The mine, the community, and the chief: mining governance and community representation in conditions of legal pluralism

Abstract

The corporate oxymoron “mine-hosting communities” implies a mutually beneficial relationship between mining companies and surrounding communities. This belies that many communities resist mining activities and downplays the salience of representation and decision-making power in mine-affected communities. Much mining occurs on lands of traditional communities, where mining companies often treat chiefs as uncontested representatives with decision-making power regarding communal lands, ignoring customary law’s nested and layered nature. Anthropological studies show that positions of traditional authority are currently highly contested due to chiefs capturing the spoils of land commodification and extractive resources. Concentrating on South Africa, this article explores how increasing contestation of the representative power of traditional authorities – in communities, the legislature, and the courts – impacts mining governance and studies the emergence, functioning and downfall of an alternative form of representation of traditional communities. It demonstrates how the hybridity of representative structures and the interaction of statutory and customary laws and institutions result in a configuration of legal pluralism that enables actors to skirt obligations of both legal registers. With its analysis of mining governance in South Africa, this article underscores the importance of a critical understanding of the complex and constantly renegotiated configurations of legal and institutional pluralism.