Centre for Environmental Rights – Advancing Environmental Rights in South Africa

On 25 August 2022, the Centre for Environmental Rights submitted comments on the proposed regulations pertaining to financial provision for the mitigation and rehabilitation of environmental damage caused by reconnaissance, prospecting, exploration, or production operations published for comment on 11 July 2022 in Government Gazette 47112 under GN 2272.

These comments are submitted on behalf of the following organisations:

• The Centre for Environmental Rights;
• The Centre for Applied Legal Studies;
• The Federation for a Sustainable Environment;
• Lawyers for Human Rights;
• Mining and Environmental Justice Community Network of South Africa5 (MEJCON);
• Khuthala Environmental Care Group, Ermelo;
• Endangered Wildlife Trust; and
• Green Connection.

On 6 October 2021 the Centre for Environmental Rights submitted comments to the Department of Forestry, Fisheries and the Environment on Proposed Regulations Pertaining to Financial Provisioning for the Mitigation and Rehabilitation of Environmental Damage caused by Reconnaissance, Prospecting, Exploration, Mining or Production Operations published in GN 764 in GG 45058 of 27 August 2021 (the 2021 Draft Financial Provisioning Regulations).

The comments were submitted on behalf of the following civil society organisations:

• The Centre for Environmental Rights1 (CER);
• The Centre for Applied Legal Studies 2 (CALS);
• The Federation for a Sustainable Environment3 (FSE);
•  Lawyers for Human Rights4 (LHR);
• Endangered Wildlife Trust5 (EWT);
• Mining and Environmental Justice Community Network of South Africa6 (MEJCON); and
• Khuthala environmental Activist group, Ermelo (Khuthala).

On 22 April 2021, the Minister of Environmental Affairs published a draft Amendment to the Regulations pertaining to the Financial Provision for Prospecting, Exploration, Mining or Production Operations in terms of the National Environmental Management Act, 1998.

The Regulations currently require certain mining right holders to comply with the Regulations by 19 June 2021. The proposed amendment will allow until 19 June 2022. The Regulations were first promulgated (and came into operation) in November 2015. This means that since 2015, mining right holders who obtained their rights before 20 November 2015 have not been legally required to comply with these important Regulations which provide for the funds required for the rehabilitation and remediation of environmental damage caused by mining activities. The Minister seeks to extend this period once again  – over six years since publication.

The Centre for Environmental Rights (CER) submitted Comments objecting to the draft amendment on 20 May 2021. We submit that:

• No reasons or explanatory memoranda have been provided for the repeated extensions of the transitional periods provided for in the 2015 Financial Provision Regulations, specifically this current proposed extension. Accordingly, such extensions are irregular and without due reason.
• The regime for financial provision provided by the 2015 Financial Provision Regulations under NEMA is much more stringent than the MPRDA financial provision regime which persists during the transitional period. Our work and that of our partners with mining-affected communities evidences a wide-spread practice of inadequately assessed financial provision, inappropriately approved financial provision and a failure to collect financial provision from mining companies on the part of the responsible authority. This exposes the state, and more directly, mining-affected communities, to failed or absent environmental rehabilitation, and indeed mine abandonment with impunity by the polluters who cause serious environmental degradation. It is critical that the improved protection provided for by the 2015 Financial Provision Regulations under NEMA is brought into effect, requiring that all mining companies are subject to the NEMA regime that has been in place since 2015 already. Delaying compliance with that regime any longer facilitates ongoing violations of NEMA and more broadly section 24 of the Constitution

On 17 May 2019, the Minister of Environmental Affairs published draft Regulations Pertaining To Financial Provisioning for the Rehabilitation and Remediation of Environmental Damage Caused By Reconnaissance, Prospecting, Exploration, Mining Or Production Operations in terms of the National Environmental Management Act, 1998.

The Centre for Environmental Rights (CER) submitted Comments on the draft Regulations on behalf of the following organisations on 1 July 2019:

• The Centre for Environmental Rights (CER);
• The Federation for a Sustainable Environment (FSE);
• The Centre for Applied Legal Studies3 (CALS);
• The Endangered Wildlife Trust (EWT);
• The Legal Resources Centre (LRC);
• Lawyers for Human rights (LHR); and
• Mining and Environmental Justice Community Network of South Africa7 (MEJCON).

The Minister of Environmental Affairs published draft Regulations pertaining to the Financial Provision for Prospecting, Exploration, Mining or Production Operations, 2017 on 10 November 2017.

On 11 December 2017, the Centre for Environmental Rights submitted comments on the draft regulations on behalf of the following civil society organisations:

• Centre for Environmental Rights (CER);
• Federation for a Sustainable Environment (FSE);
• Lawyers for Human Rights (LHR);
• Conservation South Africa (CSA);
• World Wildlife Fund South Africa (WWF);
• Mining and Environmental Justice Community Network of South Africa (MEJCON-SA).

https://cer.org.za/wp-content/uploads/2020/11/7-October-2016-CER-comments-FinancialProvisionRegs.pdf

Comments on Draft Regulations Pertaining to the Financial Provision for the Rehabilitation, Closure and Post Closure of Prospecting, Exploration, Mining and Production Operations published for comment in GN 940 in GG 38145 of 31 October 2014