the mprda amendments: practical implications · the mprda amendments: practical implications ......
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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: 12991805@nwu.ac.za Web Address: http://cem.puk.ac.za
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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
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3 CEM-0 Course Revision 2007-00
“You have to know where you come from to know where you
are going.......”
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e Road Map
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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)
4 • Minerals and Petroleum Resources Development Amendment
Bill 27 December 2012
5 • Proclamation 17 of 6 June 2013 • sec 11, 38B, 102, 106
6 • Minerals and Petroleum Resources Development Amendment
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
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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
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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
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8 Revision 2006-0
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e Discard Dumps
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With Permission from Mr Morne Viljoen
10 Revision 2006-0
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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.
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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
14 Revision 2006-0
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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
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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
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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
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”......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
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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
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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?
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21 Revision 2006-0
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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?
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23 Revision 2006-0
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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
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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
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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.....
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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
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