Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002)

The South African mining and minerals industry is the cornerstone of the economy. It contributes to the Gross Domestic Product, job creation and amelioration of poverty and inequality. Despite these positive contributions the mining and  minerals  industry  has direct or indirect negative socio-economic and environmental impacts on landowners, lawful occupiers, holders of informal and communal land rights, mine communities and host communities. It also has an effect of displacement of communities where mining activities take place in the form of physical resettlement, exhumation of graves, loss and damage to property, influx of people to the mining community and a boom in informal settlements.

The rights and interests of landowners, lawful occupiers, holders of informal and communal land rights, mine communities and host communities, relating to resettlement as a result of a proposed mining development is governed by a number of pieces of legislation. The Mineral and Petroleum Resources Development Act, 2002 (MPRDA) read with regulations and guidelines on consultation provides for an extensive consultation process with landowners, lawful occupiers and interested and affected parties, before a prospecting right, mining right or mining permit is granted.

An applicant is obliged to notify and consult landowners, lawful occupiers and interested and affected parties about the proposed development and submit the results of the consultation to the Department in support of the application. The consultation process entails meaningful engagement with landowners, lawful occupiers and interested and affected parties on the impacts the proposed project will have on their rights to use and enjoyment of their land and should address matters relating to resettlement.

The MPRDA has no explicit provisions for resettlement of landowners, lawful occupiers, holders of informal and communal land rights, mine communities and host communities, however, the Consultation Guidelines prescribe that the applicant's consultation report should include a description of the most appropriate means to carry out the proposed operation with due accommodation of the issues raised in the consultation process i.e., agreement on resettlement plan.

Therefore, these Resettlement Guidelines are intended to outline the process and requirements to be complied with by an applicant or a holder of a prospecting right, mining right or mining permit when such application or right will result in physical resettlement of landowners, lawful occupiers, holders of informal and communal land rights, mine communities and host communities, from their land. These Resettlement Guidelines extend to existing prospecting rights, mining rights or mining permits where incremental project expansion will have the effect of displacement or resettlement of landowners, lawful occupiers, holders of informal and communal land rights, mine communities and host communities.

The Guidelines make provision for development of a Resettlement Plan, Resettlement Action Plan and Resettlement Agreement. A Resettlement Plan is a broader consultative document which is concerned with project description; impact analyses; costs and budgetary considerations and consultation mechanisms. The Resettlement Action Plan is a document that lists what steps must be taken in order to achieve the goals set out in the resettlement plan. The purpose of the Action Plan is to clarify what resources are required to reach the goal, formulate a timeline for when specific tasks need to be completed and determine what resources are required.The Resettlement Action Plan, in summary, must outline action to be taken, identify responsible stakeholders and timeframes.

The Resettlement Agreement serves to record in full all the commitments made by a mining right holder in the Resettlement Plan and the Resettlement Action Plan. It should outline rights and obligations of all parties to the agreement. This agreement must be signed by all relevant stakeholders and submitted to the office of the Regional Manager for noting.