[miningmx.com] — GOVERNMENT welcomed a judgement by the Constitutional Court earlier this week which clarified the extent of community consultation in respect of awarding mineral prospecting rights.
A prospecting right owned by Genorah Resources, a shareholder of Australian-listed Nkwe Platinum, was set aside by the Constitutional Court on Tuesday after it was found the mining firm had not sufficiently consulted the community on whose land the mineral rights extended.
“The decision confirms our belief that the law (Minerals and Petroleum Resources Development Act) does not properly define the manner and extent of community consultation,’ said Sandile Nogxina, director-general of the mineral resources department.
Section 104 of the MPRDA would be altered as part of a draft of other proposed amendments to the act, said Nogxina. A meeting with the Chamber of Mines of SA, unions, and the junior mining industry was being scheduled to discuss the amendments ahead of tabling with cabinet, preferably before the fiscal year-end, Nogxina added.
However, mineral rights attorneys were critical of the judgement which they said would add an unnecessary layer of complexity to South Africa’s already fraught minerals legislation. “It is problematic for everyone,’ said Andrew Mitchell, a director of Bell Dewar. “Companies will need to get on the ground now and find out exactly who they are dealing with.’
There were also fears that divisions within communities as to who represented them would bedevil the process of applying for prospecting and mining rights – a problem Nogxina acknowledged. “In the case of Genorah, some of the community actually supported the company,’ said Nogxina. “So who actually represents the community is a challenge of this judgement,’ he said.
In the most notorious example of this, factions within the Bakubung-Ba-Ratheo community in the North West province, both claiming control over the ruling family, are disputing ownership of some 17% of Wesizwe Platinum. The matter is currently the subject of arbitration.
Attorneys also questioned whether due process had been followed by the African Exploration Mining & Finance Corporation, the state-owned mining firm which has rapidly acquired prospecting licences since its formation earlier this year.
“I doubt it would have,’ said Hulme Scholes, an attorney with CJM Corporate Advisors referring to Government’s possible dearth of resources.
Said Nogxina: “We have consulted all necessary parties, but if a community came forward and disputed that, that would be something else.’ Nogxina said that if the community proved it had not been properly consulted, the mineral resources department would halt further processing of a mining right or prospecting licence.
