The Incorporation of the fpic Principle in South African Policy on Mining-Induced Displacements Bottlenecks and Opportunities

The persistence of intense conflicts over land belonging to indigenous communities is a pressing issue in South Africa. This would resonate even more with the lived experiences of mine communities that are often having to grapple with the collateral socio-economic hardships and impoverishment effects. Matters can get even worse when the State has weak legal and institutional frameworks to regulate the use and possession of such highly contested lands. This paper explores the principle of free, prior and informed consent (fpic); its relevance and significance to South African extractive sector; its possible bottlenecks and implementation challenges; and suggestions for practical interventions and policy advances to facilitate its incorporation into law and policy. Displacement is the limited context within which this exploration is undertaken. The paper argues that the fpic – as an envisaged future for the country’s extractive policy – is more desirable than a mere duty to consult as currently framed in the empowering legislation namely, the Minerals and Petroleum Resources Act (mprda).


International Journal on Minority and Group
Rights (2023) 1-23

Introduction
Issues facing mine communities and their holding and control over their communal lands have increasingly gained traction in the language of law since 1980s.1A closer reading of related scholarship affirms this upward trajectory more strongly, especially after the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (undrip) in 2007.2For South Africa, in the recent past, a significant pressure has intensified on the government to pass adequate laws that safeguard the formal and informal rights and interests of mine communities on land, especially in the context of mineral extraction.3Furthermore, academic commentators have called upon the government to facilitate legal reforms that will ensure the recognition and commitment to meaningful consultation, mutually-reinforcing relationships and the upholding of free, prior and informed consent of these communities before development projects such as mining could take place in their communal lands.4 In 2018, the South African Human Rights Commission (sahrc) commissioned a detailed report titled National Hearing on the Underlying Socio-economic Challenges of Mining-affected Communities in South Africa.5 The report narrates unfortunate stories and lived experiences of mine-affected communities and how they grapple with the issue of regular displacements by mining corporations, among other negative socio-economic implications of the sector on their livelihoods.6The sahrc also reports that in most mine communities, under-development and economic inactivity are strongly present.7The report also indicates that the level and quality of information provided -if at all -by mining companies to communities tends to be inadequate and less comprehensive to enable the communities to make informed and rational decisions about their land and what happen to it.8Due to this deficiency, according to the sahrc, it is often difficult for mine communities to take collective decision about mining developments in their communal lands in terms of their customary law, values, customs and mores.9 It is also reported that the consent of most mine communities never get to be obtained prior to developments and the same communities never get to be consulted at any stage in the lifecycle of a mine, from mineral right application to the closure and rehabilitation of the mining sites.10The plain is not settled when it comes to the latter issue.Mine communities contend that their full and prior informed consent is required before mining activities can proceed, while the State through the Department of Minerals and Energy (dmre) insist that consultation is all that is needed.11This conflict draws sort of a parallel between consultation and consent requirements, the latter having an effect of giving the mine communities some protection and a say on the activities on their lands.I have argued elsewhere that this technical conflict remains an important dimension in the discourse of extractive sector policy reform on and around the issues of mine community displacements, marginalisation and the need to uplift and protect them legislatively.12It bears mention that the South African legal framework does make provision for a consent requirement of indigenous communities, even if their land rights are informal.This is in terms of section 2 the Interim Protection of Informal Land Rights Act 31 of 1996 (ipilra)13 which provides that "no person may be deprived of any informal right to land without his or her consent".14However, the report of the sahrc finds that there is a "consistent disregard" of this legal provision.15All these issues sit at the crux of what inspired this paper, namely the need to tap into an under-explored and inadequately regulated terrain and suggesting regulatory breakthroughs necessary to stabilise and govern the space better and efficiently.This regulatory model, it would be argued, is the fpic principle.The paper is presented in four parts.Part ii traverses the principle of fpic by considering its substance, relevance and position in international law.Part iii re-examines the strides made by South Africa towards achieving the fpic or at least resembling some of its aspects.Part iv considers potential weaknesses and challenges that may impede the implementation of the fpic.But first, in Part i, I set the scene by painting a picture that is necessary to understand some pushback from the extractive corporations and the South African government with regard to the fpic.

Setting the Scene
While the peculiar characteristics of indigenous cultures vary widely across diverse groups and various communities, a common feature tends to be a strong connection with lands and natural resources.I have argued elsewhere that land is the most valuable and critical asset for the continued survival of most (if not all) inhabitants of mine communities and that any deprivation of such land is indignifying and equivalent to a gross human right erosion.16This understanding is gaining a wider acceptance as a point of interest in the contemporary international discourse on and around indigenous communities and their plight of mining related negative impacts.In recent years, demand for mineral resources has significantly increased and, with globalisation and foreign investment drives,17 many extractive companies have expanded their operations into previously unexplored remote lands that are rich in mineral deposits and are often occupied by indigenous communities with informal land rights.18 The extractive sector has a long history of bearing negative impacts on indigenous communities around the world, and not only in South Africa.19 Tomlinson correctly observes that "while the extractive sector can hold an important place in a country's economy, … it is widely acknowledged that the negative environmental and socio-economic impacts on communities residing nearer to extractive projects can be enormous."20This observation is particularly true in the context of South Africa where mine communities are prone to suffering disproportionate and severe impacts of these developments due to their extreme reliance and attachment to their lands, all that against the backdrop of a long history of land dispossessions, marginalisation and discrimination.21Of course this pattern must be challenged and disrupted.Encouragingly, the contemporary discourse on the subject acknowledges a need to recognise indigenous communities' rights including "the right to participate in decision-making and to give their free prior and informed consent throughout each phase of a [mining] project cycle."22However, big financial corporations and international entities such as the World Bank are known for their strong opposition against free prior and informed consent.23 Their reasoning is that they cannot rally behind a mechanism that gives one group a veto power over development.24Instead, they tend to support free, prior and informed consultation process.25 Academic commentators observe that the refusal by these corporations is not surprising at all because the fpic has always been a sticking point for many states such as Australia, Canada, New Zealand and United States, especially during the debates leading to the adoption of the undrip.26These states base their criticism of fpic on the view that the mechanism could easily be construed as a veto power and that giving such a power to a particular subgroup within the society would be entirely antithetical to the State's democratic foundations.27These criticisms are still strongly canvassed even now, and the South African government, through the dmre, seems to joining the ranks of these anti-fpic movement -in principle.For instance, in 2018, the Minister of dmre promised to appeal a High Court decision28 that found that the dmre could not award a mining right over the land occupied by a certain indigenous Xolobeni community unless the "full and informed consent" of the community had been obtained.29The Minister contends that the judgment takes away from him the awarding of mining rights and gives it to the community.He also contends that the mprda is unjustly subordinated to other statutes.30Whether these contentions hold is yet to be seen from the anticipated appeal decision if the Minister keep his promise to appeal.Nonetheless, strong advocacy persists for mine communities to have a say and control over their communal lands and for mining companies and the State to respect the land rights -formal or informal -of those communities.

Contextualising fpic Principle and the Need for it
This part looks closely at the broader meaning and understanding of fpic.It also explores the relevance and necessity for the fpic -as a potential mechanism of protection for indigenous communities -in the context of extractive sector in South Africa.Finally, the part looks at how this principle is recognised and incorporated in international law.

What does the fpic Entail? (Substance)
In a systematic manner, the fpic entails four interrelated aspects which must always be observed and satisfied to reach an agreement between the parties, i.e., the communities, extractive companies and the State authorities on any intended project affecting the communities.33The first alphabet in fpic stands for the requirement 'free' .This aspect requires that the community's consent must be obtained in a manner that is free from any form of coercion, undue pressure or intimidation from anyone, including the State and private entities.34The second requirement is that the requisite consent of the community must be sought and obtained 'prior' to any development on their land, and that sufficient time is given for adequate consideration by an affected community.35The consent should be sought and freely given before the implementation of any projects that has direct effects on them.The prior obtaining of consent is necessary so that the communities have enough time to run their internal deliberations and decision-making process.36 The third requirement demands that the affected community should be adequately informed about the implications their decision may entail, especially if they agree to the project.This is the aspect of 'informed' in the fpic.It is critical for the communities to be well informed and this is only possible if they are given access to all the necessary information about the proposed development in order for them to make an informed decision.37This would compel the extractive company to fully disclose their planned activities in the manner and language acceptable to the affected community.38 The last element in the fpic is 'consent' which requires that the potentially affected communities have a choice over whether and how their development path should proceed.39Certain consideration that would likely encourage communities to give their consent is if, for instance, there is a clear description of benefits and development opportunities that the project will yield if carried out.

3.2
The Indigenous Communities and the fpic (Relevance and Necessity) Having explained the importance of protecting the informal land rights of mine communities, the next is to contextualise the dynamic concept of fpic, particularly its different elements, and the need for it.The fpic concept is widely endorsed as a mechanism and process capable of being applied in instances where, in the context of this chapter, a mining company seeks to operate and develop land that is used and occupied by a mine community.40 In simple terms, the fpic concept can be defined as a process wherein the indigenous communities affected by planned development projects such as mining are able to exercise their free choice informed by sufficient credible information on whether such projects should occur and -if they do -how, according to their systems of customary decision-making.41 In recent years, there has been a growing movement of indigenous peoples' representative organisations and various United Nations (UN) agencies and non-governmental organisations (ngo s) advocating for fpic to be recognised and endorsed as a fundamental procedural requirement to protect the rights and interests of indigenous peoples.42This much-needed protection of right and interests relates to industrial projects and their collateral negative impact on indigenous communities, especially the extractive sector projects taking place in their lands.43 Due to globalisation and given the increase in global demand for mineral resources, many countries including South Africa have opened access to their mining industries to both local extractive business enterprises and foreign investments.44 As observed by Mostert and Mathiba, the exploration and extraction of mineral resources have in the recent past tended to expand significantly into remote lands occupied by indigenous communities.45 The land rights of these communities are often not recognised in law as they are informal and unregistered, resulting in the local and transnational extractive corporations undermining them and not even soliciting their say on decision-making processes towards these planned developments.46 In doing so, Mostert and Mathiba argues further that the indigenous communities tend to suffer enormous and disproportionate impact by these developments and projects -disrupting their social, cultural and physical ties,47 as well as attachment to their lands and resources.48This far-reaching impact also negatively affects the communities' economic activities, livelihoods, culture and ancestral territories.For South Africa in particular, this growing trend exacerbates the devastating legacy of a long history of land dispossessions, marginalisation of black majority and racial discrimination on access to and ownership of land by black people.49 Given the far-reaching impact of these developments on indigenous communities, there has been a global movement commanding international law to devise protection measures for indigenous people's rights and give them the power to participate in and influence the decisions regarding those projects.50These global efforts have culminated into the fpic.51This principle ensures the protection of indigenous communities against exploitation by affording them an opportunity and right to have a say on developments that affect their lands and determine their own growth and development.52The Working Group on Indigenous Populations views the fpic as a tool that "recognizes indigenous peoples' inherent and prior rights to their lands and resources and respects their legitimate authority to require that third parties enter into an equal and respectful relationship with them based on the principle of informed consent.Procedurally, free, prior and informed consent requires processes that allow and support meaningful choices by indigenous peoples about their development path".53In this way, the fpic is not just a once-and-for-all moment of decision-making, "but an iterative process that is meant to help create a climate of trust and respect between indigenous peoples and states."54

3.3
Recognition of fpic in International (Soft) Law Over the past decades, the fpic principle has gained notable traction and recognition in international law.The first international law instrument dealing with the rights of indigenous communities is the International Labour Organisation's (ilo) Convention 107 of 1957.55This instrument was later replaced by the ilo Convention 169 on Indigenous and Tribal Peoples, adopted in 1989 (ilo 169).56According to Rombouts, the replacement of ilo 170 with ilo 169 signalled a significant shift in legal and political perspective about indigenous people and their vested rights.57Some have observed that this shift was possible because the indigenous people and communities themselves had found effective means and ways of asserting their interests and making their voices heard in the international arena.58 The ilo 169 is a binding treaty that imposes an obligation on the states to consult and engage with the concerned indigenous people and communities "through appropriate procedures" and "through their representative institutions [such as their legitimate tribal authorities] whenever consideration is being given to legislative or administrative measures which may affect them directly."59The envisaged consultation and engagement with the indigenous communities must be carried out in good faith and in the manner suitable to the prevailing circumstances with a view to achieve an agreement and obtain consent.60What particularly stands out in this instrument is the provision that gives the indigenous communities the definitive powers "to decide their own priorities for the process of development as it affects … the lands they occupy or otherwise use …" 61 Mining can be such development.Thus, pursuant to mining activities, the ilo 169 provides for a compulsory consultation process in relation to the use or intended use of natural resources found on the lands traditionally owned by indigenous communities.62This obligation vests on the State, meaning that an aggrieved indigenous community can approach a competent court to enforce this provision if the State fails to fulfil it.While -as per the wording in Article 6(2) -the ilo 169 requires the states to consult with an aim of obtaining consent, it would appear that obtaining such consent is not a strict requirement for State to act.63 In other words, it would be enough for the states to simply establish that consultation process was undertaken, even when it did not lead to desired consent.Similarly, Iseli correctly observes that "the obligation stated in ilo … 169 can be classified as an obligation to free and prior consultation, but not as an obligation to obtain free, prior and informed consent."64In this way, the ilo 169 offers a minimal protection of indigenous communities' rights, especially to their traditionally owned lands.
All these developments heralded the remarkable adoption of the UN Declaration on the Rights of Indigenous Peoples (undrip) in 2007.65 Though it constitutes soft law, the undrip is arguably the most robust international instrument that affirms in no unclear terms the rights and interests of indigenous people and communities.66Among others, the instrument outlines the States' positive obligation to respect the rights of indigenous people.These rights include the right to participate in decision-making processes in all matters that affects them; their right to practice their own culture and customs; their right to land, territories and resources which they have traditionally owned, occupied and used.67Essentially, this provision requires the states to recognise that indigenous communities also have sort of sphere of governance which must be respected by other actors.68Article 32(2) is particularly relevant to this paper for it links the fpic with mining.It requires the states to consult in good faith with the affected indigenous communities through their legitimate representative structures "in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources."69It is argued that these provisions are good standards that must influence the South African policy response to the chronic problem of mining-induced displacements that continue to undermine the indigenous communities' access to and use of their traditionally owned lands.
As for the fpic elements, they can be sourced from Article 19 of the undrip which requires that before adopting and implementing any legislative and/ or administrative programme that could potentially affect the indigenous communities, the State must first consult with them and obtain their free and informed consent.Over the years, this provision has sparked intense debates on whether the fpic confers veto power on indigenous communities, especially in the context of mining.Does it?According to Anaya -former Special Rapporteur on Indigenous Peoples -it does not.70Instead, Anaya contends further, the fpic must be viewed as a genuine process of acquiring the indigenous community's consent as per the objective of consultation with them.71I find this interpretation confusing and somewhat contradictory.My main contention is that while the fpic may not necessarily be portrayed and understood as a veto-bearing right in international law, there are some compelling instances where it does and should actually be viewed as a veto right, and the displacement of affected communities for mining developments is one of those compelling instances.
To this end, the fpic has enjoyed great traction in international law.The playing field is way beyond the question of whether the fpic should be applied in the context of mining sector and is now fixated with the question of how the fpic should be applied and operationalised in this context.72However, one must admit that there is still lack of consensus on what consent should mean and imply in practice.Given these sticking issues, some scholars correctly observes that it is understandable why most jurisdictions have not yet fully implemented the fpic into their domestic legal frameworks.73 One must accept that this may be a common problem facing the many states, including South Africa.

How Far Has South Africa Fared Towards the Desired fpic?
Within the broader South African policy framework, the legal basis for recognising and protecting the rights of indigenous communities can be inferred from few constitutional and legislative provisions.Though it does not expressly refer to 'indigenous people' or 'indigenous communities' , the Constitution of the Republic of South Africa, 1996 is praised for its egalitarianism that can be seen through how it "protect[s] the weak, the marginalised, the socially outcast, and the victims of prejudice and stereotyping."74It guarantees everyone -including indigenous mine communities -the protection of several fundamental human rights and freedoms.However, two provisions are of great interest for present purposes, since they contain the rights that are immediately triggered at the instance of mining-induced displacements.
The first is section 25(1) which guarantees everyone their right to property that must not be violated by means of arbitrary deprivation.This extends to the rights of indigenous communities over their lands and territories which they own or traditionally occupy and use.The other provision is section 26(3) which prohibits unlawful eviction from one's home or demotion of one's home without an order of court having been granted after considering all the relevant circumstances.
Apart from the Constitution, there are two critical statutes that relate to fpic in the context of mining and displacements.The first is the Interim Protection of Informal Land Rights Act (ipilra),75 which regulates tenure security of people who occupy and use land under customary law.As the name suggests, ipilra was passed as an interim legal measure over two decades ago, and a permanent statute is not yet adopted.76ipilra requires that no person with certain informal right to or interest in land may be deprived of such rights and interests without first obtaining their consent.77The correct interpretation of this provision is that consent must be treated as a precondition to prospecting or mining operations.The second statute is the Mineral and Petroleum Resources Management Act (mprda),78 which requires that interested and affected parties be consulted regarding any proposed mining developments on their land.79The mprda does not mention consent, but consultation.It would therefore appear that these two statutes provide for two different and somewhat conflicting standards, one just consultation and the other consent.The latter requires a little bit more than the former in terms of substance, as it will be shown.While the mine community rights defenders would strongly argue for consent (which is free, prior and informed), the government through dmre tend to argue for mere consultation which may not necessarily result into consent.80At the level of legal framework, this tension is much alive with no definitive answers.
However, the South African courts have been instrumental in developing guiding jurisprudence on the required standard to be observed by mining companies and government when dealing with mine communities.The jurisprudence, as will be demonstrated by way of case analysis, seems to be leaning more on the side of consent (which is free, prior and informed) that is arrived at through consultations, essentially resembling the undrip standard.81There are many, but two of the most recent important judgments82 that demonstrate exactly this position are that of Baleni and Maledu v Itereleng Bakgatla Mineral Resources.83 The subsequent paragraphs briefly analyses these judgments.

Baleni Decision: Consultation and Prior Informed Consent
In Baleni, the High Court had to determine whether it is informed consent of the affected community (in terms of the ipilra)84 or simply consultation with them (in terms of the mprda)85 that was required for the purposes of granting a mining right.Perhaps to put it in its own words, the court ruled on "who gets to decide whether mining activities can take place on [an] area -the community … or the [mining company?]".86The court also had to consider the relationship between ipilra and mprda.The applicants were informal land rights holders of the Xolobeni community and the dmre i.e. respondent, had granted a mining right to a certain company over the land which the community used and occupied for centuries as per their law and customs.87For this reason, the community's consent in terms of section 2(1) of ipilra was triggered.88In the subsequent developments, the community objected to mining operations on its communal land used and occupied an extended period of time.89The primary contention of the community was that not only were they not consulted, but also that their informed consent was not secured prior to the awarding of the mining right and, for that reason, no mining activity could occur on their land.90 In contrast, the mining company had two main points to contend.Firstly, it countered the applicants' case that the community did not have the right to dictate their mining enterprises through consent.91 The dmre supported this argument.Further, the mining company's submission was that the only requirement they had was to consult with the applicants, the obligation they claim to have fulfilled when they consulted only the traditional leader and those closer to him.92For this, the company argued that it had satisfied consultation requirement necessary for it to be awarded a mining right.93 The second contention was that the mprda should trump over the ipilra in application and as such, in terms of mprda, no owner or any other person can have a right to refuse consent to mining.94 In making its determination, the court ruled considerably in favour of the mine community with all the declaratory orders being granted as sought.Further, the court cautioned and expressed concern that not only Xolobeni, but many other traditional communities countrywide continue to be at loggerheads with mining companies and the dmre.95 The court affirmed three significant points, namely that: Xolobeni was a 'community' as defined by ipilra96 and thus, secondly, it was the lawful landowner and occupier with the rights and interests in land protectable under ipilra against; thirdly, the imminent deprivation that was to result from the activities of the mining company.97Furthermore, the court found that the dmre acted unlawfully by awarding the mining right to the company without having obtained prior consent of the community.98 The court also confirmed that in terms of ipilra, the dmre had an obligation to obtain full and informed consent from the community before it could award a mining right.99As for relationship between ipilra and mprda, the court ruled that "[t]he mprda and ipilra must be read together".100Effectively, this interpretation implies that both statutes are applicable despite serving different purposes, i.e., mprda seeking merely consultation and ipilra seeking consent.The court clarified the binary and held that "[consultation] contemplates an agreement whilst [consent] envisages a process of consensus seeking that may not necessarily result in an agreement".101Thus, the parties may fail to agree insofar as obtaining consent is concerned and, in the spirit of this judgment, that should be the end of inquiry.

Maledu Decision: Consultation and Informed Consent
Maledu is a Constitutional Court decision that confirmed Baleni judgment exactly a year later.Similarly to Baleni, the applicants were members of the Lesetlheng community who described themselves as the rightful owners, occupiers102 and holders of informal land rights103 over the Wigelspruit farm in Rustenburg district.104 The respondents were Itereleng Bakgatla Mineral Resources and Pilanesberg Platinum Mines105 whom had mineral rights106 over the platinum found in Wigelspruit.107 The applicants approached the Constitutional Court seeking an order overturning a High Court judgment which evicted them from the farm and further interdicted them from entering the farm or grazing their livestock.108The applicants argued that their forebears, who lived in Lesetlheng, had bought the farm in 1919.109However, due to the past racially discriminatory laws, the forebears were unable to get the farm transferred and registered on their names as joint owners.110As such, the farm was then transferred to the Minister of Rural Development and Land Reform who holds the farm in trust for the Bakgatla-ba-Kgafela community,111 and not Lesetlheng because it was not recognised as an autonomous entity.112This was never an issue.113The applicants had erected building structures on the farm, for their own occupation and that of their workers.114Crop and stock farming was their source of livelihood.115In 2004, the first respondent was awarded a prospecting right and later a mining right over the farm in 2008.116 In 2014, the respondents launched the preparations for the full-scale mining operations on the farm.117The operations had already started to interfere with the undisturbed occupation and enjoyment of the farm by the community.118 Aggrieved by this interference, the applicants obtained a spoliation order119 against the respondents.120Subsequently, the respondents approached the High Court seeking an eviction and restraint order against the applicants.121The respondents were hellbent that their operations should proceed since they had consulted with affected and interested parties at the time when they were applying for their mineral right over the farm.122The applicants' case was that they are the rightful owners of the farm and were neither consulted in terms of the mprda nor consented to being deprived of their farm in terms of ipilra.123For that -they argued -their rights over the farm were under an unlawful attack by the respondents.124The applicants also argued that the mining right of the respondents was invalid due to non-compliance with the zoning laws of the local authority.125The High Court rejected all these arguments reasoning that the applicants are not the owners of the farm and thus the respondent had no obligation to consult them, and that a challenge to the respondents' mining right, if at all, should be brought as a review application.126 The matter was escalated to the Constitutional Court that ruled in favour of the applicants and overturned the eviction and restraint order of the High Court.127On the issue of who the rightful owner of the farm was, the Constitutional Court held that it would have been premature for it to determine the issue because the same determination was pending before another forum in terms of the Land Titles Adjustment Act.128On whether the respondents were duty bound to exhaust section 54(1) internal process before 118 Ibid. 119 This is a remedy at the disposal of the owner to restore lost possession of a movable, immovable, corporeal or incorporeal property, in instances where possession has been unlawfully deprived.A spoliation application is often brought on an urgent basis where the owner would need to aver, on a preponderance of probabilities, that a) they were in peaceful and undisturbed possession of the property; and b) the respondent unlawfully deprived them of possession approaching the High Court, the Constitutional Court ruled that they indeed were duty bound.129The court ruled further that section 54(1) is invocable when occupation is lawful and the court was convinced that this requirement was met by the applicants on the basis of their informal customary land rights on the farm.130In strong terms, the court held that "[t]he existence of a mineral right does not itself extinguish the rights of a landowner or any other occupier of the land in question."131 The court also ruled that the awarding of a mineral right constituted a deprivation of informal rights to land in terms of ipilra.132For this reason, the consent requirement was triggered.133The court also touched on how to interpret ipilra and mprda in cases of a conflict, and it held that "the mprda must be read, insofar as possible, in consonance with ipilra … There is no conflict between these two statutes; each statute must be read in a manner that permits each to serve their underlying purpose."134In supporting this point, the court followed the approach adopted in Maccsand,135 where the mprda was read in the manner that did not subordinate other applicable statutory provisions.136 The essence of this interpretive approach is mainly aimed at protecting the informal land rights of a customary community through their right to provide (or refuse) their free, prior informed consent.137In this way, the judgment presupposes that the requirements imposed by both the mprda and ipilra had to be fulfilled before the respondents could claim the right to evict the Lesetlheng community from its supposed farm.The judgment further presupposes that the consent requirement under ipilra still had to be obtained over and above the consultation requirement under the mprda.138Finally, as the debate on how to implement the fpic is boiling, few issues have been emerging and are discussed in various spaces, and the next part is an attempt at dealing with those.The Bottlenecks Confronting the Operationalisation of fpic Desirable as it may be, the translation of the fpic principle into practice is not without its own challenges.While the principle is not fully integrated into South African law, it is anticipated that such integration may have to navigate through a number of implementation challenges before it can succeed.Based on own observation, one of the most noticeable sticking points on the subject especially in the South African context is the power imbalance that is involved.The engagements undertaken within the realm of fpic-like process are more often characterised by a stark imbalance of power among the involved parties.139The mining companies would often enjoy abundance of economic and financial resources that enable them access to best technical and legal support against -on the other hand -poor, remote and marginalised mineaffected communities that are often not affording the same kind of services.140Fortunately, there is a strong presence of public-interest litigation in South Africa where these communities get quality legal representation from nongovernmental organisations and public interest groups on pro bono basis.141The negative implication of this persisting power imbalances is that it erodes equal bargaining powers, thus rendering the negotiations vulnerable to being dominated by and skewed on the side of mining companies.Further, it could even result in an undue influence over how the rules around consent are to be crafted and implemented.142This is where McBarnett and Whelan's theory resonate even more, that power dynamics play a critical role in shaping how public rules are implemented in practice.143 Drawing from literature and experience, Tomlinson identifies other sticking points.Framed as a question, the first critical point asks: is it the mining company or the State that has to seek consent?144Here there is a sense that such is the duty and responsibility of the State and not the mining company, 21 given the political nature of such a dialogue.145In South Africa particularly, where the State seem to be failing to adequately protect the rights and interests of indigenous mine communities, there is an expectation that it is the mining companies that must close the gap and seek consent directly from the communities.In fact, the state has delegated this duty to mining companies seeking mining rights.However, the State remains responsible to put measures in place to oversee the negotiation process with a view of, among others, mitigating any existing power imbalances in the process.But this is not always attained on the ground.My view is that the State must not be actively involved in the process and, instead, should simply play a regulatory role.In other words, the discussions around consent must take place between the affected community and the mining company.If the negotiations do not result in the company obtaining consent (because the community had said 'no'), then that should be the end of it and the company may have to withdraw from the project.This is a challenging position for the industry, unfortunately.
However, as for the State, the refusal of consent by the community may not necessarily mean the end of everything.The Constitution empowers the State to expropriate private property for public purpose or public interest and subject to the payment of fair and equitable compensation.146Further, the Constitution and the relevant legislative scheme147 also empower the State to transfer the expropriated property to third parties (which could be a private mining company) provided such transfer is in the public interest for the purposes of economic development.Previously, the South African courts have considered factors such as creation of employment opportunities;148 increased revenue and other "strategic economic advantages"149 as indicative of economic development that may justify an expropriation involving a third party transfer.These are of course obvious benefits that can be derived from a mining development.However, one must qualify this argument that it may not be that easy to establish these in practice.In fact, some commentators have cautioned that the courts must apply a stricter scrutiny whenever they are called upon to determine the legitimacy of expropriations that involve third party transfers for economic development.150 The other sticking point as identified by Tomlinson involves the question of who has the necessary standing and legitimacy to give or withhold the consent on behalf of and in the name of a particular indigenous community?151This problem manifests in instances where there are unresolved internal political issues around representation within a particular mine community.The international law position in this regard is that the indigenous communities must be able to decide through their legitimate representative structures -and in accordance with their customary law decision-making processes -without undue influence from the State, mining company or any other entity.152However, it may turn out that there is an internal disagreement among the community members or between the community and its traditional leadership on whether to give or refuse consent -quite an established trend in South Africa.153 The difficulty with these instances lies in the question of whose consent is legitimate and who gets to decide whether a project goes ahead when community members are divided.This practical dilemma can be avoided through putting into place some rules such as some sort of threshold for consent i.e., whether it should be the consent of majority community members or the whole community.These questions may be hard to answer in the abstract because they are often context specific.

Concluding Remarks
In this paper, I have sought to explore the fpic principle as the raison d'être, its significance and relevance within the specific context of South Africa, and the strides made in law and case law by the country towards achieving the fpiclike standard in matters involving mine community rights in the extractive sector.The paper contend that fpic principle is a desirable regulatory model for the better management of interactions between mine communities and mining corporations.However, the paper has also highlighted some of the key

and similarly that of Maledu v Itereleng Bakgatla Mineral Resources.32 These cases are analysed in detail in Part iii.
Two most recent examples of these in South Africa are the cases of Baleni v Minister of Mineral Resources,31 where the mine communities rejected the mining development in their communal land, 10.1163/15718115-bja10124 | mathiba International Journal on Minority and Group Rights (2023) 1-23 Downloaded from Brill.com 11/11/2023 10:42:50AM via Open Access.This is an open access article distributed under the terms of the CC BY 4.0 license.https://creativecommons.org/licenses/by/4.0/ Downloaded from Brill.com 11/11/2023 10:42:50AM via Open Access.This is an open access article distributed under the terms of the CC BY 4.0 license.https://creativecommons.org/licenses/by/4.0/