SOUTH AFRICA: AMENDMENT OF MINING AND MINING RELATED ACTIVITIES REQUIRING ENVIRONMENTAL AUTHORISATIONS AND LANDOWNER CONSENT REQUIREMENTS
On 11 June 2021, the Minister of Forestry, Fisheries and the Environment published the EIA Amendment Notice,[1] which introduces several amendments to the Environmental Impact Assessment Regulations, 2014 (EIA Regulations) [2] and the Listing Notices. [3]
These amendments are a continuation of the attempts to complete the ‘one environmental system’ under the National Environmental Management Act, 1998 (NEMA), which has unfortunately been introduced in a piecemeal fashion over the years resulting in conflicts between the successive amendments and complex transitional arrangements.
The latest amendments in the EIA Regulations and the Listing Notices will have far-reaching implications for the minerals industry. This is because the EIA Amendment Notice provides that, in respect of those amendments that have commenced, the amendments apply to applications that are lodged on or after the date of publication of the EIA Amendment Notice (i.e. applications submitted on or after 11 June 2021). [4]
Some of the key practical implications of these amendments are outlined below.
Key amendments in the EIA Regulations affecting the mining sector
EIA Regulations and the landowner consent requirement
An important amendment in the EIA Regulations is the landowner consent requirement. According to regulation 16(1)(b), unless the exemption in regulation 39(2) applies, if an applicant for an environmental authorisation is not the owner or person in control of the land on which the activity is to be undertaken, the applicant must, before applying for an environmental authorisation in respect of such activity, obtain the written consent of the landowner or person in control of the land.
Meaningful participation with the affected and interested persons is very important, but an unqualified or absolute landowner consent requirement brings the amendments into conflict with the mineral regulation provisions in the Mineral and Petroleum Resources Development Act, 2002 (MPRDA).
This provision of the EIA Regulations is in stark contrast to section 5 of the MPRDA5 which gives holders of prospecting or mining rights extensive rights to enter the relevant mining or prospecting area, subject to the MPRDA.
The EIA Regulations may be open to challenge on the basis that these entrenched rights cannot be arbitrarily withdrawn through the EIA Regulations. It is also an established principle of our law that a statute does not alter the existing law more than is necessary, in such a circumstance the requirement for landowner consent may be ‘read down’ such that, if no consent is given, the reason for this could be provided with the application together with a request, based on section 5 of the MPRDA for the application to be considered regardless of this.
The MPRDA has a clear mechanism for resolving any conflicts between holders of mineral rights, surface owners and holders of protected informal rights. This vagueness affects the legality of the EIA Regulations relating to landowner consent. In other statutes, the landowner consent is only required in certain specific circumstances.
The EIA Regulations’ landowner consent requirement applies to all instances in which the applicant is not the owner or in control of the land, except where an application for environmental authorisation is in respect of linear activities.
Until 11 June 2021 (when this amendment introduced by the EIA Amendment Notice commenced), regulation 39(2) included other exemptions including applications for environmental authorisation relating to mining and mining-related activities. The mining and mining-related activities exemption has been repealed.
In the mining sector, the landowner consent will apply to new applications for environmental authorisations, but may also apply to applications for amendments, especially where the amendment application relates to an expansion of a mining right area or when an amendment triggers a listed activity and thus cannot be amended in terms of Chapter 5 of the EIA Regulations.
The landowner consent requirement has no rational connection to the purpose of the EIA Regulations, which are to provide procedures for assessing the environmental impacts of a project. Meaningful and thorough consultation with affected persons and/or public participation ably solved the mischief that is purportedly sought to be resolved by the consent requirement.
The introduction of the landowner consent in the EIA Regulations appears to be an uncritical response to the Xolobeni [6] and Maledu [7] judgments. The landowner consent considered in these cases related to the interpretation of the consent requirement in the Interim Protection of Informal Land Rights Act, 1996 (IPILRA).
The EIA Regulations extend the IPILRA requirement to all land, including single owner land, which in effect gives a veto to any landowner in respect of any activity related to mining or prospecting.
Unlike the EIA Regulations, the IPLRA consent requirement has a clear test and requires majority approval of the community if the project will deprive the community of their land or rights in such land.
Whether there will be such in the case of mining activity is fact dependent; in many instances, while the mining right may extend over a large portion of land, the actual impact on the surface will be limited. In addition to the deprivation theory, other statutory instruments with similar concepts of approval provide that the landowner may not unreasonably refuse approval or place impossible or unreasonable demands for access or approval to be granted.
These statutes include dispute resolution mechanisms tailored to solve disputes arising from access negotiations. However, there is no such provision introduced within the EIA Regulations amendment, which will create a fertile ground for unnecessary legal disputes and delays to mineral exploitation that could bring substantial benefits that extend well beyond any impact on a landowner. For further detail on the landowner consent requirement and its impact in the minerals industry please click here.
Until a solution is found to the absolute nature of the landowner consent, an applicant for an environmental authorisation will have to plan for this consent requirement. In addition, whenever a mine negotiates and agrees a lease or land access agreement it should ensure that such an agreement includes consent for any further applications such as EIA or rezoning upfront.
Application for environmental authorisation and acceptance of the mining right application
Regulation 16(2) of the EIA Regulations provides that an application for environmental authorisation relating to mining may only be submitted after the acceptance of an application for the right. The amendment adds other possible applications that may be made in terms of the MPRDA.
The most significant part of this amendment is that not only is the proof of acceptance of the mining right application required, but also proof of acceptance, where the environmental authorisation relates to an application that triggers the need for ministerial consent in terms of section 102 of the MPRDA.
While the MPRDA has a mechanism for accepting mining right applications, it has no specific provision for accepting section 102 applications. In practice, the Department of Mineral Resources and Energy always issues mining right application acceptance letters after a very long wait and rarely issues acceptance letters for a section 102 consent application.
This will cause delays for processing of environmental authorisations for mining related applications and an applicant will need to factor-in this possible delay.
Decommissioning a mine and/or mine infrastructure may require environmental authorisation
Activity 31 of Listing Notice 1 has been amended to, inter alia, state that the closure of existing facilities, structures or infrastructure for any development and related activity or activities listed in the Listing Notices requires an environmental authorisation following a basic assessment procedure. This would include the mining and mining activities that are listed activities in the respective Listing Notices.
Activity 31 has also been amended to remove the exclusion of activity 22, and activity 22 itself has been deleted.
Activity 22 provided for the decommissioning of any activities that required a closure certificate as activities that require an environmental authorisation to undertake. Activity 22 excluded processing operations (e.g. concentrators and refineries) from its scope. The repeal of the processing facilities exemption means that the decommissioning of processing operations is now subject to the decommissioning provisions of the EIA Regulations.
In respect to mining, the repeal of activity 22, which included qualifications such as an environmental authorisation is only required if a closure certificate is required or production decreases by 90% over a five-year period, means care and maintenance may be subject to the decommissioning provisions of the EIA Regulations.
In this regard, the definition of decommissioning, which includes taking out of service permanently or dismantling partly or wholly, or closure of a facility to the extent that it cannot be readily re-commissioned, will have to be borne in mind when placing a mining on care and maintenance or when mothballing a processing facility.
Auditing frequency
Regulation 54A(2) of the EIA Regulations, which relates to environmental management plans (EMPs) and environmental management programmes (EMPrs) approved in terms of the MPRDA, has been amended.
The amended Regulation 54A(2) states that where a right or permit issued in terms of the MPRDA and the associated EMP or EMPr approved in terms of the MPRDA is still in effect after 8 December 2014, the requirements contained in Part 3 of Chapter 5 of the EIA Regulations apply to such EMPs or EMPrs, and where:
- the audit or performance assessment cycle of the EMP or EMPr exceeds five years, an audit report will be required to be submitted at least every five years commencing from the date of submission of the last audit, for the period during which the right or permit remains in effect; or
- no audit or performance assessment requirement was set in the EMPr or EMP, an audit report will be required to be submitted to the competent authority no later than 7 December 2021, and at least every five years thereafter for the period during which the right or permit remains in effect.
Practically, this means the MPRDA EMPs and EMPrs that did not provide for the auditing frequency must be audited no later than 7 December 2021 and every five years thereafter. This, however, does not stop a mine from having more regular or frequent internal/external auditing for its internal purposes.
Reclamation activities as requiring environmental authorisation
The EIA Regulations and the Listing Notices have introduced a few amendments that relate to the reclamation of residue deposits. The reclamation amendments are not yet in force and require amendments to the National Environmental Management: Waste Act, 2008 (Waste Act), among others, in order to come to force.
The EIA Regulations also include a new definition of ‘mining application’, which is defined as ‘an application for an environmental authorisation for a permission, right, permit or consent required in terms of the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002) and includes hydraulic fracturing and reclamation’ [our emphasis].
The inclusion of reclamation in the mining application definition contradicts the MPRDA, which, inter alia, regards mining as the mining of minerals which naturally occur on earth. The EIA Regulations’ inclusion of reclamation as an incident of mining may require amendment of the definition of ‘mine’ in the MPRDA to make specific reference to extraction of minerals in residue stockpiles/deposits definitions. Failure to do so will result in two regimes for residue stockpiles/deposits (i.e. a regime under the MPRDA that does not require a mining authorisation, and one under NEMA that requires a specific environmental authorisation).
On its own this is not a problem if there are clear transitional arrangements for future reclamations that are otherwise already authorised. In addition, proof of acceptance of a mining right application is required to be presented before an environmental authorisation may be processed. It may need to be amended because there is currently no mining application that is needed to reclaim the residue deposit.
Listing Notice 1 has also been amended to introduce a new reclamation activity. According to activity 21F of Listing Notice 1, ‘any activity including the operation of that required for the reclamation of a residue stockpile or residue deposit as well as an any other applicable activity as contained in this Listing Notice or in Listing Notice 3 of 2014, required for the reclamation of a residue stockpile or residue deposit’ requires an environmental authorisation following a basic assessment procedure.
This activity has not commenced an is only expected to do so when the Waste Act is amended. There are proposed amendments in this regard which we understand are before the Parliament.
Key amendments in the Listing Notices which affect the mining sector
Listing Notice 1
Besides the inclusion of reclamation as an activity requiring an environmental authorisation, which has not commenced, Listing Notice 1 has also amended activities 20 and 21 dealing with prospecting rights and mining permits. This amendment is in force.
Essentially these substituted activities list any activity including the operation of that activity that requires a prospecting right in terms of section 16 of the MPRDA, or a mining permit in terms of section 27 of the MPRDA, as well as any other applicable activity as contained in Listing Notice 1 or 3 required to exercise the prospecting right or mining permit.
What is noticeable from these amendments is the exclusions or deletions of paragraphs (a) and (b) as they existed, which included in these listed activities
- associated infrastructure, structures and earthworks, directly related to prospecting or extraction of a mineral resource; or
- the primary processing of a mineral resource including winning, extraction, classifying, concentrating, crushing, screening or washing, but excluding the secondary processing of a mineral resource, including the smelting, beneficiation, reduction, refining, calcining or gasification of the mineral resources.
Substantively, this does not significantly change the nature of these listed activities as they stood before 11 June 2021. The substituted provisions say prospecting rights and mining permits also cover activities required to operationalize the prospecting or mining permit activities.
The ancillary activities include other activities which are specifically listed in Listing Notices 1 and 3. Before June 2021, the corresponding activities broadly included ancillary activities and did not specifically include other listed activities.
Practically, the change means the project description must be as comprehensive as it can be and cautiously list all other listed activities triggered by the project. Most authorisations were already following this approach.
Listed activities 21A and 21B have been inserted and require any activity including the operation of that activity that requires a reconnaissance permission in terms of section 13 of the MPRDA or a reconnaissance permit in terms of section 74 of the MPRDA, as well as any other applicable activity as contained in Listing Notice 1 or 3, to exercise the reconnaissance permission or reconnaissance permit, unless the exercise of the reconnaissance permission is for any desktop study and any aerial survey. These amendments are also in force.
Listed activity 21D has been inserted, which requires an environmental authorisation for any activity including the operation of such activity which requires an amendment or variation to a right or permit in terms of section 102 of the MPRDA.
This amendment is vague because not all section 102 MPRDA applications may require an environmental authorisation. For example, an application to amend a social and labour plan would not trigger a need for environmental authorisation. Arguably, a better amendment would have ensured that it is clear that the target is the extension of a mining right application, especially since regulation 54 of the EIA Regulations makes it plainly clear that EMPr amendments are subject to Chapter 5 of the EIA Regulations and not section 102 of the MPRDA.
Listed activity 21E has been inserted, which requires an environmental authorisation for any activity including the operation of such activity, for which the Minister of Mineral Resources and Energy has issued an exemption in terms of section 106 of the MPRDA, as well as any other applicable activity contained in Listing Notice 1 or 3 required for exercising such exempted activity. It must be noted that this listed activity will only take effect from 11 December 2021.
Listed activity 22, which dealt with decommissioning of facilities requiring closure certificates, has been deleted.
Listing Notice 2
Listed activity 17 has been substituted to read ‘Any activity including the operation of that activity which requires a mining right in terms of section 22 of the [MPRDA], as well as any other applicable activity contained in Listing Notice 1, 2 or 3, required to exercise the mining right’.
Similar to Listing Notice 1 activities 20 and 21, the amendment removes ancillary activities to include activities listed in the Listing Notices that are needed to operationalise the mining operations.
Listed activity 19 has been substituted to read ‘The removal and disposal of a mineral, which requires a permission granted in terms of section 20 of the [MPRDA], as well as any other applicable activity contained in Listing Notice 1, 2 or 3 required to exercise the permission’. There is nothing substantive to this amendment, except that it includes activities needed to operationalise bulk sampling.
[1] Amendments to the Environmental Impact Assessment Regulations, Listing Notice 1, Listing Notice 2 and Listing Notice 3 of the Environmental Impact Assessment Regulations, 2014 for Activities Identified in terms of section 24(2) and 24 D of the National Environmental Management Act, 1998 published under Government Notice 517 in Government Gazette 44701 of 11 June 2021 (EIA Amendment Notice).
[2] Published in terms of NEMA and under Government Notice R982 in Government Gazette 38282 of 4 December 2014, as amended.
[3] See Environmental Impact Assessment Regulations Listing Notice 1 of 2014, published under Government Notice R983 in Government Gazette 32828 on 4 December 2014 (Listing Notice 1); Environmental Impact Assessment Regulations Listing Notice 2 of 2014, published under Government Notice R984 in Government Gazette 32828 on 4 December 2014 (Listing Notice 2) and Environmental Impact Assessment Regulations Listing Notice 3 of 2014, published under Government Notice R985 in Government Gazette 32828 on 4 December 2014 (Listing Notice 3), collectively Listing Notices.
[4] See clause 31(1) of the EIA Amendment Notice.
[5] These rights are set out in section 5(3) of the MPRDA and include the right to: ‘(a) enter the land to which such right relates together with his or her employees, and bring onto that land any plant, machinery or equipment and build, construct or lay down any surface, underground or under sea infrastructure which may be required for the purpose of prospecting, mining, exploration or production, as the case may be; (b) prospect, mine, explore or produce, as the case may be, for his or her own account on or under that land for the mineral or petroleum for which such right has been granted; (c) remove and dispose of any such mineral found during the course of prospecting, mining, exploration or production, as the case may be; (cA) subject to section 59B of the Diamonds Act, 1986 (Act No. 56 of 1986), (in the case of diamond) remove and dispose of any diamond found during the course of mining operations; (d) subject to the National Water Act, 1998 (Act No. 36 of 1998), use water from any natural spring, lake, river or stream, situated on, or flowing through, such land or from any excavation previously made and used for prospecting, mining, exploration or production purposes, or sink a well or borehole required for use relating to prospecting, mining, exploration or production on such land; and (e) carry out any other activity incidental to prospecting, mining, exploration or production operations, which activity does not contravene the provisions of the MPRDA.’
[6] Baleni and Others v Minister of Mineral Resources and Others 2019 (2) SA 453 (GP).
[7] Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and Another 2019 (2) SA 1 (CC).