Centre for Environmental Rights – Advancing Environmental Rights in South Africa

Home / Programmes / Mining / Comments on draft legislation, policy and regulations / Submissions on draft regulations / Comments on the Financial Provisioning Regulations / 2021: Comment on proposed amendment to transitional provisions in the regulations pertaining to Financial Provisioning for the Rehabilitation and Remediation of Environmental Damage caused by Reconnaissance, Prospecting, Exploration, Mining or Production Operations

2021: Comment on proposed amendment to transitional provisions in the regulations pertaining to Financial Provisioning for the Rehabilitation and Remediation of Environmental Damage caused by Reconnaissance, Prospecting, Exploration, Mining or Production Operations

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