The MPRDA Amendments: Practical Implications · The MPRDA Amendments: Practical Implications ... Bill 27 December 2012 5 ... Section 16 and 22:

1 CEM-0 Course Revision 2007-00

The MPRDA Amendments: Practical Implications

ELA Annual Conference 2013

Salt Rock Hotel, Balito

Reece C Alberts Centre for Environmental Management

North West University Internal Box 150

North-West University Potchefstroom Campus

Private Bag X6001 POTCHEFSTROOM

2520

Tel: +27 (0) 18 299-1581 Fax: +27 (0) 18 299-4266

E-Mail: [email protected] Web Address: http://cem.puk.ac.za

2 Revision 2006-0

ELA

2013

, Ann

ual C

onfe

renc

e Contributors and Thanks

 Mr Melt Marais  Sibanikile Consulting

 Mr Morne Viljoen & Team  EOH Legal Services

 Mr Theunis Meyer  Centre for Environmental Management,

North West University

© CEM


“You have to know where you come from to know where you

are going.......”

4 Revision 2006-0

ELA

2013

, Ann

ual C

onfe

renc

e Road Map

© CEM

1 •  Minerals Act 50 of 1991

2 •  Minerals and Petroleum Resources Development Act 28 of

2002 (1 April 2004)

3 •  Minerals and Petroleum Resources Development Amendment

Act 49 of 2008 (7 June 2013)


Bill 27 December 2012

5 •  Proclamation 17 of 6 June 2013 •  sec 11, 38B, 102, 106


Bill 31 May 2013

With permission form Mr Morne Viljoen

Volte face??“The Department of Mineral Resources (DMR) appeared to be in confusion today after it declared itself unaware of a presidential proclamation suspending parts of the controversial 2008 amendment of the Minerals & Petroleum Resources Development Act (MPRDA).” www.miningmx.com , June 7th 2013

5 Revision 2006-0

ELA

2013

, Ann

ual C

onfe

renc

e Some Changes & Implications

  Discard Dumps   Sequential Lodging   Consultation   Environmental Considerations:

  Transitional arrangements   Effects   Financial provision

  Granting and Refusal of Rights: Timeframes   Closure   Mining Permits   Section 102

© CEM


Discard Dumps

7 Revision 2006-0

ELA

2013

, Ann

ual C

onfe

renc

e Discard Dumps

  ‘residue deposit' means any residue stockpile remaining at the termination, cancellation or expiry of a prospecting right, mining right, mining permit, exploration right, production right or an old order right

  ‘residue stockpile' means any debris, discard, tailings, slimes, screening, slurry, waste rock, foundry sand, beneficiation plant waste, ash or any other product derived from or incidental to a mining operation and which is stockpiled, stored or accumulated for potential re-use, or which is disposed of, by the holder of a mining right, mining permit, production right or an old order right

  ‘mine’ used as a verb, in the mining of any mineral, in or under the earth, water or any residue deposit, whether by underground or open working or otherwise and includes any operation or activity incidental thereto, in, on or under the relevant mining area

  Definitions not retrospective:   Therefore residues produced under an old right or title prior to 1 May 2004 or

even under an old order right from 1 May 2004 to 7 June 2013 are still not governed by the MPRDA

© CEM

8 Revision 2006-0

ELA

2013

, Ann

ual C

onfe

renc

e Discard Dumps

© CEM

With Permission from Mr Morne Viljoen


Sequential Lodging

10 Revision 2006-0

ELA

2013

, Ann

ual C

onfe

renc

e Applications

  Section 16 and 22: Non acceptance of applications where there is already a prior application lodged.   An application for a prospecting right, mining right etc.

cannot be accepted where a prior application for any form of right or permit (other than reconnaissance) has already been accepted.

  Thus multiple applications to be treated in sequential order are no longer possible where an application has already been lodged. é Possible long backlogs pending appeals and disputes

  However , this provision only applies once an application has been accepted but not to the period between lodgement and acceptance.

  The provision will also not affect existing applications.

© CEM


Consultation

12 Revision 2006-0

ELA

2013

, Ann

ual C

onfe

renc

e Consultation

  Change in consultation processes:   MPRDA 2002

é “notify and consult”   MPRDA Amendment 2008

é Prospecting and Mining Right Applications: è  “consult in the prescribed manner” è  MPRDA has no prescribed manner è  Consult in the prescribed manner of NEMA from 7

December 2014 as required in Regulation 56 of GNR 543 of NEMA (Public Participation)

è  Therefore:- still ‘notify and consult’ until 7 December 2014

é Statutory Access Rights: è  Now sec 5A (Sec 5(4) deleted) è  Give land owner / occupant at least 21 days prior

written notice from 7 June 2013 © CEM


Environmental Issues

14 Revision 2006-0

ELA

2013

, Ann

ual C

onfe

renc

e Transitional Arrangements

  Previously environmental management was conducted in terms of:   EMPR under MPRDA   EA under NEMA

  NEMA amended in 2008   Includes authorisation for mines   EMPR under MPRDA to be replaced by EA under NEMA   Did not come into effect until MPRDA amended

  MPRDA amended on 7 June 2013   Most environmental amendments (of both MPRDA and

NEMA) will come into effect on 7 December 2014   Effect = 3 periods

é 7 June 2013 – 7 December 2014 é 7 December 2014 – 7 June 2016 é 7 June 2016 onwards

© CEM

15 Revision 2006-0

ELA

2013

, Ann

ual C

onfe

renc

e Quo Vadis

  Authorisation Agency:

  7 June 2013 – 7 December 2014: Status quo?   7 December 2014 - 7June 2016: DMR (in terms of

NEMA)   7 June 2016 onwards: DEA/Province

  Appeal Authority:

  7 June 2013 – 7 December 2014: Status quo   7 December 2014 - 7June 2016: DEA   7 June 2016 onwards: DEA/Province

© CEM

16 Revision 2006-0

ELA

2013

, Ann

ual C

onfe

renc

e 7 June 2013 – 7 December 2014

  Prospecting and Mining rights applications   Status quo?   Vacuum?

é EMPR/EA required? é Sec 11 of Interpretation Act?

è When a law repeals wholly or partially any former law and substitutes provisions for the law so repealed, the repealed law shall remain in force until the substituted provisions come into operation.

é S38B not yet in effect è EMPR to be regarded as an EA è Discretionary right of the Minister to require amendment of

current approved EMPR before it can be regarded as a valid EA

é Financial provision   Environmental Liabilities

é Liability in terms of MPRDA deleted and substituted by NEMA è Personal liability for employees, managers and directors in

terms of NEMA © CEM

17 Revision 2006-0

ELA

2013

, Ann

ual C

onfe

renc

e Status Quo?

  ”......as things stand, an approved environmental plan or environmental management programme is now no longer required to commence prospecting or mining operations, and it is no longer a criminal offence to prospect or to mine without an approved EMP or EMPR. We also do not believe that the general provision in section 11 of the Interpretation Act, 1957 provides a satisfactory cure for this legislative gap now created, particularly for the purpose of legal certainty in the context of criminal law......”   Centre for Environmental Rights, June 19th 2013

é http://cer.org.za/news/another-day-another-legislative-calamity

© CEM

18 Revision 2006-0

ELA

2013

, Ann

ual C

onfe

renc

e 7 December 2014 - 7June 2016

  Prospecting and Mining rights applications: é EA application must be submitted simultaneously

with application for right é No application may be authorised if an EA has not

been issued é Application to be done in terms of NEMA, but DMR

is the authorising agency é May not prospect/mine without an approved EA é Financial provision to be provided for in terms of

NEMA and not MPRDA   Both MPRDA and NEMA compliance and

enforcement tools may used against mining company

© CEM

19 Revision 2006-0

ELA

2013

, Ann

ual C

onfe

renc

e ?????

 Mining right is issued for 30 years along with EA ito NEMA  No concrete blue print for

development/expansion  Each development/expansion etc then

trigger an EIA? é 2 year lapse of EAs if all activities

included

 Mining Right & EA issued  EA may be suspended/withdrawn

(NEMA) é What happens to Mining Right?

© CEM


Granting and Refusal of Rights: Timeframe Issues

21 Revision 2006-0

ELA

2013

, Ann

ual C

onfe

renc

e Rights: Granting and Refusal

  Section 17: Grants and refusals of Prospecting/ Mining Rights   Prospecting right applications and mining

right applications must be granted within 30 and 60 days of receipt by the Minister from the Regional Manager.

  No time frame as to when RM must forward   Timeframes ito Sec 22 as amended

  Submission of EIA/EMP = 180 days   Conflict with NEMA Sec 24 process   Full EIA up to 18 months?

© CEM


Mining Permits

23 Revision 2006-0

ELA

2013

, Ann

ual C

onfe

renc

e Mining Permits

 Section 27:Maximum area for a Mining Permit is now 5 hectares  The area of a mining permit may now

not exceed 5 hectares, the grant of adjacent permits is prohibited, and ability to comply with the MHSA is now a granting requirement. é Old 1.5 ha permits: MHSA not actively

enforced: è Appointments è Occupational Hygiene: Entry and exit meds etc è COD’s : Trackless machinery etc

© CEM


Closure

25 Revision 2006-0

ELA

2013

, Ann

ual C

onfe

renc

e Closure

 Sec 43 and 46  Previous holder of an old order right or

previous owner of works that has ceased to exist: é may be held liable for environmental

liability, pollution, ecological degradation é will remain liable for the pumping and

treatment of extraneous water, compliance to the conditions of the environmental authorisation and the management of sustainable closure

 Until issued with a closure certificate © CEM

26 Revision 2006-0

ELA

2013

, Ann

ual C

onfe

renc

e Closure

  Section 43(5A): Chief Inspector and Regulatory authorities to comment on Closure Application within 60 days

  The Chief Inspector and other departments must report within 60 days.   ‘Other departments’ extended to include

more that the Directorate: Mine health and Safety and the Department of Water Affairs .

  Now ‘each government department charged with the administration of any law which relates to any matter affecting the environment’ é DEA, DAFF.....

© CEM


Section 102

28 Revision 2006-0

ELA

2013

, Ann

ual C

onfe

renc

e Section 102

  Section 102: Expansion and curtailment of powers to amend

  Ministerial powers have now been extended to include amendments to:   prospecting,   exploration and   production work programmes.

  Amendments to extend areas or add shares are now prohibited. The prohibition against extending areas has been opposed by the Mining Industry, and may be repealed in the MPRDAA, 2013 once enacted and in operation.

  Can’t extend areas or add shares

© CEM

29 Revision 2006-0

ELA

2013

, Ann

ual C

onfe

renc

e Questions?????

© CEM

Documents

The MPRDA Amendments: Practical Implications · The MPRDA Amendments: Practical Implications ... Bill 27 December 2012 5 ... Section 16 and 22: