The North-Gauteng High Court has further clarified mining affected communities’ rights in its 14 September 2020 judgment in Duduzile Baleni & Others v Regional Manager: Eastern Cape Department of Mineral Resources & Others.

Succinctly, the applicant’s (namely, various representatives of the Umgungundlovu community) sought an order declaring that interested and affected parties (“I&APs”) are entitled by operation of law to a copy of a mining right application submitted in terms of the Mineral and Petroleum Resources Development Act, 28 of 2002, as amended (“MPRDA”). While I&APs could previously request this information through the Promotion of Access to Information Act, 2 of 2000, as amended (“PAIA”), the Department of Mineral Resources and Energy’s failure to adequately respond to such PAIA requests, it was argued, made this option untenable.

Hailed as ground-breaking, the North-Gauteng High Court found that the DMRE is obligated, on request, to provide I&APs with a copy of a mining right application, while criticising the DMRE’s ability to process PAIA requests timeously. This information would include the items listed in section 23(1)(a) – (h) of the MPRDA, namely, the details of the mineral to be mined and the applicant’s ability to undertake such operations both financially and technically, as well as, associated maps, plans and programmes, but would specifically exclude any commercially sensitive information. Practically, the order would similarly grant access to other MPRDA applications, such as prospecting rights.

The difficulty created by the judgment is whether granted mining and prospecting right applications would be reviewable where I&APs were not provided with requested application information by the DMRE during the consultation process. To evaluate this concern, it is worth noting that a mining right application must always be applied for alongside an environmental authorisation, in terms of the National Environmental Management Act, 107 of 1998, as amended (“NEMA”). The public participation process prescribed by NEMA is stringent and should, when undertaken correctly, include the all non-sensitive mining right information as background information to the environmental authorisation application. Accordingly, while the obligation rests on the DMRE to provide application information, practically such application is provided to I&APs as part of the environmental authorisation process which must be successful before a mining or prospecting right is granted.

Evolutionary rather than revolutionary, the Baleni matter has continued the trend, seen in recent judgments such as Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and Another [2018] ZACC 41, toward clarifying mining affected communities’ rights. Practically, while the obligation does rest with the DMRE to provide requested information, applicant’s and especially Environmental Assessment Practitioners should take note of the judgment and, where they have not already done so, include application information in the background information supplied to I&APs during the environmental authorisation process.