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Environmental Rights and Authorisations
Constitution
Section 24 of our Constitution gives protection to people’s environment by stating that ‘everyone has the right to an environment that is not harmful to their health or wellbeing.’[1] It also states that government must create legislation that upholds this right.[2] As a result, a large amount of legislation has been enacted that aims to safeguard people's environmental rights.
Mineral and Petroleum Resources Development Act (MPRDA)
One of the objects of the MPRDA is to give effect to section 24 of the Constitution “by ensuring mineral resources to be developed in orderly and ecologically sustainable manner while promoting justifiable social and economic development.”[3] Further, the principles set out in section 2 of the National Environmental Management Act (NEMA), the country’s foundational environmental Act, apply to all mining and prospecting operations and serve as guidelines for the interpretation of all environmental requirements of the Act. The most relevant of these principles are:
Besides the inclusion of the above flexible principles, the MPRDA has many solid environmental requirements. Any water use in mining is subject to the NWA – which requires that a water use licence be obtained (see below).[11] The Minister of Mineral Resources must be satisfied that no unacceptable pollution, ecological degradation or environmental damage will occur in order to grant a mineral right.[12] Further, all mineral rights may not be granted without environmental authorisation.[13] The holder of a mineral right is required to comply with the conditions of the environmental authorisation.[14]
Environmental Authorisation
In terms of the National Environmental Management Act 107 of 1998 (NEMA), it is an offense to start mining before environmental authorisation is obtained.[15] All mining and related activities require the most extensive form of application for environmental authorisation – a dual scoping and environmental impact assessment (EIA) process.[16] While environmental authorisations for all other types of developments are processed by the Department of Environmental Affairs, environmental authorisations for mining developments are processed by the Minister of Mineral Resources.[17] According to the EIA Regulations, an application for environmental authorisation can only be submitted once an application for a prospecting right, mining right or permit has been accepted by the Regional Manager.[18] This contradicts the MPRDA, which states that mineral and environmental applications should happen simultaneously.[19]
A mining company applying for environmental authorisation must first submit a scoping report,[20] which is an introductory report to identify social and environmental impacts, provide context and focus the main EIA. After that, the EIA report must be submitted, along with an environmental management plan (EMP).[21] The scoping report provides an opportunity for the Regional Manager and other government officials to comment on the scoping report. These comments must be incorporated into the company’s EIA report and EMP.[22]An EIA is an extensive study of the environmental and social impacts of a proposed development. It is an in-depth study of all the environmental and social risks that may arise from the proposed development. An EMP is a detailed proposal of strategies that a developer will implement to reduce the negative environmental effects of a project during the operation of the development and in closure and rehabilitation of the project site.[23]
An EIA of a proposed mining project must include information on alternatives to mining.[24] This is to provide information regarding whether an environmental authorisation should be granted for the mining project. The SAHRC has noted a widespread bias in government towards mining land use (exhaustive in nature) for development rather than more sustainable land use functions such as agriculture and tourism (non-exhaustive in nature). This is worrying: the SAHRC states that mining normally reduces the diversity of economic sectors or forms of income. Diverse rural economies are more resilient as they are able to absorb economic/social/physical shocks better than economies centred around a single land use.[25] Alternatives to mining should be more highly valued due to their social and environmental sustainability.
During the compilation of a scoping report, EIA and EMP, fair public participation must take place. Public participation is a period of notice, comment and consultation with interested and affected parties. Interested and affected parties must be registered by the company.[26]
Notice of the application for environmental authorisation must be given by the company by fixing an accessible notice board along the boundary of the proposed development. The company must also place an advertisement giving notice of the proposed project in a local newspaper. If the project is likely to have an impact beyond the municipality in which it the project is proposed to take place, the company must place an advertisement in a national or provincial newspaper as well. However, the company does not need to place such advertisements if it publishes notice of the proposed project in an official government Gazette. The company must also send written notice to the occupiers and/or owners of the site (or sites) where the project is proposed to take place.[27] If there are interested and affected people that are unable to participate in the process due to illiteracy, disability or any other disadvantage, the company must use reasonable alternative methods to participate in the process.
There must be a period of at least 30 days per report for interested and affected parties to comment on the information to be contained in each document. However, if the company submits the EIA report and EMP together then the company may combine the commenting periods into a single 30-day period.[28] The company must provide interested and affected parties with full access to any information that has the potential to influence the Minister’s decision regarding the environmental authorisation application. All comments must be included in the reports.[29] Interested and affected parties must be allowed to comment on the final EIA report, as well. Further, potential and registered interested and affected parties must be directly consulted regarding the proposed project.[30]
The consent of the landowner before applying is not required for environmental authorisations involving activities directly related to prospecting and mining although it is for applications for all other projects requiring environmental authorisation.[31] Although mining-related environmental authorisation applications are processed by the Minister for Mineral Resources, the Minister for Environmental Affairs is responsible for appeals. Thus, aggrieved parties can appeal the granting of an environmental authorisation to the Minister for Environmental Affairs,[32] perhaps receiving a more sympathetic ear.
Other AuthorisationsTypically, a licence for the use of water is required to be obtained by the mining company.[33] In making an application for a water use licence, an applicant for a licence would need to furnish an assessment of the effect of the proposed development on the quality of the water resource.[34]
In terms of the National Water Act (NWA), the responsible authority “may invite written comments from any organ of state which, or person who, has an interest in the matter.”[35] There is no requirement that such comments must be invited. Further, the responsible authority may require the applicant for a water licence to “give suitable notice in newspapers and other media” that interested an affected parties may object to the granting of the water licence.[36] As the NWA does not require that these procedures must occur, there is no absolute requirement for public participation. Public participation may not always be part of the application process. However, all interested and affected parties may appeal the granting of a water use licence. A party aggrieved by the granting of a water-use licence can appeal to the Minister[37] or to the National Water Tribunal.[38]
Restrictions are imposed under regulation 4 regarding the location of an activity based on its proximity to water resources. No person in control of a mine or related activity may mine or place mineral deposits, waste material or store other harmful substances likely to pollute water within 100 metres of any watercourse or estuary.[39] Clean and dirty water systems must be kept separate.[40] Mining companies and people in control of related activities must take reasonable steps to prevent water pollution arising from mining or such related activities.[41]
“[T]he current census for determining water reserves does not include measures to account for anticipated migration and population growth and other potential impacts on the availability of water resources, such as droughts.”[42] This ignorance of changing dynamics causes massive problems, down-the-line, with water shortages or deterioration of water sources afflicting many mine-affected communities.
Other environmental licenses that often have to be obtained before mining may commence are:
Holders of mineral rights granted in terms of the MPRDA will need to undertake an enquiry whether there is a town planning scheme over the land and whether the land is zoned to allow for mining in terms of the scheme. If not, the mining company will need to apply for a zoning change in terms of SPLUMA, provincial planning legislation and/or municipal planning by-laws. The need for proper zoning was confirmed in the case of Maccsand (Pty) Ltd v City of Cape Town and Others[46] where it was stated that mining cannot occur if the proper zoning for the land has not been acquired. However, a recent SAHRC report noted that mining companies and government officials “appear to systematically disregard key pieces of legislation,” particularly SPLUMA. Further, the report noted a general failure of government to monitor and enforce compliance with environmental and related authorisations.[47]
What Happens When Mining Ends?
A closure plan is required for mining environmental authorisation applications. It details the objectives and mechanisms in place to close a mine in a sustainable manner and is included as part of the EMP.[48] Financial provision must be made by the company for the remediation of negative environmental effects and rehabilitation of the environment after the closure of the main.[49] Such financial provision made when applying for a mining right and is held by the Department of Mineral resources. The funds are administrated by its Director-General. Financial provision can be made by means of bank guarantees, trust fund contributions or cash deposits.[50]
Despite these two requirements, a mining company must also apply for a closure certificate from the Minister of Mineral Resources when it ceases mining operations in order to lawfully stop mining activities.[51] The Minister must then return all of the financial provision made by the mining company or retain some of the funds for future unforeseen environmental hazards that may arise from the closed mine.[52] There is a contradiction between NEMA and the MPRDA regarding liability for environmental hazards after a closure certificate has been given. The MPRDA states that environmental liability for mining right holders ceases after a mining company has obtained a closure certificate.[53] However, NEMA states that holders of mineral rights remain responsible for any environmental liability caused by the operations pursued under the specific mineral right, even where a closure certificate has been obtained.[54]
Many companies do not make adequate information available regarding rehabilitation and possible use for land post-closure. Also, “[t]he DMR has not taken adequate steps to secure financial provision for rehabilitating damage to the environment and water resources.”[55]
What Happens If Mining Still Causes An Environmental Hazard?
There is a duty of care on any mining company who causes, has caused or might cause significant environmental pollution or degradation to take reasonable measures to prevent or minimise such harm from occurring.[56] If the mining company in question does not take such measures, the empowered officials (the Director-General of the DEA, the Director-General of the DMR or the head of the relevant provincial department) may direct the responsible person to undertake measures to remedy the situation, after hearing the interests of the mining company. If the mining company does comply with the directive, the empowered officials can take necessary measures to avoid or minimise environmental degradation or pollution and then recover costs from the mining company.[57] If the empowered officials do not direct the mining company to take such measures, any person may apply to a court for an order directing such officials to direct the mining company to take reasonable measures to prevent or minimise the degradation.[58]
An unrepealed section of an old piece of legislation, the Environment Conservation Act 73 of 1989 (ECA), extends similar powers to municipalities[59] and the NWA extends similar powers to catchment management agencies in terms of water pollution or degradation.[60]
The Minister of Mineral Resources and the DMR are also empowered to monitor, investigate and issue compliance notices to mining companies regarding environmental hazards that are caused by mining operations.[61] The Minister of Minister Resources may suspend or cancel a mineral right where there is contravention of the conditions of the environmental authorisation.[62] If an environmental hazard or degradation occurs as a result of mining or if the mining company contravenes the conditions of its environmental authorisation, the Minister can direct the company to fix the problem. If the company does not fix the problem, the Minister can direct the DMR to fix the problem and can claim the expenses from the company.[63] A ‘complainant’ (undefined in NEMA) may submit a complaint alleging that a specific compliance monitoring and enforcement action relating to prospecting or mining has not been implemented or has been implemented inadequately.[64]
Where there is an unexpected, sudden and uncontrolled release of a hazardous substance created by a mining company, the mining company must report such incident to the relevant authorities: the Director-General of the Department of Environmental Affairs, the South African Police Service, the head of the provincial or municipal environmental department and all persons whose health may be affected by the substance.[65] The mining company must then immediately take steps to avoid or minimise the effects of the incident on public health and the environment[66] and submit a report to the Director-General, provincial head and municipal head of environmental departments within 14 days on the steps taken.[67] One of the relevant authorities may direct the mining company to take any measures in order to avoid or minimise harm from the incident.[68] If the mining company fails to comply with the directive, the relevant authorities can take measures themselves to avoid or minimise harm from the incident,[69] claiming for any expenses from the mining company. Similar powers are extended to the Department of Water Affairs, SAPS and the relevant catchment management agency in terms of emergency incidents regarding water resources.[70]
[1] The Constitution of the Republic of South Africa, 1996, section 24(a)
[2] Ibid., section 24(b)
[3] MPRDA, section 2(h)
[4] NEMA, section 2(3)
[5] NEMA, section 2(2)
[6] NEMA, sections 2(4)(a)(i)-(iv) & (viii)
[7] NEMA, section 2(4)(a)(vii)
[8] NEMA, section 2(4)(c)
[9] NEMA, section 2(4)(f)
[10] NEMA, section 2(4)(g)
[11] MPRDA, section 5(3)(d)
[12] MPRDA, section 17(1)(c); 23(1)(c)
[13] MPRDA, sections 5A(a); 17(1)(c); 23(1)(d); 27(6)(b)
[14] MPRDA, sections 19(2)(e); 25(2)(e); 35(2)(a)
[15] NEMA, section 24F read with section 49A(1)(a)
[16] GN 545, items 20-23
[17] NEMA, section 24(2A)
[18] EIA Regulations, regulation 16(2)(a)
[19] MPRDA, sections 16(1); 22(1); 27(2)(a)
[20] MPRDR, regulations 21; 22
[21] NEMA, section 24N(1A)
[22] MPRDR, regulations 49(3)-(6)
[23] NEMA, section 24N(2)
[24] NEMA, section 24(4)(b)(i)
[25] SAHRC. 2017. National Hearing on the Underlying Socio-economic Challenges of Mining-affected Communities in South Africa, p.17
[26] EIA Regulations, regulation 42
[27] EIA Regulations, regulations 41(2)(a)-(d)
[28] EIA Regulations, regulation 40(1)
[29] EIA Regulations, regulation 44
[30] EIA Regulations, regulation 40(2)(d)
[31] EIA Regulations, regulation 39(2)(b). Petroleum exploration and production also do not require the consent of the landowner or lawful occupier.
[32] NEMA, section 43(1A)
[33] NWA, section 21
[34] NWA, section 41(2)(a)(ii)
[35] NWA, section 41(2)(c)
[36] NWA, section 41(4)(a)(ii)
[37] NWA, section 41(6)
[38] NWA, section 148(1)(f)
[39] Regulations on Use of Water for Mining and Related Activities Aimed at the Protection of Water Resources GN 704, regulation 4
[40] Ibid, regulation 6
[41] Ibid, regulation 7
[42] SAHRC. 2017. National Hearing on the Underlying Socio-economic Challenges of Mining-affected Communities in South Africa, p.8
[43] National Environmental Management: Air Quality Act 39 of 2004
[44] National Environmental Management: Waste Act 59 of 2008
[45] National Environmental Management: Biodiversity Act 10 of 2004
[46] 2012 (4) SA 181 (CC)
[47] SAHRC. 2017. National Hearing on the Underlying Socio-economic Challenges of Mining-affected Communities in South Africa, p.6
[48] MPRDR, regulation 62; EIA regulations, regulation 19(5)
[49] NEMA, section 24P
[50] NEMA, section 1 definition
[51] MPRDA, section 43(3)
[52] MPRDA, section 43(6)
[53] MPRDA, section 43(1)
[54] NEMA, section 24R
[55] SAHRC. 2017. National Hearing on the Underlying Socio-economic Challenges of Mining-affected Communities in South Africa, p.7
[56] NEMA, section 28(1)
[57] NEMA, sections 28(7)-(11), ECA sections 31A(3)-(4)
[58] NEMA, section 28(12)
[59] ECA, section 31A
[60] NWA, section 19
[61] MPRDA, section 31
[62] MPRDA, section 47(1)(c)
[63] MPRDA, section 45
[64] NEMA, section 31D(5)-(9)
[65] NEMA, section 30(3)
[66] NEMA, section 30(4)
[67] NEMA, section 30(5)
[68] NEMA, section 30(6)
[69] NEMA, section 30(8)
[70] NWA, section 20
Constitution
Section 24 of our Constitution gives protection to people’s environment by stating that ‘everyone has the right to an environment that is not harmful to their health or wellbeing.’[1] It also states that government must create legislation that upholds this right.[2] As a result, a large amount of legislation has been enacted that aims to safeguard people's environmental rights.
Mineral and Petroleum Resources Development Act (MPRDA)
One of the objects of the MPRDA is to give effect to section 24 of the Constitution “by ensuring mineral resources to be developed in orderly and ecologically sustainable manner while promoting justifiable social and economic development.”[3] Further, the principles set out in section 2 of the National Environmental Management Act (NEMA), the country’s foundational environmental Act, apply to all mining and prospecting operations and serve as guidelines for the interpretation of all environmental requirements of the Act. The most relevant of these principles are:
- Development must be socially, environmentally and economically sustainable.[4]
- “Environmental management must place people and their needs at the forefront of its concern, and serve their physical, psychological, developmental, cultural and social interests equitably.”[5]
- Pollution, waste, disturbance of ecosystems and landscapes, disturbance of cultural heritage sites, loss of biological diversity and negative impacts on people’s environmental rights should be avoided. Where these negative effects of development are not able to be avoided, they should be minimised and remedied.[6]
- A risk-averse and cautious approach should be applied, “which takes into account the limits of current knowledge about the consequences of decisions and actions.”[7]
- “Environmental justice must be pursued so that adverse environmental impacts shall not be distributed in such a manner as to unfairly discriminate against any person, particularly vulnerable and disadvantaged persons.”[8]
- “The participation of all interested and affected parties in environmental governance must be promoted, and all people must have the opportunity to develop the understanding, skills and capacity necessary for achieving equitable and effective participation, and participation by vulnerable and disadvantaged persons must be ensured.”[9]
- “Decisions must take into account the interests, needs and values of all interested and affected parties, and this includes recognising all forms of knowledge, including traditional and ordinary knowledge.”[10]
Besides the inclusion of the above flexible principles, the MPRDA has many solid environmental requirements. Any water use in mining is subject to the NWA – which requires that a water use licence be obtained (see below).[11] The Minister of Mineral Resources must be satisfied that no unacceptable pollution, ecological degradation or environmental damage will occur in order to grant a mineral right.[12] Further, all mineral rights may not be granted without environmental authorisation.[13] The holder of a mineral right is required to comply with the conditions of the environmental authorisation.[14]
Environmental Authorisation
In terms of the National Environmental Management Act 107 of 1998 (NEMA), it is an offense to start mining before environmental authorisation is obtained.[15] All mining and related activities require the most extensive form of application for environmental authorisation – a dual scoping and environmental impact assessment (EIA) process.[16] While environmental authorisations for all other types of developments are processed by the Department of Environmental Affairs, environmental authorisations for mining developments are processed by the Minister of Mineral Resources.[17] According to the EIA Regulations, an application for environmental authorisation can only be submitted once an application for a prospecting right, mining right or permit has been accepted by the Regional Manager.[18] This contradicts the MPRDA, which states that mineral and environmental applications should happen simultaneously.[19]
A mining company applying for environmental authorisation must first submit a scoping report,[20] which is an introductory report to identify social and environmental impacts, provide context and focus the main EIA. After that, the EIA report must be submitted, along with an environmental management plan (EMP).[21] The scoping report provides an opportunity for the Regional Manager and other government officials to comment on the scoping report. These comments must be incorporated into the company’s EIA report and EMP.[22]An EIA is an extensive study of the environmental and social impacts of a proposed development. It is an in-depth study of all the environmental and social risks that may arise from the proposed development. An EMP is a detailed proposal of strategies that a developer will implement to reduce the negative environmental effects of a project during the operation of the development and in closure and rehabilitation of the project site.[23]
An EIA of a proposed mining project must include information on alternatives to mining.[24] This is to provide information regarding whether an environmental authorisation should be granted for the mining project. The SAHRC has noted a widespread bias in government towards mining land use (exhaustive in nature) for development rather than more sustainable land use functions such as agriculture and tourism (non-exhaustive in nature). This is worrying: the SAHRC states that mining normally reduces the diversity of economic sectors or forms of income. Diverse rural economies are more resilient as they are able to absorb economic/social/physical shocks better than economies centred around a single land use.[25] Alternatives to mining should be more highly valued due to their social and environmental sustainability.
During the compilation of a scoping report, EIA and EMP, fair public participation must take place. Public participation is a period of notice, comment and consultation with interested and affected parties. Interested and affected parties must be registered by the company.[26]
Notice of the application for environmental authorisation must be given by the company by fixing an accessible notice board along the boundary of the proposed development. The company must also place an advertisement giving notice of the proposed project in a local newspaper. If the project is likely to have an impact beyond the municipality in which it the project is proposed to take place, the company must place an advertisement in a national or provincial newspaper as well. However, the company does not need to place such advertisements if it publishes notice of the proposed project in an official government Gazette. The company must also send written notice to the occupiers and/or owners of the site (or sites) where the project is proposed to take place.[27] If there are interested and affected people that are unable to participate in the process due to illiteracy, disability or any other disadvantage, the company must use reasonable alternative methods to participate in the process.
There must be a period of at least 30 days per report for interested and affected parties to comment on the information to be contained in each document. However, if the company submits the EIA report and EMP together then the company may combine the commenting periods into a single 30-day period.[28] The company must provide interested and affected parties with full access to any information that has the potential to influence the Minister’s decision regarding the environmental authorisation application. All comments must be included in the reports.[29] Interested and affected parties must be allowed to comment on the final EIA report, as well. Further, potential and registered interested and affected parties must be directly consulted regarding the proposed project.[30]
The consent of the landowner before applying is not required for environmental authorisations involving activities directly related to prospecting and mining although it is for applications for all other projects requiring environmental authorisation.[31] Although mining-related environmental authorisation applications are processed by the Minister for Mineral Resources, the Minister for Environmental Affairs is responsible for appeals. Thus, aggrieved parties can appeal the granting of an environmental authorisation to the Minister for Environmental Affairs,[32] perhaps receiving a more sympathetic ear.
Other AuthorisationsTypically, a licence for the use of water is required to be obtained by the mining company.[33] In making an application for a water use licence, an applicant for a licence would need to furnish an assessment of the effect of the proposed development on the quality of the water resource.[34]
In terms of the National Water Act (NWA), the responsible authority “may invite written comments from any organ of state which, or person who, has an interest in the matter.”[35] There is no requirement that such comments must be invited. Further, the responsible authority may require the applicant for a water licence to “give suitable notice in newspapers and other media” that interested an affected parties may object to the granting of the water licence.[36] As the NWA does not require that these procedures must occur, there is no absolute requirement for public participation. Public participation may not always be part of the application process. However, all interested and affected parties may appeal the granting of a water use licence. A party aggrieved by the granting of a water-use licence can appeal to the Minister[37] or to the National Water Tribunal.[38]
Restrictions are imposed under regulation 4 regarding the location of an activity based on its proximity to water resources. No person in control of a mine or related activity may mine or place mineral deposits, waste material or store other harmful substances likely to pollute water within 100 metres of any watercourse or estuary.[39] Clean and dirty water systems must be kept separate.[40] Mining companies and people in control of related activities must take reasonable steps to prevent water pollution arising from mining or such related activities.[41]
“[T]he current census for determining water reserves does not include measures to account for anticipated migration and population growth and other potential impacts on the availability of water resources, such as droughts.”[42] This ignorance of changing dynamics causes massive problems, down-the-line, with water shortages or deterioration of water sources afflicting many mine-affected communities.
Other environmental licenses that often have to be obtained before mining may commence are:
- Atmospheric Emissions License[43]
- Waste Management License[44]
- Threatened/Protected Species Permit[45]
Holders of mineral rights granted in terms of the MPRDA will need to undertake an enquiry whether there is a town planning scheme over the land and whether the land is zoned to allow for mining in terms of the scheme. If not, the mining company will need to apply for a zoning change in terms of SPLUMA, provincial planning legislation and/or municipal planning by-laws. The need for proper zoning was confirmed in the case of Maccsand (Pty) Ltd v City of Cape Town and Others[46] where it was stated that mining cannot occur if the proper zoning for the land has not been acquired. However, a recent SAHRC report noted that mining companies and government officials “appear to systematically disregard key pieces of legislation,” particularly SPLUMA. Further, the report noted a general failure of government to monitor and enforce compliance with environmental and related authorisations.[47]
What Happens When Mining Ends?
A closure plan is required for mining environmental authorisation applications. It details the objectives and mechanisms in place to close a mine in a sustainable manner and is included as part of the EMP.[48] Financial provision must be made by the company for the remediation of negative environmental effects and rehabilitation of the environment after the closure of the main.[49] Such financial provision made when applying for a mining right and is held by the Department of Mineral resources. The funds are administrated by its Director-General. Financial provision can be made by means of bank guarantees, trust fund contributions or cash deposits.[50]
Despite these two requirements, a mining company must also apply for a closure certificate from the Minister of Mineral Resources when it ceases mining operations in order to lawfully stop mining activities.[51] The Minister must then return all of the financial provision made by the mining company or retain some of the funds for future unforeseen environmental hazards that may arise from the closed mine.[52] There is a contradiction between NEMA and the MPRDA regarding liability for environmental hazards after a closure certificate has been given. The MPRDA states that environmental liability for mining right holders ceases after a mining company has obtained a closure certificate.[53] However, NEMA states that holders of mineral rights remain responsible for any environmental liability caused by the operations pursued under the specific mineral right, even where a closure certificate has been obtained.[54]
Many companies do not make adequate information available regarding rehabilitation and possible use for land post-closure. Also, “[t]he DMR has not taken adequate steps to secure financial provision for rehabilitating damage to the environment and water resources.”[55]
What Happens If Mining Still Causes An Environmental Hazard?
There is a duty of care on any mining company who causes, has caused or might cause significant environmental pollution or degradation to take reasonable measures to prevent or minimise such harm from occurring.[56] If the mining company in question does not take such measures, the empowered officials (the Director-General of the DEA, the Director-General of the DMR or the head of the relevant provincial department) may direct the responsible person to undertake measures to remedy the situation, after hearing the interests of the mining company. If the mining company does comply with the directive, the empowered officials can take necessary measures to avoid or minimise environmental degradation or pollution and then recover costs from the mining company.[57] If the empowered officials do not direct the mining company to take such measures, any person may apply to a court for an order directing such officials to direct the mining company to take reasonable measures to prevent or minimise the degradation.[58]
An unrepealed section of an old piece of legislation, the Environment Conservation Act 73 of 1989 (ECA), extends similar powers to municipalities[59] and the NWA extends similar powers to catchment management agencies in terms of water pollution or degradation.[60]
The Minister of Mineral Resources and the DMR are also empowered to monitor, investigate and issue compliance notices to mining companies regarding environmental hazards that are caused by mining operations.[61] The Minister of Minister Resources may suspend or cancel a mineral right where there is contravention of the conditions of the environmental authorisation.[62] If an environmental hazard or degradation occurs as a result of mining or if the mining company contravenes the conditions of its environmental authorisation, the Minister can direct the company to fix the problem. If the company does not fix the problem, the Minister can direct the DMR to fix the problem and can claim the expenses from the company.[63] A ‘complainant’ (undefined in NEMA) may submit a complaint alleging that a specific compliance monitoring and enforcement action relating to prospecting or mining has not been implemented or has been implemented inadequately.[64]
Where there is an unexpected, sudden and uncontrolled release of a hazardous substance created by a mining company, the mining company must report such incident to the relevant authorities: the Director-General of the Department of Environmental Affairs, the South African Police Service, the head of the provincial or municipal environmental department and all persons whose health may be affected by the substance.[65] The mining company must then immediately take steps to avoid or minimise the effects of the incident on public health and the environment[66] and submit a report to the Director-General, provincial head and municipal head of environmental departments within 14 days on the steps taken.[67] One of the relevant authorities may direct the mining company to take any measures in order to avoid or minimise harm from the incident.[68] If the mining company fails to comply with the directive, the relevant authorities can take measures themselves to avoid or minimise harm from the incident,[69] claiming for any expenses from the mining company. Similar powers are extended to the Department of Water Affairs, SAPS and the relevant catchment management agency in terms of emergency incidents regarding water resources.[70]
[1] The Constitution of the Republic of South Africa, 1996, section 24(a)
[2] Ibid., section 24(b)
[3] MPRDA, section 2(h)
[4] NEMA, section 2(3)
[5] NEMA, section 2(2)
[6] NEMA, sections 2(4)(a)(i)-(iv) & (viii)
[7] NEMA, section 2(4)(a)(vii)
[8] NEMA, section 2(4)(c)
[9] NEMA, section 2(4)(f)
[10] NEMA, section 2(4)(g)
[11] MPRDA, section 5(3)(d)
[12] MPRDA, section 17(1)(c); 23(1)(c)
[13] MPRDA, sections 5A(a); 17(1)(c); 23(1)(d); 27(6)(b)
[14] MPRDA, sections 19(2)(e); 25(2)(e); 35(2)(a)
[15] NEMA, section 24F read with section 49A(1)(a)
[16] GN 545, items 20-23
[17] NEMA, section 24(2A)
[18] EIA Regulations, regulation 16(2)(a)
[19] MPRDA, sections 16(1); 22(1); 27(2)(a)
[20] MPRDR, regulations 21; 22
[21] NEMA, section 24N(1A)
[22] MPRDR, regulations 49(3)-(6)
[23] NEMA, section 24N(2)
[24] NEMA, section 24(4)(b)(i)
[25] SAHRC. 2017. National Hearing on the Underlying Socio-economic Challenges of Mining-affected Communities in South Africa, p.17
[26] EIA Regulations, regulation 42
[27] EIA Regulations, regulations 41(2)(a)-(d)
[28] EIA Regulations, regulation 40(1)
[29] EIA Regulations, regulation 44
[30] EIA Regulations, regulation 40(2)(d)
[31] EIA Regulations, regulation 39(2)(b). Petroleum exploration and production also do not require the consent of the landowner or lawful occupier.
[32] NEMA, section 43(1A)
[33] NWA, section 21
[34] NWA, section 41(2)(a)(ii)
[35] NWA, section 41(2)(c)
[36] NWA, section 41(4)(a)(ii)
[37] NWA, section 41(6)
[38] NWA, section 148(1)(f)
[39] Regulations on Use of Water for Mining and Related Activities Aimed at the Protection of Water Resources GN 704, regulation 4
[40] Ibid, regulation 6
[41] Ibid, regulation 7
[42] SAHRC. 2017. National Hearing on the Underlying Socio-economic Challenges of Mining-affected Communities in South Africa, p.8
[43] National Environmental Management: Air Quality Act 39 of 2004
[44] National Environmental Management: Waste Act 59 of 2008
[45] National Environmental Management: Biodiversity Act 10 of 2004
[46] 2012 (4) SA 181 (CC)
[47] SAHRC. 2017. National Hearing on the Underlying Socio-economic Challenges of Mining-affected Communities in South Africa, p.6
[48] MPRDR, regulation 62; EIA regulations, regulation 19(5)
[49] NEMA, section 24P
[50] NEMA, section 1 definition
[51] MPRDA, section 43(3)
[52] MPRDA, section 43(6)
[53] MPRDA, section 43(1)
[54] NEMA, section 24R
[55] SAHRC. 2017. National Hearing on the Underlying Socio-economic Challenges of Mining-affected Communities in South Africa, p.7
[56] NEMA, section 28(1)
[57] NEMA, sections 28(7)-(11), ECA sections 31A(3)-(4)
[58] NEMA, section 28(12)
[59] ECA, section 31A
[60] NWA, section 19
[61] MPRDA, section 31
[62] MPRDA, section 47(1)(c)
[63] MPRDA, section 45
[64] NEMA, section 31D(5)-(9)
[65] NEMA, section 30(3)
[66] NEMA, section 30(4)
[67] NEMA, section 30(5)
[68] NEMA, section 30(6)
[69] NEMA, section 30(8)
[70] NWA, section 20