Chapter Four

ENVIRONMENTAL MANAGEMENT

The inhabitants of South Africa have the constitutional right to an environment that is not harmful to their health or well-being. Everyone has the right to have their environment protected through reasonable legislative and other measures that prevent pollution, encourage conservation and ensure the ecologically sustainable use of resources, while promoting economic and social development.

To attain these goals it is necessary that all sectors of industry, including the mining industry, adopt environmental impact management measures that will promote environmental sustainability, ensure the application of consistent environmental standards and accept the application of the ‘polluter pays’ principle. In view of the complex and unique requirements of the mining industry, a sectoral regulatory and integrated environmental management approach is appropriate, with generally applicable environmental standards being applied.

4.1 Background

1. Mining activities impact on the environment to varying degrees. Three areas stand out for policy and regulation:
1. the environmental impact of exploration;
2. the environmental impact over the life of a mine and the provision of financial assurances for current and future mine site rehabilitation;
3. rehabilitating sites where mining activity has ceased.

These aspects are recognised in current legislation and regulation.

1. Development in South Africa requires the optimum use of all the natural resources of the country. Much needed economic development should not be impeded by unmerited pressures in respect of the environment. Action of this kind in the past has resulted in permanent sterilisation of viable ore bodies and loss of development opportunities. Conflicts must be settled in a spirit of trust and consideration and a reasonable approach by the parties concerned.
2. Government will have to ensure that the costs of environmental impacts of the mining industry are not passed over to the community. This calls for:
1. an increased public involvement which will create a greater awareness of environmental considerations;
2. a co-ordinated and integrated approach to the planning, management and use of all natural resources;
3. the implementation of realistic, effective and affordable measures and standards for environmental impact management, the prevention or efficient management of water, soil and atmospheric pollution, and the rehabilitation of areas affected by mining operations;
4. ongoing research with a view to improving and strengthening the measures, standards and practices applied to managing the impacts on the environment and to control pollution.
3. The principle of ‘the polluter pays’ is relevant to the regulation and enforcement of environmental impact management measures and standards.
4. The role of the Department of Minerals and Energy (DME) as both the promoter of mining and regulator of the environmental management of mining has been unjustly criticised. However, the DME has developed, inter alia, its own environmental impact management structures, expertise and specialist skills to address the mining industry’s particularly complex environmental impacts and management requirements. The Department has created separate chief directorates to (a) promote and (b) regulate mineral development.
5. Under the Minerals Act, prospecting and mining operations may not be conducted without an environmental management programme (EMP) in respect of the land concerned having being approved by the authorities. To assist prospecting and mining companies to comply with this requirement, the Environmental Management Programme Report (EMPR) was developed and has been approved for use in the mining industry. The EMPR covers a description of the pre-mining environment, a motivation for and detailed description of the proposed project, an environmental impact assessment, an EMP and other related aspects. Adequate consideration must be given to alternatives to mining. The EMPR incorporates not only an impact assessment, but also a management plan in relation to impacts.
6. The principles and objectives that have been integrated in the White Paper on Environmental Management and of Biodiversity, are largely incorporated into this chapter. The mining industry has an important role to play in the furthering of the aims of sustainable development by not exploiting our limited mineral reserves in a wasteful manner and by ensuring that the transitional use of land for mining does not exclude its productive use by future generations. The mining industry must, furthermore, promote sustainable development by providing infrastructure and expertise for the country’s future benefit. The environmental management policy should be directed to this aim.

4.2 Intent

Government will provide for the promotion of mining and mineral development while maintaining and enhancing the environmental performance of the mining industry through the application of reasonable, attainable, affordable and effective measures and standards based on local needs and requirements, while taking due cognisance of international tendencies and developments with regard to environmental impact management practices, measures and standards. While accepting that the Department of Environmental Affairs and Tourism will play a broad co-ordinative lead agent role in the national context, environmental management for the mining industry will be addressed on a sectoral basis with the DME acting as the dedicated lead agent.

4.3 Policy Requirements

4.3.1 Views of employers

1. A balance should be maintained between encouraging economic development and preserving high standards of environmental management.
2. Subject to the site-specific nature of the operation, uniform standards of environmental management should be applied across mining operations of varying scale so that all mining is conducted in an environmentally responsible manner. Artisanal mining, which has frequently caused severe environmental damage in other countries, should not be treated more leniently.
3. In principle, there should be no area, other possibly than those which have been sterilised by proclaimed townships, where prospecting and mining are prohibited, but the degree of sensitivity of the area must affect the standards of environmental control exercised by the mining operation. Should an economically viable ore body be discovered in a sensitive area, approval to mine should be subject to the full assessment of environmental impacts provided for in the Minerals Act, in which the ‘no project’ option can be considered.
4. Cognisance should be taken of the stage of economic development of the country in framing environmental regulations. Environmental protection legislation that follows the example of highly developed countries should be adopted with caution. Prospecting and investment in mining have on occasion been substantially diminished as a direct result of ever-higher standards.
5. Mining should be granted precedence in land use, while taking cognisance of environmental factors.
6. Appropriate environmental standards should be set for different stages of mining so that low impact activities, such as prospecting, are not burdened with cumbersome regulations.
7. The interdepartmental consultation required for approval of environmental management programmes should be facilitated and expedited through a ‘one-stop shop’ approach in which the DME acts as a lead agent and liaises with other departments, provincial authorities and interested and affected parties.
8. Delays in obtaining environmental approvals should be eliminated through improved administration.

4.3.2 Views of small-scale miners

1. Government support should be provided for the education of small-scale miners on environmental management.
2. Intensive environmental management services should be provided in areas where there is a high concentration of small-scale miners. Measures should include providing technical and environmental management assistance and simplifying the procedures for complying with environmental management regulations. Explicit budgetary allocations should be made for this purpose.
3. Rehabilitation procedures should be made more affordable by devising a more flexible system for providing the necessary rehabilitation moneys.

4.3.3 Other views

1. Conservation areas including parks, reserves, wilderness areas, and cultural and archaeological sites should be protected.
2. The rehabilitation of defunct and derelict mines which are a risk to the environment, public safety and human health should be provided for by appropriate regulation.
3. The environmental damage caused by the mining industry should be managed and contained irrespective of the size of the mine.
4. It should be ensured that the rehabilitation of land for post-mine use is carried out to standards that permit its use for the purpose set out in the EMPR and that closure be granted only after satisfying that there are no foreseeable residual impacts that will be inherited by parties acquiring such land.
5. Communities directly affected by mining should be enabled to participate in environmental impact assessments studies at the planning stage.
6. South Africa should comply with international environmental standards to meet international obligations.
7. Concerns that the DME lacks capacity to enforce existing environmental provisions should be addressed.
8. Environmental management for the minerals industry should be improved by expanding the scope of EMPRs, which presently address the physical environment, to include assessment of the impact on the social environment.
9. A conflict of interest between the promotion of the minerals industry and the enforcement of environmental standards within the DME should be prevented by providing a clear separation of powers.
10. Land-use decisions should be based on economic efficiency and mining should not enjoy a claim to precedence.

4.4 Policy Proposals

1. In order to ensure that the mining industry is accountable for its actions and the DME for its decisions, environmental management will further be integrated into all phases (from conception to closure and beyond) of a mining operation. In this regard, Government will ensure that the environmental management policy for the minerals industry and the implementation thereof is sector-specific. There will be co-ordination in the shaping of such policy with other policies and policy processes.
2. The ‘polluter pays’ principle will be applied in the regulation and enforcement of environmental impact management measures and standards. Where, for historical or unpreventable reasons, no responsible person exists or can be identified, the State may accept responsibility or co-responsibility for the rehabilitation required. Government may also order that any person benefiting from such rehabilitation should contribute to the costs in such proportion as may be determined.
3. A proactive approach will be applied in identifying environmental impacts associated with mining; by implementing a combination of environmental impact management measures to ensure that mining-related impacts are managed with optimal efficiency; by educating, especially small-scale and artisanal miners, on environmental management; by providing intensified State-regulation of areas where there is a high concentration of small-scale artisanal miners; and by allocating funds specifically for this purpose.
4. A consistent standard of environmental impact management will be applied and maintained, irrespective of the scale of the operation, but in relation to the site-specific nature of the mine.
5. Equitable and effective consultation with stakeholders will be undertaken, particularly those communities directly affected by mining. Informed decisions will be made taking account of grassroots views on mining environmental issues, at planning stages and in the compilation of EMPs. Consultation will however not be taken to the extent where effective decision making is sterilised.
6. The environmental impact management process, which includes the application of the required EMP and other impact management measures in the mining industry, will be strengthened by:
1. providing clear guidelines on the process and sequence of events for its implementation;
2. integrating the principles of Integrated Environmental Management and recognising the wide use of the term "environment" by including economical, social and environmental factors in all procedures;
3. strengthening the efficient implementation of environmental impact management measures in building capacity to monitor pollution and compliance with requirements;
4. expanding the scope of the process by integrating a combination of environmental impact management measures which will promote a holistic and cradle to grave approach.
7. The principle of multiple land use will be adhered to in planning decisions and contending options will be assessed on economic, social and environmental grounds; provided that the decision process will give precedence to mining where it is justified, will accept the concept of sequential land use, and will take account of equity, economic efficiency and sustainability.
8. The mining industry will be encouraged to reduce problems of pollution by promoting a culture of waste minimisation through creative employment of re-cycling, and re-use of waste products. This will also be favourable to job creation. Waste management and minimisation of waste will be performed as part of sectoral environmental management.
9. A streamlined system for environmental approval will be employed, through interdepartmental consultation. There will be a single interface with the minerals industry (the ‘one-stop shop’ approach), where the DME acts as the dedicated sectoral lead agent with a clear separation of powers and responsibilities within the Department.

Chapter Five

REGIONAL CO-OPERATION

Sustainable development in South Africa depends in good part on sustainable reconstruction and development in Southern Africa as a whole. An element of Government’s long-term thinking is the gradual integration of the economies of Southern Africa through the trade and investment protocols of the Southern African Development Community (SADC). The region has considerable mineral potential and therefore the mining sector has a particularly significant contribution to make to the economic development of the region. Mutually beneficial programmes have the potential in the short as well as longer term to yield benefits for the region as a whole.

5.1 Background

1. International economic relations are increasingly influenced by the formation of regional trade blocks, such as those in Europe and North America, offering the advantage of co-ordinated policies, large markets and the free flow of goods and services.
2. Southern Africa has immense mineral wealth and the region produces over a third of the world’s supply of gold, diamonds, platinum-group metals, vanadium, chrome and cobalt as well as over a tenth of other important minerals such as copper, manganese, granite and zircon.
3. Since its inception, the South African mining industry has had extensive involvement and interests in the region, recruiting labour, prospecting and conducting mining operations. Historically, mining has played a role in integrating the economies of Southern African countries. The industry can provide the foundation for renewed economic growth in Southern Africa.
4. With the demise of apartheid and the normalisation of relations with our neighbours, South African companies are re-entering the region with vigour. Care will need to be taken to manage South Africa’s integration into the region’s economy to prevent it unduly dominating and attracting resources away from smaller countries.
5. A protocol on co-operation and integration of the mining sector in the SADC has been adopted which should result in economic development, alleviation of poverty and the improvement of the standard and quality of life througout the region.

5.2 Intent

Government will encourage co-operation on mineral and mining matters amongst the countries of the Southern African region and base that co-operation on the principle of mutual benefit. It will devise policies to enhance South Africa’s capacity to contribute to the development of the region. The objective will be to achieve an equitable, balanced and mutually beneficial order in Southern Africa.

5.3 Policy Requirements

5.3.1 Views of employers

South African mining companies, equipment suppliers and consultancies have technologies, expertise and services potentially in great demand in the region and the rest of the continent. South Africa’s economy stands to gain from increased regional, continental and international co-operation. For profound and enduring economic benefits of co-operation to be realised, a phased removal of barriers to the free movement of labour, capital, goods and services needs to take place, without destabilising any of the countries involved.

5.4 Policy Proposals

1. South African mining and related companies will be encouraged to apply their expertise to tap business opportunities in the region and across the continent.
2. Government will participate in the co-ordination of the policies of Southern African countries so that the region can benefit optimally from its mineral wealth by taking specific steps to:
1. remove barriers to the movement of labour, capital, goods and services but in a phased manner that will avoid destabilising the countries involved;
2. co-operate in the harmonisation of the minerals and related legislation in the region, including the harmonisation of mineral-related industrial and technical standards;
3. encourage cross-border mineral processing, which optimises capacity utilisation and increases value adding in the region;
4. foster regional co-operation in technology development; this should be facilitated through the exchange of geoscience and mineral processing information, technology, facilities and expertise;
5. encourage co-operation in the development of human resources in the region by facilitating the upgrading of the institutional capacity of Southern African mining and geology departments at tertiary institutions, and by pooling resources in the form of laboratory facilities, research centres and institutions;
6. disseminate investment and exploration information among member countries.
3. Government will work co-operatively with other governments, private industry and international agencies to address environmental concerns as well, as mine health and safety standards in respect of mining and minerals.

Chapter Six

GOVERNANCE

In order to contribute to a competitive and sustainable minerals industry in South Africa, Government involvement should be focused on efficient and cost-effective resource management. This includes the mineral, human, and environmental resources of the country. Such governance will require both regulatory and developmental dimensions, but with a clear separation of powers in order to maintain transparency and equity.

The activities of the Department of Minerals and Energy (DME) must be responsive to the needs of stakeholders and transformation within the industry. In this respect a special duty rests on the Department, being charged with a national function with wide impacts throughout the country, to co-operate with all spheres of government. Furthermore, the principle of tripartitism and consultation, which is necessary for open and inclusive governance, should be accommodated. This should include the opportunity for other parties and individuals to constructively engage Government and the main stakeholders on matters of common concern.

Governance

6.1 Regulation and Promotion

6.1.1 Background

1. In order to promote, support and regulate minerals and mining it is essential that Government institutions are competent and efficient. Exploration and mining are high risk businesses and consequently it is important that individuals and companies are confident in their dealings with state institutions, and that decisions are made timeously and efficiently. If contracts are to be negotiated and investment mobilised it will be important that institutions respond rapidly and professionally.
2. The governance of the mining industry involves a number of players, including specialised government agencies, such as the Council for Nuclear Safety and the Council for Geoscience and Mintek, that have a significant influence on the industry. At the level of central Government - in which a number of departments have an interest in the industry - it is the DME which has the primary role in governance.
3. The Leon Commission proposals regarding restructuring in the DME in order to address safety and health issues, have been incorporated in the Mine Health and Safety Act of 1996. These will, therefore, not be discussed in this chapter, other than to note that certain provisions of the Act remain to be implemented.

6.1.2 Intent

The regulatory and promotional activities of Government will be conducted in a transparent and efficient manner in carrying out its brief to encourage the development of the mineral industry, and to regulate it for the benefit of all South Africa’s people.

6.1.3 Policy Requirements

6.1.3.1 Views of the minerals industry

1. Sensible regulation requires an understanding of the nature and interrelated technical complexities of mining, making the existence of a single, central regulatory agency highly desirable. That agency should be the DME, working as necessary through its own regional offices.
2. The Department should serve as the pivotal link between the industry and other government departments and regulatory agencies.
3. Subject to any obligations to maintain confidentiality of private information, the DME should make adequate information available on all the aspects involved in mineral investment and exploitation.
4. Mineral regulation and administration should be conducted efficiently and expeditiously.
5. The DME must be adequately staffed by skilled personnel.
6. The structure of the DME must be such that it is accessible and responsive to all sectors of the mineral industry in all parts of the country, and that the span of control is not stretched.
7. In order to improve access to and investment in the mineral industry, relevant government institutions should not only assume a regulatory role but should actively pursue a promotional role as well.
8. Interdepartmental communications, particularly between the DME and the Departments of Environmental Affairs, Water Affairs, and Trade and Industry, should be improved in order to decrease the potential for cross-cutting legislation.
9. An overall review is needed of which organisations of government will best serve the industry. The review should focus, in particular, on efficiency and competence in the administration and functioning of government agencies whose activities have a direct bearing on the mining industry. Regulatory and service agencies of the government should be attuned and responsive to the needs of and constraints upon the industry.

6.1.3.2 Other views

1. The DME should look after the interests not only of the minerals industry, but also of the communities in the areas where mineral exploitation activities take place.
2. The racial and cultural make-up of the DME should better reflect that of the community.
3. The DME should cultivate a culture of development and promotion of the industry and people associated with it as well as functioning as a regulatory body.
4. No intermediate institutions such as minerals trusts, should be involved in the process of mineral regulation and administration.

6.1.4 Policy Proposals

1. The DME will be the lead agent for governance of the minerals industry.
2. The structure of the DME will, amongst others, provide for:
1. separate intra-departmental components and mechanisms to handle the promotion of the industry on the one hand and regulation on the other;
2. a separate structure, within the regulatory component, to control environmental management in the mining industry;
3. a separate mine, health and safety inspectorate;
4. the improvement of administrative procedures in respect of the granting of prospecting and mining rights;
5. the provision of a cost effective ‘one-stop shop’ information and advice service to the minerals industry; and
6. ongoing research, co-ordination and review of minerals and mining policy.
3. Government will ensure that all associated institutions concerned with the minerals industry will be guided in terms of national objectives and priorities. To this end it will be a statutory requirement that representatives from the DME serve on the boards of such institutions.
4. In particular, the Council for Geoscience should focus on serving as a national resource for South Africa that can make data available at nominal cost. This may require a review of the Council’s mission and Government’s funding policy towards this institution.
5. The staff composition of the DME will reflect the demographics of South Africa.
6. In the process of establishing mining operations, the relevant mining company will consult the affected community, taking due cognisance of the local economic development needs and local intergrated development plans.
7. Intermediate statutory regulatory institutions, such as minerals trusts, will be phased out.

6.2 National and Provincial Governments and Municipalities

6.2.1 Background

1. Mineral affairs are allocated to the national level. In the Constitution mineral affairs are not mentioned in schedule 4 stipulating functional areas of concurrent national and provincial legislative competence, nor in schedule 5 stipulating functional areas of exclusive provincial legislative competence.
2. The Minerals Act provides for the Department of Minerals and Energy to regulate prospecting, the exploitation of minerals, utilisation of land and environmental impact studies whilst health and safety issues are regulated in terms of the Mine Health and Safety Act.
3. Irrespective of the emphasis in the Constitution on national responsibility for mineral affairs, in practice the provinces, due to the wide range of functions they have, also impact on mineral affairs, and vice versa. Several provinces are keen to promote mining in their areas.
4. Mineral affairs interact with the following functions referred to in schedule 4 or 5 of the Constitution: agriculture, environment, health services, local government, nature conservation, regional planning and development, soil conservation, industrial promotion, urban and rural development, and public works.
5. In view of the Constitution, it is important to ensure that uniform mineral management and regulatory standards be maintained throughout South Africa and that services provided by Government be rendered in an equitable manner.
6. Constitutional provision is made for the equitable division of revenue raised nationally among the national and provincial governments and municipalities. This sharing of a national pool of revenue, which includes revenue from mining taxation, involves intricate considerations which fall within the functions of the Financial and Fiscal Commission.

6.2.2 Intent

Government will ensure equal treatment and standards in respect of the management and regulation of the mineral industry in all the provinces of South Africa.

6.2.3 Policy Requirements

6.2.3.1 Views of the minerals industry and investors

1. Sensible regulation requires an understanding of the nature and interrelated technical complexities of mining, making the existence of a single, central regulatory agency highly desirable.
2. Because of the way the industry has evolved, as well as the need for consistency of policy and practice across provincial and local boundaries, there should be minimal devolution of authority to separate provincial or lower level bodies. Such bodies should not be empowered to create laws or regulations which impact on mining.
3. In cases where there is a need for issues to be dealt with at sub-national level, a consultative process with all affected parties is essential.
4. The relationship between a mine and its provincial authority and municipality has many dimensions but the basic criterion should be that the authorities avoid undue involvement in the operations of a mine.
5. Where a mine uses services provided by a municipality such services should be charged for on an economic and equitable basis, governed by the costs of provision; mines should not be burdened with inflated prices designed to improve the financial position of the municipality.
6. Where a mine supplies its own services or can obtain them competitively from a supplier other than the municipality, it should not be obliged either to pay rates in respect of such services or to acquire them from the municipality.

6.2.3.3 Views of provincial governments and municipalities

1. In order to guide or affect the economic growth and development process, some influence is required in the minerals arena, be it at legislative, executive or operational level.
2. Mechanisms are required whereby the negative social and economic consequences of mine closures can be planned for and ameliorated.
3. There is a clear need for integration of regional/local, DME and Department of Trade and Industry attempts to stimulate small-scale entrepreneurial activities.

6.2.4 Policy Proposals

1. The minerals and mining industry will be governed at national level through a single lead department.
2. Services provided to a mine by provincial governments or municipalities will be charged for on an equitable basis.
3. A formal mechanism will be established whereby provinces can engage with national government on mineral industry issues where these relate to agriculture, the environment, economic affairs and other relevant provincial competencies.
4. Provincial governments and municipalities will have access to the expertise and information available in the DME and associated institutions.

6.3 Stakeholder Consultation

6.3.1 Background

1. The mineral industry has been an important factor in the development of South Africa’s infrastructure and much of its secondary industry. It is a major provider of employment and other business opportunities, both directly and through backward and forward linkages. In order for the mineral industry to play its required role in respect of economic growth and the earning of foreign exchange, good co-operation will be required between Government, labour and the industry. This can only be achieved when policy formulation, management and regulation are conducted in an atmosphere of openness and in close consultation with stakeholders in the industry.
2. South Africans recognise that there are large and complicated issues involved in mineral development activities. Development decisions affect the public in more ways than just providing employment opportunities. The stakeholders and affected communities should be involved in discussing all the issues surrounding mineral development activities and should participate in the decision-making process.
3. The Mine Health and Safety Act includes a variety of provisions relating to tripartite consultation and co-operation in respect of different health, safety, education and training issues; these will, therefore, not be addressed in this section.

6.3.2 Intent

The management and regulatory activities of Government will be conducted in a transparent manner and will take into account the views and interests of all the stakeholders in the minerals industry.

6.3.3. Policy Requirements

6.3.3.1 Views of the minerals industry

1. An ongoing opportunity to debate all issues pertinent to mining and minerals policy, that would also provide a forum in which the views of other interested parties could be canvassed, is required. Such a structure and process are essential in order to achieve a collaborative approach to policy formulation, as well as to give coherence and focus to what could otherwise be a fragmented and insufficiently consultative approach to policy.
2. The minerals industry will be promoted through information and education programmes relating to the contribution of the industry to the economy, the role of minerals in everyday life, and mineral-related issues such as the environment and safety and health.

6.3.3.2 Other views

1. A forum should be established where the views of communities affected by mining could be heard.
2. A greater degree of co-operation and co-ordination between government departments is required, as well as between Government and the private sector.
3. A tripartite forum is required to advise the Minister of Minerals and Energy on issues related to mining, such as the environment.

6.3.4 Policy Proposals

A statutory board will be established that will advise the Minister of Minerals and Energy on mining and mineral matters that fall outside the Mine Health and Safety Act. It will provide a forum in which government departments, representatives of the principal stakeholders, viz. business and labour, as well as other interested parties, can debate issues that bear upon existing or new policies.

 Appendicies

Consultative Process Conducted by the Mineral Policy Process Steering Committee

The Steering Committee operated with a mandate to manage the process of mineral policy formulation in an open and transparent way allowing for full stakeholder participation. Three main consultative actions were organised.

Record of Mineral Policy Meetings and Submissions

Views of stakeholders consulted in the course of preparing the
Minerals and Mining Policy Green Pape

Written submission made on the Mineral and Mining Policy for South Africa Discussion Document, November 1995

Bilateral Meetings

Further Written Submissions

List of Abbreviations and Names

Legislation Cited

Companies Act no. 61 of 1973

Income Tax Act no. 58 of 1962

Kwa-Zulu Ngonyama Trust Act of 1994

Labour Relations Act no. 66 of 1995

Lebow Minerals Trust Act of 1987

Mine Health and Safety Act no. 29 of 1996

Minerals Act no. 50 of 1991

Mines and Works Act no. 27 of 1956

Restitution of Land Rights Act no. 22 of 1994

South African Qualifications Authority Act no. 58 of 1995

Commissions Cited

Katz Commission: Commission of Inquiry into Certain Aspects of the Tax Structure of South Africa.

King Committee: The King Report on Corporate Governance, 1994.

Labour Market: Restructuring of the South African Labour Market: Report of the Commission

Commission of Inquiry into the Development of a Comprehensive Labour Market Policy RP83/1996.

Leon Commission: Commision of Inquiry into Safety and Health in the Mining Industry, 1994.

Margo Commission: Report of the Commission of Inquiry into the Tax Structure of the Republic of South Africa RP34/1987.