On August 4, 2023, the Minister of Forestry, Fisheries, and the Environment, Barbara Creecy, invited public comment on proposed amendments to certain provisions of the Environmental Impact Assessment Regulations, promulgated under the National Environmental Management Act (“EIA Regulations”).
While the most significant proposed amendments focus on Listing Notice 1, 2 and 3 of the EIA Regulations, notable changes to the core regulations include –
- clarification and insertion of specific definitions relating to Environmental Management Programmes and the Mineral and Petroleum Resources Development Act (“MPRDA”);
- the substitution of the definition of “mining application” with the much broader “mining activity”;
- the specific inclusion of “offshore activities” which is proposed to include any Listed Activity within the exclusive economic zone and continental shelf of South Africa;
- the specific inclusion of the report generated by the national web-based environmental screening tool in the submission of any basic assessment or environmental impact assessment;
- the expansion of the exemption relating to landowner consent, which currently refers to “activities constituting, or activities directly related to prospecting or exploration of a mineral and petroleum resource or extraction”, to be substituted with the more detailed –
- “mining activities, including hydraulic fracturing and reclamation, and the expansion of mining activities hydraulic fracturing and reclamation”;
- “activities proposed in coastal public property”; and
- “offshore activities”.
Listing Notices 1, 2 and 3 are proposed to be similarly amended to reflect the above changes, and will further include –
- specific definitions for “mining activity”, “residue deposit” and “residue stockpile”; and
- the specific inclusion of the following activities as Listed Activities –
- any activity required for the reclamation of a residue stockpile or a residue deposit which requires a mining right in terms of section 22 of the MPRDA;
- any activity including the operation of that activity required for the reclamation of a residue stockpile or a residue deposit where the residue stockpile or residue deposit was established before the MPRDA came into effect; and
- any activity including the operation of that activity associated with an onshore seismic survey.
The proposed amendments represent a clear attempt to address the current uncertainty and inadequate regulation surrounding historic mine dumps, and to subject these reclamation activities to the requirements of the EIA Regulations.
Under the current legal framework, mine dumps are categorised into either “residue stockpiles” or “residue deposits”. However, the wording of the MPRDA failed to incorporate those mine dumps created prior to the promulgation of the Act, resulting in ‘historic mine dumps’ falling outside the ambit of the MPRDA altogether. While there have been several attempts to correct this oversight, none have yet been promulgated or passed into law.
As such, the precedent set in De Beers Consolidated Mines Ltd v Ataqua Mining (Pty) Ltd and Others remains the authority on reclamation activities. In De Beers, the court confirmed that minerals contained in ‘historic dumps’ did not ‘occur naturally in or on the earth’ nor did they constitute ‘residue stockpiles’ and therefore did not fall within the definition of ‘minerals’ in the MPRDA. Therefore, the court was satisfied that the mine dump was movable property, severed from the earth, and belonged to De Beers as the mining company that created them.
However, while the MPRDA is not applicable, the court in De Beer made it clear that in the absence of the MPRDA the processing of mine dumps is not an unregulated activity. In particular, the court made reference to the National Environmental Management Act, which includes the various and related specific environmental management Acts currently in operation. While this offered some measure of oversight, the failure of the EIA Regulations to specifically include the reclamation of residue stockpiles and deposits meant that NEMA would only find application if the reclamation activities triggered an existing Listed Activity. This created grey area in which the actual activity of reclamation was not regulated in and of itself.
The proposed amendments to the EIA Regulations clearly seek to address this shortcoming and impose strict compliance with Regulations when engaging in reclamation activities.
These proposed amendments have been published for public comment by no later than 4 September 2023.
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