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A LEGAL AND POLICY FRAMEWORK FOR ENVIRONMENTAL MANAGEMENT IN THE SOUTH AFRICAN MINING INDUSTRY

INTRODUCTION

South African and, indeed, Southern African mineral resources are important assets. For each country and the region as a whole, the mining industry has over a considerable period, been a vehicle for economic growth. It has provided for the creation of valuable infrastructure and jobs and has contributed to the improvement of the quality of life of our people. Its continued success will, however, be largely dependent on its ability to access international money and commodity markets. The mining industry cannot, therefore, afford to be impeded by criticism that may flow from matters such as doubts concerning its environmental philosophies. It is also of importance that the mining industry should have a clear indication of what its responsibilities in this regard are.

Statutory requirements enforcing environmental protection and the management of the impacts of prospecting and mining in South Africa vest directly in the Minerals Act, 1991 (Act 50 of 1991), which is administrated by the Department of Minerals and Energy. Other legislation such as the National Environmental Management Act, 1998, the National Water Act, 1998, the Atmospheric Pollution Prevention Act, 1965, the Environmental Conservation Act, 1989 and the Nuclear Energy Act, 1993 provide further controlling measures.

In order to achieve integrated and holistic environmental management throughout South Africa, compliance with a single national environmental policy and governance within a framework of co-operative governance is necessary. While Government has appointed the national Department of Environmental Affairs and Tourism as its lead agent for this role, the Department of Minerals and Energy, in support of the lead agent and in accordance with national principles, norms and standards, develops and applies the necessary policies and measure to ensure the mining industry's compliance with the national policy on environmental management and other relevant policies such as the national water policy.

THE MINERALS ACT, 1991

In the first instance the Minerals Act confirms, in section 5, the common law principle that the holder of the mineral rights, or his or her nominee, has the exclusive right to enter the land involved and to exploit the minerals owned. The Act, however, tempers this common law right by:

i) prohibiting prospecting or mining operations until the necessary "licence" has been granted (in the form of a prospecting permit or mining authorisation) which must be issued in accordance with the requirements of the Act, and

ii) requiring the Department as issuing authority, to be satisfied, prior to the granting of a permit or an authorisation, of the applicant's ability to mine the mineral optimally, safely and that the applicant will be able to rehabilitate the land involved effectively.

It is only when the Department is satisfied in this regard, that a prospecting permit or a mining authorisation will be granted. The Act, however, requires further important checks and balances to be in place before mining operations may actually commence. The most important requirement concerning the environment is that an Environmental Management Programme (EMP), (based on an environmental impact assessment) in which a mine's impacts on the environment are identified and in which a clear programme is provided of how these impacts will be managed, must be submitted and officially approved. The Minerals Act requires in section 38, that the rehabilitation of the surface of land concerned in any prospecting or mining shall be carried out by the holder of the prospecting permit or mining authorisation concerned:

(a) in accordance with the Environmental Management Programme approved in terms of section 39

(b) as an integral part of the prospecting or mining operations concerned;

(c) simultaneously with such operations, unless determined otherwise in writing by the regional director; and

(d) to the satisfaction of the regional director concerned.

CONSULTATION WITH OTHER INSTANCES

To ensure that all aspects of the environment are brought into consideration, section 39 of the Act stipulates that consultation shall take place with each department charged with the administration of any law that relates to a matter affecting the environment before an EMP may be approved. It is the policy to also consult with all persons who will be affected by the prospecting or mining operations. Approval of an EMP may take a considerable period of time and the legislation does empower the granting of a temporary permission to proceed with mining operations. Such permission will, however, only be granted in exceptional cases, after consultation with the other instances, under stringent conditions and only in certain circumstances, for instance where insignificant impact on the environment is expected and/or if exceptional circumstances require that the mineral involved should come into production urgently.

GUIDELINES FOR THE PREPARATION OF AN EMP

The authorities and industry, have developed and implemented an Aide-M‚moire to provide guidelines and assist mining concerns in the completion of their EMP's. These guidelines indicate the baseline information that should be incorporated into the EMP report and include, inter alia:

i) company data and details of organisational structure,

ii) a clear description of the pre-mining environment,

iii) motivation for the project,

iv) a project description indicating the method of mining that will be usedand particulars of the process involved,

v) an assessment of the expected impacts on the environment during the construction, operational and closure stages of the project,

vi) an indication of how the various impacts will be managed (this section becomes the legally enforceable EMP in terms of the Act), and

vii) particulars of financial provision that will be made for the execution of the EMP.

An EMP must address all the phases of a mine's life-cycle with special focus on acceptable closure objectives. After approval, an EMP is not seen to be a final document. It must be dynamically adapted during the life of a mine to provide for changing circumstances and developments. These will often come to light during a monitoring or auditing exercise and the Department has developed specific requirements for regular monitoring and EMP performance assessments.

Of high importance is that there should be an understanding of the geology involved as this plays an important role in the prevention of surface and groundwater pollution as well as of erosion. The resident geological formation is also often a deciding factor in the placing of structures such as residue dumps.

Other aspects that are required to be addressed include the topography involved, particulars of the types of soils that are present, the capability of the land involved, particulars of the fauna and flora (with particular reference to endangered species), atmospheric pollution, the noise levels that are expected, the visual aspects that are involved and whether sensitive landscapes or sites of cultural interest are affected. Attention must, furthermore, be paid to impacts on interested and affected parties and these people must, from the very beginning of the planning process, form part of the consultative process and be made aware of the positive and the negative implications of the project.

In view of the arid nature of our country, particular attention must be paid to all water related aspects. The entrepreneur must, in every case, have a complete understanding of all water related matters and the extent to which his project will impact on the water regime. He or she will be expected to develop a water management system that will prevent erosion, flooding and the contamination or wastage of water as well as to manage any remaining impacts in compliance with the water quality management objectives determined in consultation with the Department of Water Affairs and Forestry for that specific catchment area.

The purpose of the exercise is that an entrepreneur must be able to fully understand and quantify the environmental impacts that the mining project will have on the environment prior to mining. He must be able to draw up an EMP that will set out the environmental management criteria and controls that will be used during the life of the mine. These criteria and controls must be aligned to achieve the mine's identified closure objectives.

Should any doubts arise regarding the acceptability of the EMP that has been produced, the Act provides (section 39 (5)) that a professional body may, at the cost of the entrepreneur, be appointed by the Director-General of the Department to conduct a further environmental impact assessment.

While it has been found that the Aide-M‚moire provides acceptable guidelines for the completion of EMPs for the larger, more sophisticated sector of the mining industry, it does not always suit the needs of certain other sections of the mining industry such as offshore mining, sand winning within a riverine environment, the smaller diamond digging concerns, the less formal quarrying industry and the informal gold producers. Dedicated guidelines and codes of practice have been developed specifically for these projects and include the following:

FINANCIAL GUARANTEE FOR THE EXECUTION OF THE EMP

Government and the mining industry have accepted the principle that the polluter must pay for pollution or the damage that prospecting or mining actions incur on the environment. Regulations have been promulgated in terms of the Minerals Act to ensure that financial provision is made by a mine in the form of guarantees for the execution of its EMP. Important principles of the arrangement that has been formalised are the following:

(i) The financial provision shall be exclusively for environmental management and rehabilitation purposes and the funds may not be utilised for any other purpose.

(ii) The funds shall be safe from seizure in case of liquidation or other incapacity of the mining operator and be readily available to the Department of Minerals and Energy in such an event.

(iii) Provision shall be available at the onset of operations, during the life of the mine and at closure.

(iv) Provision shall be sufficient to keep pace with rehabilitation obligations vis-…-vis mining operations, bearing in mind that a statutory obligation exists to rehabilitate affected land during and as an integral part of mining operations.

(v) The quantum of provision shall be reviewed annually. Financial provision shall be by one or more of the following methods:

Approved contributions to a dedicated trust fund as provided for in section 10(1)(cH) of the Income Tax Act, 1962. (Contributions to such a fund as well as any profit or gains of the fund are exempt from tax.)

A written guarantee from a bank, other approved financial institution, statutory body or provincial or municipal authority guaranteeing the availability of funds if the mining company should fail or become incapacitated.

Other financial provision approved by the Director-General of the Department of Minerals and Energy on an ad hoc basis, if the above methods should, in a specific case, prove to be impractical.

MINE CLOSURE

Mine closure is often associated with a myriad of questions, doubts, and uncertainties regarding responsibilities related to environmental issues. In terms of section 12 of the Minerals Act, liability for complying with the relevant provisions of the Act remains with the holder of a prospecting permit or mining authorisation until the Department of Minerals and Energy issues a certificate to the effect that the said provisions have been complied with.

The authorities and industry have recently agreed on policy guidelines acceptable to all the role-players. The policy provides, inter alia, for the following objectives:

If the above objectives have been met and all the provisions of the Act, including the EMP, have been complied with, a closure certificate will be issued to a mine. A proviso is, however, that if residual impacts have been identified, these must be described in the mine's EMP and adequate and irrefutable arrangements put in place to ensure that these impacts will be adequately dealt with. Such arrangements may include the need for a mine to make financial provision for the financing of post-closure environmental management or for the maintenance of pollution control measures. A competent third party will also have to be identified to assume responsibility for such management or maintenance and will utilise the funds that the mine has made available for this purpose. It is of the utmost importance that effective planning for closure should take place as early as possible in the life of a mine and, preferably, even before mining operations commence. Equally important is to identify the post-mining land use (or land use options if there is yet no certainty) so that mining methods, the placing of structures and interim rehabilitation actions may be adapted to meet identified goals cost effectively.

SUSPENSION OR CANCELLATION OF PROSPECTING OR MINING AUTHORISATIONS AND PENALTIES ON CONVICTION

In terms of section 14 of the Minerals Act, the Minister may suspend or cancel any prospecting or mining authorisation if the holder thereof contravenes or fails to comply with any relevant provision of the Act. If such holder contravenes or fails to comply with any provision of section 38, (which concerns environmental protection) the Minister shall suspend or cancel the permit or authorisation concerned. The Act stipulates, however, that before any authorisation is suspended or cancelled, the regional director concerned shall serve a written notice on the holder thereof ordering him to comply with the relevant provisions or to take such rectifying steps as the Minister may require, within a period specified in the notice.

A person who has been convicted of an offence concerning the environmental management requirements of the Act, is liable to a fine or imprisonment for a period not exceeding one year or to both a fine and such imprisonment. Such a person is also liable to a further fine not exceeding R1 000 or imprisonment not exceeding five days for every day the contravention continues: Provided that the period of such further imprisonment shall not exceed six months.

A Clark
Director: Mine Rehabilitation
Private Bag X59
PRETORIA
South Africa

Tel no: (012) 317-9112 / 000
Tel Int: +2712 317-9112 / 000

Fax no: (012) 320-6786
Int: +27 12 320-6786

(May 1999)