BY Ntsiki Adonisi-Kgame
New obligations for mining and exploration companies in South Africa to submit their geoscience data
In order to manage and promote mineral exploration, knowledge and investment in South Africa, the Geoscience Act Regulations 2022 were published on 30 March 2022. To achieve these aims, the Geoscience Regulations establish the Council for Geoscience (“CGS”), to which it is mandatory for mining/exploration and upstream energy companies to submit certain geoscience data related to their prospecting and reconnaissance activities, as the case may be.
Data submission obligation
Owners of geoscience data related to prospecting and reconnaissance obtained after 2004 (the year of commencement of the Mineral and Petroleum Resources Development Act, 2002 (‘‘MPRDA’’)) are required to lodge data associated with prospecting with the regional manager of the Department of Mineral Resources and Energy (‘‘Regional Manager’’), and the data associated with upstream oil and gas reconnaissance activities, with the Petroleum Agency of South Africa.
Geoscience data and information related to prospecting and reconnaissance must also be submitted in line with the applicable legislative framework. The applicable legislative framework mainly refers to the MPRDA as the primary statute in the sector, and as such, the submissions would, at a minimum, need to be those prescribed in the MPRDA. In terms of the MPRDA, the Minister of Minerals Resources and Energy may prescribe the kind of data to be submitted by holders of rights granted in terms of the MPRDA. Furthermore, section 21 of the MPRDA provides that holders of prospecting rights and reconnaissance permissions are required to keep proper records at the registered office or place of business of the holder, of reconnaissance or prospecting operations and the results and expenditure connected therewith, as well as borehole core data and core-log data, where appropriate. These holders must submit progress reports and data in the prescribed manner and at the prescribed intervals to the Regional Manager.
Onshore and offshore prospecting and reconnaissance geoscience data and information preceding the year 2004 (pre-MPRDA data) are deemed to be historical geoscience data.
In terms of the Geoscience Regulations, holders of historical geoscience data and information related to prospecting and reconnaissance must notify (rather than lodge, as in the case of non-historical geoscience data) the CGS of this data after which the CGS will, at its own expense, make arrangements for the transportation and collection of the data.
Although the Department of Mineral Resources and Energy is the competent authority and custodian of geoscience data related to prospecting and reconnaissance obtained on or after 2004, the CGS is the competent authority and custodian of pre-MPRDA data related to prospecting and reconnaissance.
Dissemination and sale of data
The Geoscience Regulations provide for the dissemination and sale of geoscience data, albeit only in circumscribed instances.
Geoscience data lodged in terms of a prospecting right and a reconnaissance permit are to be treated as confidential by the CGS, until the right or permit has lapsed or is abandoned. Similar protection is afforded to supplies of geoscience data and information related to prospecting and reconnaissance in section 30 of the MPRDA. In terms of the MPRDA, the Regional Manager is required to submit records of information and data in respect of reconnaissance and prospecting to the CGS. This information and data include progress reports and data related to reconnaissance or prospecting operations and the associated results and expenditure, as well as borehole core data and core log data.
Therefore, the Geoscience Regulations have been harmonised with the provisions of the MPRDA in so far as it relates to permitting the sharing of geoscience data and information related to prospecting and reconnaissance, which have been obtained by the Department of Minerals and Energy, with the CGS.
All geoscience data not related to prospecting and reconnaissance may be obtained by third parties if:
- the owners of the geoscience data provide prior written approval to the CGS which must also be underpinned by written confidentiality arrangements between the owner of the data and the public recipient the request relates, or
- the geoscience data is older than 15 years.
The Geoscience Regulations provide that any person is prohibited from engaging in a conduct detrimental to the affairs of the CGS, including the improper disclosure of information without consent of the CGS or its board. However, the Geoscience Regulations do not provide any guidelines as to what ‘improper disclosure’ entails.
All geotechnical reports, including geotechnical site investigation reports, must to be prepared by a person registered as a professional natural scientist in terms of the Natural Scientific Profession Act, 2003 or a professional engineer or professional engineering technologist in terms of the Engineering Profession Act, 2000 (Act No. 46 of 2000).
The Geoscience Regulations promote and enhance the mandate of the CGS to ensure that integrated, systematic and thematic maps and research on the onshore and offshore geology of South Africa is gathered by the CGS. This will go a long way to facilitate South Africa’s mineral, energy and agricultural development and to contribute to the assessment and sustainable management of mineral, geohydrological and geo-environmental resources.
The Geoscience Regulations adequately balance the interests of the CGS and that of onshore and offshore explorers in providing for confidentiality of all geoscience data related to prospecting and reconnaissance. This is an important aspect given that certain kinds of geoscience data related to prospecting and reconnaissance (such geochemical and assay data and information, geohydrology information, seismological and geotechnical data) is often considered commercially sensitive information, and not utilised for research purpose in the ordinary course.
The attempt to harmonise the provisions of the Geoscience Regulations and the MPRDA provides much-needed certainty in the market. What remains to be seen, from a practical perspective, is how the requirements under the Geoscience Regulations will work alongside current MPRDA legislative framework as a whole.
Reviewed by Ntsiki Adonisi-Kgame, head of ENSafrica’s Natural Resources and Environment department.
Natural Resources and Environment | Trainee