One Environmental System colloquium

Meeting report

Opening Remarks

The Chairperson said that historically, mining activities were primarily regulated in terms of an environmental management programme (EMP) approved by the Minister of Mineral Resources under the Mineral and Petroleum Resources Development Act, 2002 (MPRDA).  Although separate authorisation in terms of the National Environment Management Act, 1998 (NEMA) was also required to undertake activities on a mine site that were ancillary to mining, such as the clearance of vegetation and the storage of dangerous goods, the perception of many in the mining industry was that a separate environmental authorisation (EA) under NEMA was not required to be obtained.

This dichotomy ended with the implementation of the one environmental system (OES) on 8 December 2014 which resulted in a paradigm shift in the regulation of environmental matters from the Mineral and Petroleum Resources Development Act (MPRDA) to NEMA.  This shift involved the promulgation of a complex set of laws which, among other things, included the coming into force of mining specific listed activities under NEMA's listing notices and the deletion of the provisions under the MPRDA, which regulated the EMP.  The result was that mining right holders were now required to obtain an environmental authorisation (EA) under NEMA instead of an EMP report under the MPRDA in order to commence with mining operations

This move from a fragmented approach to an integrated permitting system could be seen in response to the National Planning Commission, which had specifically identified the need for integration between mining and environmental management as one of the key challenges that seemingly prevented the country from making substantial progress towards reducing poverty, inequality, and joblessness.

Before the introduction of the one environmental system, an applicant for a right or permit in terms of MPRDA had to obtain multiple environmental authorisations from various departments, including those responsible for mineral resources, environmental affairs and water and sanitation. The application and approval process were considered cumbersome, uncoordinated, and resulted in litigation in some instances.

The introduction of OES ostensibly sought to rectify this problem and its principles were notable. Unfortunately, according to many stakeholders, the amendments were introduced in an unsynchronized manner, and in some instance prematurely repealed operational provisions without implementing the necessary amendments. An additional problem was that some of the OES transitional provisions lacked clarity as a result. The National Environmental Management Laws Amendment (NEMLA) bill which the Committee had successfully processed recently was now ready to be debated and passed in the National Assembly, and contained a number of proposals to amend the NEMA so as to effect a more coherent legislative transition to the one environmental system.

A key feature of the OES was that the Minister of Mineral Resources was the competent authority under NEMA for the issuing of EAs to authorise listed activities that were directly related to:

(a) prospecting or exploration of a mineral or petroleum resource; or

(b) extraction and primary processing of a mineral or petroleum resource. 

The assignment of this power had been seen as akin to putting the proverbial fox in charge of the hen-house.

Department of Environmental Affairs (DEA)

Mr Ishaad Abader, Deputy Director General: Legal Authorisations and Compliance Inspectorate, DEA, briefed the Committee on the legal framework for the OES

The OES came into effect on 8 December 2014, after the Ministers of Mineral Resources and Environmental Affairs and Water agreed to streamline the environmental approvals, monitoring and enforcement for South African mines, although the negotiations and amendments to legislation had been in process since 2008.

The agreement entailed:

• that the respective Ministers agree on fixed timeframes for the consideration and issuing of the authorisations in their respective legislation and also agree to align the timeframes and processes;
• that the Minister of Mineral Resources would be the competent authority (CA) for environmental authorisations (EAs) issued under NEMA, for prospecting, exploration, mining or production operations and activities related thereto;
• the repeal of all mine environmental management provisions by means of the MPRD Amendment Act; and
• the transfer of MPRDA environmental provisions to NEMA to create a unified law and system covering environmental impact management

Prior to the OES, mining was excluded from the scope of NEMA, and environmental aspects of mining activities were regulated in terms of the MPRDA. Some development activities related to mining triggered activities identified under the NEMA, and was subject to the environmental impact assessment (EIA) regulations. As a result, an applicant for a right or permit in terms of the MPRDA had to obtain multiple environmental approvals from various Departments, including the DMR and, potentially also, the DEA or a province. The application and approval processes were cumbersome, uncoordinated and resulted in delayed decision-making and litigation in some instances. The introduction of the OES sought to rectify some of these problems.

Department of Mineral Resources (DMR)

Adv Mmadikeledi Malebe, Deputy Director General (DDG): Mineral Regulation, Department of Mineral Resources (DMR), briefed the Committee on the legal framework for implementing the OES.

In February 2008, the DEA and DMR had agreed on the principle of one environmental management to regulate all environmental matters pertaining to mining. The agreement was based on the following three principles. Firstly, both Departments were to follow one environmental system. Secondly, the DMR was the competent authority for the environmental function. Thirdly, the DEA was the appeal authority.

In March 2012, the DGs of the DMR and DEA had met to recommend options to the Ministers. It was agreed that the Department of Water and Sanitation (DWS) must also be part of the agreement and the implementation thereof.

The 2012 approach looked at three options. The first option was to move the environmental function to the DEA. However, that would require legislative amendments to the National Water Act (NWA), the MPRDA and NEMA. Furthermore, it posed constitutional challenges.  The second option was to keep the environmental function at the DMR, include the listed activities, and move appeals to the DEA. This would require legislative amendments to the NWA, MPRDA, NEMA, and a time frame alignment with the DWS. Option three was to leave the functions where they were in the three departments. Option 2 was later adopted as a preferred option.

Centre for Environmental Rights (CER)

Ms Catherine Horsfield, Programme Head: Mining, Centre for Environmental Rights (CER), and Ms Christine Reddell, Attorney: Corporate Accountability, CER, briefed the Committee on the Tormin case

The Tormin judgment had considerable implications for the OES. The case that the presentation focused on was the Mineral Sands Resources versus the Magistrate for the District of Vredendal and others. This was the only case thus far that had really considered the OES and the competing mandates of that system and how the interaction between the Department of Mineral Resources, Environmental Affairs, and Provincial Environment, worked.

Mineral Sands Resources was a mining company and they operated on the Tormin mineral sands mine on the west coast of South Africa. This mine had been developed through the OES, which meant that it had mining rights in terms of the MPRDA which were issued in 2008, and along with that mining right, an environmental management programme under the MPRDA. It had also applied for an environmental authorisation to the Department of Environmental Affairs and Development Panning (DEADP) and had received that in 2012, along with an EMP and the NEMA. It commerced mining in 2013.

Subsequent to its commencement and during its operation in 2014 and 2015, the DEA and the provincial Department of Environmental Affairs were receiving multiple complaints from various stakeholders relating to alleged dumping at sea, the collapse of the cliff base and the expansion of the footprint of the mine, and the construction of roads without environmental authorisations.

The DEA wanted to act on those complaints and investigate the allegations. They then entered into correspondence with mining company to come on site and to investigate. The mining company had challenged the DEA’s authority to investigate. The understanding was that there was no jurisdiction for the DEA to investigate complaints and that only the DMR could investigate, and the DMR had been on site. In their view, there was no left-over jurisdiction for the DEA to investigate, and they had refused to allow them entry on to the site.

This led to the DEA engaging with the DMR. They had had a number of meetings, and had then applied for a search warrant. It was led by the DEA, but there had been DMR officials included in that search warrant. They wanted to investigate, based on that search warrant. The search warrant was issued by the magistrate in the district of Vredendal, and they had carried out a search and seizure operation.

This had led to the mining company suing DEA, the provincial Department of Environmental Affairs and the Magistrate for the district of Vredendal on the basis that the search was unlawful because the environmental authorities had no jurisdiction to investigate.

Professor Tracy Humby

Professor Tracy Humby, Professor: School of Law: Witwatersrand University, briefed the Committee on the OES.

The essence of the 2008 agreement had been that the environmental mandate would not stay with the DMR, but would shift back to the DEA. It was more than an agreement, because its essential terms were captured in amendments that were passed by Parliament. What the 2008 agreement essentially said was that the statutory authority for the environment would reside in the NEMA, and that the implementing authority would go to the DEA.

In 2011, a new agreement was reached that resulted in very complicated and confusing changes to the legislation that already had been passed. For the function to go back to the DEA, there was a need to overcome the lock-in of the single environmental system that was put into the NEMA. This was in section 50, and it was also in the National Water Act. The section stated that the Ministers of Mineral Resources, Environmental Affairs and Water Affairs must ALL concur on amendments to provisions in NEMA or any Specific Environmental Management Act (SEMA) that had the effect of amending the 2011 agreement. The 2011 agreement was that the implementing Authority was the DMR.

Mineral Council South Africa

Ms Stephinah Mudau, Director: Mine Environmental Policy Research, Minerals Council South Africa, briefed the Committee of the OES.

The Council supported the implementation of the One Environmental System, as this had gone a long way in creating a streamlined single authorisation system for the mining sector.

The OES entailed:

• Three Ministers’ agreement -- Environmental Affairs, Mineral Resources , and Water and Sanitation;
• Environmental issues for mining and related issues regulated in terms of NEMA, no longer the MPRDA;
• The Minister of Environmental Affairs setting policy and legislation in terms of NEMA;
• The Minister of Minerals Resources being the implementing agent/
• A 300 days’ timeframe;
• The Minister of Environmental Affairs being the appeal authority

The three Ministers responsible had agreed on fixed time-frames for the consideration and issuing of the permits, licences and authorisations in their respective legislation, and synchronised the process for the issuing of permits, licenses and authorisations to within a 300-day period.

To achieve removal of the environmental provisions from the MPRDA and their effective inclusion in the NEMA, both the pieces of major legislation had to be amended – the MPRDAA 49 of 2008 and the NEMAA 62 of 2008.

Amendments needed to be simultaneous and properly synchronised to enable the effective implementation of the OES. A whole suite of legislation and subordinate legislation was necessary for the implementation of OES.

DEA on the financial provisions

Mr Abader briefed the Committee on the mechanisms for effective governance of the financial provisions for the rehabilitation, closure and post-closure of prospecting, exploration, mining or production operations.

The Committee had wanted the Department to address the issue of achieving an effective balance between environmental and socio-economic development in implementing the One Environmental System, and to advise what it would entail?

In the view of the Department, balance had been achieved, as the legal requirements were all the same and were prescribed by the DEA, as principal custodian of the environment. All competent authorities, including the DMR, were bound by the same NEMA and SEMA requirements when processing applications for EAs. All decisions could be challenged by appealing to the Minister of Environmental Affairs on environmental issues. A second safeguard was that decisions could also be taken on judicial review, thereby providing opportunities for challenging bad decisions and promoting sound decision-making and transparency.

The Committee had also asked the Department to talk to the mechanisms for effective governance of the financial provisions for the rehabilitation, closure and post-closure of prospecting, exploration, mining or production operations. Unclosed and unrehabilitated mines remained a high risk for the government and the communities that lived around them.

The DEA had, through the proposed amendments to the Financial Provision Regulations, as well as the NEMLA Bill process, attempted to address important issues of principle such as concurrent rehabilitation, transparent calculations and disclosure of costs, etc.

Financial provision regulations were being implemented by the DMR after substantial engagement with the  DWS and National Treasury had taken place, to finalise the proposed amendments to the regulations

Discussion

Mr R Purdon (DA) was concerned about the DMR’s environmental inspectors. He referred to the Tormin case, and said the presentation by the CER had indicated that the Western Court High Court had found that the search and seizure operations by the environmental inspectors of the DEADP were unlawful, as NEMA provided that the mandate to carry out compliance inspections in mining operations was to be fulfilled by the environmental inspectors appointed by the Minister of Mineral Resources. However, the question that had been dealt with quite a lot was that of capacity. Having only 124 officials for a country certainly pointed to lack of capacity. He asked if there were enough officials in the provinces now.

He said that there was lack of consistency in the provinces. There had been provincial intervention regarding the Mabola case. However, in the Eastern Cape, the province had stood back and said that the illegal sand mining case was not its competency, and that the DMR must take it. Prof Humby indicated that the investors needed to find a new home. There was a need to discuss this.

Mr Purdon noted that the CER presentation referred to section 31(d) and the inspectors, again referring to the Tormin case. There was a grey area, because the judge could not decide on the cliff collapse. Cliff collapsing was a very rare possibility at illegal Eastern Cape coastal sand mines. This was a rare issue because it was an authorised mine. He asked for clarity on what the CER's position on illegal mines was. He wanted to know who would be held responsible if someone died at an illegal mine in the Eastern Cape. Would the Eastern Cape government stand back and blame the DMR for not inspecting? He asked for clarity on the issue.

Mr T Hadebe (DA) agreed that the OES issue should have been discussed immediately at the beginning of the Parliamentary term. The Department was currently dealing with the NEMLA bill, and some of the comments as well as the proposals had a direct bearing on the bill. It was going to be debated this month. It was not clear if the Department would be in a position to effect some of these proposals.

An issue raised by the CER was that there seemed to be uncertainty on whether the National Environment Management: Air Quality Act was applicable to mines.  It had raised the issue of pollution from blasting, which was dust that came from the blasting. The dust affected the community around the mines. Also, the emissions that came from the blasting, especially methane, had an effect on the air quality in the area. There was uncertainty on whether mining companies do apply for atmospheric emissions licences like other industries who were supposed to apply for atmospheric emission licences. He asked DEA if the same was applicable for mining. The issue was critical. As legislators, Members were able to feature recommendations in the NEMLA bill. There could not be two sets of legislation for different industries. If mining was also emitting, they must be applying for emission licences like the other industries.

Mr Hadebe said that when mines did this blasting, and it affected the houses in the vicinity, where did the community go if they wanted to lodge complaints? If there was irresponsible blasting, someone must be held accountable. The Committee needed some pointers.

Ms H Nyambi (ANC) asked if there was any other country in the world which was using the OES. Did South Africa copy from any such country?  She asked the presenters for their opinion of what the DEA and DMR should do next, in light of Prof Humby's presentation and the presentation by the CER.

Adv H Schmidt (DA), a member of the Portfolio Committee on Mineral Resources, was not clear why the DMR was responsible for the implementation the OES, by virtue of the MPRDA and NEMA. Why was it intended to be that way?  When discussing the three options, the presentation by the DMR had raised the issue of possible constitutionalism as one of the options. He asked if there was a constitutional challenge to having it in the DMR. He asked why the function should be removed, even though it sounded to be a constitutional issue. There were three issues that needed to be discussed. Whether it was the mandate, whether it was properly implemented, and whether it was constitutional.

Mr Schmidt said that he did not understand the assertion that there did not seem to be a need for an EA or EMP in light of the international standards of environmental health impact assessments, and asked for an explanation on that issue.

He was also concerned about the timeline. The 90-day appeal now seemed to be of no consequence. Regarding the 300-day timeline, there were no statistics to indicate whether it had been enforced or whether it had not been enforced. The indication was that the Department did not adhere to the timelines. He suggested that the Committee should get statistics and determine some of the arguments based on statistics, rather than on some opinions.

Dr Z Luyenge (ANC) appreciated the fact that the NEMLA bill was now a progressive work. The only worry was the consideration of the new aspects the seemed to be complementing the NEMLA bill. One of the speakers had asked if there was time for consideration that should be made for those issues that might find space in the NEMLA bill.

Regarding the issue of dealing with pollution, the country had great polluters. However, it did not to utilize the indigenous knowledge around.  It was looking at polluters like coal using institutions, and petrol. However, there were indigenous people and indigenous mechanisms that could be used, but the government seemed not to promote them. He asked if the strategies and methods that the country was implementing were commensurate with the standing of the country in comparison to other countries.

Dr Luyenge commented that communities had been mentioned by a number of presenters, but he was referring specifically to rural communities who were never part and parcel of dealing with issues of this nature.  The Committee was also looking at the beneficiation, and the communities’ involvement in strategising on how to deal with these issues. He asked if the Department did that or if there was any consideration by the DEA to look into it, or if there were NGOs that were seriously making use of the expertise that existed in the communities.

Mr S Makhubele (ANC) said that the Department was dealing with a problem that seemed to exist between the development or mining versus the protection of the environment. There were the environmental needs to be protected, and that should be done without the government getting a sense that people were biased towards either mining activities or economic growth at the expense of the protection of the environment.

Their needed to be unity, in terms of what was presented by the DEA and DMR and the questions raised by other speakers. For example, was Professor Humby satisfied with the presentations made by government regarding the control systems? The issue was whether there were strong control systems, accountability and so on and so forth. He asked if, given the capacity that DMR said or claimed to have within their structures, there could be satisfaction that environmental protection would happen when it needed to happen, without there being any bias towards mining activities, including abuse of the system.

Mr Makhubele said that confusion still remained within the industry as to some of the provisions for the licensing requirements. There was no clarity on whether there was strong interaction between government and the industry to avoid all the confusion, and whether that confusion persists or whether there was progress thus far since the implementation of the OES. He asked if the confusion still existed, and what needed to be done to deal with the confusion.

Regarding access to the financial provisions and the rehabilitation that had to be done, the Committee was mindful of the fact that some cases would be old -- to the extent that some people would have disappeared, or there was no owner, and so on. He asked what the progress was, perhaps with the new owners.  Could it be said that the system was working in terms of its operations now, or were there still challenges? What was it that needed to be done?

Mr Makhubele asked if the report by the Human Rights Commission (HRC) mentioned any companies that might have violated these requirements, or if there were companies on the wrong side of the law. If so, could communities that had been affected by those companies take them to task through the courts, utilizing the report?  He asked if there any basis in law to use the report to do that. He asked what would happen if there was a mining operation in a neighborhood, and they did the blasting day and night to the extent that it led to a devaluation of the property. Even though it was a permitted operation going on, could communities or those affected have some compensation? Or was there no recourse from anyone?

The Chairperson said that the South African Human Rights Commission was a chapter nine institution. It submitted its reports and recommendations to Parliament. The Committee had not received a recommendation from the HRC. He asked where the report was, or if it had been tabled in Parliament. What was happening with it? Had it been acted upon? Had there been comments by the affected departments and by the affected people? He said that the recommendations had to be implemented. Parliament must ensure that the recommendations were implemented.

He said that the Committee should have had this discussion much earlier, as it could have helped the Committee when it was processing the NEMLA bill. It was quite late now, and the Committee had finalised the NEMLA bill. It had been programmed for debate in the House. Parliament would probably adopt it, judging by the fact that in the Committee, all had agreed on the amendments. The Committee did not anticipate any problems in the House unless something dramatic came up. So Parliament was going to adopt the amendment to NEMLA, and yet there were issues that required attention.

The Committee had had a long discussion around section 31 (d), which the Committee had insisted -- much against the wishes of some of the colleagues in the Department -- that it was not proper to have a Minister of Environmental Affairs whose hands would be tied unless there was no agreement to intervene if there was no compliance with environmental issues. The Committee had finally decided to come up with a formulation which was much more acceptable.

The Committee had not been made aware of the Tormin case. It was only during the preparations for the colloquium that Members had got to understand the case. Clearly, this case and the judgment had far reaching implications as far as the role of the Department in enforcing environmental compliance was concerned, over and above what the Minister of Mineral Resources was supposed to do. He asked the DEA to explain why the case had not been brought to the attention of the Committee earlier.

The Chairperson said that the Minister of Mineral Resources had withdrawn the MPRD Amendment Act. He asked what the implication of the withdrawal was for the complete implementation of the one environmental system.

The Chairperson asked if the results of the study that the CER had done in Mpumalanga, the zero hour, had been shared with the DMR. This was because it mostly affected the DMR in terms of its findings. Had the DMR provided detailed comments on the outcome of the study?

Responses

Mr Abader responded that if there was an emitting activity, there would be a requirement for an emissions licence. In terms of the Air Quality Act, the Department had dust regulations. If a problem was identified, the dust regulation kicked in and there was a requirement by the air quality office to require a dust management plan for that specific activity. There were regulations in place, and those regulations controlled the dust emissions from the mining activities as well. There were consequences if they did not comply.

There was a big move around using expertise in communities, specifically in terms of using indigenous knowledge around access and benefit sharing. There was support from the biodiversity component in the Department to use indigenous knowledge and to protect that indigenous knowledge from exploitation.

Mr Abader referred to the confusion within the industry, and said there had been numerous interactions. During the engagement process, there had questions about the implementation and those were the issues that the Department was trying to resolve. It was a very complex process. There were a lot of stakeholders, each with their own interests, and the Department had tried to find a balance.  It was making progress and getting to a point where they were starting  to meet each other -- at least with the everyday mining, not the oil and gas sector. That was as a result of the extensive interaction that the Department had had, not only with the industry stakeholders, but also with National Treasury and the DMR. There was need for consensus from everybody involved in the process.

He said the question was how long they wanted this transitional arrangement to last for. The Department could not have a perpetual phasing in type of scenario.  A considerable amount of time had already been spent on phasing in, so at some stage the Department had to start implementing and move from the phasing in process.

The Department had had extensive input from all stakeholders in terms of the amendments to the legislation, as well as to the regulations.

Mr Abader said that the financial provision was relatively new legislation. The requirements were that they start doing the assessment and assess what the liability was. At this point, therefore, the Department could not say whether it was working or not. It needed to look a couple of years ahead, because the environmental liabilities had to be calculated and they had to look at the actual implementation, so the concurrent implementation happens only a year after they have actually done what they were supposed to do. At this stage, it was a bit premature to try and make an assessment of whether it was working or not. In terms of what needed to be done, the Department had to implement and then see how that implementation goes.

One of the requirements, once one grants an environmental authorisation for a listed activity, was a consultation process with one’s immediate neighbours as well. They needed to be consulted before the activity took place because of the impact of those activities. So if there was an activity that they agreed to, then there could not be a compliant. However, if they had not agreed or they had not been consulted properly, they did have some recourse in that they could then ask that the decision be reversed because they had not been consulted.

The Department had not brought the issue on Section 31 (d) to the Committee specifically. However, when the Department did the presentation in relation to the litigation, the Tormin case was one of the many litigations that the Department was involved with. The case was probably in that report as well.

The Chairperson said that the Committee had been dealing with the section 31 (d), and it had had its own interpretation and its own request. There was this case that impacted directly on it, and he asked why it was not brought to the Committee’s attention even during the presentation, because it was the section that had been due for amendment. The presentation on litigation had presented a long list and what it had cost. There had been no implications and summary of judgments for each case.

Mr Abader responded that there had been a short summary of the issues for each case as well. He was going to check and confirm.

He added that when the Department had asked for the amendment of the section, it was actually Parliament that asked for it, and it was precisely for that reason.

Ms Linda Garlipp, Chief Director: Law Reform and Appeals, DEA, said the judgment stated that the Department did have power in certain instances. The Department had argued that it did not have the capacity to always impose environmental impact in mining areas, so it had not asked for that amendment and that was why it had not come up.

The Chairperson said that it was wrong that the DEA had not brought this case to the Committee’s attention. The case spoke to the role of the DEA. The Committee knew that the DMR was responsible for that, but in section 31 (d), it said that if the DMR did not do what it was supposed to, then anybody could ask the Minister of Environmental Affairs, which was DEA, to come in. But he or she could come in only when there was concurrence. This meant that without an agreement, there was no way that she could come in. The Committee’s argument was that there was no need to have an agreement if the matter had escalated.  It was not the first instance where DEA had to come in. The DEA could come in only when the DMR was not complying, whether because of incapacity or for whatever reason. This was a serious omission and there was need to discuss it.

He explained that the circumstance of this case was that there was a mining operation that was being conducted illegally. The DMR was supposed to have enforced the environmental regulations applicable but they did not do that. The DEA had had  a discussion with the DMR. However, instead of the application for the search warrant being done by the DMR, it had been done by the DEA. That was why the judge had to rule in that way, because DEA had no authority to do that.

Ms Garlipp said that there were two consequences of the withdrawal of the MPRDA. One of it was that it provided important triggers. Once the mining applications had been received, it provided a trigger for when all the other applications needed to be done, because they needed to be done almost simultaneously in terms of the National Environmental Management Act, the Water Act and all the other specific environmental management Acts. A 300-day period runs, and thereafter there was an appeal period of 90 days, and only thereafter were the mining rights issued. That was how it should work. The MPRDA provided for that trigger.  There were also time periods left in the MPRDA which had to be removed to enable the regulation to make provision for these time periods to play a greater part. By not having the MPRDA coming into effect, it meant that there still misalignments between the different pieces of legislation

Adv Malebe said that the DMR dealt with illegal mining in two forms. There were areas where one went for inspection or one found people mining illegally. One would find those who, when one explained to them, were ready to come and be legislated. The Department assisted these to be regulated. However, there were also those who just disregarded the law. The Department dealt with them differently.

In terms of the Mine Health and Safety Act, there were guidelines that were given to mining companies on blasting, and also there were approvals that were granted by the chief inspector for blasting activities, the times of blasting, notifications to nearby neighborhoods or communities, as well as when there might be cases where blasting could have occur and houses might be cracked as a result. Evaluations would be done in terms of the process, and finally compensation would follow.

Adv Malembe said that the DMR was following the 300 days that it had agreed for processing the applications.

With the rehabilitation of existing mines, as and when applicants applied for rights to the DMR, the Department requests financial provisions to be provided before a right is granted. The Department was avoiding the situation where mines were not fully funded. On an annual basis, the mines would then review their financial provision to make sure that they were fully funded at all times. However, one would have those historical legacies of old mines, some of which were no longer operating and the owner could not be found. Those would then fall under derelict and ownerless mines, where the Department would then go and rehabilitate those mining sites.

Regarding the issue of the constitutional challenges for the one environmental system, back in 2008-2009 the Department had been discussing the three options, and had finally agreed in 2012 on the option that the Department was going to use.  When the Department was discussing at that point, and also consulting with the state law advisors, everyone had decided that option 1 would not be the best option because it might cause some constitutional challenges to the process. That was why at the end of the process in 2012, it was agreed that the Department was going for option two, which had been adopted at the time.

The Chairperson asked if the DMR had seen the report by the CER on Mpumalanga. Had it been presented to the Department?

Adv Malembe responded that she was not sure if it had been presented. She would have to verify.

Adv Schmidt said that the presentation stated that there were constitutional challenges. He asked for an explanation of what these challenges were.

Adv Malembe responded that that had happened back in 2008, so she would have to go back and verify what were those discussions taking place at that time were about.

Ms Reddel said that there was a very clear door open for the DEA or the provincial Environmental Affairs Departments to investigate and take enforcement action in relation to pollution and degradation of the environment. If there was an illegal mine, it was clear that there was unlawful pollution and degradation happening because there had been no authorisation issued to allow degradation of the environment, so there would be an argument for the DEA or the provincial department to investigate and take enforcement action. Where their mandate would not apply would be with matters like directing the illegal miners to submit to section 24 through application. This was because that referred specifically to listed activities, and the judge in the Tormin case made it clear that the listed activities and the issuing of authorisations and anything incidental to these listed activities would be dealt with only by the DMR. However, on the pollution and degradation side, the Department would have some sort of overlapping mandate there.

Ms Reddel said that it could be a positive move that section 31 (d) was being opened up and that there was a solution, so that everything would not hinge on getting a consensus from the Minister of Mineral Resources. However, it could be problematic to deal with this issue in 31 (d) if the DMR had to acknowledge that there was a need for DEA to step in. Opening up 31 (d) now could result in unintended consequences where the DEA was expected to get involved, but did not have a full mandate or budget. That could be problematic, and it could be better to deal with it at a higher level, and not necessarily at 31 (d). Opening section 31 (d) had pros and cons. The pro was that there would be more scope for the DEA to get involved, and they did not have to wait for an agreement from the DMR. The con would be they would be given the powers without the full mandate and the full budget, which was problematic.

The Chairperson responded that the Committee did not want not to change the OES. The Committee respected the agreement and the legislative provisions that had been introduced to give effect to the OES. The law said that if the inspectors were not doing what they were supposed to be doing, the DEA could come in. However, that section of 31 (d) was restricting the coming in of the DEA if there was no agreement, and that was the scenario that the Committee did not want to accept. The function was still with the DMR. The DMR was still performing the function of having the environmental inspectors doing the work, enforcing the legislation, but if they failed, the DEA had to come in. That was why the Committee was involved. It was right that the DEA must come in if there was a failure, because they were the custodians of environmental legislation in South Africa. There should not be any provision that restricts the coming in of the Department which serves as the custodian of NEMA in the country.

Ms Horsfield said that the mandate was not being properly implemented and was primarily what ‘zero hour’ showed through a series of case studies. It showed how that mandate was not being properly implemented and how that had resulted in the violation of environmental rights.

There would be a bias to mining as economic development. The Mabola protected environment case had been precisely such an example, where there was an area that had been declared a protected environment in 2014, and the environmental significance of which had been acknowledged 2006 in various conservation plans of Mpumalanga by the Ministers of Environmental Affairs and Mineral Resources, but where the DMR had granted a mining right for coal in a protected environment. The primary mandate of the DMR was not to protect the environment, it was to drive mineral development.

Ms Horsfield said that in terms of the issue of DMR’s capacity, the ‘zero hour’ contained information about what compliance monitoring and enforcement capacity the Department had, and for the whole country in the 2013-14 financial year, there had been 71 inspectors for monitoring compliance and 106 for enforcement and compliance. The following financial year it was 71 again for monitoring compliance and 115 for enforcement. It was not possible to get information on how those officials were distributed across the various regions.

The HRC report did not deal with specific allegations against specific companies. It certainly called specific mining companies before the panel to give presentations and to answer questions, but it had not made criminal findings that community members could take to a court of law. To the best of her knowledge, the HRC report had not been tabled in Parliament, but the Commission was in the process of establishing a section 11 committee to assist it with the implementation of the report.

The Chairperson asked what the role of the section 11 committee was.

Ms Horsfield responded that it was there to assist the HRC as a chapter nine institution to implement its findings.

The Chaiperson asked whether she meant, to implement the findings without Parliament.

She responded that the first recommendation was probably going to be to table a report to Parliament.

The Chairperson added that Parliament would have to help them to get the report implemented, as well as to create awareness, because it was an exercise that advanced certain fundamental rights in the constitution and there was need to create awareness around it. The HRC should bring it to Parliament and get it to be aware of and help with the implementation of the report.

Ms Horsfield said that the “zero hour” had been shared with the DMR prior to publication. Because of the extent to which the report was important for both the DMR and DWS, it had been supplied to both Departments prior to publication. The CER had attempted to engage the DMR on the report and specifically also the region of Mpumalanga, but on no one occasion had the regional manager agreed to meet with CER. That was not the same for the DWS, where CER did have quite considerable engagement after the report had been published on the findings and the way forward.

The submission made by the DMR representative regarding the financial provision, had been that the right would be granted only once appropriate financial provision had been made. However, referring to ‘zero hour’ again, a series of case studies indicated that that was not the case. There was the example of the mining right that was awarded in the Mabola protected environment for a coal mine, where the environmental management programme was approved and the financial provision was approved, without any amount allocated for water treatment costs.

Prof Humby said that the Constitutional Court had stated on numerous occasions that the DMR and the MPRDA were meant to protect the environment. What was unconstitutional was the interpretation of their mandate around the single environmental system and its implementation. An example of a poorly judged interpretation of the single environmental system was found in their annual performance plan, on page 8,  where they talked about the single environmental system in this way: "Government had also worked to increase regulatory efficiency through the harmonisation of mining, environmental and water use licence application and approval processes, resulting in the One Environmental System that was expected to reduce significantly the amount of the administrative burden on investors." The focus was not on the improved system that improved the integrity of environmental protection and responsible mining. She suggested that the interpretation was incorrect.

In other countries, the dominant pattern was that one had mining legislation on the one side and environmental legislation on the other side, and the processes run in parallel. It was much rarer to have a mining authority giving the environmental authorisations. In general, one had parallel processes.

She said it was not bad that South Africa had this level of integration. It was a good thing, because it was supposed to promote cooperative governance. Cooperative governance was good, but it was disturbing to hear the DEA reporting that the collaboration that was initially there seemed to have been ebbing away and that the meetings were not taking place, and that the DMR was still using the South African Mineral Resources Administration Database (SAMRAD) instead of putting the information into the DEA's systems. How could one have a single environmental system which then had parallel processes for monitoring the environment?

It was very unusual to have specific timelines in the legislation. In many countries, it took years to get environmental authorisations. South Africa was ahead of the curve compared to other countries.

Prof Humby said that regarding environmental impact assessments, and what was being discussed about changing the function from one Department to another for project-specific EIAs, she was not saying that it should be done away with. She was urging that there were ways to improve the integrity of the system, given that the DMR’s behaviour could be changed, like having clearer guidelines on what was a no-go area, or better methods of public participation, or better guidelines on health impact assessments. Energy could be put behind these efforts instead of constantly thinking about who had the function.

There were two types of controls. The one was the oversight and the statistics that the DMR does not present. Even their presentation did not have actual numbers. Also, the targets in the DMR’s annual performance plan did not give any information. That needed to be strengthened to make decisions properly.

Prof Humby referred to SAMRAD not being linked to the DEA's national authorisation system, and said the DEA had just launched a fantastic open data screening tool, which feeds information about environmental authorisations. The fact that the DMR did not want integration was a big problem.

Concluding remarks

The Chairperson thanked all the participants. The aim of the Committee was to first get information about OES before beginning to critique. One of the things that was glaringly obvious was that the three Departments were beginning to have less commitment towards this OES. The evidence was the no-show of the Department of Water and Sanitation, which was one of the crucial departments involved. They were not able to come and share their experiences about the OES with the Committee. Even in the presentation of the DEA, the institutional mechanism that had been set up to support this OES was not functioning very well.

He said it had been a serious omission for the Department not to mention the 31(d) judgments. He encouraged the Department that the next time it engaged the Committee it should put all the information on the table to ensure proper engagement.

The meeting was adjourned.