Accessing Surface Rights Under Zambia’s Mines Act, 2015: Navigating Arbitration and Unreasonable Withholding of Consent
Introduction
The Mines and Minerals Development Act No. 11 of 2015 (the “Mines Act”) empowers holders of mining rights to conduct mining operations. However, these rights are constrained regarding surface access to land not owned by the rights holders. A significant challenge arises when obtaining consent from landowners, especially when such consent is unreasonably withheld. This article examines the legal remedies available to mining rights holders in Zambia facing unreasonable withholding of consent by landowners, emphasizing the arbitration provisions under the Mines Act and pertinent judicial interpretations.
The Requirement for Landowner Consent
Section 52(1) of the Mines Act requires mining rights holders to secure written consent from landowners before exercising mining rights on the owner’s land. This requirement applies, for example, to mining activities within a specified proximity to structures or cultivated land. The intent is to safeguard landowners’ interests, ensuring that mining operations do not unduly interfere with their use and enjoyment of the land.
However, obtaining this consent can be complex. When consent is unreasonably withheld, Section 52(3) empowers the Director of the Mining Cadastre Department (the “Director”) to arrange arbitration as a dispute resolution mechanism.
Unreasonable Withholding of Consent: Arbitration as a Remedy
The Mines Act addresses situations where consent is unreasonably withheld. In such instances, Section 52(3) permits the Director to initiate arbitration. However, since arbitration relies on the parties’ consent, a mining rights holder may face challenges if a landowner withholds both land access consent and agreement to arbitrate.
Despite this, a literal interpretation of the section suggests that if the landowner does not consent to the Director’s involvement in resolving the dispute or to arbitration, the mining rights holder may commence an action in the High Court to challenge the reasonableness of the refusal and potentially seek alternative relief to facilitate the exercise of mining rights.
In the Court of Appeal case of Kalymnos Processing Limited & Albertina Kashiba v. Konkola Copper Mines (Appeal No. 74 of 2023), Konkola Copper Mines, holding a large-scale mining licence, denied Kalymnos Processing access to surface land. The refusal was challenged as unreasonable, leading to legal action in the High Court to prevent unauthorized access.
While the High Court initially ruled that Konkola Copper Mines’ refusal was justified, the Court of Appeal clarified that under Section 52(3), it is the Director who has the jurisdiction to determine whether consent has been unreasonably withheld. If the Director finds the refusal unreasonable, only then may the Director arrange arbitration to resolve the dispute. Importantly, the Court of Appeal held that recourse to courts of law can only be sought after exhausting the grievance procedure outlined in Section 97 of the Mines Act.
Conclusion: Arbitration’s Role and Limitations
Navigating surface access under the Mines Act requires mining rights holders to diligently address the challenge of securing landowner consent. The Act’s arbitration provisions offer a pathway to resolve unreasonable withholding of consent. Recent judicial interpretations underscore the Director’s role in assessing consent issues before court intervention.
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