Mining rights seriously diluted

Johannesburg – The Department of Mineral Resources’ promise to the mining industry to combine all approval processes for mining projects within a single process under one umbrella is in tatters.

The department’s say on how and where mining can take place was seriously diluted on Thursday by a far-reaching double ruling by the Constitutional Court.

The ruling confirms the need to rezone land on which mining takes place. This may be a small matter, but in practice it gives provinces and municipalities the final word on the application of the mining rights awarded by the department.

In the court documents the department declared the situation constitutionally impermissible.

The Chamber if Mines says this creates an “impossible situation” similar to that with which mines already have to deal in regard to environmental approvals.

It also affords activists opposing mining projects powerful new ammunition to get interdicts against existing mining projects and to nip potential new mining projects in the bud.

The rezoning consultation process duplicates processes that already have to be followed in terms of the Mineral and Petroleum Resources Development Act, but is being broadened so that other groups and stakeholders’ interests are also taken into account, according to legal experts with whom Sake24 had discussions.

The preference that mining, thanks to the act, enjoys over other land uses, is now being affected, says Warren Beech, a partner at legal firm Webber Wentzel involved with environmental concerns.

Until now, he said, mining has effectively enjoyed preference over, for instance, agriculture, but with the zoning requirements other interests could carry more weight. There is no guarantee of success in getting land rezoned and it is entirely possible that mines might be stopped in this way.

“The balance of power has been disturbed.”

The two matters relate to mining projects in the Western Cape against which interdicts were obtained by the Cape Town and Swartland municipalities because the land on which mining is taking place was incorrectly zoned.

The zoning ordinance in question has existed for decades, but has never been used against mines, said Beech.

It's unacceptable for the mere issue of a mining right to take precedence over the zoning ordinance, was the Constitutional Court’s unanimous decision.

Yet exactly this has been accepted practice since the ratification of the Mineral and Petroleum resources Development Act in 2004.

The Department of Mineral Resources and the Chamber of Mines’ argument that this allowed municipalities to “veto” a national department’s decisions was, said the Constitutional Court, appealing, but without substance.

The Constitution compels the different levels of government to work together and cooperate in good faith when their powers overlap, says the decision.

A decision by one level of government may be executed only once another level has agreed to it.

Such decisions can, as with any administrative decision, be reviewed in the courts, says the Constitutional Court. The decision relates only to the zoning ordinance in the former Cape Province, but similar ordinances regulate zoning in all provinces and, according to the ruling, the case has national implications.

Beech said the principle has now been established and is applicable to all mines in the country that are mainly on agricultural land.

The advice to any prospective mining group would now be to apply for rezoning and to comply with the dual environmental regulation applicable to mines, said Beech.

Threefold system

The Department of Mineral Resources has for years promised to address the multilayered system of approvals for mines.

This was in fact one of the most significant promises in the revised 2010 Mining Charter, and a legislative amendment to this end was made in 2009, but never carried through. The department is now further than ever from its objective and the dual system is in effect a threefold system. As part of their applications for mining rights, mines have to conduct an environmental impact study, individually comply with the requirements of the National Environmental Management Act, obtain a water licence elsewhere  and now rezone as well. The Coal of Africa Vele Mine in Limpopo and Mine Waste Solutions’ “mega-mine dump” sagas, which both came to a temporary halt owing to the provisions of the act, clearly showed the dangers mines face – and how powerful the dual system can prove for activists.

According to Beech the years of deadlock result from concerns that the department, which should stimulate mining, cannot at the same time police the environmental impact.

The water authorities’ inability to deal with mine applications in good time means that a huge number of mines are being operated “technically illegally” without water licences, said Manus Booysen, another partner at Webber Wentzel.

 - Sake24

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