The “contentious” landowner consent requirement for mining-related environmental authorisation (EA) or waste management licence (WML) applications has been withdrawn, law firm Webber Wentzel senior associate Tendai Bonga and partner Garyn Rapson report.
With effect from March 3, consent is no longer required for EA or WML applications for mining-related activities, where the EA or WML applicant is not the owner or person in control of the land intended for such activities.
The landowner consent requirement was introduced through a raft of amendments to the Environmental-Impact Assessment (EIA) regulations, which were gazetted on June 11, 2021.
The requirement had resulted in several unintended consequences including, in some cases, indefinite deferment of mining-related EA or WML application submissions, in instances where landowner consent has been unreasonably withheld, Bonga and Rapson point out.
In response to the regulation 39(b) amendment, industry body the Minerals Council South Africa launched a court application to review and set aside the introduction of the consent requirement.
The council also engaged the Department of Forestry, Fisheries, and the Environment (DFFE) in parallel to the judicial proceedings, with the objective of seeking alignment on this requirement.
It is anticipated that the court proceedings will now be withdrawn, Bonga and Rapson say.
“The withdrawal of the consent requirement is a welcome development and aligns with the Mineral and Petroleum Resources Development Act (MPRDA), which together with the National Environmental Management Act and the EIA regulations, provide a more than adequate stakeholder consultation framework,” they comment.
They note that this regime is complemented by the internal remedy available under Section 54 of the MPRDA in terms of which parties can agree on commercial terms relating to access to land, or as a last resort, request the Department of Mineral Resources and Energy to intervene where access to land is unreasonably withheld.
“The withdrawal is backdated so it is as if this consent requirement never existed. The Minister indicated that her reason for the withdrawal was because of lack of consultation, which seems to leave the door open for the DFFE to try introduce this requirement again in future (this time not through the backdoor),” Bonga and Rapson state.