By Claire Tucker
The confusion regarding who the competent authority is in respect of mineral related environmental authorisations is close to a resolution with the commencement of the National Environmental Management Amendment Act 62 of 2008 (“NEMA Amendment Act”) on 1 May 2009.
The Mineral and Petroleum Resources Development Amendment Act 49 of 2008 (“MPRDA Amendment Act”) seeks to make the Minister of Mining the responsible authority for implementing environmental matters in terms of the National Environmental Management Act 107 of 1998 (“NEMA”) and to align the Mineral and Petroleum Resources Development Act 28 of 2002 (“MPRDA”) with NEMA. The MPRDA Amendment Act was signed into law by the president on 21 April 2009 but the commencement date of the legislation has not yet been determined.
Summary of changes
The NEMA Amendment Act creates a complicated transitional arrangement. The position is summarised as follows:
• The NEMA amendments commenced on 1 May 2009.
• For 18 months following the commencement of the NEMA Amendment Act or the MPRDA Amendment Act, whichever is the later, the existing position continues in place. (The environmental aspects of mining and prospecting are regulated under the MPRDA and confusion remains regarding how other listed activities carried out at a mine are regulated.)
• After this initial 18 month period mining, prospecting and related activities are regulated under NEMA but the competent authority is the Minister of Mining; and
• 18 months later (i.e. 3 years after the commencement of the NEMA Amendment Act or the MPRDA Amendment Act) further amendments to NEMA kick in and mining and prospecting activities are regulated under NEMA but the authority is the Minister of Water and Environmental Affairs or the provincial authority.
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 initial 18 month period
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 authorisation under NEMA (but not from the environmental authorities). However regulations under NEMA have not yet come into effect. Once both the NEMA Amendment Act and the regulations under NEMA have commenced, an environmental authorisation will be required for mining activities, but it will be issued by the Minister of Mining.
The NEMA Amendment Act specifically states that the Minister of Mining is the responsible authority for implementing environmental provisions in terms of NEMA, where these relate to prospecting, mining, exploration or “related activities.”
Before granting the environmental authorisation, the Minister of Mining must consider any recommendation from the Regional Mining Development and Environmental Committee (“the Committee”) established in the MPRDA. The Minister of Mining must also 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 Committee which must make a recommendation within 45 days.
Any appeal against a decision made by the Minister of Mining regarding an environmental authorisation or EMP may however be submitted to the Minister of Water and Environmental Affairs.
The provisions in the MPRDA relating to financial provision for remediation of the environment will also be governed by NEMA. Furthermore, procedures and requirements for mine closure will be prescribed by NEMA.
The subsequent 18 month 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 authorisations.
Mining and Prospecting activities will still require an environmental authorisation but this will be issued by the Minister of Water and Environmental Affairs or the provincial authority.
It is not clear what role the 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 Committee. If a department objects to an environmental authorisation being granted in respect of mining or prospecting, the matter must be referred to the Committee which must make a recommendation within 45 days.
It seems that there remains a difficult transition ahead in this area but the commencement of the NEMA amendment Act at least creates a measure of certainty regarding the road ahead.
Brought to you by the Environment, Natural Resources and Climate Change Practice Area.
For further information on this topic please contact Claire Tucker at Bowman Gilfillan Inc telephone +27 11 669 9000 or fax +27 11 669 9001 or email email@example.com.