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Another day, another legislative calamity: Time for a simpler regime for the environmental regulation of mining

19 June 2013 at 11:45 am

Over the past few years, the Centre has written extensively on the need for improved regulation of the environmental impacts of mining in South Africa. On behalf of a wide group of civil society and community organisations we have requested opportunities to make representations to the Department of Mineral Resources about our concerns (so far we have only had one such opportunity, in March 2013); we have prepared unsolicited comments on the weaknesses in the Mineral and Petroleum Resources Development Act, 2002 (MPRDA), as we perceive them (in response to which we were referred to the Parliamentary process on the MPRDA Amendment Bill); we have requested the Minister to exercise her discretion to declare no-go areas to protect areas of biodiversity and hydrological significance from mining (no response ever received); we have called for improved compliance and enforcement of existing environmental provisions in the MPRDA. In many cases where we represent communities, emerging farmers and civil society organisations concerned about the detrimental impacts of mining we have called on the Minister and DMR Regional Managers to take enforcement action, to suspend licences in view of clear violations, to disclose information about licences and compliance. Generally, and unfortunately, the only success we have had has been through court proceedings.

One of the most important issues for the Centre and many of its partners in relation to improved environmental regulation of the mining sector has been to ensure that mining is regulated, like all other industries, under the framework National Environmental Management Act, 1998 (NEMA) and the EIA Regulations. We have argued extensively that there is no basis for the existing “parallel but inferior” system of regulation for the mining sector.

Negotiations between the Ministers, the DMR and the Department of Environmental Affairs over the past several years have now resulted in what appears to be a principle agreement for a compromise: all prospecting and mining would now require an environmental authorisation under NEMA, just like all other activities with significant environmental impacts, but environmental authorisations would be processed and issued by the DMR; appeals against those authorisations would lie against the Minister of Environmental Affairs. This is essentially what is proposed in the MPRDA Amendment Bill published in December 2012, as read with NEMA.

While we have welcomed the application of NEMA to prospecting and mining, the allocation of responsibilities and budget for this function to the DMR is far from ideal. Not only does it fail to recognise the inherent conflict of mandate for the DMR (where the chief promoter of mining also has to make tough decisions to refuse to authorise or curtail mining activities in the interest of the environment), but it also fails to recognise that the DMR has little or no expertise or capacity – and will not have this expertise or capacity for many years to come, even with the best of intentions – adequately to assess environmental impacts, issue appropriate and lawful environmental authorisations, monitor compliance and take enforcement action in the case of violations. Let us not forget that the DMR is – under the MPRDA regime – in fact already responsible for what they now term a “new” function. It is difficult to ignore the consequences of that unfulfilled responsibility when one considers the cost of acid mine drainage (which cost will continue for decades, if not centuries, to come) to the national fiscus.

This is a battle that is not yet over. In the interim, on 7 June 2013, the Minister brought into force the Mineral and Petroleum Resources Development Amendment Act, 2008 (MPRDAA). Our understanding from the DMR was that it was doing so because it was required by the State Law Advisor to bring this act into effect before the 2012 MPRDA Amendment Bill is tabled in the National Assembly (which, if it has not yet happened, is imminent). The DMR did not publicly explain their reasons for this step, or issue a media release, causing consternation amongst practitioners – particularly since all of us understood that commencement of the MPRDAA (which was designed to implement the previous compromise between the two Ministers, dating from 2008) would have significant legal consequences. The penny obviously eventually also dropped at the DMR, and a last-minute Presidential Proclamation on 6 June 2013 excluded a number of provisions from commencement.

Unfortunately, that list of provisions excluded from commencement by the President on 6 June 2013 was not complete. Excluded from that list, amongst the sections that came into effect on 7 June 2013, was the deletion of sections 5(4) and 39 from the MPRDA and the related amendment of sections 17(5) and 23(5), in circumstances where the commencement of new sections 5A and 38A has been suspended for 18 months. Without going into the painstaking statutory interpretative path that leads to this inevitable conclusion, as things stand, an approved environmental plan or environmental management programme is now no longer required to commence prospecting or mining operations, and it is no longer a criminal offence to prospect or to mine without an approved EMP or EMPR. We also do not believe that the general provision in section 11 of the Interpretation Act, 1957 provides a satisfactory cure for this legislative gap now created, particularly for the purpose of legal certainty in the context of criminal law.

While the situation described above may have been an unintended consequence of the various statutory events since 2008, a legislative regime that allows prospecting and mining to commence and continue without an approved EMP or EMPR is a clear violation of section 24 of the Constitution, and poses serious and imminent risks to the environment. It also undermines the regulatory regime imposed by the MPRDA, and will cause severe challenges for enforcement of the MPRDA for as long as this situation is allowed to continue.

On 18 June 2013, the Centre for Environmental Rights wrote to the Minister of Mineral Resources, asking her to take urgent measures to address this legislative calamity. While this is not an ideal solution, at the very least the 31 May 2013 Presidential Proclamation must be further amended to ensure that the deletion of sections 5(4) and 39 and the amendment of sections 17(5) and 23(5) are excluded from the commencement of the MPRDAA.

The past year has been a tumultuous time in the mining sector, and it is hardly the best time to be designing and implementing a complicated regime of shared mandates and implementation (a task that requires a legal engineering degree just to follow). However, our history in South Africa teaches us that times of upheaval also present opportunities. Perhaps this is the time to reconsider whether environmental authorities are not far better placed, mandated and skilled to fulfill the crucial function of ensuring that mining does not compromise our rights to an environment that is not harmful to our health and well-being. Let us implement a simpler, more effective regime for environmental regulation of mines that is easier to understand, better supported by the Constitution, makes more efficient use of public funds, and will give certainty to all the roleplayers, once and for all.