Mine closure enviro legal compliance issues
I am often aksed for detail on mine closure legal obligations, role players, rights and responsibilities.
Concepts, definitions and issues surrounding mine closure range from ‘rehabilitation of disturbed land to safe, stable and productive post-mining landform, which is suitable and /or acceptable to the community’ (Allen and Briggs, 1999), to ‘site rehabilitation and restoration to ensure that closure of a mine would not compromise environmental quality in the future and would limit the extent of any prospective liabilities for operators, government and community’ (Sasson, 1996) and to ’returning mine sites and affected areas to viable, and wherever practicable, self-sustaining ecosystems that are compatible with a healthy environment and with human activity, (Mining Association of Canada, 1994).
An Area of commonality between these definitions is reclamation and rehabilitation of areas impacted by mining.
If we use South African legislation as a benchmark, several legal rights are involved.
Constitutional and environmental rights
The Constitution of the Republic of South Africa, 108 of 1996, provides clear guidelines on the rights of people with regards to the environment, which mines must adhere to. In section 24 it is clear that everyone has the right:
- to an environment that is not harmful to their health or well-being,
- to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation, promote conservation, and secure ecologically sustainable development and use of natural resources and in the process promoting justifiable economic and social development.
Mineral and Petroleum Resources Development Act
In terms of the Mineral and Petroleum Resources Development (MPRD) Act, 28 of 2002, the matter of Environmental management and protection is provided for.
It is a requirement of this Act that mining be carried out in a manner that is consistent with generally accepted principles of sustainable development by integrating social, economic and environmental factors (sec 37 (2)), taking into consideration the requirement set by the National Environmental Management Act, 107 of 1998, of taking reasonable measures to protect the environment.
From a state perspective there has to be a balance between environmental, economic, social and development issues. This function is to be performed by enacting and implementing legislation and policies appropriate to the industry.
In terms of section 43 (1) of the Mineral and Petroleum Resources Development Act, 28 of 2002 the holder of a prospecting right, mining right, retention permit or mining permit remains responsible for any environmental liability, pollution or ecological degradation, and the management thereof, until the minister has issued a closure certificate to the holder concerned.
Such a closure certificate will not be issued unless the Chief Inspector of Mines and the Department of Water Affairs and Forestry have confirmed in writing that the provisions pertaining to health and safety, and management of potential pollution to water resources have been addressed.
Mine owners’ ongoing responsibility
It is therefore important that mines and the owners of mines be aware that their responsibility and legal liability does not end with the closure of the mine and that with regards to the environment they will be liable if any party is affected by any situation arising from their activities impacting on the environment.
This is enshrined in section 38 of the Constitution. Rehabilitation and closure of mines must be addressed during the planning stages of a mine to ensure the necessary resources are available and attention given to it.
South African environmental legislation requires of government to focus on sustainable development, not only mining in general but in particular once mining ceases.
* Adv Gerrit Augustyn is a sheq legal consultant at Advantage ACT.
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