MEDIA RELEASE

EXPLANATORY COMMENTS FROM THE CENTRE FOR ENVIRONMENTAL RIGHTS ON LEGAL ASPECTS OF THIRTEEN NON-GOVERNMENT AND CIVIL SOCIETY ORGANISATIONS’ REQUEST TO THE MINISTER OF MINERAL RESOURCES TO EXERCISE HER DISCRETION UNDER S.49 OF THE MINERALS AND PETROLEUM RESOURCES DEVELOPMENT ACT TO PROHIBIT AND RESTRICT PROSPECTING AND MINING IN AREAS OF CRITICAL BIODIVERSITY AND HYDROLOGICAL VALUE AND SENSITIVITY

1 FEBRUARY 2011

On 1 February 2011, the Centre for Environmental Rights, on behalf of thirteen non-government and civil society organisations, submitted a formal request to the Minister of Mineral Resources to exercise her discretion under s.49 of the Minerals and Petroleum Resources Development Act (Act 28 of 2002) (MPRDA) to place a prohibition on prospecting and mining in certain key areas of critical biodiversity, hydrological value and sensitivity, and to impose a series of procedural restrictions aimed at improving the rigour and quality of environmental impact assessments in areas of environmental sensitivity.

The Centre would like to point out the following legal aspects of this submission:

  1. Existing prohibitions: There are already certain geographical areas in which commercial prospecting and mining are prohibited by law, such as national and provincial protected areas (as long as the prospecting or mining had not yet started when the protected area was declared), World Heritage Areas and specially protected forest areas. However, in recent years we have seen an increase in both the acceptance of applications for prospecting and mining right applications by the Department of Mineral Resources (DMR) as well as the granting of rights despite statutory prohibitions. Such instances have typically been the result of false information submitted to the DMR. This means that:
  2. scarce government resources are wasted in the processing of commenting on applications that cannot lawfully be granted and should therefore never be considered; and
  3. donor-funded non-government organisations have no option but to approach a court to set aside an inappropriate and unlawful decision, resulting in significant legal costs being incurred unnecessarily by organisations that can ill afford such costs.

This situation must be addressed through better screening and verification methods, and criminal prosecution of applicants who make false or misleading statements to the DMR in their applications.

  1. Wasted resources on EIAs: The only statutory protection that currently exists for the areas listed in the NGO proposal is the EIA process under the MPRDA. This means that both the mining company, authorities and interested and affected parties waste precious time and resources on an EIA process in an application that should never be considered, because of the indisputable and critical value of these areas.
  2. Procedural restrictions and the MPRDA Amendment Act: In relation to environmentally sensitive areas that do not qualify for a complete prohibition (existing or proposed), we have proposed certain procedural restrictions to try to address some of the significant shortcomings of the EIA process under the MPRDA. Many of these restrictions were developed out of the experiences of NGOs and communities across the country as they struggle to participate meaningfully in a regulatory system that is not only inferior to the EIA system under the National Environmental Management Act, 1998 (Act 107 of 1998) (NEMA), but likely also does not meet the requirements of administrative justice.

However, many of the difficulties in the current regulatory system can be addressed by bringing into effect the MPRDA Amendment Act, 2008 (Act 49 of 2008) promulgated as long ago as 19 April 2009, but not yet brought into effect by the Minister of Mineral Resources.

  1. Sustainable development of mineral resources: Contrary to popular belief, the MPRDA does not exist to promote the exploitation of South Africa’s mineral resources, but rather the sustainable development of the nation’s mineral resources.
  2. The MPRDA states that its object is “to make provision for equitable access to and sustainable development of the nation’s mineral and petroleum resources”. It also states in its preamble that it is “the State’s obligation to protect the environment for the benefit of present and future generations, to ensure ecologically sustainable development of mineral and petroleum resources and to promote economic and social development”. It further states that it should “give effect to section 24 of the Constitution by ensuring that the nation’s mineral and petroleum resources are developed in an orderly and ecologically sustainable manner while promoting justifiable social and economic development”.[1]
  3. S.3(3) of the MPRDA provides that “the Minister must ensure the sustainable development of South Africa’s mineral and petroleum resources within a framework of national environmental policy, norms and standards while promoting economic and social development.”
  4. The MPRDA defines “sustainable development” as “the integration of social, economic and environmental factors into planning, implementation and decision making so as to ensure that mineral and petroleum resources development serves present and future generations”.
  5. The MPRDA also makes itself subject to NEMA and the environmental management principles contained in NEMA.

It is against this statutory background that we argue that it is appropriate for the Minister to exercise her discretion to impose a prohibition and restrictions on prospecting and mining in areas of particular environmental sensitivity and/or value.

We can only achieve sustainable development of our mineral resources if we are brave and farsighted enough to protect critical natural assets that will facilitate the lives, health and wellbeing of future generations.

  1. Not permanent or irrevocable, and does not affect existing rights: Note that a declaration under s.49 is neither permanent nor irrevocable. The Minister may impose a restriction or prohibition “for such period and on such terms and conditions” as she may determine. The Minister may also lift any restriction or prohibition “if the circumstances which caused the Minister so to prohibit or restrict no longer exist.” A declaration under s.49 also does not affect existing rights.

CENTRE FOR ENVIRONMENTAL RIGHTS

Quotes attributed and queries directed to Melissa Fourie, Executive Director (021 447 1647 or 072 306 8888)

S.49 of the MPRDA:

49.Minister’s power to prohibit or restrict prospecting or mining

(1) Subject to subsection (2), the Minister may, after inviting representations from relevant stakeholders, from time to time by notice in the Gazette, having regard to the national interest and the need to promote the sustainable development of the nation’s mineral resources, prohibit or restrict the granting of any reconnaissance permission, prospecting right, mining right or mining permit in respect of land identified by the Minister for such period and on such terms and conditions as the Minister may determine.

(2) A notice contemplated in subsection (1) does not affect prospecting or mining in, on or under land which, on the date of the notice, is the subject of a reconnaissance permission, prospecting right, a mining right, a retention permit or a mining permit.

(3) The Minister may from time to time by notice in the Gazette -

(a) lift a prohibition or restriction made in terms of subsection (1) if the circumstances which caused the Minister so to prohibit or restrict no longer exist; or

(b) amend the period, term or condition applicable to any prohibition or restriction made in terms of subsection (1) if the circumstances which caused the Minister so to prohibit or restrict have changed.

[1] S.2(h)