"Minerals", "petroleum" and "operations" in the Mineral and Petroleum Resources Development Act 28 of 2002 : a geologist as devil's advocate for a change? "

This article examines the meaning of "minerals", petroleum, "operations" and activities in relation to such substances to determine the ambit of the application of the Minerals and Petroleum Resources Development Act 28 of 2002, the type of rights necessary for such operations and activities and the ambit of these rights. The examination of the meaning of these concepts takes place with reference to prior definitions in statutes and also from a natural science and geology perspective. An attempt is made to show that the legal definitions do no always correspond with the geological meanings and the meanings on the ground. It is questioned whether in recent legislation why more reliance is not placed on input from geologists in the field.

Artikel 3(1) en (2) van die Mineral and Petroleum Resources Development Act 28 van 2002: 'n herbeskouing

Sections 3(1) and 3(2) of the Mineral and Petroleum Resources Development Act 28 of 2002
This contribution entails a discussion of the impact of section 3 of the Mineral and Petroleum Resources Development Act on various aspects of the new mineral and petroleum law. At the core of the discussion is the question of how this section is interpreted by various commentators, and the implications of the different opinions on the application of the section. The initial discussion highlights problems with the new definition of a "mineral": Soil, including topsoil is at present included in die definition of a "mineral" in the act. The definition should be rectified by the legislature as it has far-reaching consequences in respect of the extent of the state's power in terms of section 3(2) of the act to grant entitlements in respect of minerals, including topsoil. The implications of section 3 for the control and management of minerals are discussed and placed in the context of the question about the constitutionality of the act. It is argued that legislative guidance is urgently needed to clarify continuing uncertainty, caused by sloppy drafting and different opinions about the connection between private law and public law in relation to minerals and the actual position of existing right holders.

Expropriation of "old order" mineral rights in South Africa: the Constitutional Court has its say (twice)

The Mineral and Petroleum Resources Development Act 28 of 2002 (ZA) (MPRDA) makes provision for the conversion of so-called “old order” rights to prospecting and mining rights. The consequences of the failure of holders of old order rights to apply for (a) Conversion or (b) new rights under different circumstances were decided by the South African Constitutional Court in two decisions during 2013. These cases are discussed against the background of the nature, content and termination of old order rights. It is also discussed whether such rights were expropriated by the MPRDA and, if so, whether compensation is payable by the state.

Lapsed prospecting rights : "the custodian giveth and the custodian taketh away"? Palala Resources (Pty) Ltd v Minister of Mineral Resources and Energy

The decision in Palala Resources (Pty) Ltd v Minister of Mineral Resources and Energy & others 2014 (6) SA 403 (GP) (‘Palala Resources’) brings clarity about the lapsing of a company’s prospecting right in terms of s 56(c) of the Mineral and Petroleum Resources Development Act 28 of 2002 (‘the MPRDA’) upon deregistration of the company, and highlights some of the features of a statutory prospecting right. Section 56(c) determines that a company’s prospecting right will lapse upon deregistration of the company if no prior application has been made, in terms of s 11(1) of the MPRDA, to the Director-General of the Department of Mineral Resources for consent to alienate or transfer the right (item 1 of the Ministerial delegation of 12 May 2004). The principles underlying the decision could also be applied to mining rights granted in terms of the MPRDA. By way of introduction, these rights are briefly sketched before the decision will be set out and discussed. It will be argued that the case shows that despite the public law nature of the MPRDA, there is the need for a proper private-law analysis of these statutory rights.

A tale of two expropriations: Newcrestia and Agrizania

A comparison will be made between the decision of the High Court of Australia in Newcrest Mining (WA) Ltd v The Commonwealth1 (“Newcrest”) and the decisions of the South African Courts in the Agri South Africa line of cases.2 Although the mineral law systems of the two countries differ insofar as historical development and content,3 the simplified facts of the Newcrest and Agri SA decisions and principles of expropriation law are similar enough to draw an interesting comparison between the respective cases. Both cases dealt with the issue of whether the mineral rights/mining rights of private holders were expropriated by legislation which prohibited mining in one way or another. A comparison between the cases shows the approaches towards the issues and what exactly constitutes deprivation and/or acquisition of property for purposes of expropriation and whether deprivation and/or acquisition actually took place.The differences between the mineral law systems of Australia and South Africa (before the enactment of the Mineral and Petroleum Resources Development Act 28 of 2002 (hereafter “MPRDA”)) and the protection afforded against the resumption/expropriation of mineral rights or mining rights will be set as background information for a better understanding of the respective decisions. The facts of the two cases will first be set out and simplified for comparative purposes before the respective decisions are discussed. At the end, a comparison will be made between the decisions and a conclusion reached about the similarity of principles and the correctness of the respective decisions.

Mineral rights are dead! Long live mineral rights!

Whilst being mindful of the eventual extinction of the legal notion of mineral rights in South Africa upon expiry of the transitional measures in terms of schedule II of the Mineral and Petroleum Resources Development Act 28 of 2002 on 30 April 2009, the classification of mineral rights by the supreme court of appeal in the Anglo decision is to be welcomed, even though it is somewhat ironic at this stage. (As to the extinction of the notion of mineral rights, see Badenhorst "Mineral rights : 'year zero cometh?'" 2001 Obiter 119; "Exodus of 'mineral rights' from South African mineral law" 2004 Journal of Energy and Natural Resources Law 218.) It will, however, be shown in this discussion that the decision of the supreme court of appeal will extend beyond the statutory transitional period and will also have an impact on rights to minerals or rights to petroleum as created in terms of the Mineral and Petroleum Resources Development Act (hereafter referred to as the act). For purposes of this discussion, one can simply continue to refer to mineral rights that developed from the common law as "mineral rights", whilst referring to the new rights created in terms of the act as "rights to minerals and petroleum". The present decision only deals with coal as "minerals".

Duelling prospecting rights : a non-custodial second?

This decision of the Northern Cape division dealt with competing "old order prospecting rights" and prospecting rights in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA). The decision represents an important contribution to the resolution of tensions between the old mineral law order and the new regime of Act 28 of 2002.

Status of tailings dumps : let D5s go working in the past?

It was decided in the De Beers v Ataqua Mining (Pty) Ltd that ''tailings dumps'' created by mining companies before the Mineral and Petroleum Resources Development Act, 28 of 2002 ("the MPRDA") came into operation are not governed by its provisions because such dumps are not "residue stockpiles" or "residue deposits" for purposes of the MPRDA. Ownership of tailings dumps is determined by the common law principles of accession. Ownership of a movable dump has to be transferred by one of the recognised forms of delivery of movables. Processing of these dumps will, however, still be subject to compliance with South African environmental, health and safety laws in general. It is submitted that mine dumps or tailings dumps created upon the exercise of "old order mining rights" before the commencement of the MPRDA and even after commencement of the MPRDA until eventual termination of the "old order mining rights" are not subject to the extensive, mining, environmental, empowerment provisions of the MPRDA. Termination of "old order mining rights" takes place upon: (i) refusal of an application for conversion of a mining right during (or even after) the period of transition, (ii) conversion into and registration of new order mining rights during (or even after) the period of transition or (iii) termination of unconverted "old order mining rights" on 30 April 2009. To the extent that this decision has made it possible to embark on a shorter and less cumbersome route in the reprocessing and eventual disappearance of most tailings dumps, it is to be welcomed from an economical, environmental, job creation and aesthetic perspective. Proposed amendments to the MPRDA to undo the impact of the De Beers decision should be carefully considered against these mentioned benefits and a possible finding that it may amount to an expropriation without compensation.