[miningmx.com] — THE Constitutional Court’s judgment in the Maccsand
case has handed civil society and land owners plenty of ammunition to curb mining,
and significantly adds to miners’ compliance requirements.
The judgment, delivered on Thursday, stated that mining companies not only have to
obtain permission from the Department of Mineral Resources (DMR) for mining on a
piece of land, but also from local authorities if the land was not zoned for mining
purposes.
Importantly, the landowner would be the principal person able to apply for the
rezoning of any property. While municipalities and provinces do have the power to
rezone land, they would have to consult with the landowner before doing so.
The impact would not be so significant in cases where the mineral right holders
also own the land, but the judgment would be felt most where the mineral right
holders are dependent on the goodwill and consent of the landowner.
Typically, a landowner would be able to hold out for higher compensation in return
for agreeing to the rezoning process.
Warren Beech, mining law expert at Webber Wentzel, said where the Mineral and
Petroleum Resources Development Act provides that the regional manager of the
DMR mediates in disputes between surface and mineral right owners, the Maccsand
judgment would necessitate a parallel process involving either a municipality, or a
regional office of the department of agriculture, if the dispute centres on zoning
issues.
“This will slow up a lot of things,’ Beech said. “It is also a risk that companies will
have to disclose when they list or raise funds.’
The Centre for Environmental Rights (CER) said the judgment would strengthen the
hand of civil society and communities in holding the DMR and mining companies to
account and to the law.
“A court should grant an interdict to stop operations without too much difficulty until
such time as the right zoning has been obtained,’ said CER Executive Director Melissa
Fourie in an emailed response to questions.
“While in many parts of the country, provincial and local authorities will eventually
approve rezoning applications because of the perceived socio-economic benefits of
mining to the area, the delay caused by an interdict can have massive financial
implications for the mine.
She said that having to consider a rezoning application would give a local authority
the opportunity to consider both the costs and benefits of a new mine in an area, as
well as giving affected parties an opportunity to say whether they want to have a
mine in their community.
“Previously, these decisions were taken away from local authorities by the DMR,’
Fourie said.
She said the judgment would also impact on national legislative matters, and
particularly the proposed amendment to the MPRDA.
“Any future amendment to the MPRDA must respect the constitutionally mandated
functions of the different spheres of government and recognise the essential role of
the Department of Water Affairs, the Department of Environmental Affairs, provincial
and local government in decisions on mining,’ she said.
