Applying the law (as a minimum requirement) is one of the six principles outlined in the Mining and Biodiversity Guideline that should be applied towards good decision making when addressing biodiversity issues and impacts in a mining context.
South Africa has sound environmental legislation aimed at achieving sustainable development, including laws that support public participation, impact assessment and environmental management. A network of legislation exists in South Africa that is geared towards sustainable development and the conservation and management of our country’s rich biodiversity. Part of this fabric is the Mineral and Petroleum Resources Development Act (No. 28 of 2002) (MPRDA), which is the main piece of legislation governing all stages of the mining and petroleum production process in South Africa.
The Minister of Mineral Resources, responsible for implementing the MPRDA, is specifically tasked to “ensure the sustainable development of South Africa’s mineral and petroleum resources within a framework of national environmental policy, norms and standards while promoting economic and social development”. To ensure this, the MPRDA stipulates that the principles of the National Environmental Management Act (No. 107 of 1998) (NEMA) apply to all mining, and serve as guidelines for the interpretation, administration and implementation of the environmental requirements of the MPRDA.
As a consequence, a holder of a mining permission/right/permit:
- Must consider, investigate, assess and communicate the impact of their activities on the environment comprehensively.
- Must, as far as is reasonably practicable, rehabilitate the environment to its natural or predetermined state, or to a land use which conforms to the generally accepted principle of sustainable development.
- Is responsible for environmental damage, pollution or ecological degradation as a result of reconnaissance, prospecting or mining operations which may occur inside and outside the boundaries of the areas to which such right, permission or permit relates.
- Must ensure that it will take place within the framework of national environmental management policies, norms and standards.
To ensure this, the MPRDA includes some key legal and regulatory mechanisms such as the Environmental Management Plan (EMP), the MPRDA Pollution Control and Waste Management Regulations (which ensures that water management, soil erosion and pollution control comply with applicable legislative requirements) and Section 49 of the MPRDA (through which the Minister of Mineral Resources may prohibit or restrict the granting of any permission/permit/right in specific areas, including certain areas of critical biodiversity, heritage and hydrological importance).
In addition to the MPRDA, mining companies also need to comply with a range of other laws which regulate mining impacts on the environment. The Constitution of the Republic of South Africa enshrines the right ‘to an environment that is not harmful to their health or well-being’.
NEMA sets out environmental management principles that support this, and other Specific Environmental Management Acts (SEMAs) that should guide decision-making throughout the mining life cycle. Disturbance of ecosystems, loss of biodiversity, pollution or degradation of the environment, as well as sites that constitute the nation’s cultural heritage, should be avoided, minimised, rehabilitated, or as a last option offset. This is supported by the Biodiversity Act as it relates to loss of biodiversity and by the Environmental Impact Assessment Regulations (GN No. R. 543) published in terms of NEMA; which guide the identification, assessment and evaluation of impacts, and the determination of appropriate mitigation measures required for various listed activities.
Water Use Authorisations under the National Water Act (No. 36 of 1998) are required by most mining operations. In addition, mine-water regulations (Government Notice (GN) No. R. 704) are aimed at ensuring the protection of water resources. Finally the National Environmental Management Protected Areas Act (No. 57 of 2003) prohibits mining and prospecting in protected areas. In addition, other legislation such as the National Heritage Resources Act (No. 25 of 1999) and various land use planning ordinances and zoning schemes may apply. It is a legal requirement that this stage commences only once all of the required authorisations have been approved, including the water use license and any environmental authorisations for associated activities.
Download the Mining and Biodiversity Guideline for more information.