In terms of section 16(4)(b) of the Mineral and Petroleum Resources Development Act, read with Regulation 52(2)(g) promulgated under the Act, an applicant for a prospecting right must, amongst other requirements, notify in writing and consult with interested and affected parties and submit the results of such consultation to the Regional Manager.
The legislator specifically distinguishes between and requires both “notification” and “consultation”.
The use of the word “must” by the legislature further indicates that consultation with interested and affected parties (usually the owner and/or occupier of the land on which mining activities are planned to take place) is mandatory.
Although the meaning of “consultation” may seem obvious on the face of it, practice has shown that many applicants for a prospecting right fail to engage with the owner or occupier of the land in any manner whatsoever. In many instances, applicants send a letter containing a vague reference to intended prospecting or mining activities without a full property description and without even identifying the type of mineral to a post box. The letter may or may not call for a meeting or consultation between the parties. No proof of delivery or receipt of the letter by the intended recipient is obtained. This letter (and nothing more) is then presented to the Department of Mineral Resources as proof of consultation with the land owner or occupier irrespective of whether there was engagement with the owner and/or occupier. Unfortunately, the Department seems to accept a copy of such a letter (without proof of delivery or receipt) as proof that consultation has taken place.
The meaning to be attached to the word “consultation” has been considered by our courts in the past and the following principles have crystalized:
- Consultation is a deliberate getting together of two or more parties to confer with each other in order to consider, debate or discuss the matter at hand;
- The procedure, format or duration of a consultation cannot be prescribed but requires at the very minimum a two-way exchange or communication of ideas;
- The party who is obliged to consult may choose any reasonable procedure for the consultation as long as the purpose of the consultation process is achieved;
- The parties may determine the nature and extent of the consultation. In general a meaningful and free discussion and exchange of ideas would indicate reasonable and sufficient consultation;
- Proper consultation can never take place without sufficient information and sufficient time to consider the information and to take advice on the proposed course of action.
In light of these principles it is clear that notification can never amount to consultation. Notification is merely the first step to be taken in the consultation process.