One Environmental System: Streamlining Mining Approvals

1. Portfolio Committee Colloquium on the One Environmental System 20November 2018

2. Presentation Outline • Purpose • Background • Why the “One Environmental System”? • What the System was designed to fix?; • Environmental efficacy of the System; • Perceived benefits; and • Experienced realties of the OES, other matters • Appeals made to DEA in terms of mine EAs (2015 - to date) and the details thereof (grounds for appeal, appeals granted or rejected and rationale)

3. Purpose • The purpose of the presentation is to: • report to the Portfolio Committee on Environmental Affairs regarding the One Environmental System (OES); • highlight what the OES was designed to fix; • Highlight perceived benefits of the OES; • Indicate experienced realities of the OES; and • report on appeals made to DEA in terms of mine EAs (2015 to-date) and the details thereof (grounds for appeal, appeals granted or rejected and rationale)

4. Background • The OES came into effect on 8 December 2014, after the Ministers of Mineral Resources and Environmental Affairs and Water agreed to streamline the environmental approvals, monitoring and enforcement for South African mines (although the negotiations and amendments to legislation were in process since 2008) • The agreement entailed: • that the respective Ministers agree on fixed timeframes for the consideration and issuing of the authorisations in their respective legislation and also agree to align the timeframes and processes; • that the Minister of Mineral Resources would be the competent authority (CA) for environmental authorisations (EAs) issued under NEMA, for prospecting, exploration, mining or production operations and activities related thereto; • the repeal of all mine environmental management provisions by means of the MPRD Amendment Act; and • the transfer of MPRDA environmental provisions to NEMA to create a unified law and system covering environmental impact management

5. Background • This was called the “One Environmental System”. • The OESentails that: • Mining activities are subjected to an EA process in terms of NEMA; • the Minister of Environmental Affairs sets the environmental regulatory framework for environmental management; • the Minister of Environmental Affairs is the appeal authority for all mining EIAs; • the Minister of Mineral Resources implements the provisions of NEMA and NEMWA as far as it relates to prospecting, exploration, mining or production operations; • that the Minister of Mineral Resources is the CA for EA and WML under NEMA and NEMWA; • the Minister of Mineral Resources appoints environmental mineral resource inspectors with all the powers of an EMI to enforce environmental laws as far as they relate to mining; and • the Minister of Water and Sanitation issues water use licences related to mining.

6. Why the OES?: What the System was designed to fix • Prior to the OES, miningwas excluded from the scope of NEMA and environmental aspects of  mining activities were regulated in terms of the MPRDA • Some development activities related to  mining triggered activities identified under the NEMA and was subject to the EIA Regulations • As a result, an applicant for a right or permit in terms of the MPRDA had to obtain multiple environmental approvals from various departments, including the DMR and, potentially also, the DEA or a province • The application and approval process was cumbersome, uncoordinated and resulted in delayed decision-making and litigation in some instances. • The introduction of the OES sought to rectify some of these problems

7. Why the OES: What the System was designed to fix • Amendments had to be made to NEMA, MPRDA, the NEMWA, NEMAQA and NWA to give effect to the OES and all environmental provisions had to be repealed from the MPRDA • The OES was designed to: • integrate environmental management provisions of the MPRDA into NEMA; • ensure the Minister of Environmental Affairs becomes the only authority who sets the environmental regulatory framework, norms and standards for environmental management; • align the processes to obtain environmental approvals for mining projects; • ensure that the Minister of Mineral Resources implements the provisions of NEMA, SEMAs and subordinate legislation as far as it relates to prospecting, exploration, mining or production operations; • ensure that the Minister of Mineral Resources is the CA for EA and WML under NEMA and NEMWA

8. Why the OES: What the System was designed to fix • ensure the Minister of Environmental Affairs is the appeal authority for all mining EIAs; and • ensure the Minister of Mineral Resources appoints environmental mineral resource inspectors with all the powers of an EMI to enforce environmental laws as far as they relate to mining. • The MPRDAA came into effect on 8 December 2014 and effectively removed all environmental provisions from the MPRDA • The MPRDA Bill was however referred back to Parliament by the President on 16 January 2015 and is since withdrawn • As a result, some issues requiring finalisation to give full effect to the OES are unlikely to be in effect soon

9. Why the OES: Environmental efficacy of the System • The OES is intended to align NEMA, MPRDA and NWA processes • The amendments repealing environmental provisions in the MPRDAand transferring all environmental provisions from the MPRDA to NEMA and SEMAs gave effect to this intention • NEMA was amended in 2008 and 2014 to reflect these changes • DMR deals with the NEMA and MPRDA processes and should only process the MPRDA decision once an EA is issued • NWA now provides for a 300 day process as well as the introduction of a matrix to determine if a GA or WULA is required for a specific scenario • Appeals must be finalised within 90 days

10. Why the OES?: Perceived benefits of the OES • All environmental regulations in terms of NEMA were published and are in operation • Perceived benefits include: • much improved cooperation and coordination between government departments (environmental authorities and mining and to some extent water and National Treasury); • a reduction in overlapping legal and procedural requirements; and • a member of the public (whether a proponent or applicant) now needs to only deal with one government department (DMR) instead of several departments. • Timeframes agreed between the respective departments for the different authorisations, licences and rights/permits required in term of NEMA, SEMAs and the MPRDA for mining related developments ensure aligned processes.

11. Why the OES?: Perceived benefits of the OES • Amendments to the 2015 Financial Provisioning Regulations should further ensure sufficient funds are set aside for rehabilitation of mining operations • Improved cooperation exists between DEA and DMR for the processing of mining related appeals • Challenge: • time-periods and the triggers for the issuing of environmental authorisations and permits, authorisations and licences under the SEMAs, which have not been amended by the MPRDA • MPRDA regulations not amended to remove environmental provisions.

12. Why the OES?: Experienced realties of the OES • Financial provisioning to rehabilitate impact of mining • The finalization of the content and implementation of the Financial Provisioning Regulations, 2015 remain a challenge • Transitional period in respect of when parties who holds rights/permits under the MPRDA must comply with the NEMA financial provisioning regime has been clarified recently • NEMLA Bill in Parliament to resolve remaining issues

13. Why the OES?: Experienced realties of the OES • Inter-Departmental Project Implementation Committee (IPIC) • IPIC established by the respective Ministers for both legislative amendments and implementation of the OES • IPIC has not met in the past couple of months • As a result, lost opportunity to discuss and resolve implementation issues requiring attention and discussion

14. Why the OES?: Experienced realties of the OES • Use of reporting systems • Regulation 5(4) of the EIA Regulations require the recording of applications via National Environmental Authorisation System (NEAS) • DMR currently not providing their statistics via NEAS – only using SAMRAD system; • Only 10 CAs have been submitting quarterly progress using the approved systems; and • Non-reporting on progress via NEAS for outcome 10 by DMR

15. Why the OES?: Experienced realties of the OES • Compliance and enforcement • Initial IPIC task team meetings on compliance and enforcement saw consistent and substantive engagement between DEA and DMR in relation to preparing DMR to take over the compliance and enforcement functions • This included: • guidance and support in relation to the development of a basic training programme for DMR Environmental Mineral and Petroleum Resource Inspectors (EMRIs); • the alignment of powers and duties under NEMA; • the inclusion of DMR in the Environmental Management Inspector (EMI) Regulations;

16. Why the OES?: Experienced realties of the OES • bringing DMR under the same administrative framework as EMI’s from environmental and water authorities; • discussions also included the planning and undertaking of joint compliance and enforcement operations, in order to share practical knowledge and skills as part of a capacity-building initiative; and • At the same time, there was regular attendance at MINTECH WGIV meetings, as well as at Environmental Compliance and Enforcement Lekgotlas. • Challenges: • There have been structural changes and new appointments at DMR and they appeared to have withdraw from previous interactions, ceasing to attend MINTECH WGIV; • provincial environmental authorities reported that the existing enforcement cases handed over to DMR (for example, sand mining) were receiving little or no attention

17. Why the OES?: Experienced realties of the OES Mineral Sands Resources (Pty) Ltd v Magistrate for the District of Vredendal and others • On 20 March 2017, the Western Cape High Court in Mineral Sands Resources (Pty) Ltd v Magistrate for the District of Vredendal and others handed down judgement in respect of an Australian mining company’s allegedly illegal activities at its West Coast TorminMine • Following a number of complaints about alleged lack of compliance with its environmental management programme, environmental inspectors of the DEA led a search and seizure operation at the mine (conducted under a warrant granted in the Magistrates Court) • The operation resulted in the laying of criminal charges against the mine in respect of certain transgressions, including actions which led to the collapse of a sea cliff. • The Western Cape High Court found that the search and seizure operations by environmental inspectors of the DEA and DEADP were unlawful as NEMA provides that the mandate to carry out compliance inspections at mining operations is to be fulfilled by environmental inspectors appointed by the Minister of Mineral Resources. • In line with the Sands judgement, the DEA will continue to exercise its mandate over contraventions that do not relate to environmental impact assessment listed activities or waste activities linked to mining e.g. coastal and protected areas aspects

18. Appeals made to the DEA in terms of mine EAs (2015 to date) • As per the OES, the Minister of Environmental Affairs is competent authority for mine environmental appeals • Reflected in section 43 (1) of NEMA • All appeals to be finalised within 90 days of receipt of appeal • Although good cooperation is received from the Regional Offices from DMR, the time period within which responses must be received is a challenge due to capacity constraints • A standard operating procedure is possibly a solution and will be negotiated.

19. Appeals made to the DEA in terms of mine EAs (2015 to-date: Appeals granted or rejected and rationale • Since the coming into effect of the OES: • 118 appeals were finalised • 35 are still pending and at various stages of administration process. • Of 118 finalised appeals, 84 were dismissed; and • 16 upheld and 18 withdrawn. • Reasons for either dismissing or upholding appeals are set out fully in every appeal decision • Reasons for dismissing or upholding appeals differs from case to case and: • are dependent on the grounds of appeal; • the facts of each case; • the reports; and • other information considered by the Minister • Reasons for withdrawals of appeals were often as a consequence of mediation between the parties during the appeal process

20. Appeals made to the DEA in terms of mine EAs (2015 to-date: Grounds for appeals • In most of the appeals, the ground of appeals were premised on the following contentions: • Inadequate public participation process; • Procedural irregularities committed by the DMR; • Failure to take into account environmental impacts; • Negative impact on farming activities, groundwater and strategic water source areas; • Lack of mitigation measures to minimize negative impacts of the proposed mining activities; • Negative visual impact; • Lack of Heritage Impact Assessment; • Failure to consider objections against mining in the Critical Biodiversity Areas; • Non-compliance with Land Use Planning Act; • Loss of tourism revenue; • Conditions imposed by the DMR are unrealistic and not supported by evidence; • Inadequate assessments and investigation of impacts; and • DMR’s failure to consider the appellant’s objections on the proposed mining activities.

21. Conclusion The main advantages of the One Environmental System include: • Improved cooperation between the Department of Environmental Affairs, Mineral Resources, Water Affairs and National Treasury (financial provisioning for mining) in relation to environmental protection. • More efficient and effective decision-making and less “red tape” • Fixed time periods for decision-making providing certainty to industry and allowing for better planning • Improved turnaround times for decision-making. • EA decisions in respect of activities ancillary to mining (except for water matters) are now also made by the same authority, namely DMR • Better and more focussed efforts to ensure funding for concurrent rehabilitation, closure and ongoing post-decommissioning management of negative environmental impacts before an environmental authorisation is issued • Prevention of legacy impacts from mining activities