Mining Appeals in One Environmental System; Rhino Horn draft regulations; with Minister

Meeting report

DEFF role in reviewing mining applications in One Environmental System
Ms Linda Garlipp, Chief Director of Law Reform and Appeals: Department of Environment, Forestry and Fisheries (DEFF), spoke about the DEFF role in reviewing mining applications since the inception of the One Environmental System with specific reference to appeals lodged against the mining or prospecting activities in ecologically sensitive areas, protected areas and watersheds.

The One Environmental System (OES) came into effect on 8 December 2014, simultaneously with the Environmental Impact Assessment Regulations and the National Appeal Regulations. This meant:
• Mining activities were subject to an environmental authorisation (EA) process in terms of NEMA;
• Minister of Mineral Resources was the competent authority (CA) to issue EAs and waste management licences (WML) under NEMA and NEMWA for mining activities
• Minister of Environment, Forestry and Fisheries prescribes the environmental regulatory framework for integrated environmental management
• Minister of Environment, Forestry and Fisheries was the appeal authority for appeals on mining related environmental authorisations.

Mining Appeals since OES inception of OES until 30 September 2019:
2014 - 2015: No mining appeals were administered;
2015 - 2016: 19 mining appeals were administered as at 31 March 2016;
2016 - 2017: 40 mining appeals were administered as at 31 March 2017 (7 current; 33 new);
2017 - 2018: 67 mining appeals were administered as at 31 March 2018 (6 current; 61 new);
2018 - 2019: 103 mining appeals were administered as at 31 March 2019 (24 current; 79 new);
1 April 2019 - 30 September 2019 (half year): 107 mining appeals (53 current; 54 new).

Mining Applications in ecologically sensitive areas, protected areas and watersheds
2015/2016 Department did not have any;
2016/2017 Department did not have any;
2017/2018 It had 1 mining appeal and 2 prospecting appeals: 1 in a sensitive areas and 2 in protected areas. 2018/2019 It Department had no mining appeals but 1 prospecting appeal in a protected area.
2019/2020 It had 2 mining and 6 prospecting appeals: 3 in sensitive, 5 in protected; 1 in watershed areas.

Discussion
Mr C Smith (DA, Limpopo) said that there were various cases where mining companies had been given prospecting rights in ecologically sensitive areas. One example was the Volspruit mine in Limpopo that was set up right on the riverside. The problem he had was that the community had to acquire funding themselves, and it was quite an expensive process, to appeal to stop the illegal mining process. The researcher who conducted the environmental impact assessment was appointed by a mining company. Mr Smith considered that a conflict of interest. On the border of the Kruger National Park a prospecting right has been given to mining companies. The prospecting rights were given between the Percy Fyfe Nature Reserve and the Witvinger Nature Reserve. People had applied for these two small nature reserves to be linked into one but now in the centre mining companies are prospecting for diamonds. He asked how can the Department ensure that the environment is protected? He acknowledged that the country needed economic growth but there needed to be a balance. There needs to be economic growth but it cannot be at the expense of the environment. How did the Department allow mining companies to prospect in areas with protected and engendered species? He raised concern about water scarcity. Mining used a lot of water to operate. How will the Department balance water use and mining through the OES?

Ms M Mokause (EFF, Northern Cape) asked from which provinces the mining appeals and prospecting queries come. From which areas in the provinces did the appeals originate? She asked DEFF’s intervention process in such appeals when it involved mining companies and local communities. The example of a town in the Northern Cape called Dingleton was given. There was a conflict between Kumba Iron Ore and the residents. The residents did not want to move as they felt the application process was not done properly.

Mr T Matibe (ANC, Mpumalanga) said that DEFF did not say how long it took to deal with the appeals. In border areas such as between Limpopo and Zimbabwe, on the one side was prospecting and on the other side was a protected area. It created a difficult situation. He asked what exact areas had made appeals so that one would be able to assist. There were some prospecting rights that were given before the regulations. What was DEFF doing to deal with that?

Ms W Ngwenya (ANC, Gauteng) asked if any constitutional challenges were encountered since the introduction of the OES? If yes, what were these challenges about? Were other countries using the OES? If so, were there lessons to be learnt from them? She came from Gauteng and there was pollution caused by mining. The mining dust caused sicknesses such as sinus infections and asthma. What was DEFF planning to do about the health challenges caused by dust and pollution from the mines in Gauteng?

Ms C Labuschagne (DA, Western Cape) said that the appeals to DEFF were increasing. It showed there was a need for DEFF to take a stand. She asked if these three mining companies were part of the mining applications in ecologically sensitive areas:  Kropz mining company next to the West Coast National Park, Fuleni mine bordering another national park and the Atha-Africa Ventures threatening the Mpumalanga watershed? She asked what the Minister thought of the viability of the OES in its current format?

Minister's response
Minister of Environmental Affairs, Forestry and Fisheries, Barbara Creecy, replied that she was the appeal authority. When an appeal comes to her she must be like a judge in that she must have an open and balanced mind. She needed to consider all the facts. It was her responsibility to come up with a fair decision to both parties. That was a function prescribed by law and she could not share those details with the Committee members. She would not be able to partake in conversations about who appealed and why they appealed. She could not have those discussions on specific cases. There was a separation of powers. DEFF would be able to tell the Committee about the timeframes and which provinces the appeals were in but she could not get into the merits of any cases. That would not be fair. She had to be neutral in applying the legislative and regulatory environment.

On the functioning of the OES, the Minister asked how do we improve the rules of the game? Why was there controversy over what is sensitive and not sensitive? DEFF received from the South African National Biodiversity Institute (SANBI) the 2018 National Biodiversity Assessment in October 2019. She asked Members to read that document on the SANBI website. The assessment details the state of the different ecosystems and which ecosystems are under threat the most threat and why. Mining was a factor, agriculture was a factor, and human settlement was a factor. What was of importance was how DEFF could use this document as a planning tool.

DEFF was working with the Presidency on the land use management frameworks. DEFF was also working together with Department of Water and Sanitation to look at which are the priority water sources in South Africa and how to deal with competing water usages. DEFF needs to be using this research tool as guide to protecting the environment and fresh water resources. Fifty percent of South Africa’s water come from a common set of water resources. The important question to ask when DEFF has a discussion with all the parties involved about the extension of the protected environment is would the water sources fall into that category? Everybody has to discuss that we all need water, South Africa is a water scarce country and how would the country move forward with the protection of water sources.

Different levels of government, who have the requisite regulatory authority, needed to declare certain areas as protected. Provincial governments and municipal governments operate certain areas as nature reserves or protected areas but have never implemented the required regulatory environment. That makes the situation difficult when somebody applies for a licence. The Department of Mineral Resources looks at these areas and checks whether they are protected. A protected area was a statutory concept. Then suddenly the relevant level of government wants to wake up and regulate but at that stage it is too late. DEFF has raised this concern with other levels of government repeatedly. They need to be more proactive when declaring an area protected. They cannot expect the Minister to come afterwards and ‘be God’. The Minister was bound by rules. The Committee members were from provinces and this was the discussion they needed to have with their Department of Environment in their provinces. What were they doing to ensure they were regulating what needed to be regulated? DEFF was in the process of gazetting for public comment dust regulations. Dust from a whole range of sources, including the wind, was a big problem in the country.

Director General response
DEFF Acting Director General, Mr Ishaam Abader, said DEFF was aware of the problem that some communities struggled to lodge appeals. DEFF attempted to appoint a university with the necessary capacity to look at communities that were trying to apply for an environment impact assessment but could not afford the process. DEFF would be looking at the appeals process to see how to improve it. The second option would be for those local communities to approach legal aid clinics for assistance in lodging an appeal.

On the person appointed to do environmental impact assessments, there was a potential for conflict of interest as that person was paid by the mining company. However, the integrity of the person doing the report needs to be factored in. If it was found that they had falsely reported, NEMA makes provisions for criminal sanctions to be made against that person. There had been a case where DEFF had criminally prosecuted an individual for providing DEFF with false information. There are two safeguards: the first was the personal and professional integrity of the person supplying the report and the second was the potential for being criminally prosecuted. To ensure the integrity of the report, Section 24H of NEMA deals with the registration of those reports so that the reports are not of an inferior quality.

On Mr Smith’s comment about diverting a river, those provisions on water courses were covered under the National Water Act. The environmental authorisations and the waste management licences as well as the mining and prospecting licences are issued by Department of Mineral Resources. The water use licence is issued by the Department of Water Affairs.

Mr Abader said he did not know of any other country in the world that had used or was using the OES. It was unique to South Africa. The issue was how DEFF balances development and protecting the environment? It would be a contradiction to hand over the environmental function to a mining department because that was not their core mandate. The compromise was that environmental appeals would be dealt with through the Minister of Environmental Affairs, who was the final decision maker. The first leg to that application would be the environmental issues around that application. If that does not succeed, the mining licences and other licences cannot be issued. The mining licence would not be issued without a report detailing the environmental issues and consequences of the mining project. If there was an environmental issue Department of Mineral Resources would be making the decision on that environmental issue but that decision needs to be made in terms of the legal framework. The statuary framework guides their decision making. If they deviate from that framework, the Minister Creecy would intervene as the appeal authority. The Minister decides where that appeal is going to and whether or not she agrees with the mitigation that was proposed. If they disagree with the Minister’s decision they have the ability to review the Minister’s appeal decision. Those were the safeguards that were built into the process.

Mr Abader said that DEFF would provide a list of the number of appeals in specific provinces. The details of the appeals would be submitted to the Committee in writing. The timeframe for the submission of appeals was usually ninety days. The appeals have increased which indicates that there has been an increase in the environmental impacts related to mining.

He replied to Mr Smith’s question about what DEFF was doing to protect the environment by stating that DEFF was in the process of amending the financial provisioning regulations. The essence of those regulations was to deal with mines and their legacy impact and to make financial provisions for rehabilitation. If a mine was operating, DEFF would look at what the mine was doing for the year and how they could rehabilitate for that year. DEFF then looks at an extended period and post-closure of the mine as well. How much financial provisioning was the mining company going to make available for rehabilitation of that specific area as a consequence of their mining?

Ms Labuschagne said the Minister referred to the National Biodiversity Assessment. If in the report, a certain environment was classified as needing to be protected and it was not protected yet, which sphere of government needs to take the lead in claiming protection of that area?

Mr A Cloete (FF+) asked if the Committee could receive a DEFF list of municipalities and provincial governments where there were problems. This would enable Members to go to specific municipalities and find out what the situation was.

Ms Ngwenya asked if other countries have implemented OES? An oversight study visit could be then be performed. She asked if other countries have had similar challenges to that of South Africa and if they have succeeded in solving those challenges. South Africa could learn from such a country.

Minister Creecy replied that all the countries in the world face the challenge of development versus environmental conservation and climate change. There was no country in the world that was engaged in economic development that does not face that challenge. It was a global problem. All countries resolve these environmental challenges in terms of their domestic concerns. There was no easy answer. DEFF was trying to bring greater rationality to the decision making process. Almost 40% of people in South Africa were looking for work in one way or another. Mining exports contributes 30% to South Africa’s foreign exchange. All of that indicates that this was a complicated matter that needed to be handled in a mature and responsible manner. DEFF understands that there are three million people in South Africa that are dependent on the agriculture sector for their livelihood. All of this indicates that there are competing interests. The role of Government is to balance those competing interests of the generation and future generations.

DEFF did not have a list of provinces or municipalities that have not regulated adequately. DEFF will only find out when it deals with the appeal. As far as the province or the municipality is concerned, this is a nature reserve but according to the mining companies there is no regulated evidence that it was a nature reserve. DEFF continually raises this problem with local government to ensure that they have regulated all areas that they regard as protected. Regulations around protection. The complexity around environmental law was that it was a concurrent, shared function by different spheres of government. The Constitution and Acts give very clear powers to municipalities and provinces.

It was important for Members to look at where the protected areas in their provinces were and where they think there should be more protected areas. What were they doing to bring that function to the attention of the relevant authorities? At national level there was the protected areas expansion strategy and that strategy was guidedby  an understanding of different kinds of biomes and ecosystems. It asks: ‘do we have representatives in our protected areas of all biomes and ecosystems and if we do not, can we expand so that we do that?’ Now that the National Biodiversity Assessment was released it has raised that fresh water ecosystems are under pressure. What will the implications of those findings be on the national protected areas expansion strategy?

Draft regulatory measures for trade in rhinoceros horn
Ms Magdel Boshoff, DEFF Deputy Director of Threatened or Protected Species Policy Development, presented the draft regulatory measures for trade in rhino horn – developed in terms of the National Environmental Management: Biodiversity Act (NEMBA) – for Committee to note them before implementation.

Background
The domestic trade in rhino horn was prohibited in February 2009 in line with CITES but the High Court in 2015 set aside the national moratorium on the domestic trade in rhino horn or any derivative thereof.

The challenges that arose were: Misuse of the permit system and laundering of illegally obtained rhino horn to export it legally for illegal international trade; Breaching of Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES); Inability to trace the origin of rhino horn of illegal origin; Demand for rhino horn for luxury goods  and in Asia for medicine. The main medicinal distribution channel is powder or chunks, which made it difficult to monitor and to detect illegal trade as it was easy to conceal. The intervention was to strengthen existing legislation and improve the traceability of rhino horn.

Existing legislation involved:
- Threatened or Protected Species (TOPS) Regulations, which apply to all listed species;
- Rhino Marking & Trophy Hunting Norms and Standards 2009, amended in 2012 and 2018; 
- CITES Regulations (regulating import, export and re-export of specimens of species)

To date, the following legislative have been addressed/strengthened:
- marking requirements;
- compulsory DNA collection and analysis;
- implementation of national database for the recording of markings, linked with a national auditing process;
- Minister to be issuing authority for all permits for selling / donating / buying / receiving of rhino horn.
The legislative gap yet to be addressed relates to specific areas / circumstances of trade.

Introduction
A permit is required in terms of NEMBA for the carrying out of any restricted activity involving rhino horn, regardless the size or form of such rhino horn. “Restricted activity” is defined in NEMBA, and includes activities such as possession, buying/ selling, hunting, killing, breeding, transporting, cutting off, etc.
The Rhino Norms and Standards require the compulsory marking of a rhino horn or a piece of rhino horn that is 5cm or longer in length, by means of a 10-digit microchip and a ZA serial number.

The draft regulatory measures on rhino horn trade include:
• Draft regulations aimed at regulating the lawful selling/ buying of rhino horn;
• Draft prohibitions, aimed at prohibiting certain activities involving rhino horn; and
• Draft listing notice, proposing the deletion of Eastern black rhinoceros from the list of invasive species, and the inclusion thereof in the list of threatened or protected species.

Calls for public comment were made in 2017 and 2018.

International trade in rhino horn for primarily commercial purposes remains prohibited by CITES.

Legislative Framework on Biodiversity
The Constitution is the highest authority which sets out environmental rights. The Constitution makes provision for the ratification of international agreements, like CITES. The legislative framework was also informed by the White Paper on Environmental Management. NEMBA was one of the specific environmental acts under NEMA. In terms of the Constitution, provinces or MECs have an equal mandate to make and implement nature conservation legislation. According to NEMBA, the Minister has the authority to make regulations, norms and standards, prohibit an activity that may negatively impact on the survival of a species and implement and publish a Biodiversity Management Plan.

Prohibitions
A person may not powder a rhino horn, or create slivers, drill bits, chips or similar derivatives, excluding under the following circumstances:
- during the insertion of a microchip or tracking device
- during the de-horning of a rhino
- when collecting a DNA sample of the horn
A person may not sell / donate / give / buy / receive or accept as donation / export / re-export, powdered rhino horn, or rhino horn smaller than 5 cm in length.
The prohibitions remain in place for a period of three years after the commencement of the notice, after which the Minister will assess and re-consider the prohibitions.

Regulations
Rhino horn may be sold only if it is 5cm or more in length. Requirements to obtain a selling permit:
- certified copy of the ID or similar document
- certified copy of the possession permit
- the rhino horn must be appropriately marked
- certified copy of the genetic profiling report
- photograph of suitable quality of each horn
- measurements (length along inner and outer curve, base circumference) and weight of each horn
- inspection by the relevant issuing authority
- recording of the information on the national database.

Prohibitions (imposed through the regulations):
- selling of rhino horn originating from other countries
- export of rhino horn through ports of exist other than OR Tambo International Airport

Requirements for online auctions:
- seller must have a selling permit at the time of bidding as the auction
- selling and buying permits must be valid for the date, or period, of the auction
- person who intends to bid at auction, must apply for buying permit at least 30 working days prior to auction.
- holder of buying permit must return permit within 5 working days of auction, if bid was not successful
- seller must provide DEFF with a list of registered bidders 48 hours prior to auction
- seller must provide DEFF with a list of successful bidders, within 5 working days of auction.

Other provisions:
- holder of selling permit may give proxy (in writing) to another person (excluding a foreign person) to sell the rhino horn (the same applies to buying)
- where a proxy applies, the seller/buyer, and the proxy holder, must be in possession of a permit
- holder of buying/selling permit must be present in the country at the time of buying/selling of a rhino horn
- seller remains responsible for safe-keeping until the possession permit of the buyer has been issued
- buyer  may not take possession of the rhino horn until possession permit has been issued
- certified copy of a document remains valid for six months after the validation of the document.

Listing notice
The Eastern black rhino is removed from the list of invasive species and is included in the list of protected species in terms of NEMBA. The implications are that all these regulations and prohibitions apply to Eastern black rhino. When the listing notice commences, the TOPS Regulations and the Rhino Norms and Standards will also apply to Eastern black rhino.

Ms Boshoff  asked the Select Committee to take note of the draft regulatory measures for domestic trade in rhino horn, developed in terms of NEMBA.

Discussion
Ms Labuschagne asked about the Animal Improvement Act passed in May that re-categorised wild life as farming stock. This included rhinos. Will these regulations still apply to someone who decides to farm rhinos?

Mr Cloete asked about the effect of these draft regulatory measures – was DEFF confident that provinces will still be able to make regulations specific to their provinces and that important authority would not be taken away from the provinces?

Ms Boshoff responded about the farming of animals according to the Animal Improvement Act. NEMBA and its regulations will apply alongside the Animal Improvement Act and its regulations. Provinces will still be able to make regulations according to their provincial ordinances. However, provinces have to be mindful of the constitutional requirement that all legislation needs to be aligned. When provinces do make regulations they need to ensure they are not in conflict with national legislation. NEMBA is not intended to take away the authority of provincial legislation.

Minister Creecy said that she understands that the Committee would like a little bit longer to consider the proposed regulations. She appealed to the Committee to understand that a policy vacuum exists and that these regulations were needed as soon as possible to combat the illegal trade of rhino horn.

The Chairperson thanked the Minister and her team. The minutes of the previous meeting was adopted and the meeting adjourned.