CAPE TOWN-The long delay in resolving the land claims of dispossessed rural communities had prevented them from exercising their rights to mine the land, the Legal Resources Centre will tell Parliament's mining com­mittee today.

The committee is hold­ing a public hearing on the proposal to set up a state-owned mining company to consolidate the mining interests of the govern­ment and its entities. Cen­tre presenters Henk Smith and Thulani Faku said rural communities had not benefited from the appli­cation of the Mineral and Petroleum Resources Development Act.

In the centre's view, this perpetuated the dis­possession of black land­owners that went all the way back to the Land Act of 1913.

The Mineral Resources Act came into effect in 2002, but successive land affairs ministers - as the nominal owners of com­munal land and unused old-order mining rights - had not applied for new-order mining rights on behalf of the communities within the stipulated period of one year.

This meant the mineral rights had been extin­guished as the act did not provide for a holding mechanism or mora­torium on new mining pending the finalisation of claims or tenure reform and the transfer of own­ership to communities.

The applicants for prospecting and mining rights were being given rights on a "first come, first served" basis before the land was transferred to the community and so before they could apply for preferent rights.

The centre noted that the act did require that the owner or lawful occupier be notified and consulted before new mining started and this could result in compensation being paid for the loss of the use of the land and surface rights. However, a damages claim would be limited to "rea­sonable" compensation or rental for the agricultural value of the land.

The act also did not prescribe the procedure for consultation and notice before new mining com­menced to ensure that it was fair and protected the interests of the vulnerable and the historically dis­advantaged.

The centre proposed that the state or a dele­gated non-interested party supervise the consultation process, and that commu­nities which gave their consent to mining operations should be as­sisted by the state to ne­gotiate fair agreements and compensation.

"The lack of protection of the interests of histor­ically disadvantaged com­munities in the face of the financial and technical resources that established mining companies have at their disposal to support the narrow interests of their shareholders results in the state intentionally or unintentionally support­ing the interests of the rel­atively wealthy rather than protecting the interests of the poor," it said.

LINDA ENSOR