CRITICAL MINERALS GOVERNANCE

Introduction

Critical minerals governance concerns the legal and institutional framework governing minerals that are strategically important to energy security, industrial development, digital technologies and the transition to a low-carbon economy. Minerals such as lithium, manganese, cobalt, vanadium, nickel, platinum-group metals and rare-earth elements are increasingly important for batteries, electric vehicles, renewable-energy technologies, grid storage and green hydrogen. South Africa’s Critical Minerals and Metals Strategy 2025 seeks to use the country’s mineral resources to promote industrialisation, beneficiation, employment and resilient supply chains.

South African Legal Framework

The principal statute governing mineral resources is the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA). Section 3 provides that South Africa’s mineral resources are the common heritage of its people and places them under state custodianship. The Act seeks equitable access, sustainable development, transformation and socio-economic development of mining communities.

Mining also operates within the National Environmental Management Act 107 of 1998 (NEMA) framework. A mining-right applicant must obtain the necessary environmental authorisation, demonstrate that unacceptable environmental damage will not occur and provide for a prescribed social and labour plan.

The 2025 Critical Minerals and Metals Strategy adds a strategic-policy layer. Its main priorities include exploration, local beneficiation, investment, localisation, research and innovation, skills development, improved transport and logistics and stronger international cooperation.

Licensing and Security of Supply

Critical-mineral governance begins with transparent allocation of prospecting and mining rights. Government must balance investment certainty against environmental sustainability, equitable access and transformation.

Because critical minerals support energy-transition technologies, governance increasingly includes supply-chain resilience. Governments may encourage geological exploration, domestic processing, recycling, stockpiling and diversification of supply rather than depending entirely on imported processed materials.

South Africa’s policy particularly promotes beneficiation so that minerals are not merely exported as raw commodities but contribute to domestic manufacturing and industrial development.

Environmental and Community Governance

Critical-mineral extraction can produce land degradation, water contamination, biodiversity loss and significant community impacts. Governance therefore requires environmental impact assessment, rehabilitation obligations, financial provisioning and meaningful participation.

Community rights are especially important where mining is proposed on communally occupied or customary land. Mineral security cannot automatically override constitutional, environmental and land rights.

Case Name/Citation: Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd [2010] ZACC 26

Facts: A prospecting right was granted over land owned and occupied by the Bengwenyama community. The community challenged the decision, alleging inadequate consultation and failures in the administrative process.

Legal Issue: Whether the prospecting right had been lawfully granted under the MPRDA.

Judgment: The Constitutional Court found material deficiencies in consultation and administrative fairness and set aside the prospecting right.

Legal Principle/Ratio: Mineral-resource administration must comply with meaningful consultation, procedural fairness and the transformative objectives of the MPRDA.

Significance: Critical-mineral projects cannot rely solely on their strategic economic importance; licensing must respect communities affected by extraction.

Case Name/Citation: Baleni v Minister of Mineral Resources [2018] ZAGPPHC 829

Facts: Members of the Umgungundlovu community challenged proposed titanium mining on land they occupied under customary and informal land rights.

Legal Issue: Whether consultation alone was sufficient before mining rights could affect protected informal land rights.

Judgment: The High Court held that, under the Interim Protection of Informal Land Rights Act, full and informed consent was required before a mining right could deprive the community of those rights.

Legal Principle/Ratio: Where protected informal land rights are involved, mining governance may require consent rather than mere consultation.

Significance: Critical-minerals policy must incorporate community land rights and social legitimacy into project development.

Case Name/Citation: Maccsand (Pty) Ltd v City of Cape Town [2012] ZACC 7

Facts: Maccsand obtained mining rights and permits but sought to mine land whose existing zoning did not permit mining.

Legal Issue: Whether an MPRDA mining right displaced municipal land-use regulation.

Judgment: The Constitutional Court held that the MPRDA and land-use legislation perform different functions and operate alongside one another.

Legal Principle/Ratio: A mining right does not automatically exempt its holder from other applicable legal requirements.

Significance: Critical-mineral projects require integrated compliance across mining, environmental and planning regimes.

Conclusion

Critical minerals governance requires more than securing mineral supply. Effective governance combines transparent licensing, environmental protection, community participation, beneficiation, transformation and supply-chain resilience. South African case law demonstrates that even strategically important mining projects remain subject to administrative fairness, land rights, environmental duties and cooperative regulation.