Joint submission by: Bench Marks Foundation BirdLife South Africa

1. Environment authorities are more appropriately placed to issue, monitor and ensure compliance with environmental authorisations for mining activities Joint submission by: Bench Marks Foundation BirdLife South Africa Centre for Environmental Rights Conservation South Africa Endangered Wildlife Trust Federation for a Sustainable Environment Greenpeace Africa groundWork Worldwide Fund for Nature South Africa Prof Tracy Humby, University of the Witwatersrand School of Law

2. Introduction • Legacies: • Woeful, well-documented legacy of poorly regulated, unmitigated environmental impacts of mining: AMD and other water pollution, respiratory illness, radiation exposure, soil erosion – affecting livelihoods of vulnerable people across the country, and compromising rights of future generations • confusion and inefficiency • resistance to giving affected parties access to information, and to administrative justice • mistrust and disappointment clouding view of political compromise: “One environmental system”.

3. Introduction (cont.) • Welcome application of NEMA: finally, decisions about impacts on environment and water resources will now precede issue of mining rights • However: who is best placed to do make these decisions? What is the best way to spend public funds to achieve sustainable development of mineral resources? • Joint implementation plan flawed and optimistic • We want streamlined, effective, adequately resourced, appropriately incentivised regulation of environmental impacts of mining: Bill’s proposal is not first prize

4. 6 reasons why environmental authorities are better placed to fulfil this function • Capacity • Track record • Inherent conflict • Special treatment not justified • Constitutional difficulties • Inefficient use of public funds Not best way to give effect to section 24 of the Constitution

5. Reason 1: Capacity • Right now, there are hundreds of officials in DEA and provincial environment departments issuing authorisations, monitoring compliance and enforcing NEMA. By March 2012 (NECER 2011-12): 1399 Environmental Management Inspectors (EMIs), of which at least 297 EMIs responsible for “brown issues” – just CME • DMR: • 2009: about 65 filled positions “dedicated to environmental protection and monitoring”; no dedicated budget • 2012: unfunded compliance & enforcement structure of 114 • R59 million allocated in 2013 Budget • DEA alone spent more than R70 million on EIA, compliance monitoring and enforcement in 2011-12 • IPIC Budget Proposal: R65,9million to DMR • But assuming that is sufficient, money is only catalyst: recruitment, training, equipment – how long will it take for DMR to develop adequate capacity? Can we afford delay that this will bring?

6. Reason 2: Track record: Authorisations • DEA and provinces have processed 21,292 EIA applications in the last 7 years • Legislation, guidelines, tools, systems and structures put in place by environmental authorities to streamline and make NEMA EIAs more effective • DMR has history of poor decision-making on environmental impacts: accepting applications and granting rights • in sensitive or environmentally important areas • in protected areas • despite express opposition from environmental and water authorities • How will this Bill improve this track record?

7. Reason 2: Track record: Compliance monitoring & enforcement • Environmental Management Inspectorate in their National Environmental Compliance & Enforcement Report 2011-12: • 1080 criminal dockets registered in that year, and 1498 admission of guilt fines issued • 1339 arrests by EMIs, 201 cases handed to NPA, with 82 convictions • 194 warning letters, 521 administrative notices and 7 civil court applications • 1292 industrial facilities inspected • Where are the DMR’s statistics and reports? Where is strategic compliance inspection schedule? Where is enforcement policy? Where are the criminal convictions? Where are the civil cases to recover costs of rehabilitation from companies and directors? Where is the refusal to grant new rights to mining companies not in compliance?

8. Reason 2: Track record: Compliance monitoring & enforcement • Minister and DMR tight-lipped about its compliance monitoring and enforcement activities in relation to environmental violations by mines, and particularly any results • Recent criminal cases against mining companies for violating environmental laws involved communities, civil society organisations, the DEA and the NPA • What steps will DMR take to ensure effective criminal and administrative enforcement programme? • Hire enough and senior enough officials with right qualifications? • Develop enforcement policy and strategy? • Spend money on training and equipment? • Join the Environmental Management Inspectorate?

9. Reason 3: Inherent conflict • Why does the DMR have such a poor record? Why have they not prioritised the resourcing of these functions? • Inherent conflict: Promoting mining and exploitation of mineral resources v realising environmental rights • Inherent and insoluble conflict, not unique to South Africa • Reason for “pitiful state of environmental compliance by mining industry” • Not only leads to poor decision-making, but also puts DMR officials in impossible situations

10. Reason 4: Special treatment not justified • Continues special treatment for mining over other industrial sectors • DAFF does not issue NEMA authorisations to farmers • DoT does not issue NEMA authorisations to SANRAL • Don’t have expertise – not their core business • Why are DMR and the mining sector different?

11. Reason 5: Constitutional difficulties • Constitutional obligation to realise environmental rights: imperative to strengthen environmental authorities to fulfil Constitutional mandate • Environment is a functional competency shared between national & provincial government; yet provincial sphere excluded from implementation of NEMA in relation to mining

12. Reason 6: Not efficient useof public funds • Building capacity “from scratch”, instead of expanding existing capacity in DEA and provinces • Par 55 of our submission: other costs to be incurred by DMR over and above staff costs: training, geographical information systems and databases, legal fees, scientific expert fees, travel, reporting, office space, equipment • 9 years to establish Environmental Management Inspectorate – will take years for DMR to start showing results

13. Conclusion • Understand that current proposals and implementation plans well underway • Consistently been making these arguments and asked for opportunities to be heard. No consultation on 2011 political compromise; IPIC behind closed doors; limited consultation on Bill. • Opportunity to free DMR from this responsibility and strengthen our environmental authorities – as was envisaged by 2008 agreement • Application of NEMA is a long-awaited improvement • However, reluctance to hand over this mandate to environmental authorities now results in overly complicated, inherently flawed, unrealistically optimistic regulatory regime: not right way to go • Plea to PC is to ensure adequate funding, and to hold the DMR to its commitment to implement

14. Thank you for hearing our submission Bench Marks Foundation BirdLife South Africa Centre for Environmental Rights Conservation South Africa Endangered Wildlife Trust Federation for a Sustainable Environment Greenpeace Africa groundWork Worldwide Fund for Nature South Africa Prof Tracy Humby, University of the Witwatersrand School of Law