Law firm ENS Africa has unpacked some of the amendments made to the Mineral and Petroleum Resources Development Act (MPRDA), which came into effect from March 27.
The publication of the amended regulations follows the publication of the Draft Amendments to the MPRDA, which was published for public comment on November 28 last year.
ENS explains that the MPRDA Regulations previously defined an “interested and affected person”, who needs to be consulted, as a natural or juristic person with a direct interest in the proposed or existing operation or who may be affected by the proposed or existing operation.
The Draft Amendments provided pointed guidance to whom such a person might be by including an open-ended list of potentially interested and affected persons, including “any other person” whose socioeconomic conditions may be directly affected by the proposed prospecting or mining operation.
This “everyman” provision prefigured the potential exclusion of petroleum-related operations and the amendment regulations have confirmed this by including the phrase “prospecting or mining” twice in the chapeau of the amended definition.
On a side note, ENS believes this everyman provision will likely become the subject of judicial scrutiny in future. “It may be necessary to interpret the phrase ‘directly affected’ restrictively in order to avoid an undue burden on the minerals and mining industry.”
The MPRDA in its current form still regulates the upstream petroleum industry and the Draft Upstream Petroleum Resources Development Bill of 2019 has not been passed by Parliament.
This Bill was published for comment on December 24 last year and would amend the MPRDA to move the regulation of the upstream petroleum industry into a separate statute, if passed.
Further, ENS says the term “meaningful consultation” was not previously defined in the MPRDA. A definition was instead included in the draft amendments which referred to how the engagement of those in the consultation process was to be approached.
The concept of an engagement has been replaced in the new definition of meaningful consultation, with the requirement for the application to have facilitated the participation of the landowner, lawful occupier or interested and affected party.
The amended regulations now link the concept of “meaningful consultation" directly to environmental-impact assessment (EIA) public participation processes.
Additionally, ENS notes that the amended regulations provide that the office of the regional manager may participate in the meaningful consultation process by the applicant, as an observer, to ensure the consultation by the applicant is meaningful in accordance with the regulations.
ENS says it is not clear whether this will lead to a fettering of discretion, or whether it will mean that if the Department of Mineral Resources and Energy (DMRE) participates in the public participation process, the grant of such environmental approvals will constitute prima facie proof of “meaningful consultation”.
“It remains to be seen how this will be dealt with in practice. In our view, the concept of meaningful consultation will still need to be approached by mining companies taking into account judicial interpretation of this term including but not limited to such interpretation by the Constitutional Court in Bengwenyama Minerals against Genorah Resources, which deals with the concept without reference to the EIA public participation process,” the law firm points out.
SOCIAL AND LABOUR PLANS
ENS explains further that the amended regulations have now made provision for the regional manager to refer a social and labour plan (SLP) back to the applicant with proposals within 60 days of receipt of the SLP.
This also requires that the revised SLP must be re-lodged within a period specified by the regional manager, which may not exceed 60 days. ENS says this is to be commended as it is likely to encourage the more expedient processing of SLP approvals by the DMRE.
the amended regulations, as in the draft amendments, include an obligation on an applicant to consult meaningfully with mine communities – not defined as host communities anymore – and interested and affected persons on the contents of the SLP to ensure that it addresses the relevant needs and is aligned to the updated integrated development plans.
This must happen within 180 days from the date of receiving notification of acceptance for a mining right from the regional manager. This process must take place in accordance with the process prescribed in the EIA regulations.
Further, Regulation 45 of the MPRDA has been amended to require the holder of a mining right to convene a minimum of three meetings a year with mine communities and interested and affected persons to update these stakeholders about the progress made with the implemented or approved SLP.
The outcomes of these meetings must form part of the applicant’s annual report. This requirement was not previously proposed in the draft amendments.
“As was proposed in the draft amendments, the amended regulations clarify that the review of a SLP every five years from the date of approval of the SLP may be initiated from the fourth year of the SLP and must be reviewed in ‘meaningful consultation’ with mine communities and interested and affected persons.
“As discussed under the definition of meaningful consultation above, it appears that such consultation would now need to take place under the EIA regulations, which we do not understand to have been the intended meaning,” ENS notes.
The amended regulations also include new procedures for lodging internal appeals, as well as changes to the way a Section 52 process is conducted.