BY Lloyd Christie , Edwin Berman AND Ntsiki Adonisi-Kgame
natural resources and environment
publication of draft amendments to the mineral and petroleum resources development act regulations
On 28 November 2019, the Minister of Mineral Resources and Energy (“Minister”) published for public comment draft amendments to the regulations made in terms of the Mineral and Petroleum Resources Development Act, 2002 (“MPRDA”) published under GNR.527 of 23 April 2004 as amended (“MPRDA Regulations”). Interested and affected parties have been invited to submit written representations to the draft amendments to the MPRDA Regulations (“Draft Amendments”) within 30 days of the publication thereof.
Some of the proposals in the Draft Amendments are noted below.
interested and affected persons
Section 10 of the MPRDA requires consultation of interested and affected parties. The MPRDA Regulations currently define “interested and affected parties” as “a natural or juristic person with a direct interest in the proposed or existing operation or who may be affected by the proposed or existing operation”. The Draft Amendments embellish the definition by adding the following: “These include but are not limited to host communities, landowners (traditional and title deed owners); traditional authority; land claimants; lawful land occupier; holder of informal land rights; the Department of Agriculture, Land Reform and Rural Development; any other person (including on adjacent and non-adjacent properties) whose socio-economic conditions may be directly affected by the proposed prospecting or mining operation; the local municipality and the relevant Government Departments, agencies and institutions responsible for the various aspects of the environment and for infrastructure which may be affected by the proposed project”.
The Draft Amendments propose the insertion of the term “meaningful consultation” which is to mean “the applicant, has in good faith engaged the landowner, lawful occupier or interested and affected party in respect of the land subject to the application about the impact the prospecting or mining activities would have to his right of use of the land by availing all the information pertaining to the proposed activities enabling these parties to make an informed decision regarding the impact of the proposed activities”. The proposed definition of “meaningful consultation” is not used in the Draft Amendments.
certified copies of rights, permits and authorisation to be provided to landowners and lawful occupiers
The Draft Amendments propose introducing a new requirement that a mining company must provide certified copies of its right or permit in question, environmental authorisation and any relevant authorisations to landowners and lawful occupiers before commencing with operations. The Draft Amendments take the obligation in section 5A(c) of the MPRDA which requires that landowners and lawful occupiers be “given at least 21 days written notice”, and propose that this notification be accompanied by the certified copies of the abovementioned permits, specifying the date and time of proposed entry and the evidence of such notification being provided to the Department of Mineral Resources and Energy (“DMRE”).
publication of social and labour plans (“SLPs”)
The Draft Amendments propose introducing a new requirement that mining companies be obliged to publish SLPs relating to their operations in English and one other dominant official language commonly used in the mine community on the mining company’s website, in local newspaper/s, as hard copies in local libraries, municipal offices, traditional authority offices and company/mine offices within 30 days of approval and the availability and content of the approved SLP must be announced, where feasible, in local radio stations and relevant news outlets.
labour sending areas
Regulation 46(c)(ii) and (iii) of the MPRDA Regulations refers to “sending communities” and “major sending areas” without defining such terms, and provides that the SLP must include projects relating to and impacting such areas. The Draft Amendments introduce a definition of “labour sending areas”, defined to mean “areas from which a majority of mineworkers both historical and current, are or have been sourced” and propose that Regulation 41 be amended to provide that holders of mining rights contribute to socio-economic development of the areas in which they operate “as well as labour sending areas”.
repeal of environmental regulation provisions
The Draft Amendments propose the repeal of regulations 47-55 and 58-60. The reason for the repeal is that the topics dealt with in these regulations have since been incorporated into the National Environmental Management Act, 1998 and the Environmental Impact Assessment Regulations promulgated pursuant to the National Environmental Management Act, 1998 with Government Notice reference GNR 326 of 7 April 2017.
closure requirements in MPRDA Regulations retained
Regulation 56, 57, 61 and 62 are to be retained and are not to be repealed by the Draft Amendments. The reason for that is because these regulations deal with the topic of mine closure which is dealt with in the surviving provisions of section 43 of the MPRDA.
prescribed format for section 52 notices
Section 52 requires mining companies to notify the Minister in a prescribed manner if prevailing economic conditions cause the profit to revenue ratio of the relevant mine to be less than six per cent on average for a continuous period of 12 months or if any mining operation is to be scaled down or to cease with the possible effect that 10 per cent or more of the labour force or more than 500 employees, whichever is the lesser, are likely to be retrenched in any 12 month period. Up until now, no such format was prescribed. The Draft Amendments propose a draft template to be completed by mining companies and seek to impose an obligation on mining companies to lodge the prescribed section 52 notice within 7 days after consultation with registered trade union/s, affected employees or their nominated beneficiaries.
changes to section 54 processes
Section 54 deals with compensation which is payable to landowners under certain circumstances. It also provides holders of rights with an avenue to resolve land access disputes with landowners who refuse to grant them access. The Draft Amendments seek to prescribe a process in terms of which the Regional Manager may resolve land access and “resettlement” disputes and, on the face of it, grants the Regional Manager powers that are not contemplated in section 54. The procedure contemplated in the Draft Amendments appears to increase the time period for resolving land access disputes. The Draft Amendments also seek to create a procedure for resolving land disputes which give the Minister or the DG certain powers to deal with complicated land disputes.
new procedures for lodging internal appeals
Section 96(1)(a) provides that appeals of decisions of the Regional Manager may be made to the Director-General (“DG”) and of decisions of the DG to the Minister. The current regulation 74 provides that an appellant must lodge the written notice of appeal with the DG or the Minister as the case may be and the notice must state clearly actions appealed against and grounds of appeal. The Draft Amendments propose a new appeals procedure. Firstly, an appellant is required to file a notice of intention to appeal to the Minister, the Regional Manager and any other person whose rights may, in the opinion of the appellant, be affected by the outcome of the appeal. Secondly, the RM is required to identify people who may be affected by the appeal. Only following that, is the applicant required to file the notice of appeal. This notice of appeal must be directed to the relevant regional office of the DMR and notify the Minister having so filed the appeal.
The Minister is a competent authority to approve environmental authorisation in respect of mining operations in terms of section 24C(2A) of NEMA. The Minister of the Environment, Forestry and Fisheries (“Minister of Environment”) is a competent appeal authority in relation to the decisions of the Minister in relation to approval of environmental authorisations in terms of 43(1A) of NEMA. The Draft Amendments propose introducing a new sub-regulation 74(15) in terms of which a copy of a section 96 appeal in relation to environmental matters must be submitted to the Minister of Environment for “processing” in accordance with section 96.
For further information in relation to the above, please contact:
Executive | Natural Resources and Environment
+27 82 210 2159
Executive | Natural Resources and Environment
+27 82 382 7232
Senior Associate | Natural Resources and Environment
+27 82 560 1386