There is uncertainty as to whether the environ-mental authorisation under the National Environ-mental Management Act (Nema), No 107 of 1998, and land use planning approval are needed to undertake mining activities.

This is the view of Western Cape specialist environmental law firm Cullinan & Associates director Gregory Daniels, who says: “The Department of Mineral Resources (DMR) is adamant that an author-isation issued under the Mineral and Petroleum Resources Development Act (MPRDA), No 28 of 2002, with the exception of a water use licence is sufficient to undertake mining activities.”

Although the MPRDA also makes provision for environmental-impact assess- ments (EIAs) to be under-taken, the process under Nema is more robust as it requires that such an assessment be undertaken by an independent environmental assessment practitioner.

Daniels says that the amend- ments to Nema, the publica-tion of new EIA regulations in 2010, and the amendments to the MPRDA are attempts to streamline the various authorisation processes and to create certainty around this aspect.

One of the aims of the EIA process under Nema is to avoid negative impacts on the environment, ensure effective mitigation measures where it is not possible to avoid negative impacts and that the person who caused the damage pays for any remediation or clean- up costs.
“The authorisation pro-cesses must be streamlined to avoid unnecessary delays in refusing or granting mining authorisations, although it must ensure that the mining activity does not threaten the environment to the detriment of present and future generations,” says Daniels.

He adds that further conflicts can arise between Nema and the MPRDA as one of the aims of the MPRDA is to promote mineral and petroleum resources develop-ment, while the aim of Nema is to provide for cooperative environmental governance and sustainable development.

Three judges of the Western Cape High Court, in two separate matters, held that additional authorisations are required. These cases have been taken to the Supreme Court of Appeal, which will decide whether additional authorisations are indeed required.

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