On 27 March 2020, the Minister for the Department of Mineral Resources and Energy published for implementation, the Amendments to the Mineral and Petroleum Resources Regulations (“Amendment Regulations”). The Amendment Regulations take effect from the date of publication.
The Amendment Regulations provide various amendments to the Mineral and Petroleum Resources Development Regulations, 2004 (“2004 Regulations”), which include amongst others amendments on consultation with interested and affected persons and amendments to the provisions on social and labour plans.
The amendments also introduce regulations dealing with the lodgment of applications under section 52 and 53 of the Mineral and Petroleum Resources Development Act, 2002 (the “ MPRDA”) and amend the current regulations dealing with internal appeals under the MPRDA. The Amendment Regulations repeal certain regulations relating to environmental matters.
The specific provisions of the Amendment Regulations are as follows:
Obligation on the part of the applicant to consult
The 2004 Regulations define ‘interested and affected persons’ as “a natural or juristic person or an association of persons with a direct interest in the proposed or existing operation or who may be affected by the proposed or existing operation”.
Under the Amendment Regulations the definition of ‘interested and affected persons’ has been extended to mean a natural or juristic person or an association of persons with a direct interest in the proposed or existing operation or who may be affected by the proposed or existing operation, including but not limited to:
- Mine Communities (as defined in the Amendment Regulations),
- the Traditional Council as defined in the Traditional Leadership and Governance Framework Act, 2003),
- land claimants who have lodged claims in terms of the Restitution of Land Rights Act 1994 which have not been rejected or settled in terms thereof,
- lawful land occupier,
- holders of informal rights in terms of the Interim Protection of Informal Land Rights Act 1996,
- the Department responsible for Agriculture, Land Reform and Rural Development,
- the Department responsible for Co-operative Governance and Traditional Affairs,
- the Department responsible for Human Settlements, Water and Sanitation,
- any other person (including on adjacent and non-adjacent properties) whose socioeconomic conditions may be directly affected by the proposed or existing prospecting or mining operation,
- the local municipality,
- civil society, and
- the relevant government departments, agencies and institutions responsible for the various aspects of the environment and for infrastructure which may be affected by the proposed project.
The term ‘Mine Communities’, refers to communities where mining takes place, major labour sending areas, adjacent communities within a local municipality, metropolitan municipality or district municipality.
The Amendment Regulations provide for the term ‘meaningful consultation’, which means that “the applicant, has in good faith facilitated participation in such a manner that reasonable opportunity was given to provide comment by the landowner, lawful occupier or interested and affected party in respect of the land subject to the application about the impact that the prospecting or mining activities would have to his right of use of the land by availing all the information pertaining to the proposed activities enabling these parties to make an informed decision regarding the impact of the proposed activities”.
In terms of the Amendment Regulations, meaningful consultation must be conducted in terms of the public participation process prescribed in the Environmental Impact Assessment Regulations, promulgated in terms of section 24(5) of the National Environmental Management Act, 1998 ("EIA Regulations").
The meaningful consultation contemplated here is the consultation contemplated in the MPRDA, in respect of applications for a right or permit under the MPRDA. Accordingly, where the MPRDA provides for consultations by applicants, it is contemplated that applicants for rights or permits under the MPRDA consult meaningfully with interested and affected persons (as defined in the Amendment Regulations) and in accordance with the public participation process described in the EIA Regulations.
The office of the Regional Manager is, in terms of the Amendment Regulations, entitled to participate in the meaningful consultation process by an applicant for a right or permit. The Regional Manager’s participation in this regard would be for observation purposes, to ensure that the consultation by the applicant is meaningful and in accordance with the regulations.
In terms of the MPRDA, a holder of a reconnaissance permission, reconnaissance permit, mining permit, prospecting right, exploration right, mining right and production right is required to give the landowner or lawful occupier of the land and the Regional Manager at least 21 days written notice of his/her intention to commence with operations.
Section 5A of the MPRDA prohibits any person from prospecting or mining on any area without, inter alia, giving the landowner or lawful occupier of the land in question at least 21 days written notice.In terms of the Amendment Regulations the notice must be in writing, state the date and time of entry and be submitted to the Regional Manager in whose region the right/ permit was issued. The holder is also required to submit proof of service of the notice to the office of Regional Manager in whose region the right/permit relates.
Social and labour plans
The Amendment Regulations have expanded the objectives of social and labour plans (“SLPs”) by amending Regulation 41(c) of the 2004 Regulations by requiring mining right holders to contribute towards the socio-economic development of ‘labour sending areas’ in addition to areas in which they operate.
The Amendment Regulations define the term ‘labour sending areas’ as local municipality of the Republic of South Africa, from which a majority of mineworkers are from time to time permanently resident”.
Consequently, Regulation 41(c) now reads as follows:
‘The objectives of a social and labour plan are to ensure that holders of mining rights contribute towards the socio-economic development of the areas in which they are operating as well as labour sending areas.’
The Amendment Regulations make it clear that mining right holders will be required to demonstrate steps to uplift areas from which they source workers (historically and currently), not just where they operate.
The Amendment Regulations also introduce clear timelines on which social and labour plans should be submitted and when consultations with mine communities and interested and affected persons over the SLPs need to be held.
Under the Amendment Regulations, an applicant for a mining right has a period of 180 days from the date of receipt of the notification of acceptance of his/her mining right application from the Regional Manager to consult meaningfully with mine communities and interested and affected persons on the contents of the SLP, to ensure it addresses the relevant needs and is aligned to the updated IDPs.
The Regional Manager may, within 60 days of receipt of the SLP, refer the SLP back to the applicant with proposals for amendments. The revised SLP must then be re-lodged with the Regional Manger within a specified period, which period may not exceed 60 days.
The Amendment Regulations make it clear that amendments to approved SLPs will require the consent of the Minister.
Further, mining right holders are now required to publish consulted and approved SLPs in English and one other dominant official language commonly used within the mine community, within 30 days of approval thereof, and using the avenues set out in the Amendment Regulations, which include, the company websites, local newspapers, hard copies to be placed in local schools, public libraries, municipal offices, Traditional Council offices; and announcements must be made, in local radio stations and local newspapers about the availability and content of the approved SLP .
In addition to submitting an annual report on compliance with the approved SLP to the Regional Manager, a mining right holder is now also required to convene at least 3 meetings per annum with mine communities and interested and affected persons, to update them about the progress made on the implementation of the approved SLP. The outcome of these meetings must form part of the annual reports.
According to the Amendment Regulations, SLPs lodged with the Regional Manager and approved by the Minister on granting of the mining right will need to be reviewed every five years from the date of such approval. The review process may be initiated from the fourth year of the SLP and shall be done in meaningful consultation with mine communities and interested and affected persons. When reviewing the SLP, the Minister will be required to take into account the assessment of annual reports submitted by the mining right holder, input, comment and reports from the mining right holder, mine community and interested and affected persons and the changing nature of the relevant needs of the mine community as per the IDPs.
The Amendment Regulations also provide new regulations regarding collaboration on SLPs. According to the Amendment Regulations collaboration on approved SLP projects must be transparent, inclusive and based on meaningful consultation with mine communities and interested and affected persons.
Regulation on the prescribed format for section 52 notices
Section 52(1) of the MPRDA requires a holder of a mining right, after consultation with any registered trade union or affected employees or their nominated representatives where there is no such trade union, to notify the Minister in the ‘prescribed manner’ where:
- prevailing economic conditions cause the profit to revenue ratio of the relevant mine to be less than six per cent on average for a continuous period of 12 months; or
- if any mining operation is to be scaled down or to cease with the possible effect that 10% or more of the labour force or more than 500 employees, whichever is the lesser, are likely to be retrenched in any 12-month period.
The 2004 Regulations did not prescribe the form or content in which a section 52 notice is to be made to the Minister.
The Amendment Regulations introduce new regulations dealing with the manner and form of the application in which a notice contemplated in section 52(1) of the MPRDA is to be made to the Minister and set out a draft template (Section 52(1) Notice) to be used by mining right holders in this regard.
According to the Amendment Regulations, a mining right holder must submit a notice contemplated in section 52(1) of the MPRDA to the Minister after consultations with registered trade union/s, affected employees or their nominated beneficiaries are concluded. The notice must contain details of prior consultations with registered trade unions, affected employees or their nominated representatives as contemplated in section 52(1) of the MPRDA.
The details of prior consultations must include dates, times, attendance registers, minutes, considerations, proposals, resolutions, agreements, recommendations, reports and records relating to consultations held with registered trade unions, affected employees or their nominated representatives before the notice is submitted to the Minister. The notice must also be accompanied by an affidavit by the holder of a mining right or production right, confirming that the factors contemplated in section 51(1) or (2) of the MPRDA exist.
Moreover, the Minister will be required, with 7 days of receipt of the notice, to refer the matter to the Mining and Minerals Development Board for consideration and recommendations. The Mining and Minerals Development Board must in turn, consult meaningfully with the relevant holder of the mining right and organised labour, conduct investigations and make recommendations to the Minister within 60 days of the referral by the Minister.
Regulations on the prescribed format for section 53 applications
Section 53(1) of the MPRDA provides that any person who intends to use the surface of any land in any way that may be contrary to any object of the MPRDA , or which is likely to impede any such object, must apply to the Minister for approval.
The 2014 Regulations did not prescribe the form or content in which a section 53 application is to be made to the Minister.
The Amendment Regulations provide a template for section 53 applications and set out the specific information that applicants will need to provide as part of a section 53 application. The information required includes amongst others:
- the type of approval applied for,
- motivation for the proposed use,
- a report on meaningful consultation with interested and affected persons in the mining industry,
- a report on meaningful consultation with the Council for Geoscience regarding both the mineral potential of the land concerned and the possible presence of dolomitic formations thereon,
- comments and concerns raised by parties with interests in prospecting, mining, exploration or production in the area and surrounding area, and
- a geological map of the area applied for.
The applicant is also required to confirm whether the holders of prospecting, mining, exploration or production rights within a two kilometre radius of the application area have been identified and meaningfully consulted with and whether holders of the aforesaid rights have objected to the proposed land development on the basis of its incompatibility with their interests.
Regulation 38 of the Amendment Regulations sets out a number of amendments to the Regulation 74 of the 2004 Regulations dealing with appeals against administrative decisions taken under the MPRDA.
Internal appeals under the MPRDA are dealt with in section 96 of the MPRDA. Section 96(1) of the MPRDA provides that, “any person whose rights or legitimate expectations have been materially and adversely affected or who is aggrieved by any administrative decision in terms of the MPRDA may appeal in the prescribed manner to:
- the Director-General, if it is an administrative decision by a Regional Manager or an officer; or
- the Minister, if it is administrative decision by the Director-General or designated agency.”
Under the Amendment Regulations any person who appeals in terms of section 96 against an administrative decision must lodge a written notice of appeal to the Director-General or the Minister as the case may be. This notice of appeal must be submitted within 30 days of the date the appellant becomes aware of the decision in respect of which the appeal is made.
The notice must be lodged at the Regional Office, be served on any other person whose rights may, in the opinion of the appellant be affected by the outcome of the appeal and who must be listed in the notice of appeal, and such person must be notified of their rights in terms of the Amendment Regulations. The appellant must also notify the Director-General or the Minister, in writing that a notice of appeal has been lodged at the Regional Office and a copy of the notice must be provided to them.
In terms of the Amendment Regulations, the Regional Manager must, within 10 days of receiving the notice of appeal, identify any other person whose rights may, in the opinion of the Regional Manager, be affected by the outcome of the appeal not already listed in the notice of appeal and must also send copies of all records pertaining to the administrative decision/s which is a subject of the appeal to the appellant, to all identified persons and to the Director-General or the Minister, as the case may be.
The Regional Manager must then give the appellant written notice of the contact details and identity of such identified persons, and the appellant must within 14 days of receipt of such notice from the Regional Manager, serve the notice of appeal on such further identified persons.
The notice of appeal must be accompanied by an affidavit which must amongst others, state the decisions appealed against, set out the grounds on which the appeal is based, list the affected persons and be accompanied by supporting documentation.
Upon receipt of the notice of appeal, but not less than 10 days thereafter, the Regional Manager must send copies of all records pertaining to the decision subject to the appeal to all identified affected persons and to the Director General or to the Minister, as the case may be.
Persons affected by the outcome of the appeal will have 30 days from the date of receipt of the appeal notice to submit to the Regional Manager and the appellant an answering affidavit, where after the appellant may submit an amended notice of appeal or a replying affidavit to any answering affidavit, within 30 days after having being served with the affected parties’ answering affidavit. The appellant must submit to the Director-General or to Minister the amended notice of appeal or replying affidavit as has been submitted to the Regional Manager together with proof of service of a copy thereof on the affected parties. The period for this submission is not set out in the Amendment Regulations.
The Regional Manager must, within 10 days of filing by the appellant of his replying affidavit or expiry of the 30-day period mentioned above, submit to the Director General or to the Minister, copies of the notice of appeal with all the required annexures, proof of service, all documents pertaining to the decision subject to the appeal, all answering affidavits received from third parties who may be affected by the outcome of the appeal, and any amended notice of appeal or any replying affidavit by the appellant.
The Director General or the Minister must, within 60 days of receipt of all information contemplated in this Regulation, either confirm the administrative decision concerned, set it aside with or without remittal or without directions of the matter for reconsideration, amend the administrative decision or substitute any other administrative decision for the decision concerned.
The Director-General or the Minister, as the case may, may upon application and on good cause shown condone and extend the time periods prescribed in Regulation 74.
Repeal of environmental regulations
The Amendment Regulations provide for the repeal of certain environmental regulations for mineral development, petroleum exploration and production (regulations 48 to 55, regulations 63 to 73), save for regulations 56, 57, 58, 59, 60, 61, and 62, which deal with mine closure and transfer of environmental liabilities.
Clarification amendments have been incorporated to the principles of mine closure to provide that:
- the risks pertaining to environmental impacts are to be quantified and managed proactively, in accordance with the provision of the National Environmental Management Act, 1998, (“NEMA”) the Financial Provision Regulations, 2015 (“Financial Provision Regulations”) and the EIA Regulations;
- the residual possible latent environmental impacts are to be identified and qualified in accordance with NEMA, the Financial Provision Regulations and the EIA Regulations; and
- the land is to be rehabilitated as far as practicable to its natural state, or to a predetermined and agreed standard or land use which conforms with the concept of sustainable development in accordance with the provisions of NEMA, the Financial Provision Regulations and the EIA Regulations.
In addition, the application for closure certificate must now be accompanied by a final performance assessment report contemplated in the EIA Regulations.
Regulation 58 has been amended to provide that the Minister may transfer liabilities and responsibilities identified in the environmental authorisation and the required closure plan to a competent person. Previously it was the responsibilities in the environmental management plan or environmental management programme that could be transferred. Consequential amendments have also been made to Regulation 59 which deals with the qualifications of the person to whom the responsibilities can be transferred to and Regulation 61 which deals with closure objectives.
Clarification amendments have also been incorporated to Regulation 61 to provide that amongst others, the objectives of a mine closure are:
- the identification of the key objectives for mine closure to guide project design, development and management of environmental impacts which must be in accordance with NEMA and the EIA Regulations and,
- to provide proposed closure costs in accordance with NEMA and the Financial Provision Regulations.