Introduction
In the intricate relationship between mineral extraction and landownership (or lawful occupation of land), Section 55 of the Mines and Minerals Act 2005 emerges as a guide, outlining the rights and responsibilities of both mineral rights holders and landowners (or lawful occupiers) within prospecting areas. The provision embraces two common law principles that must be observed by the landowner and the mineral rights holders.
Rights to the Minerals and Land Surface
On one hand, under common law, mineral rights holders have the following entitlements. First, they can enter the land regarding which they hold mineral rights and exercise their rights. Secondly, they can prospect for minerals or transfer the entitlement to third parties. Thirdly, they can remove soil to unearth the minerals. Fourthly, they can exercise ancillary rights like using the surface of the land, erecting buildings and constructing roads to the mine. On the other hand, landowners may want the minerals sterilised (left unexploited) to protect their right to the surface of the land for agricultural activities.
In principle, when these rights conflict and the dispute is irreconcilable, the interests of the owner are subordinate to those of the holder. Embedded within Section 55 is a reflection of this longstanding common law principle, acknowledging the coexistence of mineral rights and landownership rights. In section 55(1), the statute recognises that while mineral rights may hold precedence in prospecting areas, landowners or lawful occupiers maintain certain privileges, such as grazing stock or cultivating land surfaces. However, these privileges come with the caveat that they must not impede or disrupt prospecting activities. Should grazing or cultivation interfere, the landowner or occupier is obliged to cease such activities to facilitate unimpeded mineral exploration and extraction.
Exercising Land Surface Use Rights
The mineral rights holders must exercise the abovementioned entitlements civiliter modo concerning the landowner, and other interested third parties. The mineral rights holders can only override the landowners’ rights to the extent that is reasonable for exploiting the mineral rights. In this regard, section 55 solidifies the commitment to common law principles. Section 55(3) prescribes that mineral rights holders should conduct their operations with reasonableness and sensitivity to the interests of landowners or lawful occupiers. This concept, advocates for the responsible exercise of mineral concessions, with minimal intrusion on landowners’ rights. It emphasizes the importance of prioritizing underground mining methods over surface mining whenever feasible, aiming to mitigate surface disruption and environmental impact.
Striking a Balance: Coexistence of Mineral Rights and Landownership Rights
While mineral rights holders wield significant authority in resource exploitation, they are not exempt from their obligation to mitigate adverse effects on landowners or lawful occupiers. Section 55 underscores the need for collaboration and mutual respect between stakeholders, promoting a holistic approach to mineral extraction that safeguards the rights and well-being of all involved parties. By adhering to the principle of civiliter modo and exercising due diligence in their operations, mineral rights holders can navigate the complex terrain of resource extraction while upholding the rights and interests of landowners and lawful occupiers.
Conclusion
In essence, Section 55 of the Mines and Minerals Act 2005 serves as a cornerstone in fostering a symbiotic relationship between mineral rights and landownership in Lesotho’s mining landscape. By embodying common law principles and statutory provisions, the statute promotes equitable resource utilization and sustainable development practices. Through a commitment to collaboration, transparency, and responsible stewardship, stakeholders can navigate the dynamic interplay between mineral extraction and land use, ensuring a harmonious coexistence that benefits both present and future generations.
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