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Monday, September 1, 2008
A minefield

For decades, mining has contributed significantly to the South African economy. In 2003 it contributed roughly 7% of GDP. The different forms of pollution and environmental degradation caused by different mining methods are, however, extensive and include destruction of vegetative cover, landform disruption, reduction and changes in water quality, solid waste accumulation, production of hazardous waste and toxic chemicals, and air pollution.

Notes Tina Costas, Senior Associate, Garlicke & Bousfield Inc., “The battle between the Department of Environmental Affairs and Tourism (DEAT) and the Department of Minerals and Energy (DME) to regulate mining activities in respect of environmental impact is long-standing.” While most activities which may impact on the environment are regulated by DEAT, mining activities continue to be excluded, and are regulated by the DME, a scenario which brings to mind the adage of “the wolf guarding the sheep”.
The Mineral and Petroleum Resources Development Act (“MPRDA”) provides that all mining operations must be conducted in accordance with the principles of sustainable development, and applicants are required either to submit an environmental impact assessment or environmental management programme which is considered by the Minister of Minerals and Energy. Although the Minister must consult with other departments administering any law relating to environmental matters, the final decision rests with DME.
She says environmental impact assessment is not defined in the MPRDA and appears to be merely a ‘mitigation’ report indicating how the obvious environmental impacts will be addressed to the satisfaction of the Minister, rather than as a tool in deciding whether to allow mining. The unacceptable situation where the DME is responsible simultaneously for the promotion of mining and the protection of the environment from the effects of such mining is the result. The inclusion of mining activities as a “listed activity” in terms of the regulations promulgated in terms of the National Environmental Management Act (NEMA) was a notable victory for environmentalists, but one which is currently academic. Mining activities now fall within the ambit of “listed activities” requiring the applicant to obtain approval from DEAT before the activity commences. However, mining activities are the only activities in the regulations which are not being policed, and the date of commencement of enforcement procedures is uncertain.
The Mineral and Petroleum Resources Development Amendment Bill now seeks to exclude mining operations as a listed activity by providing that “the provisions of NEMA relating to environmental authorisations shall not apply to the activities of holders” (of mining permits) To environmentalists, this is unacceptable, as the Bill seeks to exclude mining activities from NEMA’s jurisdiction, leaving all decisions to the DME.
“In a constitutional democracy which recognises the right to be protected from the effects of pollution and degradation, there is no rational reason why mining activities should be excluded from the NEMA process. Let’s hope DEAT will finally win the turf war. Or perhaps the DME will yield to the spirit of sustainability and co-operative governance.”

Copyright © Insurance Times and Investments® Vol:21.8 1st September, 2008
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