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ONO comments on changes to Mining Regulations

Draft Amendment to the Mineral and Petroleum Resources Development Regulations, 2019

Oceans Not Oil takes the opportunity to comment on these very important regulations which seek to enable the implementation of the OES (One Environmental System) Agreement and the Environmental Assessment requirements for mineral activities.

Our main areas of concern are listed below, along with our suggested effective measures for inclusion in the regulatory framework:

The promise of creation of a unified law and system offered by the ‘One Environmental System for the Country’ (‘Agreement’, 2014)(OES) transferring Minerals and Petroleum Resources Development Act, No 28 of 2002 (MPRDA) environmental provisions to the National Environmental Management Act, No 107 of 1998 (NEMA) to integrate the mining industry into the environmental management system applicable to all other industries, has not come to fruition in this Amendment yet, and we say this because:

LACK OF FULL TRANSFER OF ENVIRONMENTAL REGULATORY FUNCTIONS TO DEFF

To ensure that mines comply with the same environmental impact assessment requirements as all other industries, the Department of Environment, Forestry and Fisheries (DEFF) should retain oversight over all mineral/mining activities that influence the environment.

  1. Although environmental concerns are governed by NEMA, the approving authority for mineral, oil and gas Environmental Authorization (EA) sits with the Minister of Mineral Resources and Energy. It is trite that the function of the aforesaid Minister is to support and uphold the swift pursuit of mineral, oil and gas development and not the protection of the consequences of such development. NEMA and environmental authorities are more appropriately placed to consider, issue and ensure compliance with environmental authorisations for mining activities than the Department of Mineral Resources and Energy (DMRE). The impartiality of the DMRE Minister in matters relating to the environment, and its protection in terms of the Constitution and NEMA, cannot be guaranteed. This conflict of interest diminishes and compromises the sound environmental management function provided for in Section 24 of the Bill of Rights. It goes without saying that, as a further result, the implementation of NEMA and its EA/EIA regulations is compromised as a result.
  2. Furthermore, the Minister of Environment, Forestry and Fisheries (DEFF) possesses only appellate jurisdiction on mining EA/EIAs with the result that the DEFF does not properly scrutinize applications for authorisation. Accordingly, the environmental authorisation process is not subjected to the expected and requisite inquiry or environmental protection provided for by NEMA, amounting to statuary bias. 

SUGGESTED AMENDMENT TO MPRDA

Currently the only environmental legislative oversight relating to preliminary geophysical, reconnaissance or seismic surveys in the Act (MRPDA) is contained in s5A, (Prohibition relating to illegal act):

No person may prospect for or remove, mine, conduct technical co-operation operations, reconnaissance operations, explore for and produce any mineral or petroleum or commence with any work incidental thereto on any area without-

       (a)       an environmental authorisation;

As a highly impactful activity[1]reconnaissance requires that a scoping process and an environmental impact assessment process be undertaken. With this in mind we request that the proposed amendments include a provision that reconnaissance be permitted only if the applicant has submitted relevant environmental reports as are required in terms of Chapter 5 of the National Environmental Management Act, 1998.

CHAPTER 1
DEFINITIONS
Regulation 1 of the regulations is amended
(b)

The proposed definition of Interested and Affected Parties is limiting in the extreme and should be abandoned for that reason alone.

Development activities are not only supposed to be sustainable in the eyes of the proponent, but also in the view and perception of the public and local communities affected by the activities. Mining produces air, water, sea and soil pollution, the extent of which can widely impact communities and environments, and, with the prospect of climate change, these impacts can be considered planetary. 

Furthermore, how is ‘direct interest’ defined within the definition of Interested and Affected Parties, when we know that ecosystems are linked and ecological processes, especially in the ocean, span thousands of kilometres?  Please define ‘direct interest’.

PART I: MINERAL AND PETROLEUM REGULATION
3. Consultation with interested and affected persons
Amendment of regulation 3 of the Regulations (d) by addition of regulations 3A and 3B as follows;
Obligation on the part of the applicant to consult
3A

The new Amended Definitions ((c) m) refer specifically to “ meaningful consultation”. With this in mind we suggest 3A should read:

(d) by addition of regulations 3A and 3B as follows;
Obligation on the part of the applicant to consult

3A. Meaningful consultation with landowners, lawful occupiers and interested and affected persons contemplated in section 16(4) (b), 22(4) (b), 27(5) (a) shall be conducted in terms of the public participation process prescribed in Chapter 6 of the Environmental Impact Assessment Regulations, 2014, Regulations 39, 40, 41, 42, 43 and 44 respectively.

3B. 

There will be times when mining operations take place in the ocean. We therefore suggest 3B should read:

3B. A holder of a reconnaissance permission, reconnaissance permit, mining permit, prospecting right, exploration right, mining right and production right must give the landowner or lawful occupier of the land, interested and affected persons and the Regional Manager at least 21 days written notice of his or her intention to commence with the operations.

PART II: SOCIAL AND LABOUR PLAN
Amendment of regulation 41

Regulation 41 is amended
(a) by insertion of words in paragraph (c) as follows;
(c) 

  • Neither the regulations nor the Act define ‘socio-economic development’. This needs definition in terms of the Social and Labour plan and of/ for ‘the areas’
  • If a key deliverable is ‘socio-economic development’, what socio-economic indicators and measures of checking socio-economic development will be utilised or put in place?
  • When will these measurements take place?
  • Who will manage this process, data and analyses?

Amendment of regulation 42 
(b) by addition of sub-regulations (3) and (4) as follows;
(3)

The NEMA EIA Regulations 39-44 notwithstanding, the new Traditional Khoisan Leaders Bill allows community members to be subject to the diktat of traditional leaders and traditional councils (including persons employed by or doing business with a mine) who now have the right to sign away communities’ land in deals with mining companies. Based on clause 24 of the Bill, the only requirement is there must be “a prior consultation with the relevant community represented by such council”. 

  • How is will these new amendments ensure proper and democratic / meaningful consultation with the community?
  • Where, and at what location/s, will this consultation process proceed?  This consultation process needs to take place within the relevant community to allow reasonable access to the meeting by all strata and genders. 
  • Who defines who consents, or not, on behalf of the community? 
  • There is no requirement of the applicants to report back to communities or respond to concerns raised.How will substantive issues raised in this consultation process have any bearing on the decision ultimately taken?

REPEAL OF ENVIRONMENTAL RELATED PROVISIONS AND POLLUTION CONTROL PROVISIONS
Part III, Environmental Regulations for Mineral Development, Petroleum Exploration and Production (excluding regulation 56, 57, 61 and 62), and
Part IV, Pollution and Control of Waste Management Regulations.

DMRE is making little headway in rehabilitating the 5 906 officially abandoned mines listed by the Auditor General of South Africa (2008). These come with mercury, arsenic, lead poisoning, radioactivity, asbestiform minerals and acid-rock drainage etc. threats affecting communities, environments and especially groundwater and surface water quality.

  • It is anomalous that regulations 56 (Principles of mine closure), 57 (Application for mine closure), 61 (Closure objectives), and 62 (Contents of closure plan) have also not been repealed and made subject to environmental regulation by DEFF, given DMRE are yet to show their competency in environmental compliance.

CHAPTER 3
APPEALS
Regulation 74 is hereby amended 

The draft amendments to governing the internal appeal mechanism under s96 (MPRDA) are concerning. They are problematic because:

  • The scope of regulation now omits discernment between appeals under s96(1)(a) and (b) (MPRDA), appearing to apply only to s96(1)(a) .
  • The Minister, and not the Director-General, is identified as the competent authority in relation to an appeal under section 96(1)(a).

The time frame for submission of a notice of appeal seems unreasonably short and impracticable.


[1]Both the environmental and mining sectors have acknowledged the impacts and destructive nature of reconnaissance in the form of seismic surveys. There is a myriad of literature, which gives evidence-based indications of harm of this activity on the marine environment. Unlike terrestrial reconnaissance, marine reconnaissance has long-term, cumulative impacts and that have been recorded at a population level.

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