The uncertainty and complexity regarding the promulgation of several environmental laws and regulations in South Africa that impact on the mining industry is a concern, says international law firm Hogan Lovells partner and Africa mining head Warren Beech.

He will explore these issues during a session at black-owned training and conferencing company Intelligence Transfer Centre’s Mineral Resources Compliance and Reporting conference, which will take place at the Indaba Hotel, in Fourways, Johannesburg, from August 20 to 21.

Beech informs Mining Weekly that one of the issues he will focus on is the implications of the recent High Court ruling, delivered on May 27, in the matter between platinum miner Aquarius Platinum and Water and Sanitation Minister Nomvula Mokonyane.

The dispute concerned the efficacy of proposed measures to limit the pollution that might have been caused by the deposition of tailings at Aquarius’s Kroondal mine, in the North West. Barrier

The State insisted that Aquarius includes a Type C barrier in the mine’s West-West pit before its water licence application could be approved.

However, Aquarius contended that such a barrier was not a legal requirement for the issuing of a water licence, and that the proposals and design it submitted to limit pollution were more effective than the installation of a Type C barrier.

Although this particular aspect regarding the installation of the barrier was postponed and not dealt with by the court, the High Court ruled in favour of Aquarius in relation to the key question of whether or not certain of the environmental laws applied to mines.

The court declared that the publication of the National Environmental Laws Amendment Act (NEMLAA) on June 2, 2014, without promulgation of the regulations for the implementation of the amendments envisaged in NEMLAA, including amendments which would have been applicable to residues at mines, had to be set aside because President Jacob Zuma had not acted “objectively and rationally” in enacting the law.

The High Court also declared that Zuma did not exercise his powers in a responsible and considered manner, after the assessment of the progress that had been made to promulgate the relevant regulations.

Beech says, while the judgment must still be confirmed or overturned by the Constitutional Court, it potentially has “far-reaching consequences” for the local mining industry.

The primary impact of the review and setting aside of Zuma’s decision to publish NEMLAA is that the amendments to the National Environmental Management Waste Act (NEMWA), brought about by the NEMLAA, which would have been applicable to residues at mines, will not be of force.

Therefore, Beech explains, the proposed amend- ments to the NEMWA, which would give effect to the implementation of the one environmental system, including the application of the NEMWA to mine residues, thereby making Mineral Resources Minister Advocate Ngoako Ramatlhodi the responsible authority for environmental authorisation in relation to mines are now uncertain.

“While, from a legal perspective, the judgment is sound, it has created significant uncertainty regarding applications for environmental authorisations, particularly those that have been submitted since December 8, 2014, under the new one environmental system and the status of these applications.”

He adds that the High Court also pointed out the uncertainty regarding the status of the historical environmental management programmes (EMPs) because of the failure to implement the provisions of Section 38B of the Mineral and Petroleum Resources Development Amendment Act (MPRDA), which, if enacted, would have confirmed the status of the EMPs.

Beech believes that the matter will be heard before and a judgment made by the Constitutional Court in the next 6 to 12 months.

He will also discuss the status of EMPs following the amendments to the MPRDA; the Department of Water and Sanitation’s authority to impose conditions, which require compliance with other legislation before a water-use licence can be obtained; and the broader implications of the new one environmental system during the conference.