SA state debate mining environmental license and sustainability

The SA Environment, Water and Minerals departments will co-operate on mining environmental licenses, but still debate sustainability.

A special briefing in September 2013 informed politicians on the work the South African Departments of Mineral Resources (DMR), Environmental Affairs (DEA), and Water Affairs (DWA), have done in aligning their licensing systems for mining environmental management.

The session was chaired by Johnny de Lange and Ms F Bikani (ANC). The Committee met jointly with the Mining Portfolio Committee. The chairman remarked that the programme the committees would embark on was unique and had not ever happened in Parliament before.

Environmental management legislation had bedevilled government for 20 years, partly due to indecisiveness as to which department had to manage the environment and environmental impacts.

What is mining sustainability?

The correct approach would not be to decide on who managed it, but rather base it on cooperation and coordinating the work. The right balance between environmental management and development had to be achieved to maintain sustainability, said De Lange.

Departments would give conflicting accounts of sustainability, as well as civil society. The question of how development was taken forward without compromising the environment was crucial.

The state’s former intention was to adopt an integrated mine environmental management system, and to align the Minerals and Petroleum Resources Development Act, MPRDA, with the National Environmental Management Act (NEMA). The agreement sought to repeal all mining environmental management provisions in the MPRDA, and transfer of environmental provisions to NEMA.

The agreement also sought to give an 18 month window period in NEMA for the implementation of the environmental provisions relating to mining, prospecting, exploration and production, to allow a seamless process from one piece of legislation to another.

NEMA was amended to assign powers for implementation of the former agreements to DMR, while DEA was designated as appeal authority in mining related environmental authorisations. This allowed DEA to exercise the function of custodian of the environment.

There had been significant improvements since 2011, because all authorisation processes were reviewed.

The current agreement between the three Departments as reflected in the two Amendment Bills now before Parliament, differs from the former agreement; The mining related environmental function would not be transferred to DEA, even though DEA would remain the appeal authority for environmental mining activities.

Fast-tracked mining enviro appplications

Alignment of regulatory processes was added to the scope of the agreement; and provided for mining restriction in ecologically sensitive areas. Streamlined processes would result in shorter periods for application than before.

Members sought clarity on the appeals authority, and how the process would work in general. Five licences were being dealt with separately and all had appeal procedures. Appeal procedures were too long.

It was not clear why provinces should be allowed to comment on appeals. Implementation would be crucial, said the polliticians.The task team should start drafting the implementation plan.

The two Committees have met before and came up with a solution that was never implemented. They would now create a model of how to deal with sensitive cross-cutting issues between departments.

Departments were tasked with coming up with an agreement that environmental laws could also be used in mining.

Because of the centrality of mining in SA’s economy, the agreement stipulated that the regime to apply [enforce] legislation would be the Department of Environmental Affairs (DEA), but the competent authority at times would differ. The final arbiter would be the Minister of Environmental Affairs.

The agreement was complex and difficult to understand. It had been proposed that when departments – DEA, Department of Mineral Resources (DMR), and the Department of Water Affairs (DWA) – promulbgated an Act, they ought to include regulations.

The departments had already drafted regulations. The environmental set-up remained intact, although the competent authority might differ.

The agreement sequenced licensing. There would no longer be the five different licence-issuing authorities.

Ms Bikani said the Portfolio Committee on Mining might also have to have a joint meeting with the Committee on Energy. This was a good initiative and was an achievement that the two Committees got to sit down together.

Mr Kgauta Mokoena, DMR Director: Mine Environment, said various laws applied to environmental aspects of exploration, prospecting, mining and production activities. These laws had their own processes and information requirements and that had resulted in a lack of integration.

Mining would be subjected to an environmental authorisation process, to replace the Environmental Management Plan of the Project (EMP or EMPP) process undertaken as a pre-condition for a mining permit.

Mining envrionment inspectors

The DMR minister could appoint mineral resource inspectors (MRIs), with the powers of environmental management inspectors.

In order to ensure the implementation of the new system there was an inter-departmental project implementation committee (IPIC). Officials from the three departments, as well as from the Department of Arts and Culture (DAC), comprise the team.

Six task teams had already been established on appeals and legislative amendments; co-ordinated timeframes; capacity; enforcement; joint planning; and communication.

There was water legislation that needed to be looked as well, but a MinMec had indicated there would not be major changes in terms of the National Water Act (NWA).

New mining water law in 2015

DEA had drafted amendments and they would be ready for public consultation in 2014. The regulations needs to be in force by 8 December 2014.

Mr Trevor Balzer, DWA DG, said the Act required to be amended, not the regulations.

Discussion on mining licences and sustainability policy

Ms J Manganye (ANC) sought clarity on the existing mining activity and whether it would be impacted upon in any way.

One of the complicating things that the Committee would have to confront was the implementation of a new agreement. These processes ought to finish before the deadline of December 2014.

Once all the changes had been finished, the Committee would have to look at was whether the Departments would be able to implement this agreement immediately. The new system would kick in on whatever date the Committee decided on. The law as it stood would apply until something was put in place.

Mr J Skosana (ANC) asked what the responsibility of each department would be in respect to service delivery once the current set up had kicked in.

Mr Balzer replied that all of the licensing conditions would still remain with DWA. There was no shift in the licensing conditions.

The regulations were intended to align the process that was followed parallel with mining and environmental processes. Currently under the present regime the water licence only kicked in after the mining licence had been approved; so the processes ran parallel of each other.

Mr Skosana sought confirmation of whether his understanding, that all issues relating to the environment in the mining sector, would be the responsibility of DMR, was correct.

Ms Nosipho Ngcaba, DEA Director-General, replied the way the amendments were structured was that the Minister of Mineral Resources would be the 11th authority. Currently all provinces were competent authorities in terms of the Environmental Impact Assessment (EIA) system.

DEA was the tenth, and in mining areas now there would be the Minister of mineral resources who would then exercise the environmental authorisation. But this was in mining areas only as provided for under the NEMA EIA system.

Mr F Rogers (DA) sought clarity on whether the environmental inspectors would become the delegated authority of DMR. Mr Ishaam Abader, DEA DDG: Corporate Affairs, replied this was being discussed in the enforcement and compliance task team. There would be environmental inspectors that would be from DMR, and would be responsible for compliance and enforcement. But this would now be done in terms of the environmental laws and not what their laws used to be.

Enviornmental inspectos trained

Ms Ngcaba said currently there was a standard training that all environmental inspectors were expected to go through. Those inspectors from DMR would have gone through the same system that all environmental inspectors from municipalities and provinces go through.

Ms Bikani said DMR at regional level had environmental staff. Mr Mokoena replied the current system in the mining rights applications had elements of environmental issues to it. There was personnel and capacity that was there and would hopefully help in building on the capacity towards the NEMA EIA process.

Ms Dee Fischer, DEA Chief Director: Integrated Environmental Management, replied NEMA currently required provinces to comment on the mining applications. Currently in the provinces there was capacity for that activity.

Now the appeals activity would also go to provinces and they would be expected to make comments on the appeals decisions. Provinces were currently not capacitated for this function. The Minister would still be the competent authority for the appeal, but provinces would need that capacity.

Ms Bikani said she was worried because DMR would have to prove that the licensing processes were becoming easier or user-friendly. As much as alignment was happening, officials ought to be careful not frustrate ordinary people trying to get mining licences.

The regulations should stipulate that condemnation should be done according to the level to which the process had progressed. And conditions, especially if the Minister had started applying mind to the facts, should be very difficult if not impossible.

Five licences were being dealt with separately and all had appeal procedures. Departments should go back and see how they re-aligned and made sure there were get-out clauses that specified that the two Ministers needed to agree to an extension.

Condemnation could only be given if the process had not progressed beyond a point where reversal was disruptive to the process. This ought to be tied down to all five licensing processes.

Air pollution is local government domain

Mr Alf Wills, DEA Deputy Director General: Environmental Advisory Services, said that the environmental function was constitutionally a concurrent function, while air pollution was strictly a local government function.

Through the cooperative governance approach, departments would be able to streamline regulatory requirements. On the atmospheric licensing, provinces would be involved with regards to the waste and air emission licensing. The intention was to reduce the appeals process to 60-90 days than the previous 200 days.

The Chairperson wanted to know if the appeal authority had and would always be the Ministers.

Mr Wills replied no. It was the Minister in the case of waste; but air emissions was a local government function, the Municipal Systems Act was used in the appeals’ procedure.

The Chairperson said there was no problem with concurrent function. He doubted if it was correct that someone at the local authority could decide if all the environmental laws had been complied with. There was a need to go look at the law with regards to the appeal process, and the powers should be with the Minister.

A decentralised or fragmented approach would be a challenge at this juncture. Legally, the appeal process should not be a problem if it was centralised at ministerial level. This ought to be pursued further; concurrent function did not mean the appeals process should also be taken to that level.

Mr Wills said the intention was to make the one appeal process applicable across the board. That was the reason for the amendments to the Waste Act (WA) and the Air Quality Act (AQA).

The Chairperson said the AQA was before Parliament and the amendments could be easily effected. He requested officials to check if anything needed to be amended in the pertinent laws. All the appeals needed to be located in one place, if not, the system would not work.

Mr Anil Singh, DWA Chief Director: Legal Services, said the state could not implement the Bill until the policy issue had been finalised and approved. The amendment would deal with the tribunal being replaced by an internal appeal mechanism. The minister was weighing up the options.

Some mines remain unlicensed

Ms C Zikalala (IFP) wondered if there were mining companies who still did not have water licences. The Chairperson replied there were lots of them, but the process was meant to curb that situation.

DWA did not even know how many mining licences had been applied for.

The Chairperson said the departments should ook at the system that had been created and identify those areas that were likely not to functioin.

Implementation would be crucial; the task team should start drafting the implementation plan, because without it these legislative amendments meant nothing.

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