South Africa is renowned for its well-established mining industry. The mining regulatory framework has advanced over the years and is governed by various pieces of legislation and regulations. The principal statute governing the South African mining industry is the Mineral and Petroleum Resources Development Act 28 of 2002 ("MPRDA"), which came into force on 1 May 2004. Given that the mining industry has a major environmental impact and acknowledging that it was historically largely unregulated from this perspective, the National Environmental Management Act 107 of 1998, (which is the overarching environmental legislation in South Africa) now governs the environmental management aspects of the mining industry. Thus, owing to its nature and impact, the mining industry is a heavily regulated sector of the South African economy. The South African mining regulatory framework endeavours to balance mineral development and the protection of the environment.
However, the application of NEMA to the mining industry was not immediate. The One Environmental System ("OES") came into operation on 8 December 2014 subsequent to an agreement between the Department of Water Affairs and Sanitation, the then Department of Mineral Resources ("DMR") and the Department of Environmental Affairs ("DEA"). The aim of the OES was to harmonise and integrate the regulatory framework for mining activities into one system with clear departmental designations for the regulation of the mining industry. All of the environmentally-related provisions were removed, through a number of amendments, from the MPRDA.
Currently, the DMRE is the responsible authority for all environmental matters pertaining to mining, through various statutes and the Department of Forestry, Fisheries and the Environment ("DFFE") is the appeal authority. It was expected that the OES would reduce the administrative burden of complying with multiple sets of regulations as it did away, to some degree, with the over-regulation of the mining sector. The DWS has and continues to regulate water-related entitlements for all industries, including the mining industry, in terms of the National Water Act, 36 of 1998.
Nearly 10 years later, was the OES successful in achieving its objectives?
The OES has provided a cost and time-effective permitting process for mining houses, in that only an environmental authorisation with an accompanying environmental management plan, approved by the DMRE, is required before mining or prospecting may commence. It provides a coherent, rational, and integrated approach to environmental permitting for mining activities as opposed to the former cumbersome and fragmented approach. The transitional arrangements for mining companies operating under the previous regime, where environmental management programmes ("EMPr") were approved by the DMRE in terms of the MPRDA, have not been as simple. The main issue was the status of the EMPr and whether it was sufficient to comply with the requirement of an environmental authorisation in terms of NEMA. Ultimately, this position was confirmed.
However, despite the implementation of the OES, hurdles remain especially since the mandates of the DMRE and DFFE differ significantly. The primary mandate of the DMRE is to promote economic development through mineral development, while the DFFE's mandate is to manage, protect and conserve South Africa's environment and natural resources. This schism was evident in the case of Mineral Sands Resources (Pty) Limited v Magistrate for District of Vredendal, Kroutz NO and others (Case No: 18701/16) in which the DEA, the predecessor of the DFFE, received multiple complaints alleging illegal commencement of listed activities by a mining company. Although the DMRE investigated the complaints, the DEA obtained a search warrant and led the later site inspection. However, the search warrant was set aside because the DEA lacked the necessary legislative power to conduct such a search, based on the OES. In regard to mine closure, the misalignment in the wording of section 43(1) of the MPRDA (i.e. until the Minister has issued a closure certificate) versus section 24R of NEMA (i.e. notwithstanding the issuance of a closure certificate) has created some legal uncertainty insofar as closure and post-closure obligations are concerned.
Additionally, capacity constraints within the DMRE continue to contribute towards misalignment between the departments.
Another example of differing mandates and competencies is the delay in finalising the financial provision regulations for the mining industry. The relevant regulations were published in 2015 (Government Gazette No. 39425 of 20 November 2015) and though multiple amendments have been published, along with numerous working group discussions, no agreement between the DFFE and DMRE has been reached. The transitional arrangements and accordingly compliance by holders of mining rights granted or applied for, before the 2015 Financial Provisions Regulations were published, have been extended indefinitely.
Despite the OES, overregulation has unfortunately been implemented. For example, the management of residue deposits and residue stockpiles has not been straightforward, especially with the unnecessary inclusion of these facilities in the National Environmental Management: Waste Act 59 of 2008 ("NEMWA"). The Legislature enacted the National Environmental Management Laws Amendment Act 2 of 2022 ("NEMLA") to remove residue stockpiles and residue deposits from the ambit of NEMWA and bring them under NEMA. In a judgment handed down on 26 June 2023, the Constitutional Court, however, declared certain provisions of NEMLA invalid due to procedural irregularities. Nonetheless, this indicates the government and the legislature's continued willingness to make the necessary changes to ensure the success of the OES and minimise overregulation and duplication of requirements. Collaboration between the government departments is key to the success of the OES.
In celebration of the 20th anniversary of the MPRDA, visit the page here.
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