Mine environmental management: briefing by the Departments of Environmental Affairs and Minerals

Meeting report

Opening remarks
The Chairperson noted that the Committee was meeting jointly with the Mining Portfolio Committee. An invite had been sent to the National Council of Provinces (NCOP) Committees of Economic Development and Land and Environmental Affairs, but they had indicated they were occupied with own programmes. The programme the Committees would embark on was unique and had not ever happened in Parliament before. Environmental management legislation had bedevilled Government for 20 years. During this time indecisiveness as to which department needed to manage the environment was the problem. It had come to light that the correct approach would not be to decide on who would manage the environment, rather on coordinating the work and cooperating in carrying it out. This was the best solution.

The Committees were dealing with a complex area of trying to make sure that the country developed at the maximum rate it could. The right balance between environmental management and development had to be achieved in order to maintain sustainability. The practical phrase was sustainable development. The trick was how one gave effect to the concept of sustainable development. This was not an easy concept; departments would give conflicting accounts of this, as well as civil society. The question of how development was taken forward without compromising the environment was crucial.

Members who had long been in Parliament would know similar bills were brought to Parliament in as early as 2008. The two Committees then met and came up with a solution that was never implemented. Engagements ensued and it was proposed that a solution about creating balance between development and protection of environment be found. The Committees encouraged the departments to work in a cooperative manner, and it looked as though this would be achieved.

The two Committees would embark on creating a model of how to deal with sensitive cross-cutting issues. Departments were tasked with coming up with an agreement that environmental laws would be the laws that would also be used in mining. The agreement said the laws that applied to environment and mining were environmental laws. Because of centrality of mining in SA’s economy, the agreement stipulated that the regime that applied legislation would be the Department of Environmental Affairs (DEA), but the competent authority at times would differ. The difference was if at the end someone did not agree with whatever ruling, the final arbiter would be the Minister of Environmental Affairs.

The agreement was complex and difficult to understand. It had been proposed that when departments – DEA, Department of Mineral Resources (DMR), and the Department of Water Affairs (DWA) – came with the Act, they ought to come with regulations as well. The departments had already drawn the regulations; the Committees would therefore not only process the legislation, but also the regulations. At the end the regulations would be adopted by the Department. This uniquely created that the environmental set up remained intact, although the competent authority might differ. The good part of the agreement was that it sequenced licensing. There would no longer be the five different licence-issuing authorities; the agreement aligned how licences were obtained.

The agreement had tried to accommodate the three departments and at the same time retained the integrity of the environment. Another joint meeting would be impossible but the Committees would continue with their work on this aspect, and when that was finished, a follow-up meeting to ensure the agreement reflected in legislation and regulations would be arranged.

Ms Bikani said the Portfolio Committee on Mining might also have to have a joint meeting with the Committee on Energy. This was a good initiative and was an achievement in history that the two Committees got to sit down together, it would be even better if the same meeting was held with Energy.

Mr Kgauta Mokoena, DMR Director: Mine Environment, said the purpose of the briefing was to inform the Committees on the work the three departments – DMR, DEA, and DWA – had done in aligning the licensing systems for mine environmental management. Various laws applied to environmental aspects of exploration, prospecting, mining and production activities. These laws had their own processes and information requirements and that had resulted in a lack of integration.

During the 2002 – 2008 process of amending the MPRDA, an agreement was reached between the Ministers of DEA and DMR. The intention was to adopt an integrated mine environmental management system, and also to align the MPRDA with the National Environmental Management Act (NEMA). The agreement sought to repeal all the mine environmental management provisions in the MPRDA, and transfer them to NEMA. The agreement sought to give an 18 month window period in NEMA for the implementation of the environmental provisions relating to mining, prospecting, exploration and production. This was meant to allow for a seamless process from one piece of legislation to another.

NEMA was amended to assign powers for implementation of the 2008 agreements to DMR, while DEA was designated the relevant appeal authority in mining related environmental authorisations. This allowed DEA to exercise the function of custodian of the environment. As far as legislation was concerned the country was in a more balanced state than it was before. There had been significant improvements since 2011, because all authorisation processes were looked at.

Ministers met in 2011 to further discuss mining related matters and alignment of legislative requirements. A workshop on the amendment of the legislation was held on 26 July 2011, and it resulted in an options report to the Ministers of DEA, DWA and DMR. The Ministers preferred Option 2, which was more of a combo option, in that it contained elements from both Option 1 and 3. The option stipulated keeping the licensing function at DMR, as that would integrate and streamline licensing system. Option 2 specified attention to mining in ecologically sensitive areas, but also emphasised collaboration among the three departments. The timeframe alignment for water use licences was also viewed as critical, but also the option spoke to the 2008 agreement. Streamlined processes would result in shorter periods for application than before.

The current agreement between the three Departments as reflected in the two Amendment Bills currently before Parliament differed from the 2008 agreement in the following respects: The mining related environmental function would not be transferred to DEA, even though DEA would remain the appeal authority for environmental mining activities. The alignment of regulatory processes was added to the scope of the agreement; and provided for mining restriction in ecologically sensitive areas.

Mining would be subjected to an environmental authorisation process, and this would replace the Environmental Management Plan of the Project (EMP or EMPP) process undertaken as a pre-condition for the mining permit. The NEMA process would be authorised by DMR as the competent authority. The Minister of DMR could appoint mineral resource inspectors (MRIs), with all the powers of an environmental management inspector to enforce environmental laws as far as it related to mining.

In order to ensure the implementation of the new system there was an inter-departmental project implementation committee (IPIC). Officials from the three departments, as well as from the Department of Arts and Culture (DAC), comprise the team. The IPIC would elaborate the technical detail to the agreement. Six task teams had already been established on appeals and legislative amendments; co-ordinated timeframes; capacity; enforcement; joint planning; and communication.

There was water legislation that needed to be looked as well, but a MinMec had indicated there would not be major changes in terms of the National Water Act (NWA). Existing environmental impact assessment regulations and listing notices require amendments, especially with regards to time frames, listed activities for mining, appeal procedures, but also to indicate the Minister of DMR was the competent authority. DEA had drafted the amendments and they would be ready for public consultation within the next four months. The regulations needed to be in force by 8 December 2014.

The Chairperson interjected and sought clarity on whether it was the Act that would have to be amended or the regulations. Elsewhere in the presentation it was suggested that amendments were not required to NWA.

Mr Trevor Balzer, DWA DG, replied it was the Act that required to be amended. The appeals process needed to be in line with the NEMA process. At the moment the appeal process in the NWA was through a tribunal, and that was a different process followed to NEMA. The point about “major amendments not required” in the Act referred to licensing and not the appeals process.

Mr Mokoena continued and said a task team had been assembled to ensure that everything happened within a stipulated time regarding timeframes for the three processes - MPRDA, water use licensing, and mining rights applications. Joint initiatives included working together on the issuing of the licences, inspections, development of tools, and the collective development of regulations. The implementation date was 08 December 2014.

Discussion
Ms J Manganye (ANC) sought clarity on the existing mining activity and whether it would be impacted upon in any way.

The Chairperson clarified that of the laws passed in 2008, the last one was put into practice only in June. The 18 months referred to had started and would end in December 2014. This was the whole agreement that had been made that should replace the 2008 agreement. One of the complicating things that the Committee would have to confront was the implementation of the new agreement. This had been mentioned in the input without alluding to the details. These processes ought to finish much earlier than the targeted deadline of December 2014. Once all the changes had been finished, the Committee would have to look at was whether the Departments would be able to implement this agreement immediately. The new system would kick in on whatever date the Committee decided on. The law as it stood would apply until something was put in place.

Mr J Skosana (ANC) asked what the responsibility of each department would be in respect to service delivery once the current set up had kicked in. He cited DWA as an example.

Mr Balzer replied that all of the licensing conditions would still remain with DWA. There was no shift in the licensing conditions. The regulations were intended to align the process that was followed parallel with mining and environmental processes. Currently under the present regime the water licence only kicked in after the mining licence had been approved; so the processes ran parallel of each other.

Mr Skosana sought confirmation of whether his understanding, that all issues relating to the environment in the mining sector, would be the responsibility of DMR, was correct. He asked if changes only applied to regulations and appeals processes.

Ms Nosipho Ngcaba, DEA Director-General, replied the way the amendments were structured was that the Minister of Mineral Resources would be the 11^th authority. Currently all provinces were competent authorities in terms of the Environmental Impact Assessment (EIA) system. DEA was the tenth, and in mining areas now there would be the Minister of mineral resources who would then exercise the environmental authorisation. But this was in mining areas only as provided for under the NEMA EIA system.

Mr F Rogers (DA) sought clarity on whether the environmental inspectors would become the delegated authority of DMR. How would that work? Would the inspectors come from DEA? He said it was not clear if the new process was up against the old process.

Mr Ishaam Abader, DEA DDG: Corporate Affairs, replied this was being discussed in the enforcement and compliance task team. There would be environmental inspectors that would be from DMR, and would be responsible for compliance and enforcement. But this would now be done in terms of the environmental laws and not what their laws used to be.

Ms Ngcaba said currently there was a standard training that all environmental inspectors were expected to go through. Those inspectors from DMR would have gone through the same system that all environmental inspectors from municipalities and provinces go through.

The Chairperson commented that this needed to be flagged, especially as it was not clear what would happen if those inspectors from DMR failed in their duties. He asked if provinces had a role in these processes.

Mr Mokoena replied they would if the part of the process in a province required consultation.

Ms Bikani said DMR at regional level got the environmental staff. Could it be explained what the process was presently with the new system, and under whom such staff fell. How would that change when the processes took place?

Mr Mokoena replied the current system in the mining rights applications had elements of environmental issues to it. There was personnel and capacity that was there and would hopefully help in building on the capacity towards the NEMA EIA process.

Ms Dee Fischer, DEA Chief Director: Integrated Environmental Management, replied NEMA currently required provinces to comment on the mining applications. Currently in the provinces there was capacity for that activity. But now the appeals activity would also go to provinces and they would be expected to make comments on the appeals decisions. Provinces were currently not capacitated for this function. The Minister would still be the competent authority for the appeal, but provinces would need that capacity.

The Chairperson said the feeling among Members was that the appeal procedures were too long, and needed not be used to stall processes. The departments should look to streamline the appeals procedures. He said it was not clear why provinces should be allowed to comment on appeals. The system could not be held indefinitely forever. The Department ought to make the appeals processes very specific. There was a need to re-look how the processes on appeal were done with provinces. There surely could not be a reason why provinces became part of the processes.

Ms Bikani said she was worried because DMR would have to prove that the licensing processes were becoming easier or user-friendly. As much as alignment was happening, officials ought to be careful not frustrate ordinary people trying to get mining licences. If there were complications with the appeals process, an ordinary person should not be exposed to appeals when there was no necessity for that.

The Chairperson said the appeals were difficult because they depended, not on the applicant but someone else appealing the decision of the competent authority. The process should provide for appeal procedures, but they ought to be reviewed and ensure they were certain, and that they were within a particular timeframe. This created certainty; anything outside of this there had to be condemnation and could be done jointly by the two departments.

The regulations should stipulate that condemnation should be done according to the level to which the process had progressed. And conditions, especially if the Minister had started applying mind to the facts, should be very difficult if not impossible. People should not be allowed to wait until the process of the appeal was closer to finalisation, as that would necessitate a whole new process.

Five licences were being dealt with separately and all had appeal procedures. Departments should go back and see how they re-aligned and made sure there were get-out clauses that specified that the two Ministers needed to agree to an extension. Secondly, that condemnation could only be given if the process had not progressed beyond a point where reversal was disruptive to the process. This ought to be tied down to all five licensing processes.

Mr Alf Wills, DEA Deputy Director General: Environmental Advisory Services, said that the environmental function was constitutionally a concurrent function, while air pollution was strictly a local government function. The uniqueness of the process was that through the cooperative governance approach, departments would be able to streamline regulatory requirements. On the atmospheric licensing, provinces would be involved with regards to the waste and air emission licensing. The intention was to reduce the appeals process to 60-90 days than the previous 200 days.

The Chairperson wanted to know if the appeal authority had and would always be the Ministers.

Mr Wills replied no. It was the Minister in the case of waste; but air emissions was a local government function, the Municipal Systems Act was used in the appeals’ procedure.

The Chairperson said there was no problem with concurrent function. He doubted if it was correct that someone at the local authority could decide if all the environmental laws had been complied with. There was a need to go look at the law with regards to the appeal process, and the powers should be with the Minister.

A decentralised or fragmented approach would be a challenge at this juncture. Legally, the appeal process should not be a problem if it was centralised at ministerial level. This ought to be pursued further; concurrent function did not mean the appeals process should also be taken to that level.

Mr Wills said the intention was to make the one appeal process applicable across the board. That was the reason for the amendments to the Waste Act (WA) and the Air Quality Act (AQA).

The Chairperson said the AQA was before Parliament and the amendments could be easily effected. He requested officials to check if anything needed to be amended in the pertinent laws. All the appeals needed to be located in one place, if not, the system would not work. He sought clarity on whether thought had been given to the planned amendments to the NWA. To try and go to Cabinet now with the amendments would be impossible; the only option that existed was for the Committee to do the amendment.

Mr Balzer replied the suggestion from the Chairperson was one way of doing it.

Mr Anil Singh, DWA Chief Director: Legal Services, said the options suggested by the Chairperson were possible. When the Department briefed the Committee, it had said the draft bill was in place but one could not implement the bill until the policy issue had been finalised and approved. The amendment would deal with the tribunal being replaced by an internal appeal mechanism. He indicated the matter had been raised with the Minister, but she was weighing up the options.

The Chairperson requested that the Minister speedily decide on how she wanted to go ahead with the process. Otherwise, this would delay the process, but the preference was that the amendment was done by the Committee. It would be difficult to run to Cabinet once something had not been done. Once the Department had engaged, the amendment should be drafted.

Ms C Zikalala (IFP) said although she understood that both Ministers of DWA and DMR agreed on modalities to streamline licences requirements for mining, she wondered if there were mining companies who still did not have water licences.

The Chairperson replied there were lots of them, but the process was meant to curb that situation. At the moment DWA did not even know how many mining licences had been applied for. He said the appeals were the most challenging part of the plan. The Committee was agreeing that for all the appeals that fell under environment, the appeals authority should be the Minister. The appeals process should be streamlined in such a way that created certainty. For appeal processes for water, an amendment was required, and that process needed to be started soon.

DMR should go and look at their process for their appeals and ensure they were streamlined with the rest of the departments. The three departments should go look at the “safe fall clauses” for when the process failed. Such clauses would determine the interventions and when to effect such. In NEMA, a clause had been included that specified that where a certain province failed to perform, the Minister should immediately intervene and take over that function. The issue of implementation had also been raised.

The Chairperson requested that the officials make the diagram and the matrix (a detailed summary of the amendments in the presentation) clearer. He had sat through the presentation on the matrix and yet he still struggled to comprehend it. He also requested that officials take the Committee through the amendments, but pleaded that Members not engage on the amendments as Members would have time the following week.

Specific amendments
Mr Mokoena read the proposed amendments in their entirety.

Closing remarks
The Chairperson said the departments had done well. The challenge for government departments was coordination and management. Departments could not function alone; the Constitution broke political power. This was not a bad thing; the rest of time when people governed they broke things up and built them again. There had never been a model for the government to pull the pieces together properly. If this was pulled together nicely, it could become a model of good practice. He congratulated the departments.

The Chairperson said the departments should go look at the system that had been created and identify those areas that were likely not to function. He suggested the appeal measures had to be implemented. Implementation would be crucial; the task team should start drafting the implementation plan, because without it these legislative amendments meant nothing.

The meeting was adjourned.