Browsing by Subject "mineral law"

Now showing 1 - 3 of 3
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    Advancing the effective implementation of the one environmental system for mining through cooperative environmental governance
    (2020) Mpinga, Shamila; Mostert, Hanri
    In 2014, the One Environmental System for mining came into effect. This legislative framework was introduced to streamline the environmental regulation of mining activities by consolidating such regulation in the National Environmental Management Act (NEMA). The most significant aspect of the regulatory framework, for purposes of this research, is the allocation of powers to the authorities responsible for implementing the One Environmental System. The authorities tasked with implementing the One Environmental System are the Department of Mineral Resources and Energy (DMRE), the Department of Environment, Forestry and Fisheries (DEFF) and the Department of Human Settlements, Water and Sanitation (DHWS). In the distribution of power, the DMRE is tasked with enforcing the regulatory framework in the minerals extraction industry. The DEFF sets the regulatory framework and is the appeal authority for decisions taken by the DMRE. Finally, the DHWS is responsible for regulating and enforcing the National Water Act. Although introducing the One Environmental System has improved the regulation of the environment in relation to mining, its regulation - and, more so, enforcement - has received more criticism than praise. Intragovernmental fragmentation has been cited as a cause of ineffective implementation of the regulatory framework. A lack of cooperation between the departments hampers the objective of streamlining the environmental regulation of mining. Therefore, it is imperative that the authorised departments cooperate with each other to achieve the effective implementation of the One Environmental System for mining. The aim of this dissertation is to suggest ways to foster cooperation between the DMRE, DEFF and DHWS to achieve the effective implementation of the One Environmental System. This goal is achieved by providing an analysis of the implementation efforts of the three departments. Since the analysis shows that intragovernmental fragmentation has hampered the effective implementation of the regulatory framework, this research provides recommendations to improve the implementation of the One Environmental System.
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    Consultation and consent under the MPRDA and the IPILRA: a legal analysis of the decision-making practices of customary communities in South Africa
    (2021) Ntsanwisi, Fezeka; Mostert, Hanri; Cramer Richard Henry
    Under the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), the State, as custodian of mineral resources, has the authority to grant rights to minerals and permits in favour of applicants that satisfy the requirements of the prescribed application procedures. Applicants for rights to minerals and permits must consult meaningfully with landowners and lawful occupiers, although the MPRDA itself does not require the latter's prior consent. The Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA), by contrast, requires prior consent when persons are deprived of their informal rights to land. In South Africa, communities that occupy land under customary land tenure are recognised as lawful occupiers that have informal rights to land. The occupation of land by customary communities and the applicant's interest to exploit mineral resources creates competing rights and interests between these two parties, namely: a right to consultation and a right of access to land. This minor dissertation aims to analyse the impact that the current statutory formulation of the requirements of consultation and consent has on the informal rights to land held by customary communities. This aim translates into two sub-inquiries: How do the statutorily required processes of consultation and consent embodied in the MPRDA and the IPILRA protect the informal rights to land held by customary communities? Furthermore, do the statutorily required processes of consultation and consent meaningfully engage with the existing decision-making practices of customary communities? These issues are considered in light of the elevated status that customary law enjoys under South African law and the Constitution's aspiration to reform racially discriminatory landholding systems. The dissertation argues that the statutorily required processes of consultation and consent inadequately engage with the existing decision-making practices of customary communities. It offers insight on how engagement with the existing decision-making practices, and with the Free, Prior and Informed Consent principle, can better accommodate and protect the rights and interests of customary communities that are affected by prospecting and mining operations.
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    The 'formalisation dilemma' of artisanal and small-scale mining: an analysis with reference to the Democratic Republic of the Congo
    (2022) Pein, Rebecca-Lee; Mostert, Hanri
    This thesis contributes to the discussion about the impact and dynamics of the informal Artisanal and Small-scale Mining (ASM) sector in sub-Saharan Africa, focusing on the case of the Democratic Republic of Congo (DRC). The debate around ASM's informality in sub-Saharan Africa is increasingly gathering momentum in the region's development and donor dialogues. A unique sector populated by a heterogenous group of people, ASM has in recent years expanded rapidly around the globe. More and more countries are recognising the economic importance of the ASM sector, particularly in sub-Saharan Africa, forcing many donors and policymakers to ‘reconsider' development strategies for ASM. With the growth in ASM, many countries have endeavoured to formalise their ASM sectors in hope of bringing ASM activities into the formal domain and in turn mitigating the negative consequences which flow therefrom. Despite these ASM-formalisation efforts, governments continue to face numerous obstacles along the way, with many of the artisanal miners continuing to operate illegally. The case study of the DRC provides an informative understanding of ASM's informality in sub-Saharan Africa and depicts the issues experienced by a country attempting to formalise its ASM sector. The DRC is one such country that has implemented legislation and introduced numerous initiatives to help bring its ASM sector into the formal domain. The unfortunate reality is that the country seems to be trapped in what this thesis terms the ‘formalisation dilemma', as thousands of artisanal miners continue to operate outside of the legal framework; a phenomenon which is not unique to the DRC experience. To date, most of the AMS-formalisation undertakings and support in sub-Saharan Africa have focused on the financial and technical aspects of the sector, with emphasis being placed on controlling ASM activities ad hoc, instead of proactively engaging and supporting ASM operations. This thesis examines the correlation between the rise in ASM activities and state or institutional failure and concludes by recommending various solutions to this so-called ‘formalisation dilemma'.