Centre for Environmental Rights – Advancing Environmental Rights in South Africa

Photo: Carin Bosman

Friday, 8 February 2013 was the deadline for the first round of comments on the long-awaited Mineral and Petroleum Resources Development Amendment Bill, published on 28 December 2012. The Centre for Environmental Rights’ comments can be summarised as follows:

1. We welcome the application of the National Environmental Management Act, 1998 (NEMA) to mining and related activities. We believe that this change will standardise the procedure and requirements for environmental authorisations for all industrial activities. NEMA and the 2010 Environmental Impact Assessment Regulations are also far more comprehensive and appropriate than the environmental impact assessment currently provided for in the Mineral and Petroleum Resources Development Act, 2002 (MPRDA). Furthermore, a number of provisions in NEMA will now also be available to assist the enforcement of environmental laws against non-compliant mines.
2. Unfortunately, the Bill does not go far enough, particularly by making no provision for the transfer of the environmental authorisation of mining to environmental authorities. We believe that the DMR is not well-placed to act as competent authority in respect of environmental authorisations under NEMA, for two reasons: first, the DMR would continue to have an inherent conflict between its obligations to promote mining, and its obligations under NEMA; and second, the DMR does not currently have anywhere near the human resource capacity to implement NEMA and the EIA regulations effectively. We have not been provided with any indication of the DMR’s plans for resourcing the proposals in the Bill.
3. The Bill envisages various parallel application, consultation and objection processes, often without providing for timeframes, and often without any clarity on how these processes will interact with each other. Although this has not been shared with the public, we can only assume that the DMR has agreed flowcharts with the Department of Environmental Affairs (DEA) and the Department of Water Affairs (DWA) with a view to publishing draft regulations, and potentially further amendments to NEMA and/or the National Water Act, 1998. In the absence of these proposals, it is extremely difficult to assess whether the Bill (particularly as read with NEMA) will result in two things: first, a more streamlined, integrated permitting process for mining and the other activities regulated by the MPRDA; and just administrative action in decision-making under the MPRDA, including, in particular, adequate consultation with interested and affected parties.
4. On that score, the Bill does not do enough to ensure that communities and other interested and affected parties are properly consulted on decisions to licence mining activities that will affect them. Communities are required to participate in multiple consultation and comment processes (one in terms of section 10, one in regard to the environmental authorisation, and one on the social and labour plan, to name a few) but the Bill nowhere requires that communities and interested and affected parties must be provided with complete and accessible information prior to these processes commencing or that applicants are obliged to report back to communities or respond to concerns raised. Although multiple consultations processes take place, these are still no more than box-ticking activities and it is not clear that the substantive issues raised in those processes will have any bearing on the decision ultimately taken. In addition, it is submitted that the standard that ought to be applied is not merely consultation but free, prior and informed consent, particularly in regard to mining on land owned or occupied by customary communities.
5. Moreover, the Bill makes no attempt to address the significant problems faced by interested and affected parties in gaining access to information about mining activities and proposed activities (see Unlock the Doors, as well as the 2011 Civil Society Submission referred to below).
6. In the process of transferring environmental management provisions out of the MPRDA into NEMA in the 2008 Amendment, a number of valuable provisions that support responsible environmental management by mines were lost from the MPRDA and not incorporated into NEMA. This includes, for example, joint and several liability for directors of a mining company for environmental damage caused. In these comments, we argue for the reinstatement of some of these provisions in the MPRDA, but it is in fact preferable and more equitable for these provisions to be incorporated in NEMA so that they are applicable to all persons that carry out activities listed under NEMA (including prospecting and mining, once those listings in the EIA Regulations are enacted).
7. While we support the dramatically increased penalties provided for offences under the MPRDA as well as the principle of introducing an administrative penalty system, the way these matters have been dealt with in the Bill is ill-conceived and creates a range of inappropriate consequences, perverse incentives and opportunities for corruption. At the very least, to implement an administrative penalty system with the significant penalties proposed, an independent institution like a tribunal must be established to ensure administrative fairness and implementation of the rule of law.

How did we get to this particular MPRDA Amendment Bill? Here is a summary of events leading up to the publication of the Bill.

The MPRDA has always provided for its own, parallel system of environmental impact assessment, authorisation, compliance monitoring and enforcement. This carving out of the mining industry from the general development of environmental management best practice has long been a thorn in the flesh of environment authorities and activists, and the subject of much conflict between mining industry and environmental NGOs, between the DMR and environment authorities. Some of this conflict also spilled out into the courts in recent years. See, for example, the 2012 Constitutional Court judgement in Maccsand.

In 2008, after many years of painstaking work, an agreement was finally reached between the Ministers of Mineral Resources and Environmental Affairs: the departments would start a process of legislative reform to ensure that mines would have to comply with the same environmental impact assessment requirements as all other industries. There would be a single statute applicable to all environmental impact assessments, and one environmental authorisation for all industries. Both departments duly prepared draft legislation to implement this agreement, and both Parliament and the President approved amendment acts that would trigger a transitional period to allow all parties to prepare for the full transfer of functions. In April 2009, the Minister of Environmental Affairs brought into effect amendments to NEMA, bringing into effect many provisions in that act that now incorporated references to mining and the powers of the Minister of Mineral Resources. See more about this agreement and promulgated legislation here.

However, the Minster of Mineral Resources never brought into effect the counterpart legislation as was agreed; the Minister eventually told Parliament that “several concerns” had been raised by mining sector stakeholders and government departments related to the implementation of the Amendment Act. The DMR, she said, “deemed it prudent to first consult and further endeavor to address the concerns raised by stakeholders before the Amendment Act take [sic] effect.” That was 2010.

As civil society organisations and law clinics representing communities we repeatedly asked the DMR for opportunities to provide our input into any proposed amendments to the Bill, but all our requests were deferred to the Parliamentary process. On 6 April 2011, on behalf of 13 NGOs, we submitted detailed comments and requests for changes to the MPRDA. It is encouraging to see that at least some of the proposals contained in that unsolicited submission have been incorporated in the Bill. Download a copy of that submission and related correspondence here.

The 2012 Bill was published on 27 December 2012, two days after Christmas. The DMR generously granted interested and affected parties until 8 February 2013 to make sense of what was being proposed, a task that entailed consulting the MPRDA, the 2008 Amendment, the Bill, NEMA and the EIA Regulations to grasp what was being proposed in relation to the environmental regulation of mines. Particularly in view of the complexity and importance of the Bill, we have to ask why the DMR could not provide interested and affected parties with the benefit of an explanatory memorandum, even at this pre-Parliamentary stage?

We now wait for the Bill to be introduced in the National Assembly. Whether any of our or other interested and affected parties’ comments will be taken into account at this stage is not clear, and we anticipate making further comments directly to Parliament.