JOHANNESBURG (miningweekly.com) – Amendments to portions of the National Environmental Management Act (Nema) and the Minerals and Petroleum Resources Development Act (MPRDA) that govern the environmental requirements of mining companies in South Africa are expected to finally settle a legislative “turf war” waged for several years between the Department of Mineral Resources (DMR) and Department of Environmental Affairs (DEA).

There had been long-standing debate between the DMR and national and provincial environmental authorities over which authority regulated mining companies in terms of their environmental compliance and where the power of environmental authority should ultimately lie.

This had resulted in fragmented environmental policy that was designed and implemented by both the DMR and the DEA, the University of the Witwatersrand School of Law associate professor Tracy Humble said on Thursday.

Within the DMR’s MPRDA, implemented in 2004, the Mineral Resources Minister was the implementing authority of environmental law, requiring companies to, besides others, develop environmental management programmes and rehabilitate mining sites.

The DEA had, meanwhile, developed the Nema framework, which dictated environmental management and required companies to develop environmental impact assessments, among others.

This department had also introduced a “proliferation” of other licensing requirements for mining companies, including the issuance of water use licences (WULs), atmospheric emissions licences and waste licences.

“The result of this fragmented policy was that mining companies had to make submissions to multiple authorities and were potentially held to conflicting conditions.

“There were also multiple participation processes and misaligned timelines, exacerbated by futile appeals processes,” Humble told a Mandela Institute mining seminar, in Johannesburg.

However, in 2008, a Ministerial agreement between the DMR and the DEA resulted in the creation of a single environmental regulatory framework for the mining industry under the ambit of Nema, requiring changes to both Nema and the MPRDA.

“This would see the retention of the Mineral Resources Minister as the competent authority for issuing environmental licences for 18 months, after which this authority would fall to the DEA,” she outlined.

The implementation of this legislation was, however, delayed, owing to “issues around WULs” and would now be implemented on December 8.

Commenting on the resultant balance of power, Humble believed the amendments gave greater power to the DMR, which would be tasked with issuing WULs and waste licences.

The DEA would, meanwhile, be the appeal authority and would have the power to determine the regulatory framework and prohibit the granting of licences if it opted to adopt a “cautious approach”.

“The legislation is also largely in favour of the business community, but provides fewer opportunities for public engagement, and the right to appeal decisions is significantly curtailed.

“To a certain extent, [these amendments] are an improvement, but I’m concerned about the lack of transparency in terms of mining companies making their environmental programmes available,” she concluded.