27 June 2018 by Dispute Resolution Alert

Mine your own business

Tailing Mineral Resources (TMRs) is a term that often pops up in the mining of historical tailings. What follows are questions pertaining to what TMRs are, whether its residue deposits or stockpiles and is it regulated by the Mineral and Petroleum Resources Development Act, No 28 of 2002, as amended (MPRDA)?

As a starting point, TMRs in the case of Ekapa Minerals (Pty) Ltd and Others v Seekoei and Others (2057/2016) [2017] ZANCHC (Ekapa) have been defined as debris or waste as a result of mining for minerals that is left in dumps or spread on the surface of the property being mined, in an area used as a tailings disposal site, commonly referred to as floors. TMRs consist of both the tailing dumps and the floors. In most instances, the TMRs contain valuable material which was previously not processed and consequently attract further mining activity to recover such mineral remains.

Section 5A of the MPRDA prohibits the unauthorised mining or the commencement of any work incidental thereto of any “mineral” without complying with the requirements as envisaged in the MPRDA. The prohibition in s5A of the MPRDA is defined with reference to “any mineral” meaning that the MPRDA will only regulate the mining of a mineral if such a mineral qualifies as “minerals” for the purpose of the MPRDA. A “mineral” is defined in s1 of the MPRDA to mean: 

Any substance, whether in solid, liquid or gaseous form, occurring naturally in or on the earth or in or under water and which was formed by or subjected to a geological process, and includes sand, stone, rock, gravel, clay, soil and any mineral occurring in residue stockpiles or in residue deposits, but excludes: 

(a) water, other than water taken from land or sea for the extraction of any mineral from such water; 

(b) petroleum; or 

(c) peat.

The definition of a “mineral” in s1 of the MPRDA requires, firstly, that the substance occurs naturally in or on the earth. Secondly, the definition of a “mineral” in s1 of the MPRDA includes any substance that occurs in “residue stockpiles” and in “residue deposits”. “Residue stockpiles” and “residue deposits” have been specifically defined in the MPRDA to mean:

Any debris, discard, tailings, slimes, screening, slurry, waste rock, foundry sand, beneficiation plant waste, ash or any other product derived from or incidental to a mining operation and which is stockpiled, stored or accumulated for potential re-use, or which is disposed of, by the holder of a mining right, mining permit, production right or an old order right.

Thus, only debris, discard, tailings, slimes, screening, slurry, waste rock foundry sand, beneficiation plant waste, ash or any other product which was disposed of by someone who is the holder of a mining right, mining permit, production right or an old order right,will be “residue stockpile” as contemplated in the MPRDA. 

The terms “mining right”, “mining permit” and “production right” are all defined in s1 of the MPRDA to refer to such rights granted in terms of the MPRDA, however, the term “old order right” was inserted with the commencement of the Mineral and Petroleum Development Amendment Act 49 of 2008. An “old order right” is a newly created statutory right that came into existence on 1 May 2004. TMRs that were created before the commencement of the MPRDA, can therefore not fall within the definition of a “residue stockpile” as they were not created by the holder of an “old order right”.

In the Ekapa case it was not disputed that TMRs had come about as a result of over 130 years of open cast mining and that the debris or waste left over was as a result of mining for diamonds left in dumps or spread on the floors of the mining area. The court held that an “old order right” is a newly created statutory right that came into existence on 1 May 2004. TMRs that were created before the commencement of the MPRDA, can therefore not fall within the definition of a “residue stockpile” as they were not created by the holder of an “old order.

By introducing the 2013 MPRDA Bill, the legislature intends to bring TMRs or old tailings created before the commencement of the MPRDA within the ambit of the MPRDA. However, until the MPRDA has been amended, the minerals contained in TMRs and/or old tailings constitute a “mineral” as defined in the MPRDA and these minerals are therefore not subject to the custodianship of the State in terms of the MPRDA.

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