The primary legislation governing mining and environmental matters in South Africa, namely the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) and the National Environment Management Act 107 of 1998 (NEMA).
The objectives of the MPRDA include recognition of the right of the state to exercise sovereignty over all the mineral and petroleum resources within the Republic and to give effect to the principle of the state's custodianship of the nation's mineral and petroleum resources; promoting equitable access to the mineral and petroleum resources to all people of South Africa; substantially and meaningfully expanding opportunities for historically disadvantaged persons; promoting economic growth and mineral and petroleum resources development in the Republic; promoting employment and advancing social and economic welfare of all South Africans; giving effect to section 24 of the Constitution by ensuring that the nation's mineral and petroleum resources are developed in an orderly and ecologically sustainable manner while promoting justifiable social and economic development; and ensuring that holders of mining and production rights contribute towards the socio-economic development of the areas in which they are operating.
The stated objectives of NEMA include providing for co-operative environmental governance by establishing principles for decision-making on matters affecting the environment, institutions that will promote co-operative governance, and procedures for coordinating environmental functions (exercised by organs of state), and to provide for certain aspects associated with this, including recognition that everyone has a right to an environment that is not harmful to his or her health or well-being, and sustainable development, which requires the integration of social, economic and environmental factors in the planning, implementation and evaluation of decisions to ensure that development serves present and future generations.
These objectives, on the face of it, appear to be complementary, and seem to promote decision-making, which promotes ecologically sustainable mining operations. It is implied, in these objectives, and acknowledged that mining can have a potential detrimental impact on the environment and communities in and around mining operations. As a result, a complex legislative framework has been implemented that applies to mining and which has, as its purpose, proper consideration of mining operations in the licencing and authorisation process, aimed at ensuring compliance with the overall objectives of achieving socially and economically sustainable mining operations.
In addition to the MPRDA and NEMA, the legislative framework includes important legislation such as the National Environmental Management: Protected Areas Act 57 of 2003 (NEM:PAA), the National Environmental Management: Waste Act 59 of 2008 (NEM:WA), the National Water Act 36 of 1998 (NWA), and the National Environmental Management: Biodiversity Act 10 of 2004 (NEM:BA).
The implementation of the One Environmental System following various amendments to the MPRDA and NEMA, is further intended to support objective, transparent, administratively fair and proper decision-making regarding socially and environmentally sustainable mining operations.
Proper compliance with the various pieces of legislation both from the perspective of issuing prospecting or mining rights, and the perspective of the environmental authorisations (including water use licences) should result in the correct decision being made regarding whether mining operations should go ahead or not.
With regard to mining in sensitive or protected areas, NEM:PAA plays a significant role. Section 48 provides that despite any other legislation (including the MPRDA and others), no person may conduct commercial prospecting, mining, exploration, production or relevant activities in (a) a special nature reserve, (b) national park or nature reserve, (c) in a protected environment without the written permission of the minister and the cabinet member responsible for mineral and energy affairs, or (d) in a protected area referred to in section 9(b), (c) or (d) of NEM:PAA. It continues and provides that when applying the provisions of this section, the Minister is required to take into account the interests of local communities and environmental principles referred to in Section 2 of NEMA.