Are we heading for collaboration?

The relationship between mineral right holders and landowners or occupants throughout several African countries is well-known for being contentious, and in many instances inequitable. Image credit: WhyAfrica

Are we heading for collaboration?

The relationship between mineral right holders and landowners or occupants throughout several African countries is well-known for being contentious, and in many instances inequitable, writes Lili Nupen and Chantal Murdock.

This type of dynamic is common in countries such as South Africa, Botswana, and Ghana, but at Nupen Staude de Vries (NSDV) we’re seeing more and more evidence that these African countries are moving towards obtaining written consent from landowners or occupiers prior to commencing with mining or prospecting activities – a very welcome shift towards collaboration with affected parties.

Legislation across Africa has developed to recognise and implement the internationally accepted right of the State to exercise sovereignty over mineral resources, eliminating private ownership of mineral rights and separating ownership of the land from the right to exploit mineral reserves (this is the case for Zambia, Ghana, Botswana and South Africa, to name a few).

Where does that leave landowners or rightful occupants?

For some mining companies, navigating their way through various laws and regulations predominantly centred around maintaining and protecting certain rights of landowners and occupants – have become complex and often risky – but a few African countries have made great headway in securing rights whilst collaborating with landowners or occupiers.

A Case for Ghana

In Ghana the Minerals and Mining Act, 2006 provides protection to a lawful owner or occupier of land. An owner or occupier has a guaranteed claim to compensation for the disturbance of his or her rights over the land from the holder of the mineral right and is entitled to graze livestock on or cultivate the land which is the subject of a mineral right, provided that his or her activities do not interfere with the operations of the mineral right holder.

Much like the South African legislative regime, the Ghanian permitting processes require that meaningful consultation must be undertaken with community members who will be affected by the mineral rights, to ensure that licence holders obtain the co-operation of all stakeholders in the community before commencing with any mining activities. It is evident from this that consent of the lawful owner or occupier of land will ultimately be required.

A Case for Botswana

In Botswana, the Mines and Minerals Act Cap 66;01 (MMA) regulates the granting of licences in respect of mineral reserves and creates extensive protections for the owners of land.

The MMA refers to the consent of the landowner being obtained when applying for a minerals permit, alternatively, in the case of tribal territory, the consent of the appropriate land board. In addition, the MMA further provides that the use of surface rights in various places will be restricted if appropriate consent has not been obtained. This list is extensive and includes, for example burial grounds, monuments or state-owned land, land which is within a certain proximity to buildings that are inhabited, occupied, or even a temporarily unoccupied house or building, agricultural land, national parks, land used for water purposes, railways, roads, and land that is already subject to mining.

The grant of a mineral concession under the MMA does not provide the holder of the licence with the exclusive surface right to the land concerned. Should the holder of the licence require such exclusive use (for the whole or even a part of the area concerned) the MMA prescribes that the holder may conclude a lease for the exclusive use of the land with the owner or lawful occupier of the area.

If the parties cannot agree to the material terms of the lease (such as the rental amount to be paid, the duration of the lease, or the area that is subject to the lease), the same may be determined through arbitration.

A Case for South Africa

In South Africa, it is interesting to note that until very recently, the consent of the landowner or occupier was not a strict requirement to obtain a mineral right.

The Mineral and Petroleum Resources Development Act, 2002 (MPRDA), regulates the granting of licences in respect of mineral reserves. Section 38A(2) of the MPRDA provides that an environmental authorisation must, however, be issued before a right or permit to mine or prospect is granted to an applicant.

To obtain an environmental authorisation, a process prescribed under South Africa’s environmental legislation must be followed. In June 2021, this process was amended to the effect that it now prescribes that if the applicant is not the owner or person in control of the land on which the activity is to be undertaken, then that applicant must, before applying for an environmental authorisation (which is a precursor to obtaining a right under the MPRDA), obtain the written consent of the landowner or person in control of the land to undertake such activity on that land.

If we continue to ensure that the entire eco-system of people impacted by mineral rights and mining activities are consulted and in agreement, we are not only elevating the consultative process for mining across Africa but creating genuine economic transformation and impact for these communities and individuals.

About the authors

Lili Nupen is a Director at Nupen Staude de Vries. Lili has extensive experience in the environmental and mining legal regulatory arena.  Previously, she was at Bowmans and a director of Malan Scholes Attorneys.  She has a deep understanding of the South African mining industry and has practical experience working on transactions involving both international and local mining companies throughout South Africa and Africa.

Chantal Murdock is a Director at Nupen Staude de Vries. She is a specialist in all mining regulatory compliance-related matters and assists with the compilation and submission of various applications in terms of the MPRDA and Mining Charter.

In addition, Chantal has prepared various legal opinions for applicants and/or holders of mining or prospecting rights regarding the MPRDA and the Mining Charter. Chantal has also been integral in concluding various legal due diligence for clients in respect of mine acquisitions.

WhyAfrica provides you with business intelligence that matters. WhyAfrica specialises in African affairs and natural resources. Africa is our business, and we want it to be yours too. To subscribe to WhyAfrica’s free newsletter or digital magazine, and for more news on Africa, visit the website at www.whyafrica.co.za or send a direct message. WhyAfrica launched its first ever digital magazine in November. If you are interested in contributing or advertising in future issues, please contact me at leon@whyafrica.co.za. We have a wide range of different packages and combo deals to give your company the greatest exposure to a rapidly growing, African readership.  

 Are we heading for collaboration?

   

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