The National Environmental Management Laws Amendment Act 25 of 2014 has introduced various changes to the National Environmental Management Waste Act 59 of 2008 (“Waste Act”). In particular, the Waste Act has been extended to include residue stockpiles and deposits as defined in the Minerals and Petroleum Resources Development Act 28 of 2002 (“MPRDA”) and appoints the Minister of Mineral Resources as the licensing authority with respect to these deposits and stockpiles. These amendments fail to rectify the problems regarding historical residue stockpiles and deposits which do not fall within the MPRDA definition of residue stockpiles and deposits.

Prior to the 2013 amendments to the MPRDA, a mining right could only be granted over land and since residue stockpiles and deposits are not land it was not possible for the Department of Mineral Resources (“DMR”) to grant a mining right over them. The only exception related to “residue deposits” which required a mining right prior to removing minerals from the deposit. A residue deposit, however, was defined as a tailings dump created in terms of a “mining right” which in turn referred to a right that was granted under the MPRDA (and not previous legislation). A mining right was therefore only required when removing minerals from residue deposits created in terms of mining rights granted under the MPRDA. Residue deposits created under old legislation / right were excluded and thus could be mined without a mining right.

The 2013 amendments to the MPRDA merely extended this requirement by stating that a mining right was required in respect of residue stockpiles and deposits that were created under a mining right or an old order mining right. Unfortunately, the inclusion of the phrase “old order mining right” has a very specific meaning under the MPRDA. According to the case of Holcim v Prudent Investors an “old order right” was a specific genre of right that was created by the MPRDA with effect from 1 May 2004. The effect of including "old order rights" within the definition of stockpiles and deposits meant that only stockpiles and deposits created under old order rights after 1 May 2004 fell within the jurisdiction of the MPRDA. Furthermore since legislation only applies prospectively and not retrospectively (unless clearly stated otherwise in the relevant legislation) and the MPRDA Amendment Act only came into force on 7 June 2013, only dumps created under old order rights after 7 June 2013 are included under the jurisdiction of the MPRDA. Since most old order rights had either lapsed or been converted into new order rights, it seems that only a very limited number of deposits which would fall within this category.

We note that a further Amendment Bill currently before Parliament, proposes radical changes to the legal position in relation to mine dumps as set out above, by, inter alia, including mine dumps in the definition of "land" in the MPRDA, and by providing that all mine dumps, both current and historical, are subject to the jurisdiction of the MPRDA. However, until this time historical residue stockpiles and residue deposits still be managed in accordance with the Waste Act and under the jurisdiction of the Department of Environmental Affairs and not the MPRDA and the DMR.

Written by Matthew Burnell, Fasken Martineau