Who "owns" the country's mineral resources? The possible incorporation of the public trust doctrine through the Mineral and Petroleum Resources Development Act.

26 August 2009

"Mineral and petroleum resources are the common heritage of all the people of South Africa and the state is the custodian thereof for the benefit of all South Africans."' This section can be regarded as one of the most controversial legislative clauses promulgated during the last five years. The reader is confronted with phrases and ideas foreign to the common law background of South African law. Until the courts have interpreted this section, lawyers will speculate about its true meaning. Two contradicting opinions have been voiced regarding the interpretation and implication of this section. For the aim of this article, it is important to refer cursorily to these viewpoints. According to Badenhorst and Mostert' the legislature borrowed from the law of the sea in formulating section 3(1). Applied to the law of property, this entails that section 3(1) vests mineral resources in the people of South Africa and these resources, therefore, became res publicae. Dale et al3 strongly object to this viewpoint. They hold that minerals were never regarded as res publicae in Roman law4 and argue that the act never changed the common law principle that unsevered minerals belong to the owners of the land in which the minerals are located. According to them section 3(1) did "nothing more" than to obliterate the legal institution of the rights of an owner to deal with and exploit his minerals.5 They motivate their viewpoint by arguing that the reference to "mineral and petroleum resources" is a broad reference to all the minerals and petroleum occurrences countrywide. It is this collective wealth, as opposed to minerals in situ on individual properties, that "belongs" to the nation. They hold further that no provision of the act vests minerals in situ on individual properties in anyone other than the owner of the land and therefore argue that the provisions of the act do not warrant an interpretation that the cuius est solum principle is abrogated. To strengthen their argument they hold that ownership cannot legally vest in the nation as the nation has no legal personality enabling it to acquire or hold ownership and that the formulation of custodianship does not fit a private law interpretation that ownership of minerals in situ vests in the state. Van der Walt' adds another dimension to the debate by stating that there is room to argue that the existing private-property dominated mineral dispensation was replaced with a public-property regulatory dispensation, thereby removing rights to minerals from the sphere of private property. This article advances the view that section 3(1) can be interpreted to indicate that the public trust doctrine has been incorporated into the South African mineral law dispensation, and that ownership of the country's mineral resources consequently vests in the state. The article is structured to set the scene for this controversial interpretation and then to provide a brief overview of the doctrine. In the final instance the consequences of accepting the public trust doctrine in South African mineral law are discussed.