South Africa’s current legal system for environmental management in mines is creating duality and friction between the Department of Mineral Resources (DMR) and the Department of Environmental Affairs, says environmental legislation consultant Green Gain Consulting MD Nicolai Massyn.

The structure of the National Environmental Management Act (Nema), No 107 of 1998, and the Mineral and Petroleum Resources Development Act (MPRDA), No 28 of 2002, perpetuated the DMR effectively being the ‘player and umpire’ in the mining industry and has resulted in poor compliance and enforcement in the environmental sphere for the mining industry.

“The DMR is promoting the development and regulation of the mining industry, while also undertaking its own environmental protection decisions, which is contradictory and can cause further friction,” says Massyn.

There are significantly more legal obligations in the mining industry than in any other industry because it has the largest environmental impact across many disciplines of environmental law, he explains.

The latest MPRDA amendments are expected to streamline the environmental regulations under one legal regime within Nema.

However, although under different legislation, the party that approves environmental-impact assessments related to mining will still be the DMR, perpetuating the duality of the ‘player and umpire’ mentality.

“This does not bode well for anticipated improvement in the environmental performance of mines,” says Massyn.

Meanwhile, the University of the Wit-watersrand School of Law’s Professor Tracy-Lynn Humby says the mining industry should not be treated any differently to other industries, such as the iron and steel, pulp and paper or cement industries in terms of environmental regulation.

“If an authority is responsible for the promotion of mining, it is likely that certain environmental sacrifices will need to be made. An independent and unrelated authority should regulate the environmental laws to ensure effectiveness in protecting the environment,” she says.

Further, the amendments to Nema are contingent on the amendments to the MPRDA coming into effect; however, the latter is yet to be implemented by the DMR.

The way in which this conflict between mining and the environment has played out over the past few years seems to have caused legal uncertainty, says Humby.

“It can be confusing to the industry as it seems that the environmental law guides you in one direction but, in reality, because the MPRDA amendments have not been activated, environmental law has not changed,” Humby explains.

Water Issues
Meanwhile, mining companies are facing challenges with delays in the issue of water-use licences. It currently takes between three and five years to obtain a water-use licence from the Department of Water Affairs (DWA), says law firm Glyn Marais Incorporated environmental director Dr Ernst Basson.

This has resulted in some factories or mines starting or continuing operations without the necessary water-use authorisations.

This also affects companies that were historically permitted under the old Water Act, of 1956, to use water. Where their permits have expired, it takes excessive time for the DWA to issue the replacement water-use licences under the new National Water Act (NWA), No 36 of 1998.

In essence, Basson adds, through the failure of the State’s administrative systems, a legal activity may become illegal.

“The miner may have applied for a renewal of its water-use licence in due time, but no extension or grace period is granted if the DWA experiences delays in issuing the licence. The facility’s use of water may then become illegal,” says Basson.

Regardless of the reasons for noncompliance, the miner is still held liable and could face prosecution or penalties under the NWA, as well as a possible shutdown of mining operations.

For new applications, even if the mining authorisation and water-use applications were submitted simultaneously, the miner waits much longer for a water-use licence to be issued than for mining authorisation.

“The mining companies are under significant pressure from investors, shareholders and financiers to start or resume operations. However, should they operate without the required water licence (or other environmental authorisations or licences), the company could face criminal charges, administrative penalties and, in some cases, even civil claims. They also run the risk of losing investors and shutting down the operations completely if they do not continue mining as usual,” he notes.

With few exceptions, the NWA clearly states that one cannot perform water- related mining operations, such as pumping of underground water, taking or storing water or releasing effluent into the environment, without a water-use licence.

“The delay in obtaining water licences is an institutional issue because there is a shortage of qualified and experienced staff to tend to the issues and difficulties,” says Basson.