1         Introduction

The One Environmental System was introduced to integrate different aspects of the environmental management of mining activities into one efficient system. It originated from an agreement between the Department of Mineral Resources (DMR), Department of Environmental Affairs (DEA) and the Department of Water Affairs and Sanitation (DWS) and came into effect on 8 December 2014.

Why was there a need for integration? For many years, concerns had been raised about the environmental regulation of mining operations in South Africa. Investors considered the framework to be among the most convoluted and over-regulated, as it was regulated by various pieces of legislation, including the Mineral and Petroleum Resources Development Act[1] (MPRDA) and the National Environmental Management Act[2] (NEMA).

Before the One Environmental System came into effect, mining companies needed a number of authorisations and documents to carry out prospecting, exploration, mining and production activities. These included a NEMA Environmental Management Plan/Programme (EMP) and NEMA environmental authorisation from the DEA. In addition, they needed an MPRDA EMP and mining right from the DMR in terms of the MPRDA. The acquisition of an MPRDA EMP and mining right effectively constituted the environmental authorisation to conduct mining. Clearly, there was a duplication of processes, hence the introduction of the One Environmental System.

2         The One Environmental System

The One Environmental System is structured as such that provisions relating to the environmental management of mining are regulated by NEMA. All environmental provisions have been removed from the MPRDA. However, effect was not given to one of the major proposals made during the initial intra-departmental negotiations. It was initially envisioned that ultimately, the DMR would hand over all environmental enforcement duties to the DEA, but this did not happen. Some stakeholders are not pleased that the DMR retained its authority and argue that the department used its significant political and economic power to secure its position in this regard.

In terms of the new system, section 50A of NEMA provides the DEA with the power to set the regulatory framework for environmental management. The DMR is mandated with the implementation of the framework.[3] Whereas a MPRDA EMP is no longer required,[4] a mining company must now submit a NEMA EMP to the DMR to obtain environmental authorisation.[5] The DEA only serves as the appeal authority.[6] The One Environmental System furthermore provides for a timeframe of 300 days within which applications for environmental authorisations must be processed.[7]

3         Does the One Environmental System give rise to intra-governmental conflict of interest?

Mining companies praise the new system, since the previous system caused significant delays for mining operations, resulting in financial losses. Mining companies have alleged that the delays were caused by objections lodged by the DEA in terms of NEMA. It is believed that by synchronising the timelines, within which environmental authorisations must be processed, the new system brings with it regulatory certainty that will avoid delays and attract investment for the mining industry.

However, civil society, mining affected communities and environmental advocacy groups, such as the Centre for Environmental Rights have raised concerns about the One Environmental System. They argue that in consigning the environmental oversight function to a department that is mandated to promote minerals extractions, a conflict of interest has been created. The DMR’s aim is to contribute to development in South Africa through mineral resource exploitation, but it now effectively also has to promote the aim of the DEA, that is to balance the protection of the environment with socio-economic development.[8]

The tension between the DEA and the DMR in this regard is not new. In many instances, the mining industry and other economic role players have viewed sustainable development, as promoted by the DEA, as a restriction on economic growth. The One Environmental System was introduced to address this tension. The question is whether the One Environmental System will be successful in this regard. Environmental activists seem to argue that it will not, since the creation of the new system was propelled mainly by influential and powerful economic players in the mining and energy industry, and not the DEA.[9] The DEA is being treated as the “orphan department” as it does not hold the same economic and political advantage as the DMR.[10]

Environmentalists furthermore argue that the environmental management of mining will be compromised because the DMR lacks the expertise (and political will) to enforce compliance with environmental laws.[11]. Case law has shown how the DMR has been neglecting its enforcement duties.[12]

4         Conclusion

It is recommended that the professed conflict of interest can be managed by instating the DEA as enforcer of NEMA provisions at mines. The DEA already has better capacity to implement NEMA. It is not sensible to duplicate this capacity within the DMR. Furthermore, since the DEA is mandated to enforce the provisions of NEMA in every other sector, it should be the same for mining.

The retention of the enforcement function by the DMR perpetuates the preferential treatment of the mining industry. Since there currently is no indication that the situation will change, it may very well be that the One Environmental System in its current manifestation will not be able to protect the environment against the effects of mining.

Written by Shamila Mpinga.