Mineral Rights Research Articles

The power to declare a prohibition or restriction on prospecting or mining to protect the environment: a critical assessment of section 49 of the Mineral and Petroleum Resources Development Act 28 of 2002 and section 24(2A) of the National Environmental Management Act 107 of 1998

Section 24 of the Constitution of the Republic of South Africa provides that everyone has the right to have the environment protected for the benefit of present and future generations. To give effect to this right, the South African Parliament has promulgated section 49 of the Mineral and Petroleum Resources Development Act 28 of 2002 and section 24(2A) of the National Environmental Management Act 107 of 1998, which collectively bestow upon the Minister of Mineral Resources and the Minister of Environmental Affairs respectively, the powers to declare a prohibition or restriction on prospecting or mining rights. Consequently, this article assesses whether these two provisions comply with the constitutional mandate to protect the environment. In essence, this paper contends that these twin provisions countenance further destruction of the environment in contravention of the constitutional mandate to protect the environment.

Case-Based Model for Evaluating Coal Resources Mining Rights Under Mahalanobis Distance

Coal resources still play a significant role in the evolution of China’s energy structure in the long term. A set of scientific and reasonable evaluation models for coal resources mining rights (CRMR) is the guarantee to optimally develop and utilize Chinese coal resources. Artificial intelligence technology can increase the accuracy and efficiency of asset evaluation. Case-based reasoning (CBR) is the important component of artificial intelligence technology. Case similarity is critical to the CBR. Mahalanobis distance formula can describe properly case similarity when attribute strength function is unknown. Firstly, this paper reveals the mechanism of evaluating CRMR, and defines some important concepts such as attribute index, attribute strength function, underlying asset, case assets, and case similarity; secondly, a case-based model and a real option model for evaluating CRMR were set up. In addition, a real case of CRMR was used to study the application of case-based model and a real option model for evaluating CRMR. Comparing the differences among real option model for evaluating CRMR, the real option model, and net present value model, the results indicate that the price got by using the case-based model for evaluating CRMR is very close to the final bargain price, and case-based model for evaluating CRMR can raise the accuracy of CRMR evaluation.

A Fracking Mess: Just Compensation for Regulatory Takings of Oil and Gas Property Rights

A Fracking Mess: Just Compensation for Regulatory Takings of Oil and Gas Property Rights

Study on Resources Assessment of Coal Seams covered by Long-Distance Oil & Gas Pipelines

The assessment of mineral resources covered by construction projects plays an important role in reducing the overlaying of important mineral resources and ensuring the smooth implementation of construction projects. To take a planned long-distance gas pipeline as an example, the assessment method and principles for coal resources covered by linear projects are introduced. The areas covered by multiple coal seams are determined according to the linear projection method, and the resources covered by pipelines directly and indirectly are estimated by using area segmentation method on the basis of original blocks. The research results can provide references for route optimization of projects and compensation for mining right..

Split Estate and Wyoming’s Orphaned Well Crisis: The Case of Coalbed Methane Reclamation in the Powder River Basin, Wyoming

This case presents the stakeholder conflicts that emerge during the development and subsequent reclamation of abandoned natural gas wells in Wyoming where split estate, or the separation of surface land and mineral rights from one another, occurs. From 1998 to 2008, the Powder River Basin of northeastern Wyoming experienced an energy boom as a result of technological innovation that enabled the extraction of coalbed methane (CBM). The boom resulted in over 16,000 wells being drilled in this 20,000 square-mile region in a single decade. As of May 2017, 4,149 natural gas wells now sit orphaned in Wyoming as a result of industry bankruptcy and abandonment. The current orphaned wells crisis was partially enabled by the patchwork of surface and mineral ownership in Wyoming that is a result of a legal condition referred to as split estate. As the CBM boom unfolded in this landscape and then began to wane, challenges emerged most notably surrounding stalled reclamation activities. This case illuminates these challenges highlighting two instances when split estate contributed to issues between landowners and industry operators which escalated to litigation.

Large scale miners - Communities partnerships: A plausible option for communities survival beyond mine closure

A sound relationship between Large Scale Mining/Miners (LSMs) and communities is key to a successful and mutually beneficial mining venture. This relationship has to be carefully managed to ensure a conducive operating environment. Merely sticking to the dictates of a government issued mining licence by LSMs and not facing reality on the ground may spark stiff resistance from the communities on which the mining company has to operate. Two competing priorities have to be balanced - the LSM, having a mining licence, argue that they have a legal right from the government to mine while the community, which have stayed on the mining area for generations, claim the area as their birth right and believe they inherently have the mining right. A well-coordinated consultative approach and cooperation with communities is vitally important in breaking this impasse.Community empowerment is one of the central themes discussed in the paper. The mining companies need to leave a lasting positive legacy for the communities so that they can sustain life well beyond mine closure. The mineral resource capital needs to be converted to other capitals on which the community can thrive well beyond mine closure. The paper discusses different strategies which can be adopted to ensure productive partnerships between LSMs and the communities to realise the lasting positive legacy. The strategies include: investment in education, which may lead to employment in other sectors of the economy, establishment of survival community projects, investment in adequately managed community trusts, designation of areas amenable to Artisanal and Small Scale Mining (ASM), attainment of social licence to operate, procurement of labour from the communities wherever possible and strategic accommodation planning to avert ghost towns among others.Four compelling case studies are used to give impetus to the arguments expressed in the paper. These include the partnerships of the following LSMs with communities in their mining areas: Royal Bafokeng Holdings and the Roya Bafokeng Nation in South Africa, Zimbabwe Platinum Mines (Zimplats) and Mhondoro Ngezi, Chegutu and Zvimba communities in Zimbabwe, Anglo Gold Mining Company and Sadiola in Mali as well as Ghana Consolidated Diamonds and Akwatia in Ghana.

The use of biodiversity offsets in mining and energy development

This article first reviews the nature of biodiversity offsets and their use in selected jurisdictions, including the UK, US, Canada and Australia. The unique approach to biodiversity offsets in New Zealand under the Resource Management Act 1991 (RMA) is then examined in detail, including judicial consideration and analysis of the concept in several recent decisions. The RMA is the primary legislation governing the protection of the environment and the use of land, air and water resources in New Zealand, guided by the principle of 'sustainable management'. The Crown Minerals Act 1991 (CMA) governs the allocation of mining rights and access to minerals over private and Crown land. Opportunities for offsets through the mineral permitting and resource consenting regime is discussed, and mining and energy development case studies are used to illustrate the use of biodiversity offsets in practice. The article also examines the value of national policy guidance in the design of biodiversity offsets, the use of conservation covenants to ensure durability of offset arrangements, and the idea of 'conservation banking' to facilitate and encourage industry 'buy-in'. Conclusions and recommendations are made, which hopefully may inform and advance the debate on the use of biodiversity offsets in other jurisdictions.

Application of 3D Laser Scanning Technology in Inspection and Dynamic Reserves Detection of Open-Pit Mine

The traditional open-pit mine mining rights verification and dynamic reserve detection means rely on the total station and RTK to collect the results of the turning point coordinates of mining surface contours. It resulted in obtaining the results of low precision and large error in the means that is limited by the traditional measurement equipment accuracy and measurement methods. The three-dimensional scanning technology can obtain the three-dimensional coordinate data of the surface of the measured object in a large area at high resolution. This paper expounds the commonly used application of 3D scanning technology in the inspection and dynamic reserve detection of open mine mining rights.

What is behind the search for social acceptability of mining projects? Political economy and legal perspectives on Canadian mineral extraction

From the dual disciplinary perspective of law and political economy, this papers draws on a select literature to identify (1) two characteristics of Canadian mining rights and regulations which may generate social dissatisfaction, (2) the two main techniques currently implemented in order to answer social demands, including those of indigenous peoples and communities, and (3) three important governance “transformations” emerging from these phenomena. It concludes with a number of lessons. In spite of the ongoing and recent efforts to reform the mining regime in certain provinces or territories, mining rights and regulations in Canada are still based on the free mining principle where mining is paramount to any other activity, be it social or economic. Efforts to respond to dissatisfaction over extraction projects and social demand for changes have focused on strengthening negotiated local economic benefits and a quest for local support in order to ensure the social acceptability of projects in the sector. These phenomena lead to three major ongoing governance transformations: the regulatory stalemate in spite of the need for reform, ongoing shifts in multi-level governance, and the devolution of responsibilities to the private sector. In the context of the stronghold of the free mining principle and negotiated agreements, the focus on social acceptability takes for granted or even reinforces the withdrawal and selective absence of public authorities and overlooks their possible roles and responsibilities.

KELEMBAGAAN PENGELOLA MINYAK DAN GAS BUMI PASCA PUTUSAN MAHKAMAH KONSTITUSI (STUDI PUTUSAN MAHKAMAH KONSTITUSI NOMOR 36/PUU-X/2012)

BP Migas the kind of reform agenda from institutional manager oil and gas which is the part of Undang-Undang Nomor 22 Tahun 2001. BP Migas is institusional manager of oil and gas that formed to become the government representation as mining rights to controlling and supervising exploration and exploitation oil and gas that formerly held by pertamina. Politiekrecht establishment BP Migas is to avoiding conflict of interest if the regulation function and business has been place in the same institutional like the old Pertamina, so doing the separation institutional which do the function of regulation and business. The existancy of BP Migas impact to the mining rights which is the part of the authority of state control become obscuur ,because the fifth function that constructed by Constitutional Court by doing interpretation to section 33 act (2) dan (3) UUD NRI Tahun 1945 can’t through all and gradual. Through Constitutional Court decision No 36/PUU-X/2012 all the section which have related with BP Migas are unconstitutional. BP Migas should be dissolved and government from the regulation function should control the new institutionals function and authority. With the dissolution of BP Migas the government would establish similar function and authority institutional which named SKK Migas .With the present SKK Migas, so all the mining rights problems become interested to be re-examined.

Enhancing the assessment of critical resource use at the country level with the SCARCE method – Case study of Germany

The demand for many resources has increased significantly over the last decades due to their growing importance for industrial and technological development. Thus, various methods were developed to assess availability constraints of resources in relation to their vulnerability within countries and/or sectors (criticality). However, these methods display several short-comings. Thus, the aim of the introduced approach is, to enhance the assessment of critical resource use on country level with the SCARCE method, by considering the two dimensions criticality (with the sub dimensions availability and vulnerability) and societal acceptance (with the sub dimensions compliance with social standards and compliance with environmental standards). For five of the 12 introduced categories measuring availability constraints the country specific import mix is used to determine availability constraints of resources individually for the country under consideration. These results can further be compared with global constraints (which are calculated based on global production data) to determine if the country under consideration performs worse or better than the global average. To measure social aspects the categories small scale mining, geopolitical risk and human rights abuse are introduced. Environmental aspects are considered within the categories sensitivity of the local biodiversity, climate change and water scarcity. Additionally, next to metals also fossil fuels are included allowing a direct comparison of both abiotic resources. The SCARCE method is applied for the case study of Germany for which criticality results are presented and their plausibility is validated. It is shown that for Germany tungsten is the raw material showing high risks in all considered dimensions excluding the sub dimension vulnerability. Its high availability constraints are defined by the categories political stability, primary material use and price fluctuations. Further, due to the countries tungsten is imported from (e.g. Bolivia), its compliance with social and environmental standards is low. To enhance the applicability of the SCARCE method, indicator results are provided for 40 resources to assess their availability constraints as well as their compliance with social and environmental standards.

The Geopolitics of the ‘Future Return’: Britain's Century-Long Challenges to Norway's Control over the Spitsbergen Archipelago

ABSTRACTWithin the context of Arctic geopolitics, the article focuses on British policies toward Spitsbergen or Svalbard over the past century. The 1920 Spitsbergen Treaty accorded Norway sovereignty over the archipelago, but it gave other signatories, including Britain, non-discriminatory access to its natural resources. It is argued that while geopolitical interests have played a role in Britain's policy-making, its main rationale has been a determination to use international law to protect pre-existing mining rights and potential future oil rights in the Svalbard area. Apart from Russia, Britain has been most active in challenging Norway's interpretation of its sovereign rights, especially the view about the treaty's non-applicability to Exclusive Economic Zones and continental shelves. It is shown that the Britain's economic focus was tempered during the Cold War by the need for Western solidarity and for supporting Norway's resistance to Soviet Spitsbergen claims. But having been instrumental in watering down Norway's sovereignty provisions in the negotiations on the Spitsbergen Treaty, Britain has never been prepared to abandon its interpretation of the treaty's stipulations on natural resources and equal access to the archipelago's maritime areas.

DAMPAK PERTAMBANGAN TERHADAP LINGKUNGAN HIDUP DI KALIMANTAN SELATAN DAN IMPLIKASINYA BAGI HAK-HAK WARGA NEGARA

The legal issues in this paper is about the mining activities increasingly uncontrollable that cause various effects for society and the life around of mine, including: environmental demage, high of pollution (soil, water and air) and resulting in disruption to the wide of society such as damage of houses and public facilities, mainly by the action of blasting dynamite to open the mine site. Disruption aspects of community life, when the viewed of side of Human Rights, which is mainly related to economic rights, social and cultural, surely very related to the impact of this coal mining. Because of human rights involve aspects the right of life and good life, safe and healthy which is the right to a good environment, healthy and regulated in the laws of the republic Indonesia of 1945. Keywords: Mining, Environment, Environmental Damage and Human Rights

Maccsand (Pty) Ltd v City of Cape Town 2012 (4) SA 181 (CC)

The Constitutional Court in Maccsand (Pty) Ltd v City of Cape Town (CCT 103/11) 2012 ZACC 7 decided that the granting of mining rights or mining permits by the Minister of Mineral Resources in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 does not obviate the obligation on an applicant to obtain authorisations in terms of other legislation that deals with functional domains other than minerals, mining and prospecting. This applies to all other legislation, irrespective of whether the responsible administrator of such other legislation is in the national, provincial or local sphere of government. The effect of the decision is that planning and other authorities which derive their statutory mandate and powers from other legislation retain all their powers as regards planning and rezoning, for instance. In addition, the Minister of Mineral Resources cannot make a decision on behalf of, or for, such functionaries. The judgement also clarified the question of whether or not a national Act can supersede provincial legislation dealing with a distinctly different functional domain. In principle, the decision also indicates that the fact that a range of authorisations are required in terms of separate statutory instruments (each with its own functional domain and administered by its own functionary) does not necessarily amount to conflicts between these instruments. An owner of land may now insist that his land may not be used for mining purposes if it is not zoned for such purposes. It is submitted that, in order to provide certainty to land owners, developers and government functionaries, and to promote investor confidence (especially in the mining sector), an intergovernmental system for the consideration of applications by the functionaries responsible for the separate statutory instruments needs to be developed as a high priority.
 

Percepção da população acerca das soluções propostas pelo Estado para conflitos socioambientais de minas subterrâneas de carvão em Criciúma - SC

Conflicts are inherent to the human being and when they involve environmental issues multiple stakeholders with conflicting but legitimate interests are involved. This article sought to answer: What is the perception of surface owners as to the actions taken by the state in mediating conflicts of negotiations related to environmental damage caused by surface subsidence of old coal mines? The methodological procedures adopted to answer this question involved bibliographical and documentary research and interviews with actors directly or indirectly involved in the conflicts. Today's conflicts stem from the subsidence of underground mines due to the expansion of the city on the mined areas in the past. As buildings and streets spreaded over the land surface, collapses of old mines started occcurring, opposing the interests of landowners and companies holding mining rights, this way generating conflicts. In conclusion, it was observed that, depending on the interests at stake and the bargaining power of the actors, these conflicts have been resolved via lawsuits in the courts or through negotiation between the two major parties involved.

Shellen Xiao Wu. Empires of Coal: Fueling China’s Entry into the Modern World Order, 1860–1920.

When one thinks of the dynamics of China’s industrial expansion over the past several decades, coal is certainly one element of it that readily comes to mind. Coal has been a principal fossil fuel energizing China’s growth in national and personal incomes, as well as a source of profound environmental degradation. In Empires of Coal: Fueling China’s Entry into the Modern World Order, 1860–1920, Shellen Xiao Wu asks how coal became king in China. Her fascinating exploration of this question implicates the history of European science, imperialism, scientism, and nationalist discourses. Consistent with recent scholarship that has reassessed the late Qing, Wu argues that the foundations for China’s contemporary “empire of coal” are found in the last decades of the Qing dynasty, when Chinese political and intellectual elites fundamentally changed their views of minerals and resource management as China confronted the mutually supportive powers of Western imperialism and science. Over six chapters, the author arrives at her conclusion that China largely bought into modern global discourses and practices of mining and energy between 1860 and 1920 through successive phases: from the creation of a cultural space for science through the writings and surveys of Ferdinand von Richthofen and translations of Western scientific tomes, to the introduction of foreign engineers (principally German) in the late nineteenth century, to mining rights–recovery movements during the last decade of the Qing, and ultimately to Chinese geologists who increasingly viewed geology as a metaphor for national identity and survival. All these stages were essential to the adoption of modern conceptions of resource management and the predilection to interpret the “science” of geography in terms of its productive potential.

This land is your land, maybe: A historical institutionalist analysis for contextualizing split estate conflicts in U.S. unconventional oil and gas development

In the 21st century, the U.S. has experienced a boom in unconventional oil and gas development (UOGD). In part due to advances in technology, this rapid increase in UOGD has moved extraction practices into geographic areas that have previously seen little or no oil and gas development. As a result, conflicts over property rights have erupted—particularly in relation to split estate situations. To understand this controversy, we must situate it in the conditions which have shaped land use and mineral rights. We argue that past federal and state level governance decisions have created the conditions for UOGD conflicts today. Here, we utilize historical institutionalism (HI) to review the historical actors, processes, and institutions that have shaped how mineral rights have developed in the context of split estates in the U.S. We suggest that tracing this legislative and judicial history through HI is an essential foundation for exploring issues related to UOGD. Most importantly, we highlight these processes of governance as a bedrock for understanding spatial inequality inherent in current split estate law that grants the mineral estate dominance over the surface estate. We suggest that this codification of spatial inequality is problematic both in and beyond the context of split estates in UOGD.

Shale gas governance in the United Kingdom and the United States: Opportunities for public participation and the implications for social justice

Questions abound about the appropriate governance systems to manage the risks of unconventional oil and gas development, and the ability for citizens to engage and participate in those systems. In this paper, we map the development of shale gas governance in the US and UK; we highlight the contrasting systems of land ownership and mineral rights, compare the opportunities that these systems of governance present the general public to participate and become involved in shale gas decisions and consider the implications on issues of social justice.We conclude that in both countries, that despite government and industry engagement rhetoric and associated processes, the publics’ influence on shale gas decisions is perceived to be minimal or not at all. We argue that the implications of the observed institutional governance systems, with few opportunities for citizen influence, are developments which inherently lack social justice, procedural fairness, and ultimately, a social license to operate.

Will the Supreme Court Clean Up Takings Law in Murr v. Wisconsin?

This article examines Murr v. Wisconsin, which will be the Supreme Court’s latest addition to its takings jurisprudence for the 2016–17 term. The precise question in the case asks how the “parcel-as-a-whole” test of Penn Central Transportation Co. v. City of New York applies to two contiguous parcels that ended up under common ownership by different routes.The first part of the article argues that under the flawed Penn Central test, the two parcels should be treated as separate because their merger under common ownership did not increase any negative externalities on the protected St. Croix River. A simple mistake in conveyancing, easily avoided, should not wipe out development rights that any other owner could possess over the undeveloped parcel.The second part of this article attacks the dominant Penn Central test that makes the availability of any compensation turn on the ratio of the value taken to the full value of the parcel. The same political considerations that justify a per se compensation rule (subject to a police power exception) in physical cases apply equally in the regulatory context, given that both circumstances present opportunities for majoritarian abuses. The article then examines many of the cases cited in Penn Central, and some decided after it, to support the conclusion that in dealing with partial interests in land, be they air rights, mineral rights, liens, or covenants, the simple rule that sets compensation equal to the fair market value of the property lost outperforms on administrative and welfare grounds the Penn Central test, under which huge private losses are routinely ignored because they do not count as a sufficient diminution in value by a standard that is nowhere either articulated or defended. Penn Central should be overruled or cut down in size.

Characterization of Settleable Dust and Surface Dust Samples from the Old and Abandoned Asbestos Mine Dumps in the Limpopo Province, South Africa

Old and abandoned (D&O) mine dumps refer to the asbestos mine dumps which were operated when environmental management was not regulated in the country and owners of mining rights could no longer be traced. These mine dumps are not being maintained or rehabilitated and the associated impacts are not being mitigated and managed. The aim of this research is to monitor, measure and characterize settleable dust and surface dust samples collected around local communities in the vicinity of old and abandoned asbestos mine dumps. The local standard method for collection and analysis of settleable dust (the South Africa National Dust Control Regulations 827 of 2013) was used in this research. Surface dust samples were collected using standard method in January, April and July 2016. Settleable dust samples were collected from January 2016 to July 2016 around five sampling sites in Limpopo Province. The samples were prepared for analyses. The settleable dust rates are below the residential limit of 600 mg/m2/day. The analytical measurements confirm the presence of silicates, minerals, amphibole and serpentine asbestos minerals. SEM-EDS results tested positive for amphibole and serpentine asbestos minerals. The continued presence of amphibole and serpentine asbestos mineral in Limpopo Province is cause of concern.