MPRDA Committee Report

Meeting report

A large delegation from government and the private sector attended the meeting. Ten of the 14 Committee Members were in attendance. There were representatives from the State Law Advisor, Mr Theo Hercules, as well as from the Parliamentary Legal Advisor, Ms Daksha Kassan. Ms Shahida Bowers, the National Council of Provinces (NCOP) procedural advisor was also present. The Department of Mineral Resources (DMR) was represented by Mr Sibusiso Kobese, Deputy Director: Mineral Policy and Development. The Chamber of Mines and members of the Offshore Petroleum Association of SA (OPASA) also attended, as well two non-governmental organisations (NGOs). the Legal Resources Centre and the Centre for Environmental Rights

The Chairperson welcomed all present and asked everyone, including members of the public to introduce themselves. He asked the Committee Content Advisor, Mr Kobus Jooste, to brief the Committee on the draft report 

Draft MPRDA report to the provinces

Mr Jooste briefed the Committee on the Mineral and Petroleum Resources Development Amendment (MPRDA) Bill, assisted by Ms Kassan on legal matters and Ms Bowers on NCOP procedural aspects.

He was at pains to explain that this was a draft report that had to be interrogated by Committee Members to ensure it fairly represented their views before it could be sent to the provinces for comment. He outlined the main points of the briefing.

He said the background to the issue landing with the Committee could be traced back to the Bill initially being approved in the Fourth Parliament at the National Assembly, with no involvement by the NCOP. It had subsequently been referred back to the NCOP late in 2016 by President Zuma, citing concerns about some constitutional matters and inadequate pubic consultation. The Committee had embarked on a comprehensive process to address the concerns raised, including its own public consultations. The Committee had consulted its parliamentary legal office and ensured alignment with NCOP procedures, to satisfy itself that the MPRDA report could be sent to provinces without creating any impression of imposing its will on the provinces or that it favoured any particular approach. It was merely communicating its findings to the provinces to enable better decision making.

The Committee Report contained information on the following issues that emanated from its investigations: constitutional challenges, the impact on other legislation, draft errors in the Bill, procedural challenges, proposed changes to the Bill (additions, deletions, insertions) and lastly, general comments about the Bill. 

When the Committee engaged the Department of Mineral Resources (DMR) on the above information and the suggested changes to address the concerns raised, it became clear that the DMR was intent on retaining its positions on these matters, as contained in its submissions. The Committee report therefore contained both definitions and clauses highlighted by the DMR that required amendment, and the other concerns that arose during the Committee’s investigations, notably its own public consultations.

Ms Kassan, Parliamentary legal advisor, briefed the Committee on concerns regarding drafting errors in the Bill, as well as constitutional and legislative concerns. These included technical errors, incomplete provisions (i.e. missing words), grammatical errors that required restatement to improve clarity, and some of the clauses that created legislative concerns. These had to be corrected to improve the Bill. A separate list containing all the drafting errors and legislative concerns (Annexure 2) formed part of the Committee report.

Some of the aspects she mentioned were:

• Technical errors - examples were that certain words were not underlined to indicate insertion, certain words deleted in the Bill were not reflected in bold to reflect deletion, and some words were written in plural in the Bill whereas in the Act they were singular;
• Incomplete provisions -- missing words -- that made it difficult to understand certain clauses, for example in clause 25, on page 20, where it said that “the Minister may issue a retention permit if …” were missing from the newly inserted section 32(1A);
• Some grammatical errors that made it difficult to understand certain clauses and required restatement of some sentences to provide more clarity. Some examples were where certain provisions in the Bill that did not follow on from the introductory sentences were found in cause 43 on page 27, where section 56(g) did not follow on from the introductory clause; another example was in clause 58 on page 33, in line 35, where the words “has complied with the” before the word “conditions” had to be inserted.
• There were also instances where some clauses required amendment to improve clarity. For example, the Bill had to refer the name of the Mining Charter correctly, as was the case in section 100 of the Act, or it had to provide a definition of the Charter in the Bill.
• Some provisions in the Bill were too vague to comply with the rule of law, and therefore unconstitutional because there was not absolute clarity regarding the policy intent being referred to. An example was clause 5 that amended section 9 of the Act, which had been read to be understood that it only included “applications via ministerial invitation” and that the principle of “first come, first served”, had been abandoned. However, the DMR had indicated that the intention of clause 5 incorporated both “first come, first served” and “applications via ministerial invitation”. This was not clear in clause 5.   
• Clause 8 did not provide clarity on what “interest” in a mining company meant -- was it shares or interest in mining assets or the business, and does it apply to the parent company or its subsidiaries? This needed to be clarified.
• Clause 31, which inserts a new subsection (1A) into section 43 on environmental liability, did not make it clear how the process of latent or residual liability would work once a closure certificated had been issued. The issue seemed to remain open ended.

Mr Jooste then resumed his briefing to the Committee, however some members wanted further clarity on the process going forward, so a discussion ensued. 

Discussion

Mr A Nyambi (ANC, Mpumalanga) wanted to know what the next steps for the Committee were. He said the Committee had engaged the DMR and had conducted its public participation process, so what were the next steps?

Ms Z Ncitha (ANC, Eastern Cape) said she had similar concerns. In addition, she wanted to know what the legal input to the process was so that the Committee would feel comfortable on its actions so far, and ensure that the report going to the provinces was aligned to Parliamentary procedures and addressed the concerns raised by the President.

The Committee Chairperson said this briefing by the Committee Content Advisor was not an attempt to “recreate the wheel,” but was part of the process and explained the way forward.

Mr Jooste clarified the issue by saying that this was a draft report, meaning the Committee could still amend it, and that it contained input from both the DMR and the public and could be sent to the provinces, once approved. The provinces would engage on the issues based on their own processes and systems, and provide the Committee with their mandates. The Committee was merely communicating its views to the provinces based on its own investigations, but was not dictating to provinces on any aspects of the MPRDA.

Mr Nyambi said he was still not sure what to do, or what the Committee had to do, going forward. He cited the LAMOSA (Land Access Movement of SA) case, where the courts had found there had not been enough consultation and engagement with the public. He did not want the Committee to commit the same error.

The Chairperson asked Ms Bowers, the NCOP Procedural Advisor, to provide some input and clarity on the matter.

Ms Bowers addressed the concerns raised, saying the Committee had adequately deliberated on the issue, and had compiled its report that was now in the process of being finalised prior to being sent to the provinces for their mandates. Engaging provinces on this issue was in order, but only to clarify and explain issues that the Committee had discovered in its investigations on the MPRDA. Provinces were under no obligation to accept any of the Committee’s views, advice and information, as they had to use their own judgment on the issue, but given the investigations the Committee had conducted on the MPRDA, its views were an important aspect for the provinces to consider in their mandates.

Mr Nyambi said he was in agreement and understood all these aspects, but the Committee had to be mindful of the views expressed by the President on public participation. He wanted to know how the Committee could link its report to the provinces to ensure this aspect was taken care of.

Ms C Labuschagne (DA, Western Cape) said she understood where Mr Nyambi was coming from, but felt that the Committee had complied. She said it was correct that there had not been adequate public consultation within NCOP and the provinces on the MPRDA, as referred to by President Zuma. However, the Committee had since had its public participation process to rectify this shortcoming. It had deliberated on the issue, and had compiled its report. The Committee could not prescribe to provinces - but this report to the provinces was based on extensive engagements with the public that had enabled the Committee to formulate its views as contained in the report, which would be sent on to provinces once approved.

Ms Kassan nodded in approval.

Ms Bowers elaborated on the matter further by saying that the Committee’s public participation process had been sufficient, and it had enriched the process. The concerns expressed by President Zuma in his referral of the Bill back to the NCOP had now been remedied. The Committee could now confidently explain the proposed amendments and aspects in its report, based on its own experiences.

The Chairperson wanted to know if Members were now satisfied with the responses to their queries to allow the Committee to decide on whether to accept the report and forward it to provinces. Did the Committee adopt the report, or did it require further discussion? He wanted to know what Members’ views were.

Mr Nyambi said he wanted all Committee Members to be on the same page, as this would facilitate decision making.  

Subordinate legislation and air quality management

Mr Jooste continued his briefing to the Committee on two other aspects -- subordinate legislation (regulations to provide clarity on some aspects of the Bill) and air quality management.

He said that according to comments received from the public, there were a number of clauses -- 2, 6, 8, 17, 21, 22, 29, 31, 33, 35, 40, 42 and 76 -- that required greater clarity. The DMR was not in agreement with this, as they believed the Bill was a “framework Act,” and that it could not contain the detail requested by some stakeholders. It believed that the subsequent regulations dealing with those sections would provide the clarity. Some of these were issues related to women and communities, the consultation process, beneficiation, ministerial application (dual system), transfer rights, environmental authorisation, strategic minerals and the timeline associated with rights and applications.

He said that constitutionally, Parliament was the national legislature and was not obliged to delegate subordinate legislation to the Department. In this regard, he proposed that the Committee had to retain the right to oversee the drafting of the regulations accompanying the Bill to ensure that the legitimate concerns raised by stakeholders during the public participation process, were addressed by DMR.

On air quality management, he proposed that the Committee had to find a mechanism to ensure that air quality had to be a prerequisite for the granting of a mining right, in the same manner as for water quality. He acknowledged that this could not be done in the MPRDA, and that it was probably better suited to reside in the legislative framework under the Department of Environmental Affairs (DEA).

Discussion

The Chairperson asked Members for their views on proceedings thus far. 

Ms Labuschagne thanked the Chairperson, Mr Jooste and the whole team that had assisted and provided input into the report. She said she understood the argument on air pollution, and wanted to know if it could not be included in the National Environment Management Act, as the Committee still had to be discuss amendments to the Act. She was in full agreement with the proposal that the MPRDA regulations had to be part of the Parliamentary processes.

Mr J Parkies (ANC, Free State) said that the MPRDA was a very tedious and rigorous piece of legislation. He said that the Committee had to ensure that it acted in the interests of the people, and that this mandate could not be compromised, so the Committee had to ensure that this Bill was aligned to this. If the MPRDA was not aligned to this, the Committee could not support it. He said that the Committee had to be firm on compliance. The private sector had to follow the laws of the country. Mining companies had to be help accountable for their social and labour plans. The regulations had to provide valuable input into the Bill. Lastly, he said he was clear on the air quality issue.

Mr Jooste responded that the requirement for air quality compliance had to be similar to the compliance for water quality.

Mr Parkies wanted to know in whose interests these requirements were.

The Chairperson said the disappearance of South Africa’s clear blue skies and the pollution of ground water was a serious concern and challenge to address, and that the Committee needed a legal perspective on the issue.

Mr Jooste said he could provide clarity on the issue and the concern raised by Mr Parkies. Air quality management was required in relation to anyone living in areas on or close to mines, where mining activity or mining products were transported. Dust and particulate matter often caused respiratory diseases, so this was aimed at protecting communities living on or near mines. 

Ms Ncitha said she supported the proposal made by Ms Labuschagne that the Committee acceptthe report to be sent to the provinces. This was not to force the provinces to agree with the Committee views - they merely had to use the Committee report to assist them in making up their own minds.

The Committee accepted the report as presented by Mr Jooste for forwarding to the provinces.

Approval of Committee Minutes 

The Committee minutes of 12 September 2017 were accepted and approved.

The Chairperson adjourned the meeting.