On 21 May 2021, a Draft National Mine Closure Strategy 2021 (the Strategy) was rather unexpectedly published for public comments by the Minister of Mineral Resources and Energy in Government Notice R. 446 in Government Gazette 44607.
Amendments to the NEMA EIA Regulations related to mine closure
The key amendments to the NEMA EIA Regulations relating to closure include, but are not limited to, amendments to the definition sections to add, amongst others, definitions for the terms, "closure plan" and "Financial Provisioning Regulations". Amendments have been made to Regulations 19 and 23 relating to the submission of Basic Assessment and Scoping Reports to include the requirement that a mining application must now include all calculations required in terms of the Financial Provisioning Regulations. Amendments to Appendices 1, 3, 4, 5, 6 and 7 aim to better align the appendices with the amendments to the regulations, also in respect of certain closure requirements.
However, from a closure perspective, the most significant amendment is that Listed Activity 22 relating to the decommissioning of any activity requiring a closure certificate in terms of s43 of the Mineral and Petroleum Resources Development Act (28 of 2002) (MPRDA) has been deleted Furthermore, the amendments relating to the alignment of the NEMA EIA Regulations with the provisions of the MPRDA and the Financial Provisioning Regulations in respect of the closure of mining related activities are significant. It is now the position that mining operations no longer have to apply for an environmental authorisation under NEMA in terms of Listed Activity 22, in the context of closure applications under s43 of the MPRDA. The Financial Provisioning Regulations, the approved Environmental Management Programme (compiled in terms of s24N of NEMA) and the Closure Plan provided for in the NEMA EIA Regulations are now the main instruments governing the closure process.
These are decisive and far reaching changes to the environmental authorisation and legislative regimes for the closure of mines, which made the content of the Draft Strategy for Mine Closure, published only 21 days beforehand, even more perplexing.
Draft National Mine Closure Strategy
The Strategy appears to have been drafted according to the content of the Regional Mine Closure Strategies that were prepared in 2008. These Strategies are very outdated and difficult to source as they do not appear to have been formally gazetted or published. Consequently, there are certain references to legislative provisions and terms contained in the Strategy that are also outdated and incorrect. For instance, in the "Glossary of Terms" section of the Strategy, reference is made to s39 of the MPRDA, which has long been repealed, and there is generally a worrisome lack of engagement with the currently applicable legal provisions relating to the closure of mines.
The Strategy has not been published in terms of a specific section of the MPRDA, and it is not specifically provided for in terms of the MPRDA. Significantly, s24R of NEMA is not mentioned in the Strategy at all. Section 24R of NEMA is headed, "Mine Closure and Environmental Authorisation" and subsection 24R(5) provides that, "The Minister may, by notice in the Gazette, publish strategies in order to facilitate mine closure where mines are interconnected, have an integrated impact or pose a cumulative impact." (own emphasis) It appears from this section that the Minister of the Department of Forestry, Fisheries and the Environment could rather have compiled and published the Strategy under s24R of NEMA. Could it be that the two Departments are not co-operating to the extent required by the One Environmental System?
There is already much confusion regarding the interplay between the provisions of NEMA, the NEMA EIA Regulations and the MPRDA and its regulations regarding the Closure Process, and differing definitions or misaligned Strategy and Policy statements will only exacerbate this confusion, both for the regulators and the mining industry. The Strategy contributes to this confusion, rather than resolving it, and does not even refer to the interplay between NEMA, the National Water Act and the MPRDA.
The key tenet or objective of the Strategy appears to be "concurrent economic diversification". This is clearly a laudable and desirable objective. However, the most important role player to achieve economic diversification would be government itself, and more detail is needed as to how government would ensure that this objective is met.
It is clear that a comprehensive review of all legislative provisions on mine closure should be conducted to properly inform the content of the Strategy and the subsequent Mine Closure Policy before they are finalised, and that further co-operation and co-ordination between relevant government departments and consultation with stakeholders is required.
Warburton is MD of Warburton Attorneys Inc.