Procedural fairness through meaningful consultation in applications for mining-related permits in South Africa

Abstract

The MPRDA requires consultation of interested and affected parties in applications for mining-related permits. Prior to the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution), there was little to no legislative evidence of the kind of consultation afforded by the Mineral and Petroleum Resources Development Act 28 of 2002 (hereafter the MPRDA) to interested and affected parties if a proponent mining company intends on commencing with mining operations, including prospecting activities. The consultation requirement when applications for mining-related permits (including prospecting rights, mining rights and mining permits) are made by a proponent mining company is mandated in, amongst others, sections 10, 16, 17, 22, 23 and 27 of the MPRDA and sections 2(4)(g)-(h) of the National Environmental Management Act 107 of 1998 (hereafter the NEMA) and the regulations promulgated in terms of both these statutes. The study traces the legal history and development of this legal framework. This study makes the point that the consultation processes in this legal framework, which includes the MPRDA, the NEMA and their regulations, are subject to the vision of procedural fairness envisaged by section 33 of the Constitution and the Promotion of Administrative Justice Act 3 of 2000 (hereafter the PAJA). The study explores how the legal framework setting out consultation processes with respect to applications for mining-related permits fares in light of the procedural fairness vision envisaged by section 33 of the Constitution, read with the PAJA and the meaningfulness jurisprudence of South African courts. The study analyses meaning, purpose, objects, and extent of procedural fairness in section 33 of the Constitution and the PAJA and the relevance thereof to applications for mining-related permits in terms of the MPRDA and the NEMA. In doing so, the study explores the development of the notion of meaningfulness, which forms part of the right to procedural fairness, in the legal framework regulating consultation processes in applications for mining-related permits to achieve procedural fairness. The study contends that the legal framework regulating consultation processes in applications for mining-related permits is insufficient for purposes of giving effect to the notion of meaningfulness. The study proceeds to make recommendations which are aimed at providing legal reform to the consultation processes in applications for mining-related permits so that effect is given to the vision of procedural fairness envisaged in section 33 of the Constitution and the PAJA. These recommendations include the inclusion of monitoring and internal and mandatory dispute resolution mechanisms, extending the time allowed for consultation, amending the MPRDA to expressly include the concept of meaningfulness and the need for the courts to be more flexible in adjudicating matters involving the grant or refusal of a mining-related permit based on the fulfilment, or not, of the legal framework regulating consultation processes during applications for same.