Governing territory in conditions of legal pluralism: Living law and free, prior, and informed consent (FPIC) in Xolobeni, South Africa

Abstract

This paper illustrates how communities and their customary land rights are marginalized in current mining governance reform legislation in South Africa. The research focuses on the relationship between property, territory, and authority to unpack the dynamics of struggle and the specifics of collective rights-claims in the context of resource extraction. It focuses on the struggle of the Amadiba people (and the Xolobeni community in particular) against a proposal for open cast mining on their land. The findings reveal that reading the advocacy of local communities is one way to interrogate the complex field of power characteristic of mining governance reform and innovation. The research underscores that mining governance reform demands a critical understanding of territorial governance and control and an engagement with the reality of legal and territorial pluralism whereby multiple actors vie for legitimacy and authority. The struggle in Xolobeni reveals that territorial jurisdictions deriving from colonialism must not inform mining governance legislation in South Africa. Rather, community-based and locally-asserted practices of governance and self-determined development, expressed through the right to consent, must inform mining legislation.