The fox guarding the henhouse?

With effect from 8 December 2014, sections 38 to 42 of the Mineral and Petroleum Resources Development Act (28 of 2002) (MPRDA) were repealed pursuant to the drive to create "One Environmental System". 

As part of a series of amendments to, inter alia, the MPRDA, the National Environmental Management Act (107 of 1998) (NEMA) and the National Water Act (36 of 1998) (NWA), section 38A was included in the MPRDA under the heading "Environmental authorisations": 

"(1) The [Mining Minister] is the responsible authority for implementing environmental provisions in terms of [NEMA] as it relates to prospecting, mining exploration, production or activities incidental thereto, on a prospective, mining, exploration or production area. 

(2) An environmental authorisation issued by the [Mining Minister] shall be a condition prior to the issuing of a permit of the granting of a right in terms of the [MPRDA]." 

On the face of it, this section read in isolation creates the impression that the Mining Minister (and by extension the Department of Mineral Resources (DMR)) is the responsible authority to implement (and thus monitor, investigate and enforce) the provisions of NEMA on prospecting or mining areas. One could perhaps be tempted to argue that the section creates an "exclusive zone" extending to the prospecting or mining areas where the DMR has sole authority to implement NEMA and that the Department of Environmental Affairs (DEA), the Environmental Minister and its inspectors are persona non grata.

However, such an interpretation raised serious concerns and objections by environmental interest groups and it was argued that to give the DMR sole authority would be akin to asking the fox to guard the henhouse. After all, so it was argued, the DMR had a slack track record in enforcing environmental compliance, as its mandate was to promote mining. Environmental restrictions are seen by the uninitiated as obstacles preventing rapid mining development and growth. 

When the first challenge to the DEA's authority over mining areas came in the form of Mineral Sands Resources (Pty) Ltd v Magistrate for the district of Vredendal and others (Western Cape High Court case no. 18701/16) (the MSR judgment), it was not surprising that the DEA, nationally and provincially, vehemently opposed the case. In the MSR judgment, MSR sought to set aside a search and seizure warrant issued by the Magistrate, Vredendal, on the ground that, inter alia, the DEA (which obtained the warrant) lacked jurisdiction to effect the search and seizure. The MSR judgment is particularly instructive as to what disclosures need to be made in order to obtain a warrant (which is done by way of an ex parte application, but a discussion thereof is beyond the scope of this article). 

What complicated the arguments in the MSR judgment was that MSR's mining area was on the beach adjacent to land on which MSR's secondary processing activities took place. MSR would mine heavy mineral sands on the beach and then truck such material onto the land where the heavy minerals would be extracted. MSR's mining right did not extend to the land; it was over the beach. Yet, the complaints of environmental degradation and breaches of NEMA related to activities undertaken by MSR on the land, and the beach, and in one respect in the sea (or the inter-tidal zone). 

The DEA argued that it had exclusive jurisdiction to enforce breaches of NEMA and the National Environmental Management: Integrated Coastal Management Act (24 of 2008) (The Coastal Act) in respect of the beach and that it had dual jurisdiction with the DMR over the land. At the heart of the dispute were sections 38A of the MPRDA (which the judge referred to as a somewhat Delphic provision) and 31D of NEMA relating to the mandates of inspectors. 

Section 31D provides that the Environment Minister may appoint environmental management inspectors for the enforcement of NEMA and other environmental statutes. It also provides (in an amendment effected on 2 September 2014) that the Minerals Minister may designate persons as environmental mineral resource inspectors (EMRI) for the compliance monitoring and enforcement of NEMA and other environmental statutes. The EMRIs may exercise any powers conferred upon an environmental management inspector when acting in terms of his or her designation. 

If section 31D stopped there, the argument could easily have been sustained that there was a dual or overlapping jurisdiction between environmental management inspectors and EMRIs. However, such an overlap would seem administratively inefficient and potentially unfair to persons identified for investigation, as they could be subjected to parallel investigations by two governmental agencies.

However, the MSR judgment held that such an interpretation would make a mockery of subsections 31D(4)-(9) of the MPRDA. 

Subsection (4) takes for granted that in the ordinary course, section 31D(2A) – the section under which EMRIs are designated – would have the effect of conferring exclusive jurisdiction on them. Despite section 31D(2A) the Environment Minister may, with the concurrence of the Minerals Minister, appoint national inspectors to enforce environmental legislation in relation to mining if the EMRIs are unable or not adequately able to fulfil their monitoring and enforcement functions. 

The same applies for subsections (5) – (9) which sets out an elaborate scheme in terms of which someone can complain about EMRIs not performing their functions. Against this backdrop, the MSR judgment interpreted section 38A of the MPRDA to lend support to the interpretation of distinct jurisdictions rather than over-lapping or current ones. The court held that the section provides that the Minerals Minister is the responsible authority for implementing environmental provisions in terms of NEMA as it relates to mining.

As to exactly what was intended by the "One Environmental System" is not precisely clear because an explanatory memorandum and press statement by the departments do not necessarily tie in with the legislative amendments. One obscurity of these amendments is that the agreement which underpins this new system was tucked away in section 50A of the NWA (as opposed to NEMA or the MPRDA). What that section does, though, is to echo the sentiments of section 38A of the MPRDA that the Minerals Minister is the responsible authority for the implementation of NEMA as it relates to prospecting, exploration or mining operations. 

In the end, the court found that the EMRIs have exclusive jurisdiction over activities that relate to mining – as opposed to them having authority in a mining exclusion zone. As such, in relation to activities which take place inside a mining area and have an environmental impact but which are not related to mining, the environmental management inspectors will have jurisdiction and not the EMRIs. It also means that where environmental laws such as the Coastal Act are triggered, the EMRIs do not have jurisdiction to enforce compliance. 

So will this mean that the fox is in fact guarding the henhouse or is the DMR the responsible authority to implement, monitor and enforce NEMA and environmental laws in respect of mining activities? Seeing that there are provisions for the Environmental Minister to enforce NEMA when EMRIs are unable or not adequately able to do so, and there is an elaborate scheme for persons to complain to the Environmental Minister about non-enforcement by the DMR, it would seem that the appropriate checks and balances are there to ensure that the DMR does not turn a blind eye to environmental enforcement. 

The MSR judgment at the very least ensures that there is clarity as to overlapping jurisdictions to prevent parallel investigations or conflicting views being taken on environmental compliance as happened with MSR. 

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