1. Select Committee on Land and Mineral Resources
17 October 2017

2. Committee Presentation: Discussions on the MPRDA report to provinces.

3. Context of meeting
The Select Committee deviated from standard mandating procedures for Section 76 legislation when it was decided to ensure adequate consultation on the Bill;
The need for additional consultation was partly as a result of the fact that the committee did not process the Bill during the 4th Parliament, and were therefore not familiar with the content of the Bill;
Further to the point above, the committee was concerned about the fact that they were dealing with a complex and controversial remitted Bill
The additional input called for, over and above the provincial mandating process, resulted in additional public engagement outputs without a standard avenue to deal with it.
The outcome, this report, is a summary of findings that, in the first instance, forms part of the committee’s experience with the Bill during its debates on mandates received, but additionally, it is an opportunity to highlight matters it wishes to bring to the attention of the provinces.

4. Context of meeting
The report can be forwarded to provinces without creating the impression that the committee is favouring the input of any particular source, or has any opinion about the amendments that specific stakeholders, with the support of the department had been proposing during public hearings in provinces;
The report contains errors identified in the draft text of the Bill, as well as a number of comments resulting from the evaluation of both public input and the response of the Department of Mineral Resources to these inputs;
The Committee is requested to scrutinise the contents of the report, and to propose a final version of the report to be submitted to provinces upon the finalisation of deliberations on the report.

5. Report overview
After the committee received written and oral submissions related to the Bill, the input received were analysed and the details of the following inputs were reviewed:
Constitutionality challenges;
Clashes with other pieces of legislation;
Draft errors in the Bill
Procedural challenges
Additions, deletions and insertions proposed;
General comments about the Bill
At the end of this process, the Department was engaged and extensive

6. Report overview (2)
The engagement with the Department initially created the impression that there is a large degree (over 50%) overlap between issues flagged during public engagement and recognition by the Department that inputs have merit.
As time passed, however, it became clear that the Department is intent on retaining its position on most of the matters, only agreeing to definition changes that were already proposed by the oil and gas sector, and a minimal number of clauses.
The focus of the report thus shifted, from potentially highlighting definitions and clauses that the Department agreed needed to be amended, as well as errors detected in the draft language of the Bill, to a report highlighting the errors detected, commenting on other selected concerns raised (for instance the constitutionality challenges) and highlighting additional concerns of the committee.

7. Report overview (3)
It is not considered a pre-requisite to report in detail to provinces on the content of submissions, as the parliamentary engagement was essentially totally separated from the mandating procedures that are to follow.
It is also not considered important to comment extensively on any of the procedural or legislative concerns raised in public submissions, that affect implementation of the Bill or allude to challenges with procedures followed during the review of the Bill. These matters fall outside of the focus of the provinces during the mandating phase and as such, require the focus of parliament or the Department, not provinces
Based on the advice received on the rules that apply to the remitted Bill – both joint rules and rules of the NCOP, the correction of errors do not require mandates, as it can be carried out by the committee. Due to the number of errors identified, however, it is considered prudent to communicate these in full to provinces.

8. Report contents
The report introduces in broad terms, the parties that submitted inputs to the committee. The report then provides a brief list of the clauses that drew input.
The next topic covered is the concerns raised by the committee for the attention of provinces. The following matters were expanded on:
The concern over vague provisions
Constitutional and legislative clash concerns
Drafting errors
Subordinate legislation
Air quality management
Each one of these topics will be introduced to the committee, where-after the content of the report can be deliberated.

9. Subordinate legislation
According to the Department’s responses prepared for the Select Committee, public calls for amendments to clauses 2,5,6,8,17,21,22,29,31,33, 35, 40, 42 and 76, where greater clarity or detail was sought on matters covered by the sections of the Act being amended, were not agreed with. The reasoning for this position was that the required detail would be provided in the regulations to follow.
These clauses cover the following:
Clause 2: Women and communities, beneficiation, labour sending areas;
Clause 5: Ministerial application system (dual application system);
Clause 6: Consultation with interested and affected parties and communities;
Clause 8: Transfer of rights or interest in rights;
Clause 17: Environmental Authorisation;
Clause 21: Declaration of strategic minerals;
Clause 22: Timelines associated with rights and authorisation applications;

10. Subordinate legislation (2)
Clause 29: Old order Environmental Management Plans;
Clause 31: Closure certificates;
Clause 33: Environmental degradation as a result of mining, exploration or prospecting activity;
Clause 35: Cancellation of permits for breaches;
Clause 40: Corrective measures imposed on rights holders;
Clause 42: Amending references to time lines in Section 54;
Clause 76: Usage of mined materials for own use – sand, stone, rock
Very likely that these clauses are not the only ones pertaining to regulations but it is the complete list that the Department provided during feedback.

11. Subordinate legislation (3)
Based on the experience of the committee in their own constituencies, and on oversight, it can be argued that the concerns that interested and affected parties expressed around the regulation of activities listed in these clauses are relevant and important
Mining-affected communities, including agriculture and local government structures are dependent on government to ensure that where mining is deemed desirable, the framework regulations governing such actions ensure the protection of their rights as citizens
Equally, the committee are aware of the Co-operative Governance and Inter-governmental Relations challenges that appear to surround the interactions of the Department with provincial and local government structures, and
Has observed first hand the rate at which mining and exploration is expanding in some provinces, and the impact that this is having on communities, water resources, agricultural land and the environment

12. Subordinate legislation (4)
Constitutionally, Parliament has the ability to perform oversight over the finalisation of subordinate legislation
It should not be deemed substantive consultation when the Department does not address the concern during discussions flowing from public input on the Bill, without any guarantee that the inputs would be re-visited during the development of the regulations
Under circumstances such the MPRDA, where the Department insists that the main Act is just a framework Act and that the details of regulatory requirements and actions will be contained in regulations, it is proposed that all such regulations related to the MPRDA be tabled in Parliament for scrutiny and approval, in line with Section 101(4) of the Constitution
The proposal for this action has been included in the Draft version of the report, but needs a Committee decision to be retained.

13. Air quality management
Clause 18(b) proposes a provision which makes the application for a water use licence a prerequisite for the granting of a mining right. As mining operations also sometimes require atmospheric emission licences in terms of the National Environmental Management: Air Quality Act, 2004 (NEMAQA), we submit that clause 18(b) should also make the application for an atmospheric emission licence a prerequisite for the granting of a mining right. We therefore propose the following re-formulation of clause 18(b):
“(i) the applicant has, where necessary, submitted proof of application for –
(i) a licence for use of water in terms of the applicable legislation; and
(ii) a licence for atmospheric emissions in terms of applicable legislation.
The Constitution’s Bill of Rights states that everyone has the right to an environment that is not harmful to their wellbeing, and to have the environment protected for the benefit of present and future generations. The entire Section 24, when studied carefully, introduces two concepts worth noting – the first is the prevention of pollution and ecological degradation, and the second is the ecologically sustainable exploitation of natural resources.

14. Comments on the “Department’s Amendments”
The report does not delve into this matter because:
The Department never put the amendments before the committee, and the Committee thus never debated and endorsed these
The Committee is comfortable with the advice it received regarding the status of inputs received by the Provinces, and the way in which mandates will be debated in the committee once these are received.
This report was developed from the perspective of communicating with Provinces those matters that pertain to the contents of the Bill and not concerns about procedure or the rules of parliament, as these matters are not of concern to Provinces when they develop mandates.
Therefore the report does not delve into issues supported by the Department, or on the debate around the amendments. The report in no way has to influence provinces around those specifics.

15. Comments on the list of errors
The NCOP has advised on the way forward regarding the applicability of joint rules of Parliament and the rules of the NCOP regarding the MPRDA once public consultation was called for
The advice does not limit the Committee in terms of rectifying errors in the legislation
The list is communicated to provinces in order to ensure that all provinces are aware of these, as well as note the fact that the committee intends, through the powers afforded it by the rules of Parliament, to rectify the errors in order to improve the draft quality of the Bill
The committee is therefore not calling for, or requiring mandates to come from provinces in order to remedy the errors.

16. Summary of findings
The committee supports the urgent need for resolving the regulation of fine particulate matter (PM) pollution emanating from mining activity, including blasting, digging and transporting of rocks and sediment. The complexity of the regulatory environment is of such a nature that close so-operation will be required between parliament, the Department of Environmental Affairs and all spheres of government;
The Committee supports the assertion that the MPRDA is a framework Act and as such, cannot be amended to include the details that public submissions called for regarding many critical Sections of the Bill. The Committee, however, does not agree with the Department that the solution for public concern lies in the standard procedure of seconding the generation of subordinate legislation to the Department. The committee feels strongly that the interest of the public will be best served in ensuring that the regulations that will address the details sought by the public and industry is also passed by Parliament.

17. Summary of findings (2)
The Committee has attached a list of errors identified in the draft text of the Bill. These errors can be corrected by applying the rules of parliament, even in terms of a remitted Bill. It is therefore not a pre-requisite that the committee receives mandates to address all the errors reported. It was considered prudent, however, to report these findings to provinces in order to clarify areas that require remedial drafting. 
Having reviewed the concerns of the public, the Committee is confident that it is a position to receive and debate mandates on the MPRDA.