Sundaymail Editor
Thammary Brenda Vhiriri
AS Zimbabwe endeavors to amend the Mines and Minerals Act [Chapter 21:05], it is important that we consider several issues in their context and the need to catch up with the ever evolving mining industry. The first area of analysis is the contentious farmer-miner relationship. There exists a complex relationship between farming and mining, wherein most minerals are found within the heart of arable land. It would appear that there is no legislation that governs the farmer-miner relationship in relation to the competing land use, save for the Mines and Minerals Act. One is tempted to believe that the odds favour the miner.
The current Mines and Minerals Act in most parts refers to private ownership of land as it was drafted to suit the old land tenure system that prevailed at the time it was promulgated. There is, therefore, a need for the amendment to take cognisance of the new land tenure titles and provide the same advantages enjoyed by private land holders.
Is the farmer protected under the current mining law?
There is a requirement under section 38 of the current Act that every person who intends to prospect for minerals must give notice to the land owner or relevant authorities to promote transparency, give room for negotiations and plan for the co-existence strategy. This notification is not mandatory and there is an option for a fine and the failure does not in itself invalidate the pegging.
This might have worked where the farmer owned a vast piece of land and there were minimum inconveniences between the two, as opposed to the current scenario wherein the hectarage has been reduced to the extent that competing land uses and friction is inevitable. Thus, it is desirable to make the requirement to give notice mandatory under our current land tenure system. As a result, those conducting farming under private land, or running forestries will receive direct notification, while notice to those farmers in communal lands will be given to the relevant local authority and not necessarily to the individual to be affected by the mining activities.
Issues to be considered by the new amendment:
◆ To broaden the scope to include the current land tenure titles.
◆ The farmer or occupier to be directly affected in the communal land should be notified.
◆ Make notice mandatory and remove the option of a fine, put in measures to ensure that land owner does not resist notification.
The current Act makes it clear that a miner has no surface rights, and should make temporary structures to shelter themselves and workers. The miner has no right to conduct any activities on the surface save for those related to mining processes. The expectation is that the miner after exhausting the mine, should rehabilitate it and leave the farmer to continue to enjoy their surface rights.
Some people have even gone further to acquire land by mischievously applying for mining licences with no intention to mine, but for the purpose of acquiring land for settlement.
Issues to be considered by the new amendment:
Provide for punitive measures for instance, the use of section 381 of the Act or cancellation of title after two written warnings without an option to appeal.
A farmer whose land is less than 100 hectares held privately or a person authorised to occupy by the owner (this covers the new tenure holders as authorised by the state), within a village or communal land is protected in that a miner should first get express consent to mine. This is a reasonable position considering the size of the land involved. The main cause is the use of the original parent boundary of the farm as used by the previous owners instead of the current subdivisions as issued to the new resettled farmers.
The minister is empowered by the Act under the same section to issue title over ground that is less than 100 hectares should he deem it necessary in the event that consent is denied by the land occupier. This leaves farmers vulnerable, however this might become necessary in the event that a very valuable mineral is found and it would be in the best interests of the nation for such mineral(s) to be extracted. Thus indeed when it becomes necessary mining rights take precedence over farming rights.
Issues to be considered by the new amendment:
◆ Cancellation of any mining title issued without consent over land that is less than 100 hectares.
◆ Ministry of Mines to work together with Ministry of Lands and use the current farm boundaries used by resettled farmers and not the original parent boundary, when considering applications.
◆ Issue of compensation should come into play if the minister insists on issuing title over land that is less than 100 hectares or this discretion should be removed all together in order to protect the interest of farmers with smaller pieces of land considering that the smaller the farm, the more restricted the arable land.
The Act provides that if a dispute arises between a miner and farmer on whether or not the land is open to pegging and prospecting, the matter should be referred to the Administrative Court. It goes without saying that court processes are intimidating for most of the less sophisticated people and tend to be more expensive and take longer. While litigation is pending, the relationship on the ground continues to deteriorate.
Issues to be considered by the new amendment:
◆ Set up a court meant to deal with land and land use conflicts as has been done in other countries, for example in Kenya. This will expedite the process as the said court will be dealing with such cases only, whose rules and procedures are less complicated; OR
◆ Designate a well equipped and resourced neutral administrative institution to deal with these issues. For example the Zimbabwe Land Commission (emphasis is on the issue of resourcing).
Thammary Brenda Vhiriri is a practising Attorney, Conveyancer and Notary Public at Zuze Law Chambers, registered with the Law Society of Zimbabwe with a wealth of experience in Land and Mining Law, Commercial Law, Constitutional Law, Property Law. She writes in her personal capacity and can be contacted on +263772979277 WhatsApp or +263715057007 or email [email protected]
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