The South Africa High Court Baleni judgment: towards an indigenous right to consent?

Abstract

In the Baleni judgment the High Court of South Africa declared that the Umgungundlovu community has a right to consent before the exploitation of mineral resources in their traditional lands. This decision represents one of the few cases where a domestic court refers to a right to consent of an indigenous community under both domestic and international law. The article aims to explore the compatibility of the Court’s findings with the current international law standard on permanent sovereignty over natural resources and on indigenous peoples’ right to free, prior and informed consent to explore whether it is possible to conceive an indigenous right to consent, as a veto power, before the exploitation of natural resources on their lands. In doing so, the case discussion focuses on the possible impact of such judgment on the jurisprudence of the African Court and
Commission on Human and Peoples’ Rights. Furthermore, the article outlines how the findings of the Court may contribute to strengthening the concept of an indigenous right to free, prior and informed consent.