While the building of the Square Kilometre Array (SKA) telescope is one of the most exciting projects in South Africa’s scientific and academic fields, it is likely to impact on the use and exploitation of mineral resources in the Northern Cape, law firm Nupen Staude de Vries director Lili Nupen says in a recent statement.
Prospecting and mining rights holders in the area are likely to be affected by the Astronomy Geographic Advantage Act (AGA), which gives the Science and Technology Minister the power to protect areas that are of strategic importance for astronomy activities, along with the Regulations on the Protection of the Karoo Central Astronomy Advantage Areas, adds Nupen Staude de Vries lawyer Ross McLean.
These documents provide parameters for activity on the ground in and around the SKA, which means that mining and exploration companies intending to mine or prospect in the Northern Cape need to pay close attention to the implications of these identified boundaries, Nupen comments.
The AGA empowers the Minister to demarcate Astronomy Advantage Areas (AAAs), and Section 4(1) provides that, in the event of any conflict between a provision of the AGA and other national legislation, such as the Mineral and Petroleum Resources Development Act (MPRDA), the AGA will prevail, if the conflict specifically concerns the management or development of an AAA.
In addition to the regulations, the Minister has proclaimed the Sutherland Core/Central AAA to preserve the demarcated area for achieving the purposes of the AGA.
McLean notes that, while no regulations have been published, a number of declarations have been released, and prospecting or mining activities are expressly prohibited in the Sutherland Central AAA.
“There are provisions built into the AGA and the SKA regulations that may be of assistance, which include public participation processes for the determination of AAAs and applications and procedures for obtaining permits and exemptions,” says Nupen.
McLean notes that the effect the AGA is going to have on new prospecting and mining right applications, proposed transfers and renewal applications in the Northern Cape has seemingly not been addressed by the Department of Mineral Resources.
The regulations specifically prohibit the use of mining equipment that emit radio frequencies in excess of a certain level, which means that all rights holders in the area must ensure that their machinery is compliant. Continued use of noncompliant equipment may be regarded as an offence in terms of the AGA, Nupen explains, adding that the MPRDA obliges rights holders to comply with any other relevant law, such as the AGA.
“Another interesting development . . . includes new regulations published by the Minister of Environmental Affairs in April 2019, which lay down the procedure to be followed for adopting spatial tools or environmental instruments described in the National Environmental Management Act. “These raise the questions of whether the radio telescope and the regulations will be deemed “spatial tools” or “environmental instruments”, and the environmental implications this could have,” notes McLean.
Nupen advises that rights holders in the Northern Cape establish whether any of their rights fall into a demarcated AAA, and, if they do, to assess the impact of the new regulations on existing and future operations.