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As new environmental laws for mines start coming into effect, confusion reigns

4 September 2014 at 8:31 am

Photo: Carin Bosman
Photo: Carin Bosman
Photo: Carin Bosman

Photo: Carin Bosman

On 2 September 2014, the National Environmental Laws Amendment Act, 2014 (NEMLAA) came into operation. This is yet another step in implementing the so-called  “One Environmental System” aimed at integrating, finally, the mining industry into the environmental management system applicable to all other industries.

However, the legislative process that has led to this point has been so absurdly convoluted and opaque that not even the government departments tasked with implementing the new regime appear able to make sense of the current state of the law. Along with many other civil society organisations, the Centre for Environmental Rights has, for several years, advocated a simpler regime for the environmental regulation of mining: that it should be dealt with under the National Environmental Management Act, 1998 (NEMA), and be implemented by environmental authorities, just like all other industries. Instead, the regime that commenced on 2 September 2014 – the outcome of a forced political compromise – is not only far from ideal in terms of the allocation of mandates, but may in fact pave the way for even more devastating environmental consequences as a result of the gaps and uncertainties in the law.

The Department of Mineral Resources (DMR) recently briefed the Parliamentary Portfolio Committee on Mineral Resources on its draft technical regulations for fracking, published for the first time in late 2013. A further example of the current slew of legislative absurdities is the fact that it appears that the Minister of Mineral Resources may no longer have the necessary legal mandate to make these regulations.

We have seen little evidence that the DMR has made any effort to smooth the way for the implementation of the new dispensation; we have also not yet seen any meaningful investment by the DMR in the preparation for the roll-out of its new role under NEMA. In the interests of legislative certainty, we call on the Department of Environmental Affairs (DEA) and the DMR to publish an explanatory memorandum, detailing their plans to address the legislative conundrum. We would also like to see publication of more details about the promised enhanced capacity for environmental authorisation of mines, processing of appeals, compliance monitoring and enforcement of this new regime.

How did we get here?

Under a parliamentary-induced agreement back in 2008, the DEA and the DMR made a sensible agreement: that the environmental regulation of mining would be managed by the DEA under NEMA. This would replace the inferior system of environmental regulation of mining under the Mineral and Petroleum Resources Development Act, 2002 (MPRDA). The environmental regulation of mining would therefore be the same as it is for all other industries a simple and self-evident proposition.

To give effect to this agreement, the NEMA Amendment Act 62 of 2008 (NEMAA 2008) and the Mineral and Petroleum Resources Development Amendment Act 49 of 2008 (MPRDAA 2008) were promulgated. Transitional provisions were incorporated into the amendment acts that would see an 18 month transitional period for the environmental function to transfer from the MPRDA to NEMA. The MPRDAA 2008 would commence 18 months later, and environmental management under the MPRDA would transfer to NEMA. It wasn’t ideal and it wasn’t crystal clear. But it wasn’t a patch on the confusion that resulted when in June 2013, the MPRDAA 2008 was unexpectedly brought into effect in an as yet unexplained, piecemeal and convoluted fashion. Shortly afterwards, yet another amendment bill was published (the MPRD Amendment Bill, 2013) making further changes to the MPRDA, as amended by the MPRDAA 2008.

While NEMAA came into effect in May 2009, the 5 year lag in the MPRDAA 2008’s commencement was never properly explained. With hindsight it appears that once out of the ear-shot of parliament, the Minister of Mineral Resources allowed herself to be persuaded by the mineral-industrial complex to depart from her commitment to parliament. Although they would implement a system that would see NEMA as the key legislation governing the environmental management of mining (extracting that function from the MPRDA entirely), the DMR would continue to be the competent environmental authority for the mining industry. The minerals fox would continue to guard the environmental henhouse.

The One Environmental System

Fast forward to May 2013, when a new deal had been forged by the Ministers and two Portfolio Committees. This new deal, known as the “One Environmental System”, was encapsulated in a series of amendment bills that were passed by Parliament before the 2014 elections. By this time, the legislative scheme had become superbly complicated:

  • section 94 of the MPRDAA 2008 prescribed that certain listed provisions would not take effect immediately;
  • section 14(2) of NEMAA 2008 prescribed that certain other provisions would not take effect immediately;
  • the 31 May 2013 Proclamation that itself brought the MPRDAA 2008 into effect listed provisions that would not commence immediately; and
  • an amendment Proclamation dated 6 June 2013 listed still further provisions that would not commence immediately.

Both civil society and industry pointed out that, if certain amendments took effect on 7 June 2013, with their “replacement” provisions only taking effect on 7 December 2014, there would be a legislative vacuum, the effect of which would be that mining companies would not need to obtain environmental authorisations prior to commencing their operations – a veritable disaster for the environment. The DMR and State Law Advisor retreated behind section 11 of the 1957 Interpretation Act – not ideal for legal certainty.

Another year passed without any apparent attempts by either department to address the problems. Then, in June 2014, the National Environmental Laws Amendment Act, 2014 (NEMLAA) was promulgated to be effective on 2 September 2014. Out of the blue, and again without explanation, NEMLAA deleted the very provision in NEMAA 2008 that had created the 18 month transitional period. Moreover, that deletion also deleted the trigger for the commencement of a host of provisions introduced by the MPRDAA 2008. Section 14(2) of NEMAA 2008 is gone. Will the commencements it triggered be suspended indefinitely?

Call to publish an explanatory memorandum

Some of the questions we think should be answered in an explanatory memorandum, published by both the DMR and the DEA, include:

  1. When will sections 5A, 38A, 38B, 43(4) and 43(6) of the MPRDAA commence now that section 14(2) of NEMAA has been deleted?
  2. When will the repeal of sections 39 and 41 of the MPRDA commence?
  3. When will the listing of prospecting and mining in the EIA Listing Notices commence?
  4. Since section 24(5) of NEMA has now been amended by section 2 of NEMAA, the deletion of section 107(1)(a) of the MPRDA has taken effect. In the circumstances, does the Minister for Mineral Resources intend to withdraw the draft regulations on hydraulic fracturing, since he no longer has a mandate under the MPRDA to make such regulations?
  5. Is the DMR ready to implement the powers and functions given to the Minister of Mineral Resources under NEMA? When will the Minister of Mineral Resources designate environmental mineral resource inspectors in terms of the new section 31BB of NEMA? Has anyone in the DMR been trained to exercise the functions associated with this designation?

Various other law firms and commentators have voiced their concerns about the interaction between the MPRDA, NEMA and the various amendment acts:

Previous blogs, articles and submissions by CER attorneys: