Towards a One Environmental System in the Extractive Industries in South Africa: A critical analysis of its implementation date which may disturb its successful facilitation and exacerbate legal uncertainty in the industry

Abstract

The One Environmental System (OES) is an agreement in terms of S 50 A (2) of NEMA and S 163 of NWA, between the Ministers in the DEA, DMR and DWS with respect to mining. It stated that NEMA is the principal Act in terms of which all the environment related aspects would be regulated; and the DMR will be the Competent Authority to issue environmental authorisations relating to all the mining activities and that DEA will be the appeal authority in relation to these authorisations. These departments agreed to synchronise and fix their periods for the approval of mining licenses to 300 days and that should there be an appeal it should disposed of within 90 days. It was introduced to eliminate the duplication of processes that were fragmented between the three departments as required by the relevant provisions of NEMA, MPRDA and NWA. DEA announced the “8 December 2014”, as its implementation date, whereas the Act, which introduced it (NEMLAA Act 25 of 2014), commenced on 2 September 2014. This contradiction regarding the implementation date of the OES has the unintended consequences of hindering the effective implementation of the OES Agreement in the mining industry; and is incongruous with the rule of law, and consequently the IIBP. These contradictions exacerbate the preposterous situation anent to legal and policy uncertainty in the extractive industry, hence SA is ranking low on the Fraiser Institute Annual Survey for Mining Companies on the Policy Perception Index and Investment Attractive Index. The DMR should urgently promulgate into law the MPRD Bill of 2013 into in order to improve legal certainty because mining is quintessence and backbone of the South African economy. SA’s total value of known mineral reserves is estimated at approximately R20.3-trillion; and it is the world’s fifth largest mining sector in terms of GDP value. The improvement of the approval process for an EA is congruent to the ambit of sustainable development, which was advocated by the apex court in the famous Fuel Retailers Association case, which promoted the adherence to S (24) of the Constitution. The successful implementation of the OES will amongst others achieve Environmental Justice to the mining induced communities who are exposed to unhealthy and hazardous environments because of the mining activities and consequently, their rights to a healthy environment are violated. The ultimate aim of this study is to contribute towards improving legal and policy certainty in the industry, because there is a correlation between the two and low inflow of Foreign Direct Investments in the SA mining sector. This study recommends that the presidency should ameliorate this situation by directly accessing the apex court in terms of S (167) (6) of the Constitution to seek an order to declare invalid and set aside the NEMALA regarding the OES’S date of implementation. The CC will exercise its powers in terms of S 172 (1) (b) of the Constitution and grant the presidency an order to rectify the anomaly by promulgating the relevant regulations and then properly amend NEMLAA to rectify the implementation date of the OES. President Ramapohosa will be emulating his predecessor and icon Madiba, who acted accordingly regarding the date of implementation of the South African Medicines and Medical Devices Regulatory Authority Act, 132 of 1998. By so doing, the president will be putting into actions his Presidential slogan of “Thuma mina/ Send me.” The study will recommend that the DEA and not the DMR should be the competent authority to approve the EA in the mining industry. This is due to the patent evidence of competency and capacity deficit at DMR to deal with intricate environmental related issues. It will conclude by professing a further study regarding the introduction of Strategic Environmental Authorisations for the mining industry as well as an OES National Policy and Act.