Hogan Lovells Publications | July 2015
The status of environmental management plans and environmental management programmes as environmental authorisations
On 6 December 2014, the Department of Mineral Resources (DMR), the Department of Environmental Affairs (DEA) and the Department of Water and Sanitation (DWS) issued a statement to all media entitled Government's One Environmental System ready to commence on 8th December 2014.
The statement announced, among others, that:
"Government will commence with the rollout of the 'One Environmental System' on 8 December 2014, which will initiate the streamlining of the licencing processes for mining, environmental authorisations and water;
the Minister of Mineral Resources, will issue environmental authorisations and waste management licenses in terms of the National Environmental Management Act 107 of 1998 (NEMA) and the National Environmental Management: Waste Act 59 of 2008, respectively, for mining and related activities. The Minister of Environmental Affairs will be the appeal authority for these authorisations; and
all Environmental Management Plans (EMPs) or Programmes (EMPRs) approved in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), immediately before 8 December 2014, will be deemed to have been approved in terms of the NEMA."
The statement also raised the question of what the status is of EMPs and EMPRs, that is, are they considered to be environmental authorisations under the NEMA or not?
The One Environmental System
As a brief background on the One Environmental System, on 10 September 2013 the DMR, DEA and DWS delivered a joint presentation on Mine Environmental Management. The purpose of the presentation was, among others, to report on the work of the three departments, in line with the agreement on aligning the licensing systems for mine environmental management.
One of the problem statements outlined in the presentation was that the laws (under the DMR, DEA and DWS) regulating the authorisations or licences required for exploration, prospecting, mining and production activities, under the MPRDA, lack integration.
The presentation came after various discussions had taken place between the Ministers of the DMR and the DEA between 2002 to 2008 during the process of amending the MPRDA. During these discussions an agreement was reached between the Ministers of the DMR and the DEA, which intended to adopt an integrated mine environmental management system and align the MPRDA with the NEMA
The Mineral and Petroleum Resources Development Amendment Act 49 of 2008
In light of the background and purpose of the One Environmental System, the majority of the provisions of the Mineral and Petroleum Resources Development Amendment Act 49 of 2008 (MPRD Amendment Act) came into force on 7 June 2013. However, on 6 June 2013, the President released a Proclamation stating that certain sections of the MPRD Amendment Act would not come into force on 7 June 2013. These included section 38B of the Mineral Petroleum and Resources Development Act 28 of 2001 (MPRDA) as inserted by section 32 of the MPRD Amendment Act.
Section 38B(1) is currently not in force, and states that:
"An environmental management plan or environmental management programme approved in terms of this Act before and at the time of the coming into effect of the National Environmental Management Act, 1998, shall be deemed to have been approved and an environmental authorisation been issued in terms of the National Environmental Management Act 1998."
The regulation of EMPs and EMPRs under the MPRDA
EMPs and EMPRs, prior to 8 December 2014, were regulated under section 39 of the MPRDA and were subject to the approval of the Minister of Mineral Resources. Section 39 of the MPRDA was repealed by the MPRD Amendment Act and an EMP and EMPR would be dealt with under the NEMA. As section 38B(1) of the MPRDA has not come into force and effect, this aspect has not been clarified.
Environmental authorisations under NEMA before 7 June 2013
Under the NEMA the holder of a prospecting right or a mining right, further to the compilation and approval of an EMP or EMPR, had to apply for an environmental authorisation if they were conducting or involved in any of the activities listed in Environmental Impact Assessment Regulations Listing Notices.
Before 7 June 2015, the EMP in relation to an application for a prospecting right and the EMPR in relation to an application for a mining right, with respect to prospecting and mining related activities, was not dealt with under the NEMA.
The regulation of EMPs and EMPRs under NEMA as of 8 December 2014
Section 24N of the NEMA now addresses environmental authorisations in relation to prospecting and mining related activities. Section 24N was inserted by National Environmental Management Amendment Act 62 of 2008. Section 24N sets out what should be contained in an EMPR and contains the same requirements as those under the repealed section 39 of the MPRDA. Prior to the coming into effect of section 24N there was no provision in the NEMA that dealt with EMPs and EMPRs as they were provided for in terms of section 39 of the MPRDA.
As of 8 December 2014, New Listing Notices were published under the NEMA that included, among others, prospecting and mining activities, and this inclusion means that an applicant for a prospecting or mining right has to apply for an environmental authorisation under the NEMA prior to the commencement of prospecting or mining activities.
Shortfalls
One of the primary concerns is that the statement did not provide clarity on the status of the EMPs, that is, an environmental management plan, which was required in terms of the MPRDA for prospecting activities. The same term, under NEMA, is not a referral to the EMP that was required for prospecting activities under the MPRDA. The status of historical EMPs in relation to prospecting activities therefore remains unclear.
Aquarius Platinum (SA) Proprietary Limited v Minister of Water and Sanitation and Others
The status of EMPs and EMPRs under the NEMA was addressed, peripherally, in the matter of Aquarius Platinum (SA) Proprietary Limited and the Minister of Water and Sanitation and Others, where the court commented on the consequences of section 38B of the MPRDA not coming into effect.
The main issue dealt with in the case was the constitutional validity or invalidity of the National Environmental Management Laws Amendment Act 25 of 2014 (NEMLAA), which brought into operation sections 19, 21, 22, 23, 24 and 25 of the NEMLAA, which amended certain provisions of the National Environmental Management: Waste Act 59 of 2008 (NEM:WA), specifically those provisions relating to the management and regulation of residue stockpiles and residue deposits.
In arguing the main issue Aquarius reasoned that the President, by publishing the NEMLAA without the regulations on the management and regulation of residue stockpiles and residue deposits being promulgated, created a vacuum with respect to the management of residue stockpiles and deposits.
With respect to the issue of the status of EMPs, EMPRs and section 38B of the MPRDA the court commented that the failure of the President to cause the provisions of the MPRD Amendment Act, which inserts section 38B into the MPRDA to come into effect (which was intended to ensure that all EMPs and EMPRs approved under the MPRDA would continue as environmental authorisations approved under the NEMA), leaves a legislative vacuum as to how holders of prospecting or mining rights must implement the provisions of their EMPs and EMPRs.
Conclusion
The statement only dealt with the first part of the status of EMPs and EMPRs as expressed in section 38B(1) of the MPRDA, which confirms that all EMPs and EMPRs approved under the MPRDA are deemed to be approved under the NEMA, but did not confirm that they are, further, deemed to be issued environmental authorisations under the NEMA.
In terms of the Environmental Impact Assessment Regulations under the NEMA, Regulation 52 confirms that any authorisation issued in terms of the previous NEMA Regulations must be regarded as an environmental authorisation issued in terms of the Environmental Impact Amendment Regulations, therefore, providing a level of certainty to holders of prospecting and mining rights who have EMPs and EMPRs approved under the MPRDA, and environmental authorisations issued under the NEMA for listed activities.
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