Securing indigenous land rights through community engagement in South African mining communities: Lessons from international and national legislative and policy frameworks

Abstract

The mining sector in South Africa has long been a cornerstone of the nation’s economy, but  its expansion has often marginalised indigenous communities and their land rights. This study explores how global normative standards on community engagement have been applied to protect indigenous land rights in South African mining communities. It examines the legal provisions of the Constitution of the Republic of South Africa, 1996, along with relevant legislation and policies to assess their effectiveness in safeguarding these rights  through community consultation. Key policies and frameworks include international  principles such as Free, Prior, Informed Consent (FPIC), Social Licence to Operate (SLO), and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The research  relies on desktop analysis of laws, policies, and case law, supplemented by secondary sources such as journal articles, books, and online resources. Findings reveal that community engagement is embedded within South African legal and policy frameworks and aligns with international norms. The Constitution and extractive industry legislation recognise and protect indigenous land rights, a principle further supported by South African case law. This recognition is crucial for enforcing legal protections for indigenous communities through engagement processes, highlighting the role of community consultation in land rights protection. The study also examines the impacts of these legal protections on town planning and indigenous land rights. It identifies key benefits such as community empowerment, enhanced legal safeguards, stronger community participation, and compliance with international standards. Additionally, it discusses the role of community engagement in promoting sustainable development, conflict resolution, and cultural preservation. In the  context of town planning, the findings suggest a shift towards more inclusive and  transformative approaches that prioritise legal compliance, policy alignment, and the active involvement of indigenous communities in development decisions.