Who Owns Unsevered Minerals in
South Africa?
A provisional account
Outline of the Presentation
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Background.
Research Question.
Why this question has arisen.
Overview of the proposed interpretations.
Methodology.
Application of the methodology to the
various theories.
Background
With
the enactment of the
Minerals Act the Common
Law with regards to minerals
was reinstated.
In
terms of the Common Law,
land ownership and mineral
rights can be severed.
Land
ownership included
ownership of everything
above and below the soil.
Called the cuis est solum
rule.
Ownership
of unsevered
minerals vested in the owner
of the land.
Research Question
The issue that this
paper will look at is
whether the MPRDA
has affected any
change in this regard.
Why could the MPRDA have changed this? (1)
The MPRDA’s interpretation clause:
“4. (1) When interpreting a provision of this Act, any
reasonable interpretation which is consistent with the
objects of this Act must be preferred over any other
interpretation which is inconsistent with such objects.
(2) In so far as the common law is inconsistent with this Act,
this Act prevails.”
Analysis
This clause makes a difference since it constrains how the
Act can be interpreted - Rather than try to do the least harm
to the common law, consider the Act’s purposes.
Why could the MPRDA have changed this? (2)
The MPRDA’s Custodianship clause:
“3. (1) Mineral and petroleum resources are the common heritage of all
the people of South Africa and the State is the custodian thereof for the
benefit of all South Africans.
(2) As the custodian of the nation’s mineral and petroleum resources, the
State, acting through the Minister, may—
(a) …
(b) …
(3) The Minister must ensure the sustainable development of South
Africa’s mineral and petroleum resources within a framework of national
environmental policy, norms and standards while promoting economic and
social development.”
Analysis
This clause has caused most of the debate around what has happened to the
ownership of minerals. The basic gist of these arguments is that the meaning
of this clause has affected a change (or not) in the ownership of unseparated
minerals.
Overview of proposed interpretations
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Unsevered minerals of RSA now ‘belong’ to the nation.
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Ownership of unsevered minerals remains vested in the
landowner.
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Ownership of unsevered minerals vest in the State.
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Ownership of unsevered minerals have vested in the State
in its public capacity (res publicae or the public trust
doctrine).
Methodology
These accounts will be evaluated by using Dworkin’s
fit and justification heuristic:
 Fit: The interpretation will be checked for
consistency and coherence with the Act and
case law.
 Justification: The reason for why this is the best
interpretation for the Act will be
considered.
Fit: The Statute
The obvious starting place is to look at the
Statutes objects: is the interpretation
consistent with the objects of the Act?
Besides that the various other provisions
(and omissions) of the Act will be
considered.
2. The objects of this Act are to—
(a) recognise the internationally accepted right of the State to exercise sovereignty over
all the mineral and petroleum resources within the Republic;
(b) give effect to the principle of the State’s custodianship of the nation’s mineral and
petroleum resources;
(c) promote equitable access to the nation’s mineral and petroleum resources to all the
people of South Africa;
(d) substantially and meaningfully expand opportunities for historically disadvantaged
persons, including women, to enter the mineral and petroleum industries and to benefit
from the exploitation of the nation’s mineral and petroleum resources;
(e) promote economic growth and mineral and petroleum resources development in the
Republic;
(f) promote employment and advance the social and economic welfare of all
South Africans;
(g) provide for security of tenure in respect of prospecting, exploration, mining
and production operations;
(h) give effect to section 24 of the Constitution by ensuring that the nation’s
mineral and petroleum resources are developed in an orderly and ecologically
sustainable manner while promoting justifiable social and economic development; and
(i) ensure that holders of mining and production rights contribute towards the
socio-economic development of the areas in which they are operating.
Fit: The Case Law
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Recent case law will be examined to see whether it
is compatible with the interpretation.
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The paper can’t propose to do an in depth of
analysis of all of the case law that could indicate
scope for the introduction of such an interpretation
(e.g. for the purposes of the res publicae doctrine).
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This presentation won’t consider case law.
Justification: The Reasons for Favouring
that Interpretation
It would be impossible to engage
meaningfully with all of the justifications
offered in favour of the various
interpretations.
However some tentative questions will be
asked with an emphasis on whether the
justification actually requires the transfer of
ownership of unsevered minerals.
Ownership of USM has moved to ‘the Nation’ (1)
Fit:
Words in s 3 (1) include ‘mineral… resources are the common
heritage of all the people of South Africa’, ‘… the nation’s
mineral resources’. There is good fit here.
But:
The act makes no mention of minerals vesting in anyone but
the owner.
‘The Nation’ has no legal personality and as such can’t be
vested with a right.
This interpretation leaves it unclear how unlawful mining is to
be dealt with.
Ownership of USM has moved to ‘the Nation’ (2)
Justification:
The mineral wealth of a country doesn’t lie with individuals or with the State. It
lies with the people of the Country.
The State then acts as a custodian with public law powers that should
exercised in the interests of the people of South Africa.
Textual support for this kind of argument can be found in:
The African Charter of Human and People’s Rights.
The Freedom Charter
But:
Its far from clear that giving people a collective right is the best way in which to
enhance receiving returns from this collective right.
Dale may respond by suggesting that keeping minerals subject to private rights
may be a better way to encourage individual exploitation of resources.
Its more difficult for the res publicae/public trust proponents to explain why
their scheme is better justified because they need to explain why the State
needs to be both the custodian of the resources and also be the owner.
I don’t think its impossible to make this case but its going to be difficult.
Article 21
1. All peoples shall freely dispose of their wealth and natural resources.
This right shall be exercised in the exclusive interest of the people. In no
case shall a people be deprived of it.
2. In case of spoliation the dispossessed people shall have the right to
the lawful recovery of its property as well as to an
adequate compensation.
3. The free disposal of wealth and natural resources shall be exercised
without prejudice to the obligation of promoting
international economic cooperation based on mutual respect, equitable
exchange and the principles of international law.
4. States parties to the present Charter shall individually and collectively
exercise the right to free disposal of their wealth and natural resources
with a view to strengthening African unity and solidarity.
5. States Parties to the present Charter shall undertake to eliminate all
forms of foreign economic exploitation particularly that practised by
international monopolies so as to enable their peoples to fully benefit
from the advantages derived from their national resources.
The People Shall Share in the Country's Wealth!
The national wealth of our country, the heritage of South
Africans, shall be restored to the people;
The mineral wealth beneath the soil, the Banks and
monopoly industry shall be transferred to the ownership of
the people as a whole;
Ownership of USM has moved to the State
Fit:
The use of the word ‘custodianship’ is a misnomer. What is
meant is that ownership vests in the State.
One of the objects of the Act is to give effect to the State’s
universally accepted right to exercise sovereignty over its
resources. Custodianship and sovereignty are mutually
exclusive. Hence we should reject custodianship as a
notion and simply transfer ownership.
But:
Firstly it is not clear that custodianship and
sovereignty are mutually exclusive. They can be
reconciled by recognizing that sovereignty is a right
between states inter se.
Custodianship can be seen as an obligation between
the State and its citizens.
Secondly, even if these notions are operating in the
same sphere of law, its not clear that sovereignty is an
untrammeled right.
Current developments in public law suggest that
sovereignty must be exercised within limits.
‘Custodianship’ can be such a limit. Thirdly,
even if custodianship and sovereignty are
mutually
exclusive, private ownership of minerals and
sovereignty aren’t mutually exclusive.
The Definition of Land in the MPRDA ‘includes the surface of
the land and the sea, where appropriate’. This isn’t an exclusive
definition. ‘Includes’ by implication suggests that land is more
than just the surface.
Ownership of USM has moved to the State
Definition:
Ownership of unsevered minerals has moved to the
State in its public capacity. The State then has a
duty to act as custodian of certain interests to the
benefit of the public as a whole.
Fit:
The Act makes extensive use of the word ‘custodianship’.
Other recent Acts have made use of the word ‘trusteeship’.
This indicates the introduction of some sort of Public Trust
Doctrine (‘custodial sovereignty’).
Historically, in the Common Law there was the notion of res
publicae that could be extended to include minerals.
– In international law a notion of res publicae has
been kept alive through treaties such as The
Antarctic Treaty; Treaty on Principles Governing
the Activities of States in the Exploration and use
of Outer Space, including the Moon and other
Celestial Bodies; the Geneva Convention on the
High Seas and the Convention of the Law of the
Sea.
For this ‘fit’ to work, we will have to revisit the
reason why something was made res publicae.
Historically it was the ‘vastness, limitlessness
and availability’ of the resource. Today it should
be the protection of a scarce resource for future
generations.
Ownership of USM has moved to the State
Justification:
– Certain interests in property should be reserved for the
public. E.g. the public’s right to walk on the beach. This is
even more relevant to minerals and the environment.
The State is best placed to protect the public’s interest in
that property.
A public trust doctrine should be introduced to do so.
Questions and comments
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What will this public trust doctrine do?
Create an enforceable obligation on the State.
Be used as an interpretative tool.
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Why is it necessary for ownership of unseperated minerals to vest
in the State?
If ownership of unseparated minerals vest in the State, that right will
be coupled with certain duties. When the State acts to comply with
those duties it won’t trigger an action of expropriation or deprivation.
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Concerns extend to the externalities of those mining e.g. pollution