MINING WHILE PROTECTING WATER AND ENVIRONMENTAL RESOURCES A test of Cooperative Governance

Section 41 of Constitution  (c) provide effective, transparent, accountable and coherent government for the Republic as a whole;  e) respect the constitutional status, institutions, powers and functions of government in the other spheres;  h)  iii) informing one another of, and consulting one another on, matters of  common interest;  (iv) co-ordinating their actions and legislation with one another;  (v) adhering to agreed procedures; and  (vi) avoiding legal proceedings against one another.

Three Acts  National Water Act  Minerals and Petroleum Development Act  National Environmental Management Act and other SEMA( Specific Environmental Management Acts)

National Water Act  The National Water Act Section 22 states the permissible water use (1) A person may only use water: (a) without a licence: (i) if that water use is permissible under schedule 1; (ii) if that water use is permissible as a continuation of an existing lawful use; or (iii) if that water use is permissible in terms of a general authorisation issued under section 39; (b) if the water use is authorised by a licence under this Act; or (c) if the responsible authority has dispensed with a licence requirement under subsection (3)….

NWA  27. Considerations for issue of general authorisations and licences (1) In issuing a general authorisation or licence a responsible authority must take into account all relevant factors, including: (a) existing lawful water uses; (b) the need to redress the results of past racial and gender discrimination; (c) efficient and beneficial use of water in the public interest; (d) the socio-economic impact: (i) of the water use or uses if authorised; or (ii) of the failure to authorise the water use or uses; (e) any catchment management strategy applicable to the relevant water resource; (f) the likely effect of the water use to be authorised on the water resource and on other water users; (g) the class and the resource quality objectives of the water resource;

NWA  29. Conditions for issue of general authorisations and licences (1) A responsible authority may attach conditions to every general authorisation or licence: (a) relating to the protection of: (i) the water resource in question; (ii) the stream flow regime; and (iii) other existing and potential water users; (b) relating to water management by: (i) specifying management practices and general requirements for any water use, including water conservation measures; (ii) requiring the monitoring and analysis of and reporting on every water use and imposing a duty to measure and record aspects of water use, specifying measuring and recording devices to be used; (iii) requiring the preparation and approval of and adherence to, a water management plan; (iv) requiring the payment of charges for water use as provided for in chapter 5; (v) requiring the licensee to provide or make water available to a person specified in the license…

NWA  Part 8 This part establishes a procedure for a responsible authority to undertake compulsory licensing of any aspect of water use in respect of one or more water resources within a specific geographic area. It includes requirements for a responsible authority to prepare schedules for allocating quantities of water to existing and new users. The procedure is intended to be used in areas which are, or are soon likely to be, under 'water stress' (for example, where the demands for water are approaching or exceed the available supply, where water quality problems are imminent or already exist, or where the water resource quality is under threat), or where it is necessary to review prevailing water use to achieve equity of access to water

Minerals and Petroleum Development Act  Section 37  Environmental management principles (1) The principles set out in section 2 of the National Environmental Management Act, 1998 (Act 107 of 1998): (a) apply to all prospecting and mining operations, as the case may be, and any matter or activity relating to such operation; and (b) serve as guidelines for the interpretation, administration and implementation of the environmental requirements of this Act. (2) Any prospecting or mining operation must be conducted in accordance with generally accepted principles of sustainable development by integrating social, economic and environmental factors into the planning and implementation of prospecting and mining projects in order to ensure that exploitation of mineral resources serves present and future generations

MPRDA  Section 38 A  Environmental authorisations (1) The Minister is the responsible authority for implementing  environmental provisions in terms of the National Environmental Management Act, 1998 (Act 107 of 1998) as it relates to prospecting, mining, exploration,production or activities incidental thereto on a prospecting, mining, exploration or production area.  (2) An environmental authorisation issued by the Minister shall be a condition

 Section 38 B  Approved environmental management programmes and environmental management plans  (1) An environmental management plan or environmental management programme approved in terms of this Act before and at the time of the coming into effect of the National Environmental Management Act, 1998, shall be deemed to have been approved and an environmental authorisation been issued in terms of the National Environmental Management Act,  (2) Notwithstanding subsection (1), the Minister may direct the holder of a right, permit or any old order right, if he or she is of the opinion that the prospecting, mining, exploration and production operations is likely to result in unacceptable pollution, ecological degradation or damage to the environment, to take any action to upgrade the environmental management plan or environmental management programme to address the deficiencies in the plan or programme.  (3) The Minister must issue an environmental authorisation if he or she is satisfied that the deficiencies in the environmental management plan or environmental management programme in subsection (2) have been addressed and that the requirements in chapter

NEMA and related Acts  Exclusion of activities related to mining  Minister of Minerals and Energy' means the Minister responsible  for the implementation of environmental matters relating to prospecting,  mining, exploration, production and related activities within a mining,  prospecting, exploration or production area;

NEMA (cont)  The NEM:WA in Section 4 specifically excludes residue deposits and residue stockpiles as defined in MPRDA  NEM:AQA too does not deal with issues dust from mining operations  GNR 248 – does not include mining  Only NEM:PAA specifically refers to the restriction of prospecting and mining activity in protected areas in section 48.

Fragmentation  Environmental issues that would be dealt with DEA or a Provincial Department, if connected to mining will be dealt with DMR officials,  However…  Issues not directly connected to the mining, such as construction of roads that may cross seasonal rivers still will be dealt with EIA processes  Further waste not from the process of mining specifically will fall within the NEM:WA  Air quality deterioration that affects Human Health may still fall within NEM:AQA

Fragmentation  Water use for such an activity must still be approved by DWA  Of course at all times it must be kept in mind that protection falls within different sphere of government, e.g. issues of air quality will be primary responsibility of Municipalities  MPRDA does require that environmental authorisation be obtained from DMR

Karoo Hydraulic Fracturing  Issue of use of scarce water resources  ALSO possible pollution through process  What would happen in this instance, possible IWUL if required  Environmental authorization from DMR, if needed EIA process with DEA

Vele Colliery  Close(adjacent to Mpungubwe World Heritage Site) to to Protected Area  Environmental Authorisation from DMR  IWUL from DWA  EIA process with EIA

Disjuncture  Three different Departments involved  Three different Department with seemingly divergent mandates, views  At the heart, all do have one concept in common Sustainable Development  Three different processes that need to be followed are problematic, causing confusion creating friction between Departments, applicants

Possibility One Process  This may the only efficient manner to deal with issues that continually arise with regard to mining

Difficult way forward  Each department will need to own one process  Clear demarcation must be in place  Departments must work together  Mandates may need t be meshed together  Change in Legislations and regulations  An ad hoc process will only be efficient in the short term  Biggest Issue “ Who will be in charge”

Thank you