The "One Environmental System" comes into force today (2 September 2014). Over the next few weeks Webber Wentzel's Environmental team (as members of the firm's Mining Sector Group) will unpack the legislative changes that give effect to this system, highlighting the key risks and obligations clients may face in a series of Snapshots.
This edition provides background to the introduction of this system.
Out with the old
In 2007/ 2008, the Department of Environmental Affairs (DEA) and the Department of Mineral Resources (DMR) agreed that environmental regulation would be removed from the purview of the Mineral and Petroleum Resources Development Act, No. 28 of 2002 (MPRDA) and would be wholly regulated under the National Environmental Management Act, No. 107 of 1998 (NEMA). This was to be the "One Environmental System" for the mining industry.
The implementation of this version of the "One Environmental System" was given effect by amendments to NEMA and the MPRDA in 2008. The National Environmental Management Amendment Act, No. 62 of 2008 (2008 NEMA Amendment Act), was gazetted on 9 January 2009 and the Mineral and Petroleum Resources Development Amendment Act, No. 49 of 2008 (2008 MPRD Amendment Act), on 21 April 2009 (collectively referred to as the 2008 Amendment Acts).
A three phased transition was envisaged under the 2008 Amendment Acts.
In phase 1, the status quo (ie the approval of both an environmental authorisation (EA) under NEMA for triggered listed activities and an environmental management plan/ programme under the MPRDA, was said to remain in place for 18 months following the enactment of the 2008 MPRD Amendment Act or the enactment of section 2 of the 2008 NEMA Amendment Act, whichever was the later enactment).
The 2008 MPRD Amendment Act was the later enactment. When it came into force on 7 June 2013, the three phase transition started. Phase 1 was to be followed by two further phases spanning a three year period to move the environmental regulation entirely to NEMA, under the guise of the DEA.
The three phases for the implementation of this version of the "One Environmental System" were to occur as follows:
Click here to view table.
In with the new
The National Environmental Management Laws Amendment Bill (2013 NEM Laws Amendment Bill) and the Mineral and Petroleum Resources Development Amendment Bill were gazetted in 2013 (collectively referred to as the 2013 Amendment Bills).
The 2013 NEM Laws Amendment Bill was assented to on 2 June 2014 under the National Environmental Management Laws Amendment Act, No. 25 of 2014 (NEM 2014 Laws Amendment Act) and comes into effect today (2 September 2014). This effectively does away with the three phased transition of environmental regulation described above.
The effect of this is that Phase 2 of the original 2008 plan is implemented immediately and Phase 3 never comes into force. Thus the DMR retains its competence to regulate environmental management of the mining industry. However, the DEA remains the appeal authority for appeals lodged against decisions by the Minister of Mineral Resources (and the delegated officials) to grant EAs under NEMA for, inter alia, prospecting/ mining operations.
Amendments to other environmental legislation, which also come into force today, increase the scope of the DMR's competency.
The key legislative changes/ proposed changes which give effect to the NEW "One Environmental System" are as follows:
Click here to view table.