What to do when someone applies for mineral rights on your land

Dr Melissa Strydom, legal consultant at Warburton Attorneys Inc in Johannesburg
Published: 31 August 2023

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Landowners or lawful occupiers of property often ask what they should do when someone else applies for mineral or petroleum resource rights (or related approvals) on their land. As a producer, it is necessary to be aware of the processes, requirements, and what to do when faced with such applications.

This article outlines the context for these potentially competing interests in land and the obligations of applicants. It also provides practical guidance on how affected landowners or lawful occupiers could approach these processes.1

Required rights and approvals
Larger parcels of land, such as land used for agriculture, are often the subject of mineral or petroleum rights applications in terms of the Mineral and Petroleum Resources Development Act2 (MPRDA). Associated environmental approval applications may also be required in terms of the National Environmental Management Act3 (NEMA) and the National Water Act.4 Applicants seeking rights or approvals to exploit natural resources, or undertake other development projects (including roads, powerlines, or other infrastructure), may require several government-issued approvals in terms of different laws, including those mentioned.

Before a government official5 can grant rights or approvals, prescribed legal requirements must be met and procedures followed. Applicants for these rights and approvals appoint environmental assessment practitioners (EAPs). EAPs must investigate and identify the environmental impacts, notify and consult with interested and affected parties (including landowners and lawful occupiers), and prepare reports for submission to the decision-maker/s.

The laws have changed over time; varying provisions may apply at specific times, and courts have pronounced on interpretations and principles within these laws. Parties affected by projects on their land are not expected to know all applicable legal or technical requirements or developments. Rights and approvals are issued by government officials within various departments. The approval processes are often interlinked or overlap, but each has distinct legal requirements. Keeping track of the different applications can be challenging.

Ignoring these applications will not make them go away. From the outset, landowners or lawful occupiers must engage with these application processes (whether for MPRDA rights or approvals for other developments) to fully understand the intended impacts on their land use and ensure the applicant satisfies all legal requirements. Where applicants do not meet the statutory requirements, their actions can be challenged. Specialist assistance may be needed to appropriately comment on these processes or raise challenges.

The MPRDA
When the MPRDA commenced on 1 May 2004, it changed the regulatory landscape concerning the grant of rights to exploit mineral and petroleum resources (including prospecting, mining, exploration, or production of resources).6 Mineral and petroleum resources are recognised under the MPRDA as the common heritage of all South Africans. The state is the custodian of such resources and is entitled to grant rights under a state-controlled system7 after the prescribed processes have been followed and stipulated requirements met.

Once MPRDA rights are granted and registered, they become limited real rights on the property, meaning that the rights holder has a claim to the specified resource and can enforce it against other people (including landowners or lawful occupiers).8 The rights to mineral or petroleum resources are separated from the rights to the surface of the land, creating a complex relationship between rights holders and landowners/lawful occupiers, requiring them to co-exist.9

Mineral or petroleum resource rights holders are entitled to execute their rights and enter the specified piece of land, prospect, mine, explore, or produce the stated resource.10 To do so, they must hold an MPRDA right, an environmental authorisation and have given the landowner or lawful occupier at least 21 days written notice.11

There have been many cases on notice, consultation, and landowner consent requirements involving legal arguments and nuanced principles that may differ depending on the process or relevant statute. The common principle is that meaningful consultation (or public participation) must be conducted before rights or approvals can be granted.

Applicants’ obligation to meaningfully consult
The written consent of landowners (for another entity to undertake a project on their land) is not always required within these application processes.12 But, people who may be affected by decisions to grant rights or approvals must be given adequate notice, a reasonable opportunity to be heard or make submissions, and notice of their rights to internal appeals or court review.13

The MPRDA specifically requires consultation with landowners and lawful occupiers.14 Consultation is not simply a notification requirement but requires proper, meaningful engagement with interested and affected parties15 (including landowners or lawful occupiers). Such parties are entitled to application documents on request16 and to consider and comment on different versions of specialist reports and impact assessments.17

Meaningful consultation requires the applicant to, in good faith, facilitate participation in a way that gives affected parties a reasonable opportunity to provide their input. All relevant information about the proposed activities must be provided, enabling affected parties to make an informed decision regarding the impact of the proposed activities on them.18 Applicants (for MPRDA rights) must also follow the public participation process prescribed in the NEMA Environmental Impact Assessment Regulations.19

EAPs must ensure that all interested and affected parties receive proper notice of the application and any public meetings or consultations and keep a register of interested and affected parties. Producers may only become aware of these applications from someone else (like a neighbour) later than they should, which would not constitute proper notice. Inadequate or defective notice could also form the basis of challenging a right or approval.

Affected parties may raise concerns, comments or suggestions regarding intended activities or, on reasonable bases, object.20 Objections should be appropriately formulated, substantiated, and submitted to the relevant government official/regulatory authorities aligned with the process to which it relates (for example, MPRDA right, NEMA environmental authorisation or National Water Act water use license). The EAP’s report must address the inputs, comments, or concerns received during the public participation/consultation process, and its report must be provided to affected parties for consideration.21

Environmental impacts must be adequately assessed before approvals can be granted. The inadequate identification, assessment or mitigation of impacts or impossibility of co-existence (for example, mining and farming) could be bases for objecting to rights or approval applications. It could also form the basis to challenge the grant of such rights or approvals.22

Should a right or approval be granted, internal administrative appeal remedies could be used to challenge these decisions before going to court (although certain circumstances may justify seeking urgent relief from a court). Specific requirements apply to appeals,23 and it is advisable to obtain specialist assistance and advice on the appropriate process and submissions.

Refusing entry
Once an MPRDA right has been granted, a landowner cannot unreasonably refuse the rights holder from entering the land, and the landowner could be interdicted from doing so.24 There has been legal debate and varying interpretations of entry and access requirements. In principle, access should be negotiated (between the rights holder and the landowner or lawful occupier) and agreed upon with just compensation.25

In balancing the interests of landowners or lawful occupiers against the interests of MPRDA rights holders, engagement and negotiation should be exhausted before those rights holders can seek an interdict against a landowner or occupier.26

An MPRDA rights holder must notify the relevant government official if they are prevented from commencing or conducting their activities, where the landowner or lawful occupier refuses entry, places unreasonable demands in return for access, or if the owner or occupier cannot be found. The government official can request the owner or occupier to make representations regarding the issues raised by the rights holder. Where the owner or occupier has suffered or is likely to suffer loss or damage due to natural resource exploitation, the government official must request the parties to try to reach an agreement on compensation for such loss or damage. If the parties cannot agree, compensation can be determined through arbitration or by a competent court.

If negotiations between a landowner and rights holder are deadlocked, and the designated official concludes that further negotiations will detrimentally affect the objects of the MPRDA, expropriation of the land could be recommended to the minister. If the failure to agree is due to the fault of the rights holder, it may be prohibited from undertaking its activity until the dispute has been resolved.27

Some practical suggestions for landowners/lawful occupiers
Should producers receive notice or become aware of such applications on their land, they should register as an interested and affected party and request all the information regarding the project.

As far as possible, read the documents provided. These processes involve voluminous specialist and technical reports. Where one cannot read all of it or find it difficult to understand, do not be afraid to ask questions, request more information or ask for an explanation. Consider the practical day-to-day effects of the proposed project on activities, ensure that the proposed project’s impacts are understood and ask how these could be avoided or mitigated.

Address all correspondence and enquiries in writing (email) so that there is a record of interactions and the concerns and questions that have been raised. Request responses in writing. Keep records and request minutes and recordings of meetings. Once comments have been submitted, ensure that these are correctly captured in the reports and that the EAP has provided adequate and understandable responses to the concerns.

By actively engaging in the processes, producers can ensure their concerns are raised, considered, and addressed. If not, a foundation could be laid for a potential challenge. It is also important to recognise when specialist help may be needed. Engage with neighbours and fellow affected parties so that efforts may be consolidated or specialist advisors collectively appointed and the cost shared. Collaborating may be an important strategy to ensure producers receive the relevant information, understand the impacts on their property, and that relevant concerns are raised and addressed or challenged.

For more information visit www.warburtons.co.za.

Notes

    1. The guidance in this article is not a substitute for legal advice.
    2. Act 28 of 2002.
    3. Act 107 of 1998.
    4. Act 36 of 1998.
    5. ‘Government official’ is used as a broad term referring to the different government decision-makers/delegated regulatory authorities that may be involved in the mentioned processes.
    6. PJ Badenhorst et al Silberberg and Schoeman’s The Law of Property 5ed (2006) 670, 672, MO Dale et al South African Mineral and Petroleum Law Commentary (2005) 5, Van der Schyff E “The Right to be Granted Access Over the Property of Others in Order to Enter Prospecting or Mining Areas: Revisiting Joubert v Maranda Mining Company (Pty) Ltd 2009 4 All SA 127 (SCA)” PER / PELJ 2019(22) 6.
    7. Proclamation R25 of 23 April 2004, MPRDA s3.
    8. Badenhorst above at 47.
    9. Van der Schyff above at 2.
    10. MPRDA, s5(3).
    11. MPRDA, s5A.
    12. NEMA Environmental Impact Assessment Regulations 2014, reg 39, but may be in the context of informal rights holders in terms of the Interim Protection of Informal Land Rights Act 31 of 1996 as contemplated in Maledu and others v Itereleng Bakgatla Mineral Resources (Pty) Ltd and another 2019 (1) BCLR 53 (CC).
    13. MPRDA s6, read with s33 of The Constitution of the Republic of South Africa, 1996, s3 of the Promotion of Administrative Justice Act 3 of 2000.
    14. MPRDA ss 16(4), 22(4), 27(5), 74(4), 79(4), and 83(4).
    15. Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others 2011 (3) BCLR 229 (CC), paras 62 – 68.
    16. Duduzile Baleni & Others v Regional Manager: Eastern Cape Department of Mineral Resources & Others (11 September 2020).
    17. Earthlife Africa (Cape Town) v Director-General: Department of Environmental Affairs & Tourism and Another 2006 (10) BCLR 1179 (C) [59], there are limits to the comment process as considered in Muckleneuk/Lukasrand Property Owners and Residents Association v MEC Department of Agriculture Conservation and Environment Gauteng Provincial Government and Others [2007] 4 All SA 1265 (T).
    18. Defined in the MPRDA Regulations, in GN R527 of 23 April 2004.
    19. MPRDA Regulations, reg 3A.
    20. Including in terms of MPRDA s10(2).
    21. NEMA Environmental Impact Assessment Regulations, 2014, Chapter 6, Department of Environmental Affairs (2017), Public Participation guideline in terms of NEMA EIA Regulations, Department of Environmental Affairs, Pretoria, South Africa, DMR Guideline for Consultation with Communities and Interested and Affected Parties (undated), Muckleneuk/Lukasrand Property Owners and Residents Association v MEC Department of Agriculture Conservation and Environment Gauteng Provincial Government and Others [2007] 4 All SA 1265 (T) [47].
    22. Eloff Landgoed (Pty) Ltd v Minister of Forestry, Fisheries and the Environment and Others (21525/2020) [2023] ZAGPPHC 434.
    23. NEMA s43 and the NEMA Appeal Regulations, 2014, MPRDA s 96, National Water Act s148 and its Appeal Regulations, 2017.
    24. Joubert & Others v Maranda Mining Co (Pty) Ltd 2010 (1) SA 198 (SCA).
    25. Van der Schyff above 24.
    26. Maledu [91 – 92]
    27. MPRDA, s54.