Centre for Environmental Rights – Advancing Environmental Rights in South Africa

In 2011, as part of the larger Civil Society Legal Strategy to Promote Environmental Compliance, Transparency and Accountability in Mining, the Centre for Environmental Rights commissioned the School of Law at the University of the Witwatersrand to undertake a review of administrative appeals and litigation pertaining to prospecting and mining, with a particular focus on environmental issues in mineral rights decision-making, environmental compliance, public consultation and access to information. The project is funded by the Ford Foundation.

Drilling Down: Judges, Mining and the Environment

An overview by Prof Tracy Humby at the Wits School of Law (recorded by Skype):

The objective of the review was to compile a comprehensive inventory of litigation about mining and prospecting rights decisions and to review such decisions in order to ascertain trends, successes, failures, lessons learnt, and where amicus curiae and other legal interventions may be effective. To this end pending and existing cases before the courts and other fora were identified, captured electronically, analyzed and made accessible to civil society players in the form of an electronic database.

The outcome of this project is an electronic database of completed and pending cases, case fact sheets and a narrative review aimed at providing civil society organisations with a birds-eye view of litigation against mining companies which could then be supplemented by their reading of particular cases.

We make these documents available for free to anyone to use, though we ask that you recognise the work done by the Centre and the Wits School of Law, and the funding provided by the Ford Foundation, when you do so. We also ask that practitioners, litigants, students and academics who become aware of any new cases or the completion of any pending cases notify us at [email protected] so that we can update the database accordingly.

This project was led by Prof Tracy-Lynn Humby from the Wits School of Law, who was assisted by Louis Snyman and Lucien Limacher.

Synthesis Report:

Humby, T. 2011. Mining and Environment Litigation Review

A review of administrative appeals and litigation pertaining to prospecting and mining, with a particular focus on environmental issues in mineral rights decision-making, environmental compliance, public consultation and access to information (now updated with the 2012 Constitutional Court judgement in Maccsand). University of the Witwatersrand and Centre for Environmental Rights

Databases and case fact sheets:

• Finalised cases: Cases with final judgements or rulings (reported and unreported) selected to form part of this review. Download finalised case fact sheets.
• Pending cases: Pending or “live” legal challenges in which no ruling had been made at the time of compilation, and selected to form part of this review. Download pending case fact sheets.
• Excluded cases: Cases considered but not selected to form part of this review.

Limitations and disclaimer

This Litigation Inventory was prepared with the following limitations:

• Subject of the litigation: The primary focus of the project is litigation pertaining to rights and obligations related to carrying out prospecting, exploration or mining activities, with a particular focus on assessing and mitigating impact on the environment and interested and affected parties.
• Time: The outcomes of this project reflects the status quo as at July 2011. As mentioned above, we ask that practitioners, litigants, students and academics who become aware of any new cases or the completion of any pending cases notify us at [email protected] so that we can update the database accordingly.
• Forum: The Inventory covers litigation initiated or completed in the High Courts, the Supreme Court of Appeal and the Constitutional Court, as well as appeals to and rulings by the Water Tribunal and other administrative appeal bodies.
• Form of legal authority: The project is not limited to litigation relating to the interpretation of the Mineral and Petroleum Resources Development Act, 2002 (MPRDA) but can cover litigation based on the authority of any environment-related statute or the common law.

The Centre for Environmental Rights commissioned and the Wits School of Law carried out this project in an attempt to collate information on jurisprudential trends in finalised cases, and arguments put forward by appellants and respondents in pending or “live” cases. In relation to the latter, the summaries and report may contain and repeat allegations made by parties which are disputed by other parties, and in relation to which no finding has been made.

For queries, contact the Centre on [email protected], or Prof Tracy Humby, School of Law, University of the Witwatersrand at [email protected].