The Constitutional Court recently gave down judgment in the long-standing dispute on whether consent or authorisation is required in terms of land-use and environment legislation for mining activities.
While the Constitutional Court has cleared up the confusion regarding the land-use planning competence of municipalities, it did not clarify the position regarding regulation of environ- mental matters in the mining sphere.
Law firm Bowman Gilfillan partner Claire Tucker explains that the City of Cape Town instituted proceedings for an interdict restraining mining company Maccsand from mining sand dunes, until the dunes were rezoned to allow mining as a land use. The city also sought an order making environmental authorisation in terms of the National Environmental Management Act 107 of 1998 (Nema) a requirement before mining can begin.
“Maccsand argued that the decision to grant a right in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) trumped considerations in terms of other laws, such as Nema and the Land Use Planning Ordinance 15 of 1985 (Lupo).
“It argued that mining is an exclusive national competence in terms of the Constitution of the Republic of South Africa, and that other spheres of govern- ment cannot interfere in this competence,” she says.
The counter argument was that Lupo and Nema serve different purposes and requiring multiple authorisations for the same activity would not be unusual according to South Africa’s law.
“The initial judgment of the High Court stated that the Constitution does not give national legislation the right to take away the planning function of municipalities and, therefore, Lupo had clear application in the dispute and has essentially been upheld in both the Supreme Court of Appeal (SCA) and the Constitutional Court,” Tucker states.
that there will be problems with the implementation of this decision by the Constitutional Court in the planning context, with these difficulties being raised in argument before the court.
“Amongst these is that the landowner is generally required to make an application for land-use change but, in a mining context, the landowner may not consent to the mining activities, while minerals do not lend themselves to planning. They are either present or they are not and a municipality can only designate a mining zone where minerals are found. This cannot be planned in advance,” adds Tucker.
She further explains that Mineral Resources Minister Susan Shabangu has indicated that legislation will seek to regulate this conflict, but any such legis- lation will have to tread care- fully in terms of the Consti-tutional competence of munici- palities for municipal planning, which has been recognised by the Constitutional Court.
Environmental Regulation of Mining
The Cape Town municipality was successful in obtaining an order from the High Court that an environmental authorisation in terms of Nema was required before mining could begin, because, according to Maccsand’s facts, the land in question was zoned public open space and Nema required environmental authorisation before land so zoned was put to use for any other purpose.
“The SCA, on the other hand, overturned this order and decided that it was unnecessary to examine the applicability of Nema, because the listed activi- ties on which the Cape Town municipality had relied for their order had been repealed in 2010 and, thus, the court decided the matter was academic. The court also declined to issue a declaratory order that mining could start until environmental authorisation under Nema had been granted.
“On the Nema issue, the Constitutional Court also found against the City of Cape Town, and the provincial environmental department, [the Department of Environment and Development Planning], which appealed the SCA’s judgment,” she says.
The reason given by the Con-stitutional Court, however, differed from that of the SCA.
“The Constitutional Court found that the fact that the Nema-listed activities related to mining had not been put into effect meant that no declaratory order could be granted requiring that, before mining could commence, an environ- mental authorisation under Nema must be granted.
“The Court also referred to the complicated transitional provisions in Nema in terms of which Minister Shabangu will, for a time, be the decision-maker on environmental matters in the mining context,” she states.
Tucker insists that the finding by the Constitutional Court favours the argument that mining companies have been advancing to the Department of Environmental Affairs (DEA), namely that the provisions regulating mining in terms of Nema have not yet started and, when they do, the Department of Mineral Resources (DMR), and not the DEA, will in fact regulate these activities.
“Therefore, until these commence, the status quo, which should prevail, is that the DMR and not the DEA and provincial environmental departments should regulate the environ- mental aspects of mining and, as such, no environmental authorisation is required before mining can commence,” explains Tucker.
This leaves open the issue of which activities are mining activities which do not require authorisation, and which activities do require authorisation.
“It is arguable that activities directly related to winning minerals, such as constructing an opencast pit, and infrastructure directly related to such a pit, do not require environmental authorisation. However, in general, every activity that is listed must be applied for in terms of Nema. If this involves clearing of indigenous vegetation, this would arguably trigger the need for an environmental author-isation.
“Once again, this is an area in which the Minister of Mineral Resources has promised legislative clarification.
“In the meantime, mining companies are probably advised to follow a cautious approach and apply for environmental authorisation for listed activities which are triggered by their activities, or risk being the next test case for this conflict between the DMR and the DEA,” Tucker concludes.