COMMENTS ON THE MINERAL AND PETROLEUM RESOURCES DEVELOPMENT AMENDMENT BILL, B10-2007
MINERAL AND PETROLEUM RESOURCES DEVELOPMENT AMENDMENT BILL B 10-2007
We enclose two comments on the bill: The first one concerns the position of disadvantaged communities under the MPRDA and we make specific recommendations and proposed wording to amend the MPRDA to address the position of communities whose land will be mined. The second comment deals with environmental management, the proposed amendments providing for environmental authorisations and the challenge with regard to the rehabilitation of historic damages.
The Legal Resources Centre would appreciate the opportunity to make a verbal submission to the Portfolio Committee. Ms Janet Love, the national director of the Legal Resources Centre, and Mr Vincent Saldanha will make the presentation. We have taken note of your programme for public submissions. We would like to make our presentation on Wednesday morning 30 May 2007, and we trust that you will be able to accommodate us early that morning.
We look forward to hearing from you with regard to our request.
Yours faithfully
[sgnd]
Legal Resources Centre
Henk Smith 083 266 1770
Sandile Dolweni 082 530 8311
COMMENT RELATING TO ADDRESSING HISTORIC POLLUTION BY MINING ACTIVITIES
To: The Honourable Chairman
Portfolio Committee: Minerals and Energy
Parliament
From: Legal Resources Centre
Introduction
1. The Legal Resources Centre (LRC) is a non-profit, public interest law firm that provides legal services to poor, vulnerable and marginalised clients. In the past ten years the LRC represented many communities who complain that pollution caused by mining activities adversely impact their health and well being or that mining activities have degraded the land on which they live. In many cases the mining activities concerned took place many years ago. The LRC assisted these clients in a number of ways which included approaching the Department of Minerals and Energy (DME) with requests to address the problems, litigating, assisting communities to engage in the notice and comment procedure preceding the issuing of mining licences and permits and contributing comment to the various law reform processes.
2. In the process of assisting clients, we gained valuable experience in putting the law to the test. We are, as a result, able to point out shortcomings in the current legislation and further point out where proposed amendments do not go far enough to assist affected communities to use the law to ensure that they are not adversely affected by environmental degradation and pollution from mining activities.
3. Our comment on the amendment bill presents arguments as to why the Mineral and Petroleum Resources Development Act (MPRDA) must be strengthened even further and proposes how that may be done to ensure that historic pollution from mining activity can be addressed efficiently and with legal certainty.
Addressing historic pollution from mining activities – the experience
4. Environmental degradation and pollution resulting from mining activities that took place before the enactment of the Mineral and Petroleum Resources Development Act (MPRDA) is a significant environmental problem in South Africa. Much of the mining activities which left the legacy of environmental problems took place even before the Minerals Act came in force in January 1992. Where this document refers to “historic pollution”, it means pollution and environmental degradation resulting from mining activity where the mining activity took place before enactment of the MPRDA on 1 May 2004.
5. Environmental management and control was not a well developed feature in earlier mining legislation and this creates the conundrum that, although environmental management and control is now a prominent feature of our mining legislation, it is very difficult to address historic pollution. There is a presumption against the retrospective application of legislation. As a result, the provisions for environmental management in the MPRDA do not apply to mining activities that ceased before the act came in force in May 2004, unless the act specifically provides for this to be so.
6. In the past ten years the LRC represented a number of communities who instructed us to take the necessary legal action to stop environmental degradation and pollution from historic mining activity. These cases had similar features:
6.1. The mining activity that gave rise to the pollution and environmental degradation ceased before the MPRDA came in force[1] and in some cases even before the Minerals Act came in force[2];
6.2. The mining company that conducted the mining activity still exists;
6.3. The mining company did not apply in terms of the MPRDA for a conversion of its old order rights and since the rights were unused at the time that the MPRDA came in force, these rights ceased to exist on 30 April 2005;
6.4. The pollution and resulting environmental degradation is of an ongoing nature and present problems such as dust and water pollution on a daily basis.
7. The question in each case was: what causes of action are available to our clients on which a court order instructing the mining company to address the pollution and environmental degradation caused by their former mining activity may be obtained?
Causes of action under the MPRDA - Item 10 of the second schedule to the MPRDA (unamended)
8. In terms of this item any environmental management programme approved in terms of the Minerals Act and in force when the MPRDA takes effect, continues to remain in force and the Minister may direct that such a programme is amended to bring it in line with the requirements of the MPRDA.
9. In some of the cases we dealt with, the mining activity ceased before the Minerals Act came in force and there was no environmental management programme. In other cases, despite the mining activity having taken place under the Minerals Act, there was no approved environmental management programme. In these cases item 10 of the schedule does not assist the clients to ensure that environmental impacts from the mine is managed.
10. In matters where there were approved environmental management programmes, item 10 is used to argue that the mining company is obliged to continue its implementation of the measures specified in the programme. This argument is, however, faced with the counterargument that the obligation to implement the EMP ended when the unused old order right ceased to exist.
11. Accordingly, item 10 of the MPRDA in its current form does not assist our clients. In the cases where there was an EMP for the mining activity, reliance on item 10 may trigger exceptions to the pleadings. This means that there is an increased risk, delay and cost to litigation on this cause of action.
Causes of action under the MPRDA - Item 10 of the second schedule to the MPRDA (proposed amendment)
12. The proposed amendment to item 10 adds a sub item in terms of which a holder referred to in section 12 of the Minerals Act who has not applied for a closure certificate, must apply for a closure certificate in terms of section 43 of the MPRDA. This is a welcome amendment. The Minerals Act did not impose a duty on mining companies to apply for closure. The MPRDA does require an application for closure within a certain time after the lapsing of permits or cessation of operations and it is appropriate that mines to whom section 12 of the Minerals Act applies should also be required to apply for closure within a specified time. The amendment to item 10 presents our clients with a cause of action to require mining operations that ceased mining while the Minerals Act was in force to apply for closure.
13. Some of our clients would, however, still not be sufficiently assisted by the amendment to item 10.
Shortcomings in the proposed amendment to item 10
14. In a number of ways, the proposed amendment of item 10 falls short of providing sufficient causes of action to ensure that mining companies responsible for historic pollution are responsible for the redress thereof.
The amended item 10 will still not apply to mining activity that ceased before the Minerals Act came in force
15. Where mining activity ceased before the Minerals Act came in force, our clients can only rely on the amendment to item 10 if they can argue that mining activity that ceased when the Mines and Works Act was in force, was covered by section 12 of the Minerals Act.
16. This question was considered in the matter of Bareki NO and another v Gencor Ltd and Others[3]. The matter concerned certain exceptions raised by Gencor to our clients’ claims for rehabilitation of historic asbestos pollution. The court found that section 38 of the Minerals Act did not apply to the mine, despite the fact that the Mines and Works Act contained a regulation with the exact wording as section 38 of the Minerals Act.
17. By the same token, although section 12 of the Minerals Act places the same obligation on a holder or owner as regulation 2.11 of the Mines and Works act[4], it does not mean that a mine subject to regulation 2.11 of the Mines and Works act, was subject to section 12 of the Minerals Act if it had ceased operations before the Minerals Act came in force.
18. The amendment to item 10 applies to mines with obligations in terms of section 12 of the Minerals Act. As a result, mining companies who ceased work on mines before the Minerals Act came in force can not be required in terms of the proposed amendment to apply for closure.
Amended item 10 does not place an obligation on a mining company to sufficiently manage environmental impacts resulting from historic pollution
19. In the Bareki matter the court found that the obligation that rested in terms of the Mines and Works Act on the owner of a mine to continue to comply with the regulations under that act until a closure certificate was issued, continues in terms of section 12(2)(c) of the Interpretation Act[5].
20. Our clients will at most be able to hold a mine to the same obligations they had in terms of the Mines and Works act. These obligations were somewhat limited and are found in regulations 5.10 and 15.12.2 of the Mines and Works Act[6]. These regulations remained in force under the Minerals Act and the obligations in terms of the regulations remain in terms of the Interpretation Act.
21. Item 10 in its amended form does not assist our clients in holding a mining company that ceased mining operations under the Mines and Works Act liable for adequate environmental management of historic pollution and environmental degradation.
22. Accordingly, clients faced with historic pollution that predates the Minerals Act do not have causes of action open to them to achieve significant rehabilitation by the mine responsible for the problem. This means that the duty to rehabilitate falls back on the state, despite the fact that the mining company may still exist.
Amended item 10 does not apply to mines other than those who were “holders” under the Minerals Act
23. Clients faced with historic pollution as a result of mining activity that was ceased during the period for which the Minerals Act was in force, may not be assisted to the fullest extent necessary by the proposed amendment to item 10 either. Subsection 4A refers only to the “holder” while the original section 12 of the Minerals Act also referred to “the owner” of the works. This was an important distinction since the definition of “owner” included, in the case where a prospecting permit or mining authorisation did not exist, the last person who worked the mine or his successor in title. This made section 12 of the Minerals Act applicable to a mining company that worked on an area without the required formal permits. This seems to be the case for instance on the Princess Complex in Davidsonville.
24. Failing to include in the subsection the reference to “owner”, means that claimants would be faced with difficulties in proving that the mining company was in fact a holder as defined in the Minerals Act. Where records of permits and authorisations are sometimes not complete and in any event difficult to access, this would place additional obstacles in the way of clients wishing to seek redress for historic pollution.
Amended item 10 does not ensure the management of environmental problems in the case of historic pollution pending closure
25. Even though the amendment to item 10 seeks to ensure that some historic pollution is addressed by requiring closure by the responsible mining company, this is in practice not enough to bring an end within a reasonable time to pollution and environmental degradation caused by the mine. The amendment only requires the mine responsible to apply for closure. It does not mean that closure will in fact take place. In two cases where we have instructions from clients to take steps to stop pollution from gold mine tailings dams and secure the rehabilitation of these dams, the mining company responsible has ensured that other companies apply for prospecting permits on those tailings dams. This is a way of delaying final rehabilitation and closure.
26. Item 10, even as amended, does not, in the case of historic pollution, mean that environmental problems will be managed in the interim until a closure plan is implemented. This is so because section 38 of the MPRDA and section 43(1) only apply to holders in terms of the MPRDA and not to mines whose unused old order rights have ceased to exist or, arguably, to mines whose old order mining rights or old order prospecting rights have lapsed.