In South Africa, there are a number of ambiguities in the existing law regulating community participation processes in mining projects, including the Mineral and Petroleum Resources Development Act and associated guidelines. This limits the involvement of communities in projects, potentially creating a recipe for greater social mistrust and conflict.
Fortunatley, the Minister of Mineral Resources and Energy has published the Amendment Regulations to the Mineral and Petroleum Resources Regulations, 2020 (Amendment Regulations) that amends the Mineral and Petroleum Resources Development Regulations (published under GN R527 in GG 26275 of 23 April 2004, as amended) (“MPRDR”). The Amendment Regulations became effective on the date of publication (27 March 2020).
New regulations are proposed regarding the obligations of:
an applicant for a prospecting right, mining right or mining permit
a holder of a reconnaissance permission, reconnaissance permit, mining permit, prospecting permit, and mining right
The Amendment Regulations repeal the following environmental related provisions in Chapter 2 of the MPRDA Regulations:
Regulations 47-55 contained in Part III: Environmental Regulations for Mineral Development, Petroleum Exploration and Production; and
Regulations 63-73 of Part IV: Pollution and Control of Waste Management Regulations.
The reason for the repeal of the aforementioned regulations is that the matters dealt with in these regulations have been incorporated into the NEMA and the EIA Regulations. This include amongst other:
Environmental Reports (i.e. Scoping Reports, Environmental Impact Assessment Reports, Environmental Management Programmes and Environmental Management Plans) must be conducted in terms of the National Environmental Management Act 107 of 1998 (“NEMA”);
Financial provisioning must be conducted in terms of the Financial Provisioning Regulations, 2015 and the Environmental Impact Assessment Regulations, 2014 (“EIA Regulations”).
Residue stockpiles and deposits must be managed according to the requirements of the NEMA and the National Environmental Management Waste Act 59 of 2008 (“NEMWA”); and
Environmental Performance Assessment must be conducted in terms of the NEMA and EIA Regulations.
Mine closure provisions contained in regulations 56 – 62 of the MPRDR have been retained to deal with the surviving provisions of section 43 of the Mineral and Petroleum Resources Development Act 28 of 2002 (“MPRDA”). These regulations have however been amended by the Amendment Regulations to make reference to the NEMA, the EIA Regulations and the Financial Provision Regulations, 2015.
The Amendment Regulations also provides for new consultation requirements. Consultation required for prospecting right, mining right and mining permit applications and applications under the Social and Labour Plan (“SLP”) process must be conducted terms of the public participation process prescribed in the EIA Regulations promulgated in terms of section 24(5) of the NEMA.
The rationale behind the social and labour plan (‘SLP’) system is to use the state’s power to grant or refuse the right to mine to ensure that companies offer opportunities for mine workers and communities to benefit from the resources in their area. These include, among other components, human resources development and training and contributing to the realisation of infrastructural and developmental needs of the area
Ultimatley, the new amendments to regulations to the Mineral and Petroleum Resources Development Act (MPRDA) take the requirement for mines to consult on their environmental impacts and Social and Labour Plans one step further, to “meaningful” consultation. The amendments also introduce the long-awaited alignment with the One Environmental System and new details on the appeals process.
The amendments also include an explanation of "meaningful consultation" to mean consulting in good faith, in a way which gives the landowner, lawful occupier and/or interested and affected persons all the relevant information and sufficient time and opportunity to make an informed decision regarding the impact of the proposed activities.
Community members opposing titanium mining in Xolobeni in the Wild Coast region of the Eastern Cape of South Africa
These stakeholders can include host communities; land owners; traditional authorities; land claimants; lawful land occupiers; holders of informal rights; the Department of Agriculture, Land Reform and Rural Development; any person whose socioeconomic conditions may be directly affected by the proposed prospecting or mining operation; the local municipality and the relevant government departments, agencies and institutions responsible for the various aspects of the environment and for infrastructure which may be affected by the proposed project.
The amended regulations attempts to underscore the importance of increasing the scope of community engagement and participation programmes which cannot be overstressed. Compliance is paramount for mining houses as communities are more enlightened than ever before.