Mineral & Petroleum Resources Amendment Bill [B15D-2013]: negotiating mandates

NCOP Land Reform, Environment, Mineral Resources and Energy

14 November 2017
Chairperson: Mr O Sefako (ANC; North West)
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Meeting Summary

The Committee received the provincial mandates on the MPRDA Bill (B15D-2013).

Eight provinces supported the Bill subject to amendments. The Western Cape asked for an extension and advised that it would submit its mandate to the Committee in due course.

The main concerns raised by the provinces centred on some policy aspects related to the Bill. These related to some of the definitions in the Bill, inadequate procedures, systems and processes, more clarity on concepts raised in the Bill and conflicts with other legislation and government policies. In addition, a  common thread running through the majority of comments, were that communities affected by mining had to have a stronger say on issues (in the MPRDA) that emanated from mining that occurred in their area. 

There were several definitions that required amendment and/or proposals of new ones, as suggested by the provinces - and were related to  “customary law, communal land, shale gas and mine gate price” amongst others.  Some of the systems, processes and procedures that needed to be updated were - the retention of the “first come first served principle” for exploration or mining right principles, arguments to retain PASA (Petroleum Agency of SA), concerns about DMR’s ability to ensure compliance with environmental laws, constitutionality of the Mining Charter and that the Bill afforded the Minister of Mineral Resources too much power. Some of the provisions in the Bill were unclear according to several provincial submissions - these included a policy position on the place of emerging miners and more detail on labour sending areas. The Bill appeared to be in conflict with the National Development Plan that called for less government involvement in business. There was also conflict between the MPRDA and NEMA (National Environment Management Act). Lastly, there were several instances where provinces made strong representation that the MPRDA Bill should have measures that allowed for greater and more effective involvement of communities living in mining areas - e.g.   new guidelines for community consent and rights prior to the commencement of mining activities. There also had to be specific conditions that enabled communities to be better informed on mining issues that affect them via Free Prior and Informed Consent (FPIC) and that the Ministerial Advisory Council had to include representatives from affected communities.

The Parliamentary advised that from a legal perspective the Committee had approached the MPRDA Bill in fair manner, especially in the light of the LAMOSA judgment.. Several policy issues had been raised by the provinces in their mandates which would require DMR to brief the Committee on these and other aspects, before the Committee could conclude its work.

DMR advised that they would study the proposals and provide the Committee with a response in due course. The Chairperson asked for response within 14 days , i.e. by 28 Nov 2017.

Meeting report

The Chairperson welcomed all to the meeting, especially the representatives from to the government entities assisting the Committee on the two Bills - the Department of Mineral Resources (DMR) and representatives from the parliamentary legal team.

Representatives from the Chamber of Mines, Oil and Gas Industry (Offshore Petroleum Association of SA - OPASA) and some of the legal firms involved in oil and gas (e.g. Norton Rose Fullbright and Bowmans) also attended. Other attendees were from the Free State Legislature, the Secretary of Portfolio Committee on Mineral Resources (National Assembly) and a representative from the Centre for Environmental Rights (CER).

Before commencing with the agenda, Mr C Smit (DA; Limpopo) wanted to know what the procedure was if there was no provincial delegate present to brief the Committee on mandates.

The Chairperson responded that the Committee Chairperson was then allowed to brief the Committee on the mandate, if a mandate was submitted to the Committee. He asked the state legal teams present to comment on the issue as well.

Dr H Mateme (ANC; Limpopo) wanted to know what the role was of the alternative delegate was when it came to voting.

Ms Shahida Bowers, NCOP Procedural Officer, responded that in terms of parliamentary rules, alternate members could stand in for permanent delegates. As an example, Mr J Parkies, as the alternate delegate for the Free State would be allowed to vote. 

The Chairperson proposed that Provincial mandates be presented alphabetically. The MPRDA Bill was an important piece of legislation and the entire country was interested in its outcome, as well as global investors.

Mr Smit commented that he had heard the Western Cape (WC) had asked for an extension to submit its mandate, and wanted to know if this privilege was given to other provinces as well. He was concerned that the Bill was being rushed through Parliament, adding that he even heard that the President was making calls to individuals to fast-track the Bill.

The Chairperson responded that the Committee could not comment on gossip. The Bill was of critical importance and it had to deal with issues of substance as was before them. The WC delegate could comment on the extension in due course. He had responded to the letter from the WC legislature (asking for extension), in his capacity as Chairperson of the Committee. 

Mr A Singh (Kwazulu Natal, ANC) said that he did not receive any phone calls from the President on the KZN mandate.

Ms E Prins (Western Cape, ANC) said that she had not received any letter or report from the province on its mandate.

The Chairperson said that the WC had sent a letter to him (as Chairperson of the Committee) asking for an extension to enable them to conduct more work, prior to finalising their mandate and that he had responded to the province.

Mr Smit said his views on the issue were based on “comments that had come to his ears” that provinces were being influenced to fast-track their mandates on the MPRDA. He wanted to know if the contents of the letter was available to members.

Ms Prins asked if the Committee legal support team present could give a view on the issue. 

The Chairperson said copies of the letters were available to members, but that he would not allow the meeting to be “held to ransom” on issues such as those raised by Mr Smit; he urged members to continue with the task at hand - the provincial MPRDA mandates. 

Ms Bowers commented that one province had requested an extension. As far as she knew the province was busy with additional public participation processes, as provinces are within their rights to conduct their own investigations on the Bill.

The Chairperson responded that all provinces had a constitutional right to conduct their own public participation (PP) process on the Bill. The NCOP could not force provinces to agree with the Committee’s report. Time had to be given to provinces to conclude their own work (as was the case in this instance for the WC).

The Chairperson proposed that the Committee proceeded with the agenda.

Mr Smit thanked the Chairperson for explaining the issue about the WC letter and said all he wanted was for an “open” engagement on Committee issues.

The Chairperson responded that all issues in the Committee were always “open”.

As the submissions were very substantial, the Committee agreed that the provincial mandates would merely be read out without any discussion on detail as contained in the written submissions to the Committee. It was decided that the detail in the reports would be discussed when DMR and Parliamentary Legal units briefed the Committee on the submissions emanating from the provinces, at a later date.

Eastern Cape (EC) Provincial Mandate
As there was no EC delegate present, the Chairperson briefed the Committee on the EC provincial mandate. The province supported the Bill but with substantial additional amendments. Some of the amendments raised by the EC were related to several new or improved definitions in the Bill - e.g. some of the new definitions proposed were for “customary law, communal land, directly affected communities, mine gate price and shale gas” amongst others. Some of the other amendments the EC proposed were as follows:
-A clause that stated it would be illegal to start any mining without community consent
-The retention of the “first come first served principle” for mining or exploration right applications as opposed to Ministerial discretion.
-That the current clause in the MPRDA on designated minerals for local mineral beneficiation could be deemed unconstitutional as it was at odds with exports and SA’s International Trade Agreements.

Free State (FS) Provincial Mandate
As there was no FS delegate present, the Chairperson briefed the Committee on the FS provincial mandate. The province supported the Bill but with substantial additional amendments. Some of the amendments related to new definitions to improve the Bill. These were similar to suggestions proposed by the EC. Some of the other amendments proposed were:
-To retain woman and children as a designated group
-That the Regional Mining Development and Environmental Committee (RMDEC) meetings had to be open to the public.
-That the province proposed new guidelines for community consent and rights prior to the commencement of mining activities.  
-That there had to be specific conditions that enabled communities to be better informed on mining issues that affect them via Free Prior and Informed Consent (FPIC)

Gauteng Provincial Mandate
Mr E Mlambo (Gauteng, ANC) briefed the Committee on the Gauteng provincial mandate. The province supported the Bill but with substantial additional amendments. Some of the amendments and concerns listed in the report to the Committee were:
-That Bill affords the Minister of Mineral Resources with too much power - e.g. he could designate which minerals were strategic which could be deemed as market interference.
-That the province felt that there were several clauses in the Bill which were inconsistent with the National Development Plan (NDP)
-That it felt that the Mining Charter was probably unconstitutional as it was the prerogative of the legislature (not the executive) to make laws.
-That the province expressed deep concern about the ability of DMR to police key issues in the Bill like compliance with water and the environmental laws related to mining and exploration. 

KwaZulu Natal (KZN) Provincial Mandate
Mr Singh briefed the Committee on the KZN provincial mandate. The province supported the Bill but with substantial additional amendments. Some of the amendments and concerns listed in the report to the Committee were:
-There were several suggestions to amend the section on definitions, e.g.  new definitions were proposed for “black persons, carried interests and corresponding mining right amongst others. In addition they proposed an amendment to the definition for “effective date”
-The province preferred that a designated agency (the Petroleum Agency of SA - PASA) be retained instead of its functions being transferred to a new regional institution.
-Suggested that an Upstream Petroleum Charter be developed (Broad Socio-Economic Empowerment Charter) for the Upstream Oil industry.
-Concerns with environmental liability as contained in the Bill.

Limpopo Provincial Mandate
Dr Mateme (Limpopo, ANC) briefed the Committee on the Limpopo provincial mandate. The province supported the Bill but with some additional amendments. Some of the amendments and concerns listed in the report to the Committee were:
-That there had to be proof of consolation with traditional leaders prior the awarding on mineral rights 
-That environmental and social and labour plans (of mining companies) had to made available to communities.
-That the Ministerial Advisory Council had to include representatives from affected communities.
-That the period for consultation during the Public Participation process had to be extended from 30 to 90 days.

At this stage Mr Smit commented that he was confused as he was advised that the Limpopo provincial legislature was only sitting today to discuss the mandate on the Plant Bills that the Committee discussed last week. He was concerned that perhaps this mandate on the MPRDA was also still in the process of being finalised by the province?

The Chairperson said that the Committee had received a proper mandate from Limpopo as was presented by the delegate.

Mr Asgar Bawa, Committee Secretary, said he had been in communication with all provinces on this issue. The mandates before the members, was what was sent to the Committee by the respective provincial legislatures. He also advised that he was not aware of the Plant Bills as raised by Mr Smit, as he had not been informed of this.

The Chairperson asked that the meeting continue with the provincial mandate briefings.
 
Mpumalanga Provincial Mandate
Mr A Nyambi (Mpumalanga, ANC) briefed the Committee on the Mpumalanga provincial mandate. The province supported the Bill but with substantial additional amendments. Some of the amendments and concerns listed in the report to the Committee were:
-It proposed changes to existing definitions and insertions of new definitions, e.g. “black persons and carried interest”
-The province proposed alternative ideas for state participation in mining activities.
-Provinces had to be consulted by DMR when mining rights were issued.
-The capacity of mining inspectors had to be strengthened. 

Northern Cape Provincial (NC) Mandate
As there was no NC delegate present, the Chairperson briefed the Committee on the NC provincial mandate. The province supported the Bill with a few amendments, these were:
-The Bill had to include more explicit measures to support emerging miners.
-Beneficiation on mines had to be maximised to support localised communities 
-To prevent the abuse of power, the Minister’s discretion had to be limited.
-Labour sending areas had to be defined in such a way that local communities surrounding mines benefited.
-Approval of mining rights had to done by the Minerals Resources Minister and the Provincial Government. 

North West Provincial Mandate
The Chairperson briefed the Committee on the NW provincial mandate. The province supported the Bill but with substantial additional amendments. Some of the amendments and concerns listed in the report to the Committee were:
-More clarity was need on some issues, e.g. “designated minerals, Historically Disadvantaged South Africans, mining area” - these required updated definitions to improve the understanding of the Bill. 
-The MPRDA appeared to be in conflict with NEMA (National Environmental Management Act  of 1998) and required alignment
-Community rights and participation in issues that affect them had to be strengthened in the Bill
-The province did not agree with the new organisational structure of the Regional Manager replacing existing structures.

Western Cape Provincial Mandate
Ms Prins advised the Committee that the WC had no mandate as yet. The province had requested more time to finalise its mandate and it would be submitted in due course.

Ms Mateme wanted to know by then when this would be.

The Chairperson responded that the WC had its own time frame and that it would submit its mandate in due course.

The Chairperson asked DMR and the parliamentary legal teams for their input on discussions thus far, especially DMR which had to provide the Committee with a response on the provincial inputs to the MPRDA.

Ms Sibongile, Malie, Director: Policy Development, DMR, advised that the Department could respond within a week.

The Chairperson responded that these were weighty issues and that he did not want the DMR to rush things, so suggested a response from them within 2 weeks, i.e. by 28 November 2017.

This was agreed to.

Ms Daksha Kassan, Parliamentary Legal Advisor, advised that from a legal perspective the Committee had approached the MPRDA Bill in fair manner, especially in the light of the LAMOSA judgment. She further commented that the provincial responses raised several policy issues on which DMR had to provide the Committee with a clear response. 

The Chairperson thanked DMR and the State and Parliamentary Legal Advisors for their input and they left the meeting.

Committee Minutes of 7 November 2017

The minutes were approved without amendments.

The meeting was adjourned.



 

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