mining titles registration amendment bill an independent view fred cawood wits university

MINING TITLES REGISTRATION MINING TITLES REGISTRATION AMENDMENT BILLAMENDMENT BILL

AN INDEPENDENT VIEWAN INDEPENDENT VIEW

Fred CawoodFred Cawood

Wits UniversityWits University

ISSUES TO CONSIDERISSUES TO CONSIDEREVOLUTION OF MINERAL TITLEEVOLUTION OF MINERAL TITLE

HISTORICAL DEVELOPMENTHISTORICAL DEVELOPMENT Pre-colonial: Customary Law – Communal propertyPre-colonial: Customary Law – Communal property Cape of Good Hope – Roman Dutch Law – Land and mineral rightsCape of Good Hope – Roman Dutch Law – Land and mineral rights British annexure – English Law – Reservation of certain mineralsBritish annexure – English Law – Reservation of certain minerals Discovery of diamonds onwards – Severance of land and mineral rightsDiscovery of diamonds onwards – Severance of land and mineral rights Registration of title, leases and permissions at Deeds Offices and RMTRegistration of title, leases and permissions at Deeds Offices and RMT

NEW ORDER IN TERMS OF 1998 MINERAL POLICYNEW ORDER IN TERMS OF 1998 MINERAL POLICY Right to mine minerals revert to state without loss of security of tenureRight to mine minerals revert to state without loss of security of tenure Constitutional constraint to be considered in phasing out private MRConstitutional constraint to be considered in phasing out private MR MPRDA allows for new system of rights in line with new orderMPRDA allows for new system of rights in line with new order MPRDA allows for conversion and deregistration of old-order rightsMPRDA allows for conversion and deregistration of old-order rights MPRDA allows for registration of new-order and converted rights at MTOMPRDA allows for registration of new-order and converted rights at MTO MTRAB provides for registration of new-order rights and any transfer, MTRAB provides for registration of new-order rights and any transfer,

cession, letting, subletting, alienation and encumbrance by mortgage cession, letting, subletting, alienation and encumbrance by mortgage over mineral and petroleum properties.over mineral and petroleum properties.

ISSUES TO CONSIDERISSUES TO CONSIDERMINING TITLES REGISTRATION MINING TITLES REGISTRATION

AMENDMENT BILLAMENDMENT BILLTHE BILL DOES NOT STAND IN ISOLATIONTHE BILL DOES NOT STAND IN ISOLATION Mineral and Petroleum Resources Development ActMineral and Petroleum Resources Development Act Regulations to MPRDARegulations to MPRDA Deeds Registry ActDeeds Registry Act Land Survey ActLand Survey Act Royalty BillRoyalty Bill

REGISTRATION OF RIGHTS IS NOT A NEW CONCEPTREGISTRATION OF RIGHTS IS NOT A NEW CONCEPT Requirement for security of tenureRequirement for security of tenure Mineral rights, mineral and prospecting leases have always been Mineral rights, mineral and prospecting leases have always been

registered at the Deeds Offices pursuant to 1937 Deeds Registries Actregistered at the Deeds Offices pursuant to 1937 Deeds Registries Act Deeds Offices have shortcomings in respect to mineral rights and Deeds Offices have shortcomings in respect to mineral rights and

registered mineral interests. However, the system of land registration is registered mineral interests. However, the system of land registration is commendable, especially in the old Transvaalcommendable, especially in the old Transvaal

Registrar of Mining Titles registered Registrar of Mining Titles registered ‘old-forms’‘old-forms’ of mining title pursuant to of mining title pursuant to 1967 Mining Titles Registration Act1967 Mining Titles Registration Act

HISTORICAL ISSUESHISTORICAL ISSUES1937 DEEDS REGISTRIES ACT1937 DEEDS REGISTRIES ACT

DEFINITION: IMMOVABLE PROPERTY (REPEALED)DEFINITION: IMMOVABLE PROPERTY (REPEALED) Any Any registered lease of rights to mineralsregistered lease of rights to minerals; and; and Any registered lease of land; andAny registered lease of land; and A registered right of leasehold; andA registered right of leasehold; and A A registered right of initial ownershipregistered right of initial ownership……

DEFINITION: OWNER, IN RELATION TO IMMOVABLE DEFINITION: OWNER, IN RELATION TO IMMOVABLE PROPERTYPROPERTY The person The person registered as the owner of immovable propertyregistered as the owner of immovable property

DEFINITION: REAL RIGHTDEFINITION: REAL RIGHT Any right that becomes a real right upon registrationAny right that becomes a real right upon registration

DEFINITION: REGISTEREDDEFINITION: REGISTERED Means registered in the Deeds RegistryMeans registered in the Deeds Registry

HISTORICAL ISSUESHISTORICAL ISSUES1937 DEEDS REGISTRIES ACT1937 DEEDS REGISTRIES ACT

(Repealed Sections)(Repealed Sections)

SECTION 70: RIGHTS TO MINERALSSECTION 70: RIGHTS TO MINERALS Separate registration of mineral rights from the landSeparate registration of mineral rights from the land Separate registration of rights to different mineralsSeparate registration of rights to different minerals Provision for certificates of mineral rights showing ownershipProvision for certificates of mineral rights showing ownership

SECTION 71: MINERAL RIGHTS CERTIFICATESSECTION 71: MINERAL RIGHTS CERTIFICATES Detailed description of mineral rights (with diagram)Detailed description of mineral rights (with diagram) Registered against title deeds of the land aboveRegistered against title deeds of the land above

SECTION 74: UNDIVIDED SHARES IN MINERALSSECTION 74: UNDIVIDED SHARES IN MINERALS Persons may jointly hold certificate of mineral rightsPersons may jointly hold certificate of mineral rights

THE BIG (NEW) PICTURETHE BIG (NEW) PICTURE

ConstitutionConstitution

Supreme LawSupreme Law

PRINCIPLESPRINCIPLES

People/EqualityPeople/Equality

EnvironmentEnvironment

PropertyProperty

InformationInformation

Acts (MPRDA etc)Acts (MPRDA etc)

GuidesGuides

(Regulations)(Regulations)

INSTRUMENTSINSTRUMENTS

Equal accessEqual access

EMP/MH&S/SP/LP/CPEMP/MH&S/SP/LP/CP

Convert rightsConvert rights

Disclose/RegistrationDisclose/Registration

Mineral PolicyMineral Policy

VisionVision

INTENTINTENT

Equal opportunityEqual opportunity

Sustainable devSustainable dev

Change systemChange system

Optimal useOptimal use

1996 CONSTITUTION1996 CONSTITUTION

SECTION 25: PROPERTYSECTION 25: PROPERTY No one may be deprived of propertyNo one may be deprived of property No law may permit arbitrary deprivation of propertyNo law may permit arbitrary deprivation of property Property may be expropriated when in the public Property may be expropriated when in the public

interest, which includes the commitment to bring interest, which includes the commitment to bring about equitable access to natural resourcesabout equitable access to natural resources

Expropriation may only occur upon fair Expropriation may only occur upon fair compensation reflecting an equitable balance compensation reflecting an equitable balance between the public interest and those affectedbetween the public interest and those affected

Response to Mineral PolicyResponse to Mineral Policy (1990 – 2001) (1990 – 2001)

0

1000

2000

3000

4000

5000

6000

Number ofMineralContractsregisteredin Deeds

Three years before release of Mineral Policy = 6581 contracts

Three years after release of Mineral Policy = 11993 contracts

Elections

Mineral Policy

HISTORICAL ISSUESHISTORICAL ISSUES1956 GENERAL LAW AMENDMENT 1956 GENERAL LAW AMENDMENT

ACTACT

SECTION 1: UNLAWFUL USE OF SECTION 1: UNLAWFUL USE OF ANOTHER’S PROPERTYANOTHER’S PROPERTYAny person who uses another’s property Any person who uses another’s property

needs the consent of the owner needs the consent of the owner

SECTION 3: MINERAL LEASESSECTION 3: MINERAL LEASESMineral leases and cessions only valid if Mineral leases and cessions only valid if

registered against title deeds of land registered against title deeds of land oror the the certificate of mineral rightscertificate of mineral rights

HISTORICAL ISSUESHISTORICAL ISSUES1997 LAND SURVEY ACT1997 LAND SURVEY ACT

DIAGRAMSDIAGRAMS All survey diagrams prepared by professional land All survey diagrams prepared by professional land

surveyors and approved by the SG – linked to surveyors and approved by the SG – linked to Farm, No and Portion NoFarm, No and Portion No

Draft regulations do not refer to approved diagrams Draft regulations do not refer to approved diagrams – only to WGS84 system– only to WGS84 system

However, MTARB defines a diagram as one However, MTARB defines a diagram as one prepared by professional land surveyor and prepared by professional land surveyor and approved by the SG approved by the SG

Competency requirements for sketch plans defining Competency requirements for sketch plans defining prospecting/mining areas? Likely to be professional prospecting/mining areas? Likely to be professional land/mine surveyorsland/mine surveyors

IMPACT OF SURVEY DIAGRAMS ON IMPACT OF SURVEY DIAGRAMS ON SECURITY OF TENURESECURITY OF TENURE

SAFETY AND HEALTHSAFETY AND HEALTH Accurate location of boundary pillarsAccurate location of boundary pillars

SECURITY OF TENURESECURITY OF TENURE Errors in transformation of old coordinates to Errors in transformation of old coordinates to

WGS84 – Inaccuracies result in insecurity of title – WGS84 – Inaccuracies result in insecurity of title – Especially important for conversion of old-order Especially important for conversion of old-order rights rights

Boundary disputes and overlapping areasBoundary disputes and overlapping areas 1967 Mining Rights Act required diagram of lease 1967 Mining Rights Act required diagram of lease

area approved by SG, which is the idealarea approved by SG, which is the ideal

2002 COMMUNAL LAND RIGHTS 2002 COMMUNAL LAND RIGHTS BILLBILL

INTENT (Affecting the new MPRDA)INTENT (Affecting the new MPRDA) To give legal recognition to customary and other communal To give legal recognition to customary and other communal

land tenure systemsland tenure systems To provide for leases of communal land for commercial To provide for leases of communal land for commercial

developmental purposesdevelopmental purposes

SECTION 22: COMMUNAL LAND REGISTERSECTION 22: COMMUNAL LAND REGISTER Registrar of Deeds must register Registrar of Deeds must register Communal General PlanCommunal General Plan

and open and open Communal Land RegisterCommunal Land Register

SECTION 30: LEASES FOR DEVELOPMENT SECTION 30: LEASES FOR DEVELOPMENT PURPOSESPURPOSES For previously called For previously called ‘Trust Land’,‘Trust Land’, Minister Minister maymay only act on only act on

behalf of community with the community’s consentbehalf of community with the community’s consent

FUNDAMENTAL PRINCIPLESFUNDAMENTAL PRINCIPLES2002 MINERAL AND PETROLEUM 2002 MINERAL AND PETROLEUM RESOURCES DEVELOPMENT ACTRESOURCES DEVELOPMENT ACT

State sovereignty over mineral resourcesState sovereignty over mineral resources

Empower HDSAEmpower HDSA

Provide for security of tenure Provide for security of tenure

Administrative justiceAdministrative justiceLawfulness, reasonableness & fairnessLawfulness, reasonableness & fairness

FOR THE EXPLORATIONISTSFOR THE EXPLORATIONISTS

Applicant has…Applicant has…

Financial abilityFinancial ability

Technical ability Technical ability

Work programmeWork programme

Maximum duration Maximum duration

2 + 0 = 2 years2 + 0 = 2 yearsMay May notnot be transferred, ceded, let, be transferred, ceded, let,

sublet, alienated, disposed of sublet, alienated, disposed of or encumbered by mortgageor encumbered by mortgage

No registration requirementNo registration requirement

REC

ON

NA

ISAN

CE

PERM

ISSION

PROSPECTING APPLICATIONSPROSPECTING APPLICATIONS

M & P R D Act (2002)M & P R D Act (2002)Applicant has…Applicant has…

AbilityAbility

Programme Programme (Plus economic)(Plus economic)

EMPEMP


5 + 3 = 8 years5 + 3 = 8 years

Minerals Act (1990)Minerals Act (1990)Applicant had…Applicant had…

AbilityAbility

Plan Plan (Technical)(Technical)

EMPEMP

Permission from MRPermission from MR

Minimum duration Minimum duration

1 year1 year

PERMIT

RIGHT

THE IN-BETWEENERTHE IN-BETWEENER

Applicant has…Applicant has…

Completed prospectingCompleted prospecting

Completed feasibility studyCompleted feasibility study

Not feasible Not feasible

EMPEMP


3 + 2 = 5 years3 + 2 = 5 years

No exclusion, unfair competitionNo exclusion, unfair competition

or hoarding of rightsor hoarding of rights

RETEN

TION

PERM

IT

MAY NOT BE TRANSFERRED, CEDED, LEASED, SOLD,

MORTGAGED OR ENCUMBERED IN ANY WAY!

MINING APPLICATIONSMINING APPLICATIONS

M & P R D Act (2002)M & P R D Act (2002)Applicant has…Applicant has…

Successfully prospectedSuccessfully prospected

AbilityAbility

Mining, Finance, SocialMining, Finance, Social

EMPEMP

Complied with CharterComplied with Charter


30 + 30 + 30… years30 + 30 + 30… years

Minerals Act (1990)Minerals Act (1990)Applicant had…Applicant had…

AbilityAbility

PlanPlan

EMPEMP


Minimum duration Minimum duration

2 years2 years

LICENCE

RIGHT

SMALL-SCALE MININGSMALL-SCALE MINING

M & P R D Act (2002)M & P R D Act (2002)Issued if…Issued if…

Life less than 2 yearsLife less than 2 years

Area less than 1.5 haArea less than 1.5 ha

EMPEMP


2 +(1+1+1) = 5 years2 +(1+1+1) = 5 years

MAY NOT BE LEASED OR SOLD, BUT IS MORTGAGEABLE

Minerals Act (1990)Minerals Act (1990)Issued if…Issued if…

Mining on limited scaleMining on limited scale

PlanPlan

EMPEMP



2 + 2 + 2… years2 + 2 + 2… yearsPERMIT

PERMIT

OLD ORDER RIGHTSOLD ORDER RIGHTS

MININGMINING PROSPECTPROSPECT UNUSEDUNUSED

RightsRights

AuthorizationsAuthorizations

Former TBVCFormer TBVC

PRIVATELY-OWNED MINERAL RIGHTS PRIVATELY-OWNED MINERAL RIGHTS INCLUDED IN OLD-ORDER CATEGORYINCLUDED IN OLD-ORDER CATEGORY

Valid and activeValid and active Valid but not activeValid but not active

TRANSITIONAL ARRANGEMENTSTRANSITIONAL ARRANGEMENTS

OBJECTIVESOBJECTIVESSecurity of tenure for Security of tenure for activeactive properties properties

Holders of old-order rights to complyHolders of old-order rights to comply

Open access to (non-active) propertiesOpen access to (non-active) properties

OLD-ORDER RIGHTSOLD-ORDER RIGHTSPROSPECTING: Within 2 years Minister MUST PROSPECTING: Within 2 years Minister MUST

MINING: Within 5 years Minister MUST convertMINING: Within 5 years Minister MUST convert

UNUSED Valid for 1 year, Minister MAY convertUNUSED Valid for 1 year, Minister MAY convert

ALTERNATIVESALTERNATIVES

REGISTRATION REQUIREMENTSREGISTRATION REQUIREMENTS

Registration at Mining Titles OfficeRegistration at Mining Titles Office Within 30 days after a new prospecting and mining Within 30 days after a new prospecting and mining

right has been granted in terms of the MPRDAright has been granted in terms of the MPRDA Surface right permits for the use of land are Surface right permits for the use of land are

preserved but must be registered within one year preserved but must be registered within one year after the MPRDA took effectafter the MPRDA took effect

MPRDA does not require registration ofMPRDA does not require registration of Reconnaissance permissions, mining permits and Reconnaissance permissions, mining permits and

retention permitsretention permits However, MTRAB provides for However, MTRAB provides for “registration of all “registration of all

mineral and petroleum titles and all other mineral and petroleum titles and all other related rights, deeds and documents”related rights, deeds and documents”

2003 MINING TITLE REGISTRATION 2003 MINING TITLE REGISTRATION AMENDMENT BILL AMENDMENT BILL

PREAMBLEPREAMBLE

Amending Mining Titles Registration Act (Act 16 Amending Mining Titles Registration Act (Act 16 of 1967), rather than drafting a new Actof 1967), rather than drafting a new Act

To regulate the registration of mineral and To regulate the registration of mineral and petroleum titles and rights connected therewithpetroleum titles and rights connected therewith

To align 1967 Act and other deeds records and To align 1967 Act and other deeds records and documents with MPRDA of 2002documents with MPRDA of 2002

2003 MINING TITLE REGISTRATION 2003 MINING TITLE REGISTRATION AMENDMENT BILLAMENDMENT BILL

DEFINITIONS: HOLDER, MINING RIGHT, DEFINITIONS: HOLDER, MINING RIGHT, MINING TITLEMINING TITLE Old definitions referring to prior laws deletedOld definitions referring to prior laws deleted New definitions only recognize rights as defined in New definitions only recognize rights as defined in

MPRDAMPRDA

DEFINITION: RIGHTDEFINITION: RIGHT Any right held by a deed registered in the Mining Any right held by a deed registered in the Mining

Titles OfficeTitles Office


SECTION 2SECTION 2 Establishing a Mineral and Petroleum Titles Establishing a Mineral and Petroleum Titles

Registration Office (MPTRO or MTO)Registration Office (MPTRO or MTO) To register all mineral and petroleum titles, related To register all mineral and petroleum titles, related

rights, deeds and documentsrights, deeds and documents

SECTION 3SECTION 3 MPTRO is the responsibility of the Director-General: MPTRO is the responsibility of the Director-General:

Department of Minerals and Energy Department of Minerals and Energy

SECTIONS 4 - 6SECTIONS 4 - 6 Administration duties of MPTRO officialsAdministration duties of MPTRO officials


SECTION 7: CANCELLATION OF RIGHTSSECTION 7: CANCELLATION OF RIGHTS No registered deed conveying title to any right can be No registered deed conveying title to any right can be

cancelled by DG without a court order; andcancelled by DG without a court order; and Upon cancellation, endorsements must be made on the Upon cancellation, endorsements must be made on the

deed, related documents and registersdeed, related documents and registers

SECTIONS 8 - 10: ACCESS TO INFORMATIONSECTIONS 8 - 10: ACCESS TO INFORMATION Any member of the public may inspect public registers and Any member of the public may inspect public registers and

records in MPTROrecords in MPTRO Conditions apply – To ensure proper access and Conditions apply – To ensure proper access and

preservation of records from damage and losspreservation of records from damage and loss

SECTIONS 11 - 12SECTIONS 11 - 12 The DG must prepare, open and keep registers of The DG must prepare, open and keep registers of

rights/titles – rights/titles – Long overdueLong overdue


SECTIONS 13 - 18: REGISTRATION ISSUESSECTIONS 13 - 18: REGISTRATION ISSUES Deemed registered upon date of signature by DGDeemed registered upon date of signature by DG Transfer or cessions of rights Transfer or cessions of rights mustmust follow sequence of the follow sequence of the

successive transactions in the vesting of such rightssuccessive transactions in the vesting of such rights Upon transfer or cession, transfer/estate duty is payableUpon transfer or cession, transfer/estate duty is payable Only conveyancer can prepare and execute deed of transfer Only conveyancer can prepare and execute deed of transfer

or mortgage bond to be registeredor mortgage bond to be registered Only notary public can prepare and attest a contract or Only notary public can prepare and attest a contract or

deeds of cession of rights, other than a cession of a deeds of cession of rights, other than a cession of a mortgage bond, to be registered by DGmortgage bond, to be registered by DG

Deeds executed by the DG must state the full name, ID or Deeds executed by the DG must state the full name, ID or registration number of the holderregistration number of the holder


SECTIONS 19 - 20: UNDIVIDED SHARESSECTIONS 19 - 20: UNDIVIDED SHARES No transfer or cession of an undivided share in a right over a No transfer or cession of an undivided share in a right over a

defined portion of land can be registereddefined portion of land can be registered

SECTIONS 31 - 40: MORTGAGE BONDSSECTIONS 31 - 40: MORTGAGE BONDS Registration and cancellation of debt secured over mineral Registration and cancellation of debt secured over mineral

properties properties

SECTIONS 41 - 45: SERVITUDES/CONTRACTSSECTIONS 41 - 45: SERVITUDES/CONTRACTS Must be created by notarial deedMust be created by notarial deed Must contain definition, description and diagramMust contain definition, description and diagram Deed (with bond – if applicable) to be Deed (with bond – if applicable) to be filedfiled in MPTRO in MPTRO


SECTION 47: LEASES AND SUB-LEASESSECTION 47: LEASES AND SUB-LEASES Holders must notify DG upon terminationHolders must notify DG upon termination

SECTION 67: CONVERTED OLD-ORDER SECTION 67: CONVERTED OLD-ORDER RIGHTSRIGHTS Must be lodged for registration within 30 days of Must be lodged for registration within 30 days of

conversionconversion


GENERAL COMMENTSGENERAL COMMENTS Detailed regulations required for registrationDetailed regulations required for registration Surveying: Some areas in SA may not yet be on WGS84 – Surveying: Some areas in SA may not yet be on WGS84 –

Coordinate system must be clearly markedCoordinate system must be clearly marked Closure certificate should include geotechnical report for the Closure certificate should include geotechnical report for the

0 – 240m zone - to be registered against the farm portion – 0 – 240m zone - to be registered against the farm portion – land development where restrictions applyland development where restrictions apply

Deeds Registry system used in old TVL allowing for 1 Deeds Registry system used in old TVL allowing for 1 degree blocks have merits and could be expanded – degree blocks have merits and could be expanded – especially useful when names changeespecially useful when names change

Effective date should correspond with all the other Acts and Effective date should correspond with all the other Acts and regulations, not only MPRDA – January 2005 sensibleregulations, not only MPRDA – January 2005 sensible

IN CONCLUSIONIN CONCLUSION

Compulsory registration of mining and Compulsory registration of mining and prospecting rights at Mining Titles Officeprospecting rights at Mining Titles Office

Transfer, letting, subletting, alienation and Transfer, letting, subletting, alienation and encumbrance by mortgage must also be encumbrance by mortgage must also be registeredregistered

Such registration is not new – holders of Such registration is not new – holders of mineral contracts and rights were very active mineral contracts and rights were very active in registering rights recently, possibly to in registering rights recently, possibly to ensure Constitutional protectionensure Constitutional protection

mining titles registration amendment bill an independent view fred cawood wits university

Documents

certificates of mineral

registered lease of

order rights mprda

new system of rights

registered mineral interests

registration of new

isolation mineral

mineral policy right