or their representatives have access to the content of the mining right application made in respect of the land over which they reside and work. The application in the Xolobeni case was for a proposed titanium mining project, submitted in terms of section 22 of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA).

Simply and fairly told, the judgment is a game-changing development insofar as the practice and theory of the right of access to information in the mining context is concerned. The court, in explaining the scope and ambit of the right, stated that the concerned community has three entitlements and/or guarantees, namely: (1) to access the documents for the proper exercise of their right to comment thereon; (2) to object if they wish to; (3) and to participate in the application processes outlined in the MPRDA.[2] An important observation to make from this judgement is that the request for the said information is more ideal and quickly obtainable if following the MPRDA process, as opposed to the Promotion of Access to Information Act 2 of 2000 (PAIA) process which is lengthy and thus limit the community from exercising its constitutional rights.

The facts building up to this judgement dates back to 3 March 2015 when Transworld Energy & Mineral Resources SA Pty Ltd (TEM) submitted its application for a mining right in respect of the land covering the Xolobeni area in the Eastern Cape, where the Umgungundlovu community reside. Startled by this development, the community then wrote to the Regional Manager (RM) on 17 March 2015 seeking to ascertain whether the application was indeed submitted and, if so, requesting a copy thereof. This request was never honoured. Later, on 8 April 2015, an Environmental Assessment Practitioner (EAP) appointed by TEM convened a meeting at Komkhulu. The EAP confirmed that indeed TEM had made an application for a mining right. The RM replied to the community’s letter on 13 April 2015 and also confirmed that TEM had submitted the application for a mining right, which had already been accepted in terms of MPRDA and the National Environmental Management Act 107 of 1998 (NEMA). The RM also assured the applicants that they must and will be consulted at some stage. He directed them to request a copy of the application directly from representatives of TEM or its EAP or by making a request to the department (DMR) following the lengthy process of PAIA. Both the TEM representative and EAP replied on 15 April 2015, sending the community from pillar to post. They then advised the community to direct their request to the Port Elizabeth office of the DMR. Subsequently, the community’s attorneys wrote to TEM representative again on 1 May 2015 and made the same request for the application in anticipation of the consultation process that was being conducted by the EAP. The TEM representative then replied on 11 May 2015 that a request be made to the DMR in terms of the relevant provisions of PAIA.

In turn, the community’s attorneys wrote to the RM on 8 June 2015 and raised their objection to the proposed titanium mining activities. Their objection was based on that the mining project would disrupt the community’s way of life. They also indicated that they had not received the notice of the mining right application in terms of section 10 of MPRDA and requested to be furnished with a copy, which they accepted could be redacted to protect sensitive information. On 23 June 2015, the RM replies to the community’s attorneys’ letter, informing them that the section 10 notice had been posted on the notice board at the DMR office. The RM also reiterated his previous advice that they should approach TEM (for a second time) for a copy of the application. They again wrote to TEM representative on 02 July 2015 and attached the 23 June letter from the RM.

On 15 July 2015, the community’s attorneys filed a formal objection to the mining right application and forwarded a copy to TEM representative, again making a request for a copy of the mining right application. The TEM representative replied on 22 July 2015, refusing to provide the requested copy. On 04 August 2015, the community’s attorneys wrote to the RM and informed him about TEM’s refusal to provide them with a copy of the mining right application. In that letter, they also demanded that they be provided with a copy by no later than 21 August 2015. This deadline was not met. The community then convened a meeting on 19 November 2015 to pave the way forward. And all this developments culminated in the drafting of the Notice of Motion on 30 November 2015. Then TEM forwarded a copy of the mining right application to community’s attorneys on 05 February 2016, followed by the filling of its answering affidavit on 19 February 2016, contending therein that the relief sought had been rendered moot and also disputing the community’s entitlement to interdictory relief.

In the midst of these events, TEM’s major stakeholder had announced that it had resolved to divest its 56 per cent share in TEM and transfer it somewhere else. The community only became aware of these developments during July 2016. The view of the community’s attorneys was that these developments would necessitate an amendment of TEM’s mining right application. They then wrote to TEM to seek an undertaking that it would furnish the community with a copy of the amended version of document. TEM declined to give the undertaking sought. It is the latter declination and/or refusal that caused this legal battle and is equally at the centre of dispute.

The significance of this judgement does not only lie with its emphasis on the position that interested and affected parties (Xolobeni community) must be furnished with a copy of an application for a proposed mining project. It also confirms and adds to the emerging jurisprudence of meaningful consultation and engagement of mining-affected communities. In this regard, the judgment notes that “meaningful consultation entails discussion of ideas on an equal footing, considering the advantages and disadvantages of each course and making concessions where necessary”.[3] What is a significant lesson from this judgment to both DMR and mining companies is that fair and adequate participation of the affected communities is instrumental and should not be compromised. It also comes out clearly that affected communities should not be send from pillar to post when their only request is to try and access information they need about the projects directly affect them. In conclusion, this judgment means that communities have guaranteed access to information to participate fully in discussions with mining companies and DMR in their quest to realise other constitutional rights.

Written by Gaopalelwe Mathiba.