When Mines Break Environmental Laws: How to Use Criminal Prosecution to Enforce Environmental Rights
4 February 2013 at 1:10 pm
This week, all those with interests in the South African mining industry are gathered in Cape Town for the annual Mining Indaba. As has become the norm at the Indaba, the massive environmental impacts of mining are relegated to a few discussions around “sustainability”, and the problem of non-compliance with mining, environmental and water legislation in the mining industry is simply absent from the Indaba programme, as are the communities and downstream towns affected by poor environmental management and non-compliance by mining companies, past and present.
The Department of Mineral Resources (DMR) published their proposed amendments to the Mineral and Petroleum Resources Development Act, 2002 (MPRDA) just after Christmas, and although by no means an answer to the many and serious concerns civil society organisations and communities have been raising about the detrimental environmental impacts of mining, we finally seem to be moving to a regime where mining companies are at least subject to the same environmental law as all other industries.
The difficulty is that, with the Amendment Bill proposing that applications for National Environmental Management Act, 1998 (NEMA) environmental authorisations be processed and issued by the DMR (and not environmental authorities), it appears that the DMR still plans to assume responsibility for enforcement of compliance with environmental authorisations and other environmental provisions in the MPRDA. The DMR unfortunately has a poor record on compliance and enforcement when it comes to environmental violations, and statistics for actual enforcement action against violators are hard to come by.
In 2012, it was solely through the efforts of a civil society organisation in Mpumalanga and the hard work and commitment of a prosecutor at the Ermelo Regional Court that meaningful convictions were secured against two mining companies for flagrant violations of environmental laws. While the National Prosecuting Authority should be commended for its efforts to punish these mining companies, by all accounts the DMR made little effort to support these prosecutions.
In October 2012, the DMR told the Mining Portfolio Committee that, “although an Enforcement and Compliance structure was approved, with 114 posts, there was no funding to implement it”. So either National Treasury is not allocating sufficient funding to the DMR to resource this crucial function, or compliance monitoring and enforcement are not prioritised by the DMR itself. The DMR said that it was “continuously engaging with National Treasury to fund the personnel structure that had been approved”, but it is not clear what progress has been made. The DMR also expressly assured the Portfolio Committee that it was strengthening its capacity to take over NEMA functions from the Department of Environmental Affairs (DEA), but mostly with reference to licensing rather than compliance and enforcement. There appears to be little appreciation for the time and resources required to develop an effective compliance and enforcement programme.
As a result, civil society, community-based organisations, communities and individuals have a critical role to play in the monitoring of environmental violations by mining companies, and in ensuring that environmental laws are enforced. One of the key tools available to these affected parties is the reporting of criminal activities by mining companies. The Centre’s new guide is an accessible, easy-to-use guide to the criminal process, and comes with a schedule of criminal offences potentially applicable to mining activities (which will be updated from time to time). In publishing and distributing this guide, the Centre hopes to empower communities and other affected parties to hold mining companies that operate in criminal contravention of the law, who operate without water use licences or environmental authorisations or in non-compliance with their environmental management plans and social and labour plans, to account and to ensure their rights and interests are protected.
Download the booklet and schedules here:
- When Mines Break Environmental Laws: How to Use Criminal Prosecution to Enforce Environmental Rights
- Schedules: Offences and Penalties
If you would like a hardcopy of the guide, please email [email protected].
We acknowledge the support of the Ford Foundation for this publication, and for our work to empower communities and strengthening civil society to realise environmental, socio-economic and other rights through the promotion of sustainable, transparent and accountable management of natural resources.