PROSPECTING, MINING AND THE EIA PROCESS
NEMA Amendments signed by the President in January 2009
The confusion regarding who the competent authority is in the mineral related EIA process is closer to resolution as the National Environmental Management Amendment Act 62 of 2008 was signed by the President on the 5 January 2009 and gazetted as an Act on 13 January 2009.
The Mineral and Petroleum Resources Development Amendment Bill has also been presented to the Minister for assent. This Bill attempts to align the Mineral and Resources Development Act 28 of 2002 (“MPRDA”) with the NEMA amendments.
Summary of the transitional regime
The NEMA Amendment Act however creates a complicated transitional regime. A summary of the position is as follows:
- The NEMA amendments commence (date to be determined).
- For 18 months following the commencement the existing position continues in place. (The environmental aspects of mining and prospecting are regulated under the MPRDA, confusion remains regarding how other listed activities carried out at a mine are regulated.)
- After this initial 18 month period the amendments regarding mining and prospecting commence. Mining, prospecting and related activities are regulated under NEMA but the competent authority is the Minister of Minerals and Energy; and
- 18 months later (ie 3 years after the Act itself commences) further amendments to NEMA kick in and mining and prospecting activities are regulated under NEMA but the authority is the Minister of Environmental Affairs or the provincial authority.
The commencement date of the NEMA Amendment Act has not yet been published, the Department of Environmental Affairs and Tourism (“DEAT”) is hoping for the beginning of March 2009, but this may not be realistic.
The present position
The area of environmental regulation of mining and prospecting is presently in confusion because while the environmental impacts of prospecting and mining themselves are regulated by the MPRDA, there is confusion regarding how other listed activities, carried out for the purpose of mining or prospecting are regulated – for example if water containing waste is disposed of, does the water licence requirement trigger an environmental authorisation under NEMA. Some environmental authorities, particularly those in the Western Cape argue it does.
The first 18 months of the NEMA Amendment Act
The NEMA Amendment Act makes provision for environmental mining regulatory procedures to be directly regulated by NEMA, but initially these will not be regulated by the environmental authorities.
Draft regulations, published in terms of NEMA, include mining and prospecting activities as listed activities that require environmental authorization under NEMA (but not from the environmental authorities) however they have not yet been enacted. Once the NEMA Amendment Act and the regulations have commenced, an environmental authorization will be required for mining activities, but it will be issued by the Minister of Minerals and Energy.
The NEMA Amendment Act specifically states the Minister of Minerals and Energy is the responsible authority for implementing environmental provisions in terms of NEMA, where these relates to prospecting, mining, exploration, production or “related activities”.
Before granting the authorisation the Minister must consider any recommendation from the Regional Mining Development and Environmental Committee which is established in the MPRDA. The Minister must consult with every State Department that administers a law affecting the environment. The department must respond within 40 days. If the department objects, the Minister must refer the matter to the Regional Mining Development and Environmental Committee which must make a recommendation within 45 days.
Any appeal against a decision made by the Minister of Minerals and Energy regarding an environmental authorization or EMP may however be submitted to the Minister of Environmental Affairs and Tourism.
The provisions in the MPRDA relating to financial provision for remediation of the environment will also be governed by NEMA. Procedures and requirements for mine closure will be prescribed by NEMA.
The second period
Further amendments to the MPRDA are required for these amendments to kick in.
18 months after the first period, the Minister of Minerals and Energy will cease to have any authority to issue environmental authorizations.
Mining and Prospecting activities will still require an environmental authorization but this will be issued by the Minister of Environmental Affairs or the provincial authority.
It is not clear what role the Regional Mining Development and Environmental Committee will play in such decisions in future as this section has not been consistently amended. But it appears that before granting the authorisation the Minister must consider any recommendation from the Regional Mining Development and Environmental Committee which is established in the MPRDA. If a department objects to an environmental authorisation being granted in respect of mining or prospecting, the matter must be referred to the Regional Mining Development and Environmental Committee which must make a recommendation within 45 days.
It seems that there remains a difficult transition ahead in this area but the signing into law of the NEMA amendment Act at least creates a measure of certainty regarding the road ahead.
Brought to you by the Bowman Gilfillan Environment, Climate Change and Natural Resources Practice Area and the Mining and Energy Practice Area. For more information please contact:
Claire Tucker
Practice area head
E: c.tucker@bowman.co.za
T: +27 11 669 9402
Twaambo Muleza
E: t.muleza@bowman.co.za
T: +27 11 669 9472
Sandra Gore
E: s.gore@bowman.co.za
T: +27 11 669 9414
Wandisile Mandlalana
E: w.mandlalana@bowman.co.za
T: +27 11 669 9562 |
