Despite declaration of sensitive lands, challenges remain

The Department of Mineral Resources’ (DMR’s) decision, as stated at the 2011 Mining Indaba, to not grant prospecting or mining rights applications in areas of critical biodiversity and hydro- logical sensitivity has been welcomed as a much-needed and positive step for South Africa.

Centre for Environmental Rights (CER) executive director Melissa Fourie also welcomes this view, but tells Mining Weekly that a challenge still remains in that commercial prospecting and mining licences are being granted in legally prohibited and pro- tected areas.

“There have been a number of cases where prospecting rights have been granted in protected areas, seemingly as a result of false information submitted to the DMR,” she tells Mining Weekly.

What is needed is improved screening and verification methods, as well as criminal prosecution of applicants which make false or misleading statements to the DMR in the applications.

“I am told that the Electronic Mineral Management System (EMMS), which is still to be implemented at the DMR, could seemingly make it impossible for a company to lodge an application for an area that has been declared protected,” says Fourie.

Mining Weekly previously reported that the EMMS was being implemented to replace the existing National Mineral Promotion System (NMPS). The NMPS was discredited by scandal last year.

“Post scandal investigations of the NMPS revealed a lack of an inherent responsibility system for department officials, a lack of transparency in decision making, ‘lots’ of double grantings (that is, issuing licences to two different companies for the same property), and overlaps of prospecting and/or mining rights.

“As a result, the DMR decided to introduce the EMMS, which would allow for the online registration of prospecting and mining licences applications and the online monitoring of the approvals process,” Mining Weekly reported.

“If the new system is well designed and properly incorporates protected data, as well as data on environmental, biodiversity and hydrological sensitivity, then this is a positive development that will empower DMR officials to make better decisions. It should also elimi- nate the issue of applications granted in protected areas accidentally,” adds Fourie.

Not Necessarily Declined
However, mining rights appli- cations in environmentally sensitive areas will not necessarily be automatically declined by the DMR.

Current legislation does not give the DMR the discretion to refuse to process a prospecting or mining application in an area of environmental sensitivity. If a mining company applies for rights in the correct form at the right DMR office, pays the application fee and no other party holds rights over the proposed prospecting mining area, the DMR must accept the application for processing.

However, the Mineral and Petroleum Resources Development Act (MPRDA), No 28 of 2002, in section 49, allows the Minister to remove environmentally sensitive areas from the database of potential areas that have been allocated for the granting of mining rights. Once the Minister has done this, the DMR may then refuse to accept and process applications in those areas.

“The environmental-impact assessment (EIA) and consultation processes that follow the acceptance of an application by the DMR are time consuming and costly. Currently, mining companies and investors are wasting months or years, as well as resources and investments, on applications for mining rights that should not be granted,” she says.

The mining industry needs guidance as to what, and where, the most sensitive areas are to avoid the unnecessary use of resources and time investing in EIAs and consultation processes when existing research shows that the proposed mining area is too sensitive for prospecting or mining.

Fourie adds that, in February, the CER, on behalf of 13 nongovernment organisations (NGOs) and civil society organi- sations, including the World Wildlife Fund of South Africa, Earthlife Africa Johannesburg and the Federation for a Sus- tainable Environment, submitted a request to DMR Minister Susan Shabangu to exercise her discretion, under Section 49 of the MPRDA, to impose prohibitions and restrictions on prospecting and mining in a list of environmentally sensitive areas.

If a protected area is declared under the National Environ- mental Management: Protected Areas Act (NEMPAA), No 57 of 2004, commercial prospecting and mining are prohibited in that protected area by law and the DMR is obliged to refuse to accept any applications in that area in the first place.

The DMR’s renewed efforts in ensuring the early identification of environmentally sensitive areas when receiving mining rights applications have also been welcomed by the CER.

The DMR is examining options for determining environmentally sensitive areas when reviewing a rights application; however, the CER argues that areas of critical biodiversity and hydrological sensitivity have already been identified during years of scientific research and consultation by provincial conservation authorities, the Department of Environmental Affairs and other agencies, including the South African National Biodiversity Institute, says Fourie.

The proposed areas of prohibition include, besides others, mountain catchment areas, such as the Amatholes, in the Eastern Cape; Ramsar sites, such as the turtle beaches and the coral reefs of Tongaland, south of Kosi Bay, in KwaZulu-Natal; and recognised endangered and critically endangered ecosystems, such as Wakkerstroom-Lüneberg, in Mpumalanga.

Propositions
For environmentally sensitive areas that do not qualify for complete prohibition, the CER and 13 other NGOs have proposed procedural restrictions to deal with any shortcomings that the current environmental regulations under the MPRDA may have, Fourie says.

However, many of the challenges with the EIA can be rectified through the MPRDA Amendment Act, No 49 of 2008, which will make the EIA under the National Environmental Management Act, of 1998, applicable to mines should it come into effect.

The CER-proposed restrictions for environmentally sensitive areas include recommendations that all documents submitted to the DMR for prospecting or mining rights be made available to the public and that the notice of the application, the publication of key documents in the EIA and notice of public meetings be published in two national newspapers, as well as a local newspaper. Public meetings must be held in the town closest to the proposed mining site, as well as the closest capital city.

“Further, all scoping reports, environmental impact reports, environmental management plans and environmental management programmes must consider cumulative impacts of the proposed prospecting or mining. These reports must be submitted for independent peer review by a nationally respected professional in the field of environmental assessment to ensure quality of work,” she says.

The areas to which restrictions must apply are protected environments declared under the NEMPAA, such as the Magaliesberg protected environment, areas for protected area expansion, such as parts of the Richtersveld and parts of the Pondoland coast, and areas for marine protected area expansion, such as the Agulhas Bank, Fourie concludes.