Legal and governance challenges

Our current legal and governance framework is wholly inadequate for dealing with bulk marine sediment mining. The MPRDA and NEMA provide the strongest indication of the gaps in our capacity to govern seabed mining.

The Mineral and Petroleum Resources Development Act, 2002 (MPRDA)

The MPRDA does not explicitly deal with offshore prospecting and mining. The Act itself is entirely geared to terrestrial mining. Many provisions would be difficult to apply to seabed prospecting and mining and provisions such as legal requirements to consult with landowners and community members’ act as a check and balance against inappropriate prospecting and mining. These checks and balances would not be possible for far offshore environments.

Furthermore, there are no specific regulatory instruments or guidelines that provide assistance to decision-makers in this regard. DMR has significant capacity constraints for compliance monitoring and enforcement (CME) of terrestrial mining. In some cases, environmental CME is entirely absent. With the one-environmental system, the DMR’s environmental mandate has been broadened, thus putting further strain on its CME resources. There are insufficient institutional arrangements, capacity, experience, guidance or knowledge for reviewing, monitoring and enforcement of environmental management programmes and conditions of environmental authorisations in respect of bulk marine sediment prospecting and mining.

National Environmental Management Act, 1998 (NEMA)

Many provisions in NEMA would be infringed if seabed mining were permitted. There is relative lack of knowledge of impacts of seabed mining. In such circumstances, NEMA requires a precautionary approach which takes into account the ‘limits of current knowledge about the consequences of decisions and actions’. Seabed mining would certainly not comply with a precautionary approach. Furthermore, NEMA requires development to avoid, minimise or remedy disturbance of ecosystems and loss of biological diversity. Independent impact assessments of seabed mining undertaken in other countries, have found that such disturbance and loss is unavoidable.

In sum, there are serious gaps in South Africa’s legal, governance and institutional frameworks to manage bulk marine sediment mining. This would see an offshore mining industry that is unregulated and not subject to state monitoring or enforcement of its compliance with licences and environmental laws. This would facilitate severe and irreversible damage to marine environments and fisheries resources.