The Department of Environ-mental Affairs (DEA) chief director of communications Albi Modise tells Polity that, apart from the applicability of the principles contained in Chapter 2 of Nema No 107, of 1998, to all government departments, the environmental management of mining per se is not regulated by Nema, but through the MPRDA No 28, of 2002.

In the MPRDA environmental management regime, the environmental authorities play a commenting role and the Act has specific requirements on the decision-maker should the environmental authority object to granting permission or rights applied for in terms of the MPRDA or the approval of an environmental management plan or programme.

However, individual activities taking place in a mining area that require authorisation, in terms of Nema, must still obtain such authorisation from the environmental authority, even if the activity was assessed through the mining rights application. This has been confirmed through a recent High Court ruling in the Western Cape, where it was decided that compliance with the MPRDA does not exempt the holder of such rights from compliance with other legislation. This requirement does not neces- sarily result in conflicting requirements, but in undesirable duplication of regulatory requirements.

Modise says that the department is aware that this creates frustration; however, this is not different from the requirement to obtain a water use licence for projects from the Department of Water Affairs.

While there are many similarities between the environmental management regime of the MPRDA and that of Nema, there are also key differences, he adds. This includes the applicability of the minimum requirements for environmental assessment, the nature and extent of public consultation, appeal provisions and the requirement of environ- mental authorisation before activities start.

Modise points to relevant Ministers and Parliament, who, accordingly, agreed during 2008 that it was not desirable that environmental management of the mining industry be regulated separately and in a different way to other industries, resulting in the amendment of the two Acts. This involved the environmental management provisions of the MPRDA being adapted and incorporated into Nema. “The aim is to have environmental management legislated solely through Nema and, therefore, enabling the Minister of Environ- mental Affairs to play the role of custodian, while the Minister of Mineral Resources retains the existing mandate to implement the legislation,” he says.

The amendment of both Acts was acceded to by the President during early 2009, and, while the Nema amendment came into effect on April 1, 2009, the Minister of Mineral Resources has not yet brought the MPRDA amendment into effect, Modise says.

The amendments in both Acts that will deal with this issue will only come into effect 18 months after the MPRDA comes into effect. “It is our view that these amendments, as well as the joint project to develop an implementation plan for the Acts, will address issues such as dupli- cation and lack of clarity on mandates,” he says.

The DEA reports that regulatory processes are often blamed for delays and, accordingly, economic implications. “The reality is that regulatory requirements are clear and decision- making timeframes regulated. Poor planning by applicants and the submission of inadequate and incomplete information often cause delays in regulatory processes,” he concludes.