The Mineral and Petroleum Resources Development Act No. 28 of 2005 (the MPRDA), the National Environmental Management Act No. 107 of 1998 (NEMA) and the National Water Act No. 36 of 1998 (NWA) and the Regulations thereto regulate the impacts of mining operations conducted in South Africa on the environment and prescribe statutory duties in respect of, inter alia, environmental standards, the mitigation of environmental impacts and rehabilitation of the affected environment. Criminal and civil liability is also created under all three of the acts.
What are the requirements prescribed by this legislation?
The MPRDA and NEMA require that mining and activities incidental thereto should be conducted in an environmentally sustainable manner while the NWA regulates the sustainable use of water resources. These statutes, furthermore, prescribe remedial measures as well as penalties to counter any harm caused.
Every person who has applied for a mining right in terms of section 22 of the MPRDA and whose application is accepted by the regional manager, must conduct an environmental impact assessment and submit an environmental management programme (EMPr) within 180 days of the date on which he or she is notified by the regional manager to do so.
Any person who applies for a reconnaissance permission, prospecting right or mining permit and whose application is accepted by the regional manager must submit an environmental management plan (EMP) as prescribed.
Section 37 of the MPRDA prescribes environmental management principles and incorporates the NEMA principles which are aimed at ensuring sustainable development. These principles apply to all prospecting and mining operations, and any associated activities.
Any prospecting or mining operation must be conducted in accordance with generally accepted principles of sustainable development by integrating social, economic and environmental factors (the "triple bottom line") into the planning and implementation of prospecting and mining projects in order to ensure that exploitation of mineral resources serves present and future generations.
Section 38 of the MPRDA deals with integrated environmental management and prescribes the responsibility to remedy any environmental degradation or pollution.
The holder of a prospecting right, mining right or mining permit must:
- give effect to the general principles of integrated environmental management prescribed in Chapter 5 of NEMA;
- consider, investigate, assess and communicate the impact of his or her prospecting or mining on the environment;
- manage all environmental impacts in accordance with the EMP or approved EMPr; and
- as far as it is reasonably practicable, rehabilitate the environment affected by the prospecting or mining operations to its natural or predetermined state or to a land use which conforms to the generally accepted principle of sustainable development.
The holder of the right is responsible for any environmental damage, pollution or ecological degradation as a result of the prospecting or mining operations. Significantly, this duty extends to damage, pollution or degradation which occurs both inside and beyond the boundaries of the area to which such right or permit relates.
Section 41 of the MPRDA prescribes financial provision for the remediation of environmental damage.
Before the minister approves an EMPr or EMP, the applicant for a prospecting right, mining right or mining permit must make the prescribed financial provision for the rehabilitation or management of negative environmental impacts.
If the holder of a prospecting right, mining right or mining permit fails to rehabilitate or manage any negative impact on the environment, or is unable to undertake such rehabilitation or management, the minister may, upon written notice to the holder, use all or part of the financial provision to rehabilitate or manage the negative environmental impact in question.
The holder must annually assess the environmental liability and increase the financial provision to the satisfaction of the minister.
If the minister is not satisfied with the assessment and financial provision, the minister may appoint an independent assessor to conduct the assessment and determine the financial provision.
The requirement to maintain and retain the financial provision remains in force until the minister issues a mine closure certificate, but the minister may retain such portion of the financial provision as may be required to rehabilitate the closed mining or prospecting operation in respect of latent or residual environmental impacts.
What are the penalties for non-compliance?
The directors of a company or members of a close corporation are jointly and severally liable for any unacceptable negative impact on the environment. This includes damage, degradation or pollution advertently or inadvertently caused by the company or close corporation which they represent or represented. Upon conviction a director may be sentenced to a fine or imprisonment not exceeding six months or any magisterially imposed penalty.
In terms of section 43 of the MPRDA, the holder's liability in respect of rehabilitation ceases only upon the issuance of a closure certificate.
The failure to rehabilitate exposes the holder of a prospecting right, mining right or mining permit to criminal liability for not complying with the requirements of the EM P or EM Pr which may attract a fine not exceeding ZAR 100 000 or two years imprisonment or both. The holder's failure to manage adverse impacts in accordance with an EM P or EM Pr also attracts liability in the form of a fine not exceeding ZAR 500 000 or ten years imprisonment or both.
Where the mining activities include associated activities (which are listed in terms of NEMA), such activities require prior environmental authorisation by the relevant environmental authority. Failure to obtain such authorisation prior to commencement with the listed activities is an offence in terms of section 24F of NEMA and the offending party is liable upon conviction to a fine not exceeding ZAR 5 million or 10 years imprisonment or both.
Where the holder of an environmental authorisation fails to comply with a condition of approval, which may include the submission of an EM P which makes provision for rehabilitation and compliance with such an EM P, the environmental authority may issue a compliance notice in terms of section 31L of NEM A. Failure to comply with a compliance notice is also an offence and the offender is liable on conviction to a fine not exceeding ZAR 1 million or 5 years imprisonment or both.1
Furthermore section 28(1) of NEMA prescribes an environmental duty of care and provides that, where any person causes, has caused or may cause significant pollution or environmental degradation, he or she has a duty to prevent such pollution or degradation from occurring or recurring, or (where it cannot be prevented) to take reasonable steps to mitigate such damage.
This duty creates retrospective liability. Where there has been a failure to comply with this duty the minister or a provincial head of department can issue a directive directing certain steps to be taken including rehabilitation measures. Failure to comply with such a directive is an offence and the offender is liable on conviction to a fine not exceeding ZAR 1 million or five years imprisonment or both.
Section 151(2) of the NWA creates criminal liability in respect of various offences in relation to water resources and creates criminal liability on the first conviction to a fine or imprisonment for a period not exceeding five years, or to both a fine and such imprisonment and in the case of a second or subsequent conviction, to a fine or imprisonment for a period not exceeding 10 years or to both a fine and such imprisonment.
How effectively is the legislation enforced?
Regrettably, despite the forceful provisions contained in the MPRDA, NEM A and the NWA, these provisions are seldom effectively enforced. There are a number of reasons for this.
Generally the mining authorities lack capacity and the will to enforce compliance by mines with the conditions of the permits or rights and EMPs / EMPrs. Furthermore, the mining authorities tend to pay lipservice to the environmental impact assessment requirements contained in the MPRDA before granting prospecting and mining rights.
The DEA will act in instances where there is a breach of the duty of care under NEM A resulting in significant pollution or degradation. Certain provincial environmental departments, particularly the Western Cape Department of Environmental Affairs, are more inclined to act against errant mining companies that carry out listed activities under NEM A without authorisation, cause significant pollution or degradation, or fail to rehabilitate.
The Department of Water Affairs is beginning to monitor compliance by mining companies with their duties under the NWA and enforce the provisions of the NWA more effectively.
The question of rehabilitation and the liability for such rehabilitation has also arisen recently in the context of the current acid mine drainage dilemma. While the minerals and environmental authorities have the legislated power to conduct the necessary clean up and recover the costs from those that were responsible or benefited, this poses an evidentiary headache.
The continued pumping of fissure water from gold mine shafts is essential to prevent water contamination, flooding of shafts and decanting. Even after a mine closes, the need to continue pumping to prevent environmental degradation and pollution remains. However, when a mine closes because it is no longer profitable, the rehabilitation fund is often inadequate to fund the required pumping for more than a few months at most.
The question of who is responsible for funding the continued pumping then arises. Presently the options are rather limited. either the neighbouring mines will need to carry this cost (so as to prevent their shafts from fl ooding) or Government will need to exercise its powers under the relevant legislation by intervening (to prevent environmental degradation and pollution from occurring) and then recovering the costs proportionately from those that benefited from the measures taken.
In such a scenario, responsibility should rest with Government and this is supported by provisions under the mPRDA, NemA and the NWA, but will it be able to mobilise the funds and put the necessary measures in place quickly enough? It is certainly a risk that few neighbouring mining companies will be prepared to take, in which case they have to either take the necessary steps themselves or bring a high court application to compel Government to act.
1 The Constitutional Court will be asked to pronounce on, inter alia, whether the holder of a mining right or permit also requires environmental authorisation under NEMA prior to undertaking activities associated with mining which are listed under NEMA in a matter that is set down for hearing on 16 February 2012. Werksmans is acting for the Western Cape Provincial Minister of Environmental Affairs who seeks this declaratory ruling.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.