The lack of legislative coordination between the Ministry of Water and Environmental Affairs (MWEA) and the Department of Mineral Resources (DMR) is resulting in the postponement of mining projects and placing the South African economy at a disadvantage, says environmental law specialist Cameron Cross Attorneys director Kenneth Cameron.

“In the past, the DMR had free rein to approve mining operations, and relatively simple environmental-management programme reports were approved to facilitate the most efficient and expedient exploitation of the country’s mineral resources,” he adds.

However, today, various departments play a role in the authorisation of projects in mining and industry, particularly since the promulgation of the Mineral and Petroleum Resources Development Act (MPRDA) No 28, of 2002, the National Water Act No 36, of 1998, as well as the National Environmental Management Act (Nema) No 107, of 1998.

Both Nema and the MPRDA are national legislation, but the integration of the Acts is not consistently applied in South Africa, Cameron believes.

He says that, as a result, the country has a multiple authorisation approach without clarity concerning the jurisdiction of environmental matters.

Meanwhile, Cameron says that the MWEA’s and the DMR’s inability to deal with integrated processes often leads to disputes about which department is the so-called ‘lead authority’.

Amendments to both Nema and the MPRDA are to be implemented; however, he adds, the amendments leave much to be desired and disagreements on certain issues appear to be evident.

“Currently, there is no properly coordinated legislation in place. The envisaged changes to the MPRDA and Nema are still extremely flawed because the timeframes for the changes do not complement each other,” he explains.

Other issues include the MPRDA alluding to a single authorisation; however, the legislation used in environmental authorisation talks about multiple authorisation, multiple stages and new authorisations issued for changes to existing operations and facilities.

“If these amendments are implemented as is, the integration of the amendment legislation will be a nightmare,” says Cameron.

He explains that another factor contri- buting to legislative uncertainty is that all practical applications cannot be foreseen when legislation is drafted.

“We are continually confronted with rehabilitation, waste management, water treatment and other environmental legal scenarios that are not specifically envisaged by legislation. This makes it difficult, for the departments, let alone a layman, to identify the correct legal route to compliance.

“What is desperately needed is for the DMR and the MWEA to come together on a national level to resolve the varying provincial interpretations of how the integration between the various legislations should be handled at present. The department and Ministry need to agree on a clear and consolidated approach to solve challenges, to allow for transparent and distinct procedures, without resorting to potentially unlawful compromises, and make them known to the mining industry, in particular, and other relevant industries,” says Cameron.

However, the absence of this synergy is resulting in significant amounts of time and resources being wasted in trying to align each department’s processes, he adds.

“Companies should seek proper legal advice from the start of a project. As a result of capricious advice received from the departments, companies often settle for an illegal approach based on a ‘settlement’ reached between an environmental adviser and departmental officials, which could result in noncompliance with certain legislation. The noncompliance only comes to light, for instance, when a newly appointed official later applies the law correctly and enquires about proper authorisation. This often happens when the project is already on a critical implementation timeline,” he says.

Cameron suggests that legislative uncertainty can often be managed and the best manner in which to ensure compliance is to take a conservative approach to protect companies from the most basic risks.

“It is sometimes advisable to guarantee compliance by obtaining authorisation in terms of certain legal provisions even when legal advice is not conclusive about whether the regulation is applicable. It is, generally speaking, better to deal with the difficulties of process integration than to discover that an operation is completely unlawful after two years of implementation,” he says.

Delays are a costly detriment to any project, particularly for smaller companies. To prevent the delay of project implementation, companies should clearly identify what is required for the authorisation as well as the legal strategic challenges of a project at the start as an essential part of corporate risk management and prefeasibility studies.

“A smaller company can run aground because it does not have the financial resilience to absorb the direct and indirect cost of legal process realignment and is particularly vulnerable to the negative effects of postponed projects. If proper legal advice is sought upfront, it will ensure proper integration of all legal processes. If this is not done, it will result in the company experiencing the same problems dealt with by a larger company, without the benefit of the capital resources of the larger company needed to survive the legal problems that it will encounter. This is not to say that larger entities are immune. Resolving such problems could take three times as long as it would have taken had the proper approach been followed from the start of the project,” says Cameron.

He explains that other countries have adopted a single environmental authorisation process. “This could potentially be an excellent solution for us. However, different departments will remain involved in the process. While some legislative amendments have been promulgated to assist in issuance of single environmental authorisations, it does not properly provide for process inte-gration nor is it binding or applicable to authorities across the board,” concludes Cameron.