LEGAL RESOURCES CENTRE
(LRC)
Mr Abe
Mngomezulu
Deputy
Director General: Mineral Policy and Investment Promotion
Department
of Minerals and Energy Affairs
Private Bag
X59
Dear Sir
PROPOSED
AMENDMENTS TO THE MINERALS AND PETROLEUM DEVELOPMENT ACT, 28 OF 2003
As you are
aware, the Legal Resources Centre, on behalf of various of our clients and
other interested parties, has engaged with the legislature and the Department
of Minerals and Energy Affairs (“the DME”) regarding the proposed amendments to
the Minerals and Petroleum Resources Development Act, 28 of 2002 (“the Act”) by
the Minerals and Petroleum Resources Development Amendment Bill, 10 of 2007
(“the Bill”).
This
process of engagement has thus far included inter
alia the following:
Making
written and oral submissions at public hearings held by the Parliamentary
Portfolio Committee on Minerals and Energy Affairs (“the Portfolio Committee”)
on 30 May 2007. These submissions included detailed proposals regarding
specific proposed changes to the Bill both in relation to issues affecting
communities (“the LRC’s community submissions”) and environmental submissions
(“the LRC’s environmental submissions”);
Following the request by the Portfolio Committee on 30 May
2007 when they asked us to meet with the Department and we jointly undertook to
do so, a meeting took place with you and other officials of the
DME in order to discuss and try to incorporate or indicate the reasons for being unable to do the
LRC’s proposed changes to the Bill on 5 June 2007. A copy of the memorandum with our proposed changes that we handed
you at the time is marked are annexed hereto marked “A”; and a
copy of our notes of our meeting of
Attending a
meeting of the Parliamentary Portfolio Committee on Minerals and Energy Affairs
on
Attending a meeting of the Parliamentary Portfolio
Committee on Minerals and Energy Affairs on
“Environmental” Issues
We wish to
record our satisfaction that it appears from the latest draft bill that the DME
has seen fit to take into account the LRC’s proposals in relation to
environmental issues. We have, however, prepared a memorandum dealing with technical
aspects arising from the wording of the latest draft bill. It is annexed hereto
marked “C”.
“Community” Issues
It is with
concern and disappointment, however, that we note that a number of our
proposals in relation to the “community” issues have not been included in the
latest draft amendments. In particular we would like to draw your attention to
the following (“section” refers to sections in the Act):
Section 1, definition of “community”:
We note and welcome the amendment of the definition to
ensure consultation with “members or part of the community directly affected
by mining”.
By failing to extend the definition to include
communities as defined under the Restitution of Land Rights Act, 22 of 1994,
however, the draft Bill has failed to address one of the key issues raised by
the LRC, namely the position of those who are land claimants in respect of land
from which mining rights had either not been severed or land which is deemed to
be owned by one or more state official, such as the Minister of Land Affairs in
the case of former homeland areas.
As we pointed out in our meeting, many of these
claimants do not currently live on the land (having been forcibly evicted
during the apartheid period) and it is therefore far from clear that they would
qualify as “communities” under the current proposed formulation. The result is
that until such time as the land claims process is complete and ownership has
in fact been transferred to them, they would seemingly not be afforded the
benefits of being a “community” in terms of the MPRDA.
Obviously, the exclusion of this category of people
from the definition of community has implications for many of the other
sections in the proposed draft, in particular for the LRC’s proposed
amendments.
We note that the DME’s response of 6 June 2007
contained no elaboration of the reasons for rejecting the LRC’s proposals in
this regard.
Section 2: “Objects of the Act”
The LRC
welcomes the acceptance the inclusion in section 2(d) of a
specific reference to the need to substantially and meaningfully expand the opportunities of
communities to benefit from the mining industry.
This section, however, is negatively impacted by the
exclusion of land claimants from the definition of community (discussed above).
Section 5(4)(c): consultation with communities
It is with
serious concern that we note that the objections raised by the LRC as well as
other interested parties regarding the amendment of section 5(4)(c) of the Act
(now included in a proposed new section 5A) have not been heeded. The removal
of the current section 5(4)(c) consultation requirement from the MPRDA would
perpetuate and accelerate the injustices described at the public hearings. The
repeal of the section leaves community landowners with no opportunity to
participate in decision-making in circumstances where new mining commences
after the conversion of an old order right (as opposed to the situation where
new order rights are granted for the first time, which requires community
consultation in terms of the requirements for a grant of new order rights).
We are
further concerned that the proposals made by the LRC in relation to amendments
to section 107 empowering the Minister to make regulations have not been taken
into account and that the DME has apparently failed to engage with our detailed
submissions regarding the content of consultations. It is hoped that the DME
will consider these submissions in the context of a review of the MPRDA
regulations. In addition, we submit that it would be appropriate for the DME to
take into account the contents of “Draft
National Policy Framework for Public Participation” which, we are advised, will
be submitted by the Department of Provincial and Local Government to Cabinet in
September 2007.
We note that the DME’s response of 6 June 2007
contained no elaboration of the reasons for rejecting the LRC’s arguments in
favour of retaining section 5(4)(c) and the detailed proposals in relation to
the content of consultations.
Section 12: Assistance to Historically Disadvantaged
Persons
While we were appraised of the DME’s concerns
regarding the proposed amendments to section 12(1) of the Act (i.e. that “the
Department cannot be both player and referee”), we note that no consideration
appears to have been given to the LRC’s proposed inclusion of subsection 12(4),
which requires annual reporting by the Minister to Parliament regarding the
content of the assistance provided.
Once again, we note that the DME’s response of 6 June
2007 contained no elaboration of the reasons for rejecting the LRC’s proposals
in this regard.
Sections
17(4A) and 23(2A): Conditions imposed in relation to Community participation
The LRC
welcomes the proposed inclusion of the new subsections 17(4A) and 23(2A) in the
Act (clauses 12 and 18, respectively).
The
effectiveness of these proposed amendments is, however, unfortunately affected
by the exclusion of land claimants from the definition of “community” in
section 1 (discussed above).
It is with
regret that we note that the DME has rejected the LRC’s proposed inclusion of a
new subsection stipulating that “[a] condition referred to in subsection ([2A])
shall be regarded as a provision contemplated section 33(e) of the Restitution
of Land Rights Act, Act no 22 of 1994”. Since this proposal was unfortunately
not dealt with in the DME’s response of 6 June 2007, we are unable to determine
the reasons for this.
Proposed
section 3(4): Preference for community applicants
We note
that, although the DME indicated at our meeting of 5 June 2007 that the LRC’s
proposed new section 3(4) (requiring preference for applications submitted on
behalf of historically disadvantaged persons and communities) would be
encapsulated in amendments to the “granting” sections (i.e. Sections 17, 23
etc), this has not found its way into the latest draft amendments.
Schedule
II, Item 2(d): Objects of Schedule II
In light of
the discussions held with the DME on 5 June 2007, the LRC is disappointed to
note that the proposed inclusion of sub-item (d) into Item 2 of schedule II has
apparently been rejected, as it is our understanding that this proposal was
accepted by the DME during our meeting.
Once again, we note that the DME’s response of 6 June
2007 contained no elaboration of the reasons for rejecting the LRC’s proposals
in this regard.
Schedule
II, Item 7(3A): Protection of interests of communities
The LRC
welcomes the proposed inclusion of the new sub-item (3A) in Item 7 of Schedule
II of the Act (clause 83).
Schedule
II, Item 14A: Conversion of “old order” rights of land claimants
Finally,
and most pressingly, we note that the LRC’s proposals in relation to the
protection of the old order rights of land claimant communities and those
living on land deemed to be owned by state officials have apparently been
ignored.
The LRC
continues to have serious concerns regarding the consequences of the
cancellation of unused old order rights (particularly those referred to in
category 1 of Table 3 of the Act). As a result of the interaction between the
incomplete Land Claims process under the Restitution of Land Rights Act and the
provisions of the MPRDA requiring conversion of unused old order rights within
one year of the promulgation of the MPRDA, it would seem that communities who
were forced off land will not be able to exercise the rights that other
landowners are entitled to.
This
important issue has the potential to result in serious injustice in the form of
structural perpetuation of past racial discrimination.
We should
note that the LRC’s concerns in this regard are by no means unique. The problem
referred to has also been identified by the Land Claims Commission (“the LCC”)
in its Annual Reports of March 1999 (at pages 27, 30), March 2002 (at page 10)
and March 2003 (page 8). We note that in the last-mentioned report, the LCC
stated that: “The Commission is pursuing discussions with the Department of
Mineral and Energy as well as Public Enterprise and hopes to reach an agreement
with them on the manner in which these claims can be resolved”. We would be
very interested to hear what progress, if any, has been made in relation to
these discussions.
The LRC
believes that an opportunity to hold further discussions with the DME may
clarify some of the reasons for decisions that have not been explained as
indicated above and regard such reasoning to be in keeping with the requests
made to us by the Portfolio Committee. We also request that we be kept fully
appraised of any further developments.
Yours
sincerely
Janet Love
National
Director
cc: Mr Nkosinathi
Mthethwa
Chairperson
National Assembly Portfolio Committee on Minerals and Energy
Affairs
P.O. Box 15 Cape Town 8000
Email: [email protected]
MINERALS AND PETROLEUM RESOURCES DEVELOPMENT AMENDMENT BILL
B10-2007
Comment on consequential amendments to the bill
To: The Honourable
Chairman
Portfolio Committee: Minerals and Energy
Parliament
From: Legal Resources Centre
Introduction 1. The portfolio committee requested the Department of
Minerals and Energy (DME) to discuss the various amendments proposed by the
Legal Resources Centre (LRC) to the MPRDA amendment bill with the LRC. In these
discussions the DME indicated that it agreed with the LRC comment on historic
pollution and with the need to strengthen the MPRDA to cover the various
categories of historic pollution mentioned in the LRC’s comment.
2. The purpose of this note is to assess whether the consequential amendments to
the MPRDA amendment bill now addresses the problems of pollution from historic mining
activity adequately. The reference to historic mining activity is a reference
to mining activity that ceased prior to the coming into force of the MPRDA.
The problem to be addressed
3. In our comment on the amendment bill we described in detail how the MPRDA
and the suggested amendments to the MPRDA did not include strong enough
provisions to ensure that mines that ceased mining activities prior to the
coming into force of the MPRDA could be held accountable for environmental
degradation and pollution and could be held liable for the environmental
management and final rehabilitation of those problems.
4. We presented full argument and proposed in our comment that the MPRDA should
be amended in such a way that the following categories of historic mining
activities are provided for in the provisions requiring environmental management
and rehabilitation:
4.1. activities that took place under the Mines and Works Act and ceased under
that act or under the Minerals Act;
4.2. activities that took place under the Minerals Act and ceased before the MPRDA
came into force;
4.3. old order rights that are not converted and that cease to exist.
The consequential amendments to the MPRDA amendment bill and further suggested
amendments
5. The consequential amendments are clearly aimed at including the three categories
of mining activities described above. We are concerned that in some instances
the consequential amendment may not be clear enough to in fact cover all
necessary instances and in other cases there may be confusion where certain
terms are not clearly defined. We deal with each section relevant to addressing
historic pollution in turn.
Section 38 of the MPRDA – Integrated environmental management and responsibility
to remedy
Clause 30 of the amendment bill
No consequential amendment
6. Even with the proposed amendment, section 38 of the MPRDA only applies
to holders as defined in the MPRDA. The duties created in this section should equally
apply to those mining activities where there is no holder with authorisations
issued or converted under the MPRDA.
7. We suggest that a definition be added to the MPRDA that will cover all of
the categories of historic pollution activities. Such a definition may be: “Previous
holder means - the holder of an old order right that has ceased to exist; - the
holder or owner or manager referred to in section 12 of the Minerals Act
- the owner or manager referred to in regulation 2.11 of the regulations under
the Mines and Works Act”.
8. We suggest that section 38 of the MPRDA should be amended to include reference
in subsection 1 to “previous holder” in addition to “holder” that is currently
referred to.
Section 39 of the MPRDA – Environmental authorisations
Clause 30 of the amendment bill
Consequential amendment p 16 – insertion of subsection 39(8)
9. The amended MPRDA will require all holders of authorisations under that
act to have an environmental management plan. In addition, environmental management
plans approved before the act came into force, will continue to exist. Some
historic mining activities that still cause pollution never had environmental
management plans and unless those operations are required to have an
environmental management plan, these operations are not
captured within the system of environmental management of the act.
10. We suggest the amendment of section 39 by the addition of the following subsection
(7):
(7) The Minister may require a previous holder to submit an environmental management
plan
11. The additional subsection 39(8) requires the updating of environmental requirements
from inter alia holders of old order rights. This is a welcome addition,
but does not cover all activities ceased under the Mines and Works act and may
not cover activities where old order rights ceased or cease in future to exist.
We suggest that the additional subsection 39(8) should also apply to “previous
holders” as defined above.
Section 41 of the MPRDA – Financial provision for remediation of
environmental damage
Clause 33 of the amendment bill
No consequential amendment
12. The MPRDA fails to require “previous holders” to make financial
provision for the management and rehabilitation of environmental problems. We
suggest amending the definition of “financial provision” by the insertion of
the words “previous holder” after the words “that applicants for or holders of
a right or permit...”
13. We suggest amending section 41 of the MPRDA by inserting a new subsection
(2): “(2) a previous holder must make the prescribed financial provision for
the rehabilitation and management of environmental impacts”.
Section 42 of the MPRDA – Management of residue stockpiles and residue deposits
Clause 35 of the amendment bill
Consequential amendment p 17 as well as consequential amendments of definitions
of “residue deposit” and “residue stockpile” p 4
14. To make the requirements for the management of residue deposits and residue
stockpiles effective, those deposits and stockpiles of “previous holders” must
be included. This can be done by requiring previous holders to have
environmental management plans as suggested above, and by amending the
definitions of “residue deposit” and “residue stockpile” to include reference
to “previous holder”. The amendment of the definitions suggested by the
consequential amendments are too limited in that “holder of old order right”
does not include previous holders of old order rights where the rights have
ceased to exist, or those referred to in regulation 2.11 under the Mines and
Works Act.
Section 43 of the MPRDA – Issuing of a closure certificate
Clause 37 of the amendment bill
Consequential amendments p 18 and 19
15. The suggested consequential amendments to subsection 1 and subsection 7
need to be improved. The consequential amendments to subsection 1 now include
reference to “previous holder of an old order right or previous owner of works
that has ceased to exist”. These references are confusing. The consequential
amendment suggests no definition for “previous holder of an old order right”
and this may create confusion. Neither the amendments, nor the MPRDA define “owner”
and reference to works that have ceased to “exist” is confusing and inelegantly
phrased – the works have ceased, but its footprint and impact still exist in
cases where there has not been closure and rehabilitation. We suggest that
these difficulties may be remedied by reference to “previous holder” as
suggested above and that this phrase should be properly defined in the act,
also as suggested.
16. The fact that there is no obligation on some categories of “previous holder”
to apply for closure, is a considerable problem in trying to deal with the environmental
impacts of historic mining activities. We suggest that the obligation to apply
for closure should also be imposed on previous holders. This may be done by
including reference to “previous holders” in subsection (3) so that it reads: “A
previous holder or the holder of a prospecting right, mining right, retention
permit or mining permit or the person contemplated in subsection (2), as the
case may be, must apply for a closure certificate upon –“.
17. Subsection 7 should be rephrased to refer to “previous holder” to align it
with other amendments so that the consequential amendment may read: “(7) A holder
of any permit or right granted under this Act [or any old order right granted
in terms of previous mineral law] or any previous holder must plan for,
manage and implement procedures and requirements on mine closure as prescribed.”
Section 46 of the MPRDA – Minister’s power to remedy environmental damage in
certain instances
Clause 39 of the amendment bill
Consequential amendment p 20
18. The consequential amendment now includes reference to “previous holders
of old order rights or previous owners of works”. There is no proposed
definition of “previous holders” or of “owners of works”. It is suggested that
the appropriate definitions be included, alternatively that our suggested
phrasing of “previous holders” with the accompanying suggested definition is substituted
for the consequential amendment.
Ellen Nicol
Legal Resources Centre
18 June 2007
THE AMENDMENTS
The proposed amendments are set out
below. The purpose of the suggested
amendments is to protect the interests of vulnerable communities in the manner
described above and to ensure that the interests of such communities are taken
into account in the allocation of prospecting and mining rights.
1 Definitions
“’community’
means a coherent, social group of
persons with interests or rights in a particular area of land
which the members have or exercise communally in terms of. an agreement, custom
or law;”
PROPOSED:
"community" means
(a)
a group of historically
disadvantaged persons with interests or rights in a particular area of land
which the members have or exercise communally in terms of an agreement, custom
or law: Provided that where as a consequence of the provisions of the Act
negotiations or consultations with a community are required, a community shall
include the members or part of the community directly affected by mining on
land occupied by such members or part of a community; or
(b)
a community as defined in the
Restitution of Land Rights Act, Act no 22 of 1994;
“2 Objects of the Act
The objects
of the Act are to -
...
(d) substantially and meaningfully expand
opportunities for historically disadvantaged persons, including women, to enter
into and actively participate in the mineral and petroleum industries and to benefit from the
exploitation of the nation's mineral and petroleum resources;”
PROPOSED:
“2
Objects of the Act
The objects of the Act are to -
...
(d) substantially and meaningfully
expand opportunities for historically disadvantaged persons, including women,
to enter into
and actively participate in the mineral and petroleum industries
and to benefit from the exploitation of the nation's mineral and petroleum
resources, and to
ensure that communities occupying land on which mining takes place participate
in the benefits which flow from the exploitation of the land;”
PROPOSED:
“3
Custodianship of nation's mineral and petroleum resources.
“3(1) Mineral and
petroleum resources are the common heritage of all the people of South Africa
and the State is the custodian thereof for the benefit of all South Africans.
(2)
As the custodian of the nation's mineral and petroleum resources, the State,
acting through the Minister, may
(a) grant, issue, refuse, control,
administer and manage any reconnaissance permission, prospecting right,
permission to remove, mining right, mining permit, retention permit, technical
co-operation permit, reconnaissance permit, exploration right and production right;
and
(c)
in
consultation with the Minister of Finance, determine and levy, any fee or
consideration payable in terms of any relevant Act of Parliament.
(3) The Minister must
ensure the sustainable development of South Africa's mineral and petroleum resources
within a framework of national environmental policy, norms and standards while
promoting economic and social development.”
PROPOSED:
additional subclause 4
“3 Custodianship of
nation's mineral and petroleum resources....
(4) Subject to the
provisions of this Act, when considering the granting of a prospecting or
mining right, preference must be given to historically disadvantaged persons,
and in particular to communities and members of communities occupying land in
respect of which the right is sought.”
“Assistance to historically disadvantaged persons
PROPOSED:
“Assistance to historically
disadvantaged persons
(4) The
Minister shall report annually to Parliament on the assistance provided under
this section. ”
17. Granting and
duration of prospecting right (proposed new subclause)
PROPOSED:
“(7) If
the application relates to land occupied by a community or claimed in terms the
Restitution of Land Rights Act, Act no 22 of 1994, the Minister may impose
conditions as are necessary to promote the rights and interests of the
community or claimant, including conditions requiring the participation of the
community, claimant or their members in the exploitation of minerals, the
benefits from exploitation and the creation of work opportunities for such
members.”
23. Granting and
duration of mining right (proposed new subclauses)
PROPOSED:
“(7)
If the application relates to land occupied by a community or claimed in
terms the Restitution of Land Rights Act, Act no 22 of 1994, the Minister may
impose conditions as are necessary to promote the rights and interests of the
community or claimant, including conditions requiring the participation of the
community, claimant or their members in the exploitation of minerals, the
benefits from exploitation and the creation of work opportunities for such
members.
(8) A
condition referred to in subsection (6) shall be regarded as a provision
contemplated section 33(e) of the Restitution of Land Rights Act, Act no 22 of
1994”
“2. Objects of
Schedule [schedule II]
2. The objects of this Schedule are in addition to the
objects contemplated in section 2 of the
Act and are to
(a) ensure that
security of tenure is protected in respect of prospecting, exploration, mining
and production operations which are being undertaken;
(b) give the
holder of an old order right, and an 0P26 right an opportunity to comply with
this Act; and
(c) promote
equitable access to the nation's mineral and petroleum resources”
PROPOSED:
“2. Objects of
Schedule
The objects of
this Schedule are to -
Continuation of old order mining right proposed addition to subclause
2(k)
7(1)
Subject to subitems (2) and (8), any old order mining right in force
immediately before this Act took effect continues in force for a period not
exceeding five years from the date on which this Act took effect subject to the
terms and conditions under which it was granted or issued or was deemed to have
been granted or issued.
(2) A holder of an old order mining right must lodge the right for
conversion within the period referred to in subitem (1) at the office of the
Regional Manager in whose region the land in question is situated together
with:-
(3) The Minister must convert the old order mining right if the holder
of the old order mining right -
complies with the requirements of subitem (2);
PROPOSED
(insertion of a new clause):
“14. Old order rights of historically
disadvantaged communities
(1) The relevant time periods stipulated in this schedule
for the cessation of old order rights will not begin to run-
(a) in respect of any rights in land claimed in terms of
the Restitution of Land Rights Act 22 of 1994, prior to the finalisation of the
relevant restitution claim;
(b)
in respect of state owned
land, and in respect of any mineral rights that might be established on the basis
of customary law, for a period of 10 years from the date of implementation of
this amendment.
(2) The rights referred to in
section 6 of the Transformation of Certain Rural Areas Act 94 of 1998 will
continue to be regulated by section 6 of that Act, read in conjunction with the
provisions of this Act, insofar as they are not inconsistent with section 6.”
A consequential change is that section 6 of the
Transformation Act should be re-enacted.
PROPOSED:
Clause 4(d) of the Bill and the amendment of section 5(4) of
the MPRDA be deleted.
(4) No person may prospect for or remove, mine, conduct
technical co-operation operations,
reconnaissance operations, explore for and produce any mineral or petroleum or
commence with any work incidental thereto on any area without
(a) [] an
environmental authorisation;
(b) a
reconnaissance permission, prospecting right, permission to remove, mining right, mining permit, retention permit, technical
co-operation permit, reconnaissance permit, exploration right or production
right, as the case may he; and
(c) [notifying and consulting with] giving the
land owner or lawful occupier of the land in question at least 21 days
written notice.’’
SECTION 107 REGULATIONS
PROPOSED:
By the insertion in subsection (1) of the following
paragraphs after paragraph (jD):
(jE) steps
to be taken before any consultation in terms of the act occurs, and the
contents of any consultation report;
(jF) the
content of the report to Parliament envisaged under section 12.
by the addition after subsection (4) of the following
subsection:
(4) (a) Regulations
made in terms of subsection (1) must be tabled in
Parliament
after their publication in the Gazette.
Or alternatively, if the committee wants more oversight
(4) (a) Before
making any regulations under this Act, the Minister must—
(i) publish a notice in the relevant Gazette—
(aa) setting out the draft regulations; and
(bb) inviting written
comments to be submitted on the proposed regulations within a specified period
mentioned in the notice; and
(ii) consider all comments received
in accordance with paragraph (i) (bb)
(b) Minister
must, within 30 days after promulgating and publishing any regulations under
this Act, table the regulations in the National Assembly and the National
Council of Provinces, or if Parliament is then not in session, within 30 days
after the beginning of the next ensuing session of Parliament or the provincial
legislature.
(c) In considering
regulations— (a) tabled in the
National Assembly, a committee of the National Assembly must consider and
report to the National Assembly;
(b) tabled in the National Council of Provinces, a committee of the
National Council of Provinces must consider and report to the National Council
of Provinces whether the regulations—
(i) are consistent with the purposes of this Act; (ii) are within the powers conferred
by this Act; (iii) are consistent
with the Constitution; and (iv)
create offences and prescribe penalties for such offences that are appropriate
and acceptable.
(d) The National
Council of Provinces may by resolution reject the regulations within 30 days
after they have been tabled in the National Council of Provinces, and such
rejection must be referred to the National Assembly for consideration.
(e) The National Assembly, after considering any rejection
of a regulation by the National Council of Provinces, and may suspend its
disapproval for any period and on any conditions to allow the Minister to correct a defect.
(f) If the National
Assembly or provincial legislature disapproves of any regulation, the
regulation lapses, but without affecting—
(i) the validity of anything done in terms of the regulation
before it lapsed; or
(ii) a right or privilege acquired or an obligation
or liability incurred before it lapsed.
The
regulations dealing with consultation shall contain detailed provisions to
ensure that whenever a disadvantaged community is to be consulted
certain steps are to be taken including:
Consultation
requirements:
1
Steps relating to the identification of the
community or part thereof that will be materially affected by the mining
application: these may include, in preparation
for a meeting where a community/land rights holders’ resolution will be taken,
village or administrative area meetings must be held and presided over (or
witnessed by) an official; the purpose of these meetings is to facilitate the
adoption of community/land rights holders’ resolution and to appoint persons to
liaise on behalf of the community. Depending on the size of the area concerned,
one meeting may suffice.
2
In this gathering of preliminary information, it is
necessary that the background information and purpose of the meeting be
explained and the roles and responsibilities of the various parties clarified.
3
Initial Meeting With The Stakeholders: An initial meeting with all stakeholders’
groups should be undertaken to explain the purpose and the background to the
procedures and the desired outcomes (e.g. time frame, resolutions, legal
requirements, equitable involvement of women, benefits). Specific information
should be provided on the following:
·
The legal status of the land
·
The land rights and responsibilities of the
community.
·
The role of the various parties (Minister, rights
holders and mining investor/ developer).
·
Who has the right to participate in the proposed
meetings and the rules and conduct of those meetings including gender sensitivity.
·
It must be explained that whilst decisions regarding
land rights should generally be taken by those whose land rights are directly
affected by the decision, those affected must in turn have due regard to the
interests of the broader community of prospective rights holders and those with
reciprocal rights.
4
The community or land rights holders’ resolution
must reflect the following:
·
Identification of land for mining.
·
The kind of mining development proposed on the
identified land. The developer should present the details of the works
programme and the impact assessments or scoping reports. Impact assessments including social and
economic assessments should be designed in collaboration with the stakeholders
and if necessary they must be capacitated with experts of their choice to
advise them.
·
Administration of the benefits accruing from mining.
(The decision should be informed by information on the agency chosen to receive
the benefits on behalf of the community or land rights holders and the legal
arrangements, including lawyer’s trust accounts regulated by agency
agreements).
·
Distribution of benefits to be accrued.
(Specifically the meeting must reach agreement on a project, or list of
projects, to be funded from the benefits. This advance agreement is important
in order to ensure that the funds are disbursed in accordance with the wishes
of the community).
·
A decision on the compensation or alternative
accommodation of land rights holders whose rights are directly affected in the
selected area.
·
Role of structures (including local government and
traditional authority structures) which must be consulted or play a role in the
process of implementing the agreements reached.
5
The legality and validity of the lease / benefit sharing / equity / royalty agreement;
·
The nature of the agency agreement and the trust
arrangements for the administration of funds, taking into account the capacity
of the community;
·
That there is broad agreement among the community on
the distribution and use of benefits arising from the mining project.
Consultation
report:
6
Issues to be covered by the applicant or the
administrator in the consultation report to be made available to those
consulted for comment and, together with any comments, to be considered by the
minister before any new prospecting or mining right or converted prospecting or
mining right is issued by the minister that involves land occupied or used by a
disadvantaged community:
a)
Whether the community requested legal assistance, or
other expert assistance, to assess the consultation report or any impact report
which formed part of the consultation process, and if so, what arrangements
were made to provide such independent legal, or other expert, assistance;
b)
Is there a sub grouping of people with land rights
(including informal land rights) to this specific area? The nature of such
rights should be described. The determination of who precisely should be
included in the category ‘affected rights holders’ should lie with the rights
holders themselves. If, at any point, people assert that they are affected by
the proposed change or decision, then their views should be taken into account.
·
How will the proposed changes affect such rights?
For example will they receive compensation, alternative land?
·
How have the people directly affected been
consulted? Has the process been fair, inclusive and free from intimidation?
What has been their response? Do they agree to the proposed project? Do they
agree to the proposed compensation, alternatives, etc? In this regard, were
there viable options for them to consider and choose between?
c)
Is the area affected the shared property of the
bigger group, with no particular sub grouping having exclusive use rights? If
that is the case, which are the sub groupings with overlapping and shared rights
to the land at issue? Have all these sub groupings been consulted about the
proposed mining project?
d)
Does the proposed project potentially create new
rights and benefits (for example a housing scheme)? Who will get these new
rights and benefits? Will all members of the land-holding group have equal
access to the new scheme? If not, how will the beneficiaries be selected? Will
the beneficiaries have to contribute to the scheme in some way? If so, in which
way? Does this reflect a fair accommodation of the rights of the members of the
group which are affected by the proposed changes?
e)
How will the rights of women be affected?
f)
In assessing whether the decision represents the
views of the majority of rights holders the following factors should be
recorded:
·
If the decision was taken at a general meeting of
rights holders, was this the appropriate forum? Were all sectors and sub
groupings free and able to voice their concerns in such a meeting? Was it
necessary to hold separate meetings of affected stakeholders in order for
sections of the community to attend and express themselves effectively?
·
Was the notice of the meeting effective in ensuring
the presence of members of the landholding group at the meeting
·
How many people attended the meeting? Were
representatives of sub groupings particularly affected by the decision present
at the meeting? Were representatives of sub groupings of the wider group
present? (for example wards, committees, headmen) A list of the names and
status of people who attended in a representative capacity should be annexed.
·
In the event that there was not a consensus, record
the number of people who supported the decision as well as the number of people
who opposed it.
g)
The views of people who opposed the decision must be
recorded especially insofar as these are likely to be adversely affected by the
decision.
h)
If there are people who claim they were not notified
of the meeting or the purpose of the meeting, or that they were excluded from
meeting, this must be recorded.
i)
It must also be recorded whether the impact of the
proposed decision was clearly motivated to the meeting. In particular whether
there was a clear and accurate explanation of how existing land rights are
likely to be affected and who would benefit from the proposed changes.
j)
Were all those present afforded the opportunity to
participate effectively in the meeting and to speak without fear of
intimidation?
Environmental
Suggested additional amendments to
the MPRDA
1. To address the problems with
addressing historic pollution that are described above, we suggest further
additional amendments to the MPRDA. The
text below reflects the suggested text of the amended sections or items of the
MPRDA as published in the amendment bill and adds the suggested additional
amendments in italics.
Suggested
additional amendment of section 43 of Act 28 of 2002
2. By adding the words in italics to the suggested substituted
subsection (1):
“(1) The holder of a prospecting right, mining right,
retention right, [or] mining permit, or the previous holder of an unused old order right or of a old order
mining or prospecting right that has ceased to exist remains responsible
for any environmental liability, pollution, ecological degradation, the pumping
and treatment of extraneous water, and the management and sustainable closure
thereof, until the Minister has issued a closure certificate to the holder
concerned.”
Suggested
additional amendment of section 46 of Act 28 of 2002
3. By adding the words in italics to the suggested substituted
subsection (1):
“If the Minister establishes that the holder of a
reconnaissance permission, prospecting right, mining right, retention permit, [or] mining permit, or
an old order right that has ceased to exist, as the case may be, or his
or her successor in title, is deceased or cannot be traced or, in the case of a
juristic person, has ceased to exist, has been liquidated or cannot be traced,
the Minister may instruct the Regional Manager concerned to take the necessary
measures to prevent pollution or environmental degradation or to rehabilitate
dangerous occurrences or to make the area safe.”
Suggested
additional amendment of Item 10 of Schedule II of Act 28 of 2002
4. By adding the words in italics to the suggested inserted sub
item (4A):
“If no application for a certificate contemplated in section
12 of the Minerals Act or regulation 2.11
of the Mines and Works Act as the case may be has been made, the holder or the owner, or the manager referred to in that section or in that regulation [who] remains liable for complying with
the provisions of that Act or those
regulations and for complying with section 43(1) and must apply for a
closure certificate in terms of section 43.”
18 June
2007
Mr Abe
Mngomezulu
Deputy
Director General: Mineral Policy and Investment Promotion
Department
of Minerals and Energy Affairs
Private Bag
X59
Pretoria
0001
Dear Sir
PROPOSED
AMENDMENTS TO THE MINERALS AND PETROLEUM DEVELOPMENT ACT, 28 OF 2003
As you are
aware, the Legal Resources Centre, on behalf of various of our clients and
other interested parties, has engaged with the legislature and the Department
of Minerals and Energy Affairs (“the DME”) regarding the proposed amendments to
the Minerals and Petroleum Resources Development Act, 28 of 2002 (“the Act”) by
the Minerals and Petroleum Resources Development Amendment Bill, 10 of 2007
(“the Bill”).
This
process of engagement has thus far included inter
alia the following:
Making
written and oral submissions at public hearings held by the Parliamentary
Portfolio Committee on Minerals and Energy Affairs (“the Portfolio Committee”)
on 30 May 2007. These submissions included detailed proposals regarding
specific proposed changes to the Bill both in relation to issues affecting
communities (“the LRC’s community submissions”) and environmental submissions
(“the LRC’s environmental submissions”);
Following the request by the Portfolio Committee on 30 May
2007 when they asked us to meet with the Department and we jointly undertook to
do so, a meeting took place with you and other officials of the
DME in order to discuss and try to incorporate or indicate the reasons for being unable to do the
LRC’s proposed changes to the Bill on 5 June 2007. A copy of the memorandum with our proposed changes that we handed
you at the time is marked are annexed hereto marked “A”; and a
copy of our notes of our meeting of 5 June 2007 are annexed hereto marked “B”;
Attending a
meeting of the Parliamentary Portfolio Committee on Minerals and Energy Affairs
on 6 June 2007. At this meeting the DME was required to report back to the
Portfolio Committee on its response to the LRC’s proposals as well as to other
comments received during the pubic hearings. The DME distributed a 24-page
document entitled “Response to Issues and Concerns raised at the Public
Hearing”, which is referred to in what follows as “the DME’s response”;
Attending a meeting of the Parliamentary Portfolio
Committee on Minerals and Energy Affairs on 13 June 2007. At this meeting the
DME distributed a document setting out changes to the draft Bill (entitled
“Consequential Amendments to the MPRDA Bill, 2007”), the contents of which are
referred to in what follows as “the latest draft amendments”.
“Environmental” Issues
We wish to
record our satisfaction that it appears from the latest draft bill that the DME
has seen fit to take into account the LRC’s proposals in relation to
environmental issues. We have, however, prepared a memorandum dealing with technical
aspects arising from the wording of the latest draft bill. It is annexed hereto
marked “C”.
“Community” Issues
It is with
concern and disappointment, however, that we note that a number of our
proposals in relation to the “community” issues have not been included in the
latest draft amendments. In particular we would like to draw your attention to
the following (“section” refers to sections in the Act):
Section 1, definition of “community”:
We note and welcome the amendment of the definition to
ensure consultation with “members or part of the community directly affected
by mining”.
By failing to extend the definition to include
communities as defined under the Restitution of Land Rights Act, 22 of 1994,
however, the draft Bill has failed to address one of the key issues raised by
the LRC, namely the position of those who are land claimants in respect of land
from which mining rights had either not been severed or land which is deemed to
be owned by one or more state official, such as the Minister of Land Affairs in
the case of former homeland areas.
As we pointed out in our meeting, many of these
claimants do not currently live on the land (having been forcibly evicted
during the apartheid period) and it is therefore far from clear that they would
qualify as “communities” under the current proposed formulation. The result is
that until such time as the land claims process is complete and ownership has
in fact been transferred to them, they would seemingly not be afforded the
benefits of being a “community” in terms of the MPRDA.
Obviously, the exclusion of this category of people
from the definition of community has implications for many of the other
sections in the proposed draft, in particular for the LRC’s proposed
amendments.
We note that the DME’s response of 6 June 2007
contained no elaboration of the reasons for rejecting the LRC’s proposals in
this regard.
Section 2: “Objects of the Act”
The LRC
welcomes the acceptance the inclusion in section 2(d) of a
specific reference to the need to substantially and meaningfully expand the opportunities of
communities to benefit from the mining industry.
This section, however, is negatively impacted by the
exclusion of land claimants from the definition of community (discussed above).
Section 5(4)(c): consultation with communities
It is with
serious concern that we note that the objections raised by the LRC as well as
other interested parties regarding the amendment of section 5(4)(c) of the Act
(now included in a proposed new section 5A) have not been heeded. The removal
of the current section 5(4)(c) consultation requirement from the MPRDA would
perpetuate and accelerate the injustices described at the public hearings. The
repeal of the section leaves community landowners with no opportunity to
participate in decision-making in circumstances where new mining commences
after the conversion of an old order right (as opposed to the situation where
new order rights are granted for the first time, which requires community
consultation in terms of the requirements for a grant of new order rights).
We are
further concerned that the proposals made by the LRC in relation to amendments
to section 107 empowering the Minister to make regulations have not been taken
into account and that the DME has apparently failed to engage with our detailed
submissions regarding the content of consultations. It is hoped that the DME
will consider these submissions in the context of a review of the MPRDA
regulations. In addition, we submit that it would be appropriate for the DME to
take into account the contents of “Draft
National Policy Framework for Public Participation” which, we are advised, will
be submitted by the Department of Provincial and Local Government to Cabinet in
September 2007.
We note that the DME’s response of 6 June 2007
contained no elaboration of the reasons for rejecting the LRC’s arguments in
favour of retaining section 5(4)(c) and the detailed proposals in relation to
the content of consultations.
Section 12: Assistance to Historically Disadvantaged
Persons
While we were appraised of the DME’s concerns
regarding the proposed amendments to section 12(1) of the Act (i.e. that “the
Department cannot be both player and referee”), we note that no consideration
appears to have been given to the LRC’s proposed inclusion of subsection 12(4),
which requires annual reporting by the Minister to Parliament regarding the
content of the assistance provided.
Once again, we note that the DME’s response of 6 June
2007 contained no elaboration of the reasons for rejecting the LRC’s proposals
in this regard.
Sections
17(4A) and 23(2A): Conditions imposed in relation to Community participation
The LRC
welcomes the proposed inclusion of the new subsections 17(4A) and 23(2A) in the
Act (clauses 12 and 18, respectively).
The
effectiveness of these proposed amendments is, however, unfortunately affected
by the exclusion of land claimants from the definition of “community” in
section 1 (discussed above).
It is with
regret that we note that the DME has rejected the LRC’s proposed inclusion of a
new subsection stipulating that “[a] condition referred to in subsection ([2A])
shall be regarded as a provision contemplated section 33(e) of the Restitution
of Land Rights Act, Act no 22 of 1994”. Since this proposal was unfortunately
not dealt with in the DME’s response of 6 June 2007, we are unable to determine
the reasons for this.
Proposed
section 3(4): Preference for community applicants
We note
that, although the DME indicated at our meeting of 5 June 2007 that the LRC’s
proposed new section 3(4) (requiring preference for applications submitted on
behalf of historically disadvantaged persons and communities) would be
encapsulated in amendments to the “granting” sections (i.e. Sections 17, 23
etc), this has not found its way into the latest draft amendments.
Schedule
II, Item 2(d): Objects of Schedule II
In light of
the discussions held with the DME on 5 June 2007, the LRC is disappointed to
note that the proposed inclusion of sub-item (d) into Item 2 of schedule II has
apparently been rejected, as it is our understanding that this proposal was
accepted by the DME during our meeting.
Once again, we note that the DME’s response of 6 June
2007 contained no elaboration of the reasons for rejecting the LRC’s proposals
in this regard.
Schedule
II, Item 7(3A): Protection of interests of communities
The LRC
welcomes the proposed inclusion of the new sub-item (3A) in Item 7 of Schedule
II of the Act (clause 83).
Schedule
II, Item 14A: Conversion of “old order” rights of land claimants
Finally,
and most pressingly, we note that the LRC’s proposals in relation to the
protection of the old order rights of land claimant communities and those
living on land deemed to be owned by state officials have apparently been
ignored.
The LRC
continues to have serious concerns regarding the consequences of the
cancellation of unused old order rights (particularly those referred to in
category 1 of Table 3 of the Act). As a result of the interaction between the
incomplete Land Claims process under the Restitution of Land Rights Act and the
provisions of the MPRDA requiring conversion of unused old order rights within
one year of the promulgation of the MPRDA, it would seem that communities who
were forced off land will not be able to exercise the rights that other
landowners are entitled to.
This
important issue has the potential to result in serious injustice in the form of
structural perpetuation of past racial discrimination.
We should
note that the LRC’s concerns in this regard are by no means unique. The problem
referred to has also been identified by the Land Claims Commission (“the LCC”)
in its Annual Reports of March 1999 (at pages 27, 30), March 2002 (at page 10)
and March 2003 (page 8). We note that in the last-mentioned report, the LCC
stated that: “The Commission is pursuing discussions with the Department of
Mineral and Energy as well as Public Enterprise and hopes to reach an agreement
with them on the manner in which these claims can be resolved”. We would be
very interested to hear what progress, if any, has been made in relation to
these discussions.
The LRC
believes that an opportunity to hold further discussions with the DME may
clarify some of the reasons for decisions that have not been explained as
indicated above and regard such reasoning to be in keeping with the requests
made to us by the Portfolio Committee. We also request that we be kept fully
appraised of any further developments.
Yours
sincerely
Janet Love
National
Director
cc: Mr Nkosinathi
Mthethwa
Chairperson
National Assembly Portfolio Committee on Minerals and Energy
Affairs
P.O. Box 15 Cape Town 8000
Email: [email protected]
MINERALS AND PETROLEUM RESOURCES DEVELOPMENT AMENDMENT BILL
B10-2007
Comment on consequential amendments to the bill
To: The Honourable
Chairman
Portfolio Committee: Minerals and Energy
Parliament
From: Legal Resources Centre
Introduction 1. The portfolio committee requested the Department of
Minerals and Energy (DME) to discuss the various amendments proposed by the
Legal Resources Centre (LRC) to the MPRDA amendment bill with the LRC. In these
discussions the DME indicated that it agreed with the LRC comment on historic
pollution and with the need to strengthen the MPRDA to cover the various
categories of historic pollution mentioned in the LRC’s comment.
2. The purpose of this note is to assess whether the consequential amendments to
the MPRDA amendment bill now addresses the problems of pollution from historic mining
activity adequately. The reference to historic mining activity is a reference
to mining activity that ceased prior to the coming into force of the MPRDA.
The problem to be addressed
3. In our comment on the amendment bill we described in detail how the MPRDA
and the suggested amendments to the MPRDA did not include strong enough
provisions to ensure that mines that ceased mining activities prior to the
coming into force of the MPRDA could be held accountable for environmental
degradation and pollution and could be held liable for the environmental
management and final rehabilitation of those problems.
4. We presented full argument and proposed in our comment that the MPRDA should
be amended in such a way that the following categories of historic mining
activities are provided for in the provisions requiring environmental management
and rehabilitation:
4.1. activities that took place under the Mines and Works Act and ceased under
that act or under the Minerals Act;
4.2. activities that took place under the Minerals Act and ceased before the MPRDA
came into force;
4.3. old order rights that are not converted and that cease to exist.
The consequential amendments to the MPRDA amendment bill and further suggested
amendments
5. The consequential amendments are clearly aimed at including the three categories
of mining activities described above. We are concerned that in some instances
the consequential amendment may not be clear enough to in fact cover all
necessary instances and in other cases there may be confusion where certain
terms are not clearly defined. We deal with each section relevant to addressing
historic pollution in turn.
Section 38 of the MPRDA – Integrated environmental management and responsibility
to remedy
Clause 30 of the amendment bill
No consequential amendment
6. Even with the proposed amendment, section 38 of the MPRDA only applies
to holders as defined in the MPRDA. The duties created in this section should equally
apply to those mining activities where there is no holder with authorisations
issued or converted under the MPRDA.
7. We suggest that a definition be added to the MPRDA that will cover all of
the categories of historic pollution activities. Such a definition may be: “Previous
holder means - the holder of an old order right that has ceased to exist; - the
holder or owner or manager referred to in section 12 of the Minerals Act
- the owner or manager referred to in regulation 2.11 of the regulations under
the Mines and Works Act”.
8. We suggest that section 38 of the MPRDA should be amended to include reference
in subsection 1 to “previous holder” in addition to “holder” that is currently
referred to.
Section 39 of the MPRDA – Environmental authorisations
Clause 30 of the amendment bill
Consequential amendment p 16 – insertion of subsection 39(8)
9. The amended MPRDA will require all holders of authorisations under that
act to have an environmental management plan. In addition, environmental management
plans approved before the act came into force, will continue to exist. Some
historic mining activities that still cause pollution never had environmental
management plans and unless those operations are required to have an
environmental management plan, these operations are not
captured within the system of environmental management of the act.
10. We suggest the amendment of section 39 by the addition of the following subsection
(7):
(7) The Minister may require a previous holder to submit an environmental management
plan
11. The additional subsection 39(8) requires the updating of environmental requirements
from inter alia holders of old order rights. This is a welcome addition,
but does not cover all activities ceased under the Mines and Works act and may
not cover activities where old order rights ceased or cease in future to exist.
We suggest that the additional subsection 39(8) should also apply to “previous
holders” as defined above.
Section 41 of the MPRDA – Financial provision for remediation of
environmental damage
Clause 33 of the amendment bill
No consequential amendment
12. The MPRDA fails to require “previous holders” to make financial
provision for the management and rehabilitation of environmental problems. We
suggest amending the definition of “financial provision” by the insertion of
the words “previous holder” after the words “that applicants for or holders of
a right or permit...”
13. We suggest amending section 41 of the MPRDA by inserting a new subsection
(2): “(2) a previous holder must make the prescribed financial provision for
the rehabilitation and management of environmental impacts”.
Section 42 of the MPRDA – Management of residue stockpiles and residue deposits
Clause 35 of the amendment bill
Consequential amendment p 17 as well as consequential amendments of definitions
of “residue deposit” and “residue stockpile” p 4
14. To make the requirements for the management of residue deposits and residue
stockpiles effective, those deposits and stockpiles of “previous holders” must
be included. This can be done by requiring previous holders to have
environmental management plans as suggested above, and by amending the
definitions of “residue deposit” and “residue stockpile” to include reference
to “previous holder”. The amendment of the definitions suggested by the
consequential amendments are too limited in that “holder of old order right”
does not include previous holders of old order rights where the rights have
ceased to exist, or those referred to in regulation 2.11 under the Mines and
Works Act.
Section 43 of the MPRDA – Issuing of a closure certificate
Clause 37 of the amendment bill
Consequential amendments p 18 and 19
15. The suggested consequential amendments to subsection 1 and subsection 7
need to be improved. The consequential amendments to subsection 1 now include
reference to “previous holder of an old order right or previous owner of works
that has ceased to exist”. These references are confusing. The consequential
amendment suggests no definition for “previous holder of an old order right”
and this may create confusion. Neither the amendments, nor the MPRDA define “owner”
and reference to works that have ceased to “exist” is confusing and inelegantly
phrased – the works have ceased, but its footprint and impact still exist in
cases where there has not been closure and rehabilitation. We suggest that
these difficulties may be remedied by reference to “previous holder” as
suggested above and that this phrase should be properly defined in the act,
also as suggested.
16. The fact that there is no obligation on some categories of “previous holder”
to apply for closure, is a considerable problem in trying to deal with the environmental
impacts of historic mining activities. We suggest that the obligation to apply
for closure should also be imposed on previous holders. This may be done by
including reference to “previous holders” in subsection (3) so that it reads: “A
previous holder or the holder of a prospecting right, mining right, retention
permit or mining permit or the person contemplated in subsection (2), as the
case may be, must apply for a closure certificate upon –“.
17. Subsection 7 should be rephrased to refer to “previous holder” to align it
with other amendments so that the consequential amendment may read: “(7) A holder
of any permit or right granted under this Act [or any old order right granted
in terms of previous mineral law] or any previous holder must plan for,
manage and implement procedures and requirements on mine closure as prescribed.”
Section 46 of the MPRDA – Minister’s power to remedy environmental damage in
certain instances
Clause 39 of the amendment bill
Consequential amendment p 20
18. The consequential amendment now includes reference to “previous holders
of old order rights or previous owners of works”. There is no proposed
definition of “previous holders” or of “owners of works”. It is suggested that
the appropriate definitions be included, alternatively that our suggested
phrasing of “previous holders” with the accompanying suggested definition is substituted
for the consequential amendment.
Ellen Nicol
Legal Resources Centre
18 June 2007
THE AMENDMENTS
The proposed amendments are set out
below. The purpose of the suggested
amendments is to protect the interests of vulnerable communities in the manner
described above and to ensure that the interests of such communities are taken
into account in the allocation of prospecting and mining rights.
1 Definitions
“’community’
means a coherent, social group of
persons with interests or rights in a particular area of land
which the members have or exercise communally in terms of. an agreement, custom
or law;”
PROPOSED:
"community" means
(d)
a group of historically
disadvantaged persons with interests or rights in a particular area of land
which the members have or exercise communally in terms of an agreement, custom
or law: Provided that where as a consequence of the provisions of the Act
negotiations or consultations with a community are required, a community shall
include the members or part of the community directly affected by mining on
land occupied by such members or part of a community; or
(e)
a community as defined in the
Restitution of Land Rights Act, Act no 22 of 1994;
“2 Objects of the Act
The objects
of the Act are to -
...
(d) substantially and meaningfully expand
opportunities for historically disadvantaged persons, including women, to enter
into and actively participate in the mineral and petroleum industries and to benefit from the
exploitation of the nation's mineral and petroleum resources;”
PROPOSED:
“2
Objects of the Act
The objects of the Act are to -
...
(d) substantially and meaningfully
expand opportunities for historically disadvantaged persons, including women,
to enter into
and actively participate in the mineral and petroleum industries
and to benefit from the exploitation of the nation's mineral and petroleum
resources, and to
ensure that communities occupying land on which mining takes place participate
in the benefits which flow from the exploitation of the land;”
PROPOSED:
“3
Custodianship of nation's mineral and petroleum resources.
“3(1) Mineral and
petroleum resources are the common heritage of all the people of South Africa
and the State is the custodian thereof for the benefit of all South Africans.
(2)
As the custodian of the nation's mineral and petroleum resources, the State,
acting through the Minister, may
(a) grant, issue, refuse, control,
administer and manage any reconnaissance permission, prospecting right,
permission to remove, mining right, mining permit, retention permit, technical
co-operation permit, reconnaissance permit, exploration right and production right;
and
(f)
in
consultation with the Minister of Finance, determine and levy, any fee or
consideration payable in terms of any relevant Act of Parliament.
(3) The Minister must
ensure the sustainable development of South Africa's mineral and petroleum resources
within a framework of national environmental policy, norms and standards while
promoting economic and social development.”
PROPOSED:
additional subclause 4
“3 Custodianship of
nation's mineral and petroleum resources....
(4) Subject to the
provisions of this Act, when considering the granting of a prospecting or
mining right, preference must be given to historically disadvantaged persons,
and in particular to communities and members of communities occupying land in
respect of which the right is sought.”
“Assistance to historically disadvantaged persons
PROPOSED:
“Assistance to historically
disadvantaged persons
(4) The
Minister shall report annually to Parliament on the assistance provided under
this section. ”
17. Granting and
duration of prospecting right (proposed new subclause)
PROPOSED:
“(7) If
the application relates to land occupied by a community or claimed in terms the
Restitution of Land Rights Act, Act no 22 of 1994, the Minister may impose
conditions as are necessary to promote the rights and interests of the
community or claimant, including conditions requiring the participation of the
community, claimant or their members in the exploitation of minerals, the
benefits from exploitation and the creation of work opportunities for such
members.”
23. Granting and
duration of mining right (proposed new subclauses)
PROPOSED:
“(7)
If the application relates to land occupied by a community or claimed in
terms the Restitution of Land Rights Act, Act no 22 of 1994, the Minister may
impose conditions as are necessary to promote the rights and interests of the
community or claimant, including conditions requiring the participation of the
community, claimant or their members in the exploitation of minerals, the
benefits from exploitation and the creation of work opportunities for such
members.
(8) A
condition referred to in subsection (6) shall be regarded as a provision
contemplated section 33(e) of the Restitution of Land Rights Act, Act no 22 of
1994”
“2. Objects of
Schedule [schedule II]
2. The objects of this Schedule are in addition to the
objects contemplated in section 2 of the
Act and are to
(a) ensure that
security of tenure is protected in respect of prospecting, exploration, mining
and production operations which are being undertaken;
(b) give the
holder of an old order right, and an 0P26 right an opportunity to comply with
this Act; and
(c) promote
equitable access to the nation's mineral and petroleum resources”
PROPOSED:
“2. Objects of
Schedule
The objects of
this Schedule are to -
Continuation of old order mining right proposed addition to subclause
2(k)
7(1)
Subject to subitems (2) and (8), any old order mining right in force
immediately before this Act took effect continues in force for a period not
exceeding five years from the date on which this Act took effect subject to the
terms and conditions under which it was granted or issued or was deemed to have
been granted or issued.
(2) A holder of an old order mining right must lodge the right for
conversion within the period referred to in subitem (1) at the office of the
Regional Manager in whose region the land in question is situated together
with:-
(3) The Minister must convert the old order mining right if the holder
of the old order mining right -
complies with the requirements of subitem (2);
PROPOSED
(insertion of a new clause):
“14. Old order rights of historically
disadvantaged communities
(2) The relevant time periods stipulated in this schedule
for the cessation of old order rights will not begin to run-
(a) in respect of any rights in land claimed in terms of
the Restitution of Land Rights Act 22 of 1994, prior to the finalisation of the
relevant restitution claim;
(b)
in respect of state owned
land, and in respect of any mineral rights that might be established on the basis
of customary law, for a period of 10 years from the date of implementation of
this amendment.
(2) The rights referred to in
section 6 of the Transformation of Certain Rural Areas Act 94 of 1998 will
continue to be regulated by section 6 of that Act, read in conjunction with the
provisions of this Act, insofar as they are not inconsistent with section 6.”
A consequential change is that section 6 of the
Transformation Act should be re-enacted.
PROPOSED:
Clause 4(d) of the Bill and the amendment of section 5(4) of
the MPRDA be deleted.
(4) No person may prospect for or remove, mine, conduct
technical co-operation operations,
reconnaissance operations, explore for and produce any mineral or petroleum or
commence with any work incidental thereto on any area without
(a) [] an
environmental authorisation;
(b) a
reconnaissance permission, prospecting right, permission to remove, mining right, mining permit, retention permit, technical
co-operation permit, reconnaissance permit, exploration right or production
right, as the case may he; and
(c) [notifying and consulting with] giving the
land owner or lawful occupier of the land in question at least 21 days
written notice.’’
SECTION 107 REGULATIONS
PROPOSED:
By the insertion in subsection (1) of the following
paragraphs after paragraph (jD):
(jE) steps
to be taken before any consultation in terms of the act occurs, and the
contents of any consultation report;
(jF) the
content of the report to Parliament envisaged under section 12.
by the addition after subsection (4) of the following
subsection:
(4) (a) Regulations
made in terms of subsection (1) must be tabled in
Parliament
after their publication in the Gazette.
Or alternatively, if the committee wants more oversight
(5) (a) Before
making any regulations under this Act, the Minister must—
(j) publish a notice in the relevant Gazette—
(aa) setting out the draft regulations; and
(bb) inviting written
comments to be submitted on the proposed regulations within a specified period
mentioned in the notice; and
(ii) consider all comments received
in accordance with paragraph (i) (bb)
(b) Minister
must, within 30 days after promulgating and publishing any regulations under
this Act, table the regulations in the National Assembly and the National
Council of Provinces, or if Parliament is then not in session, within 30 days
after the beginning of the next ensuing session of Parliament or the provincial
legislature.
(c) In considering
regulations— (a) tabled in the
National Assembly, a committee of the National Assembly must consider and
report to the National Assembly;
(b) tabled in the National Council of Provinces, a committee of the
National Council of Provinces must consider and report to the National Council
of Provinces whether the regulations—
(i) are consistent with the purposes of this Act; (ii) are within the powers conferred
by this Act; (iii) are consistent
with the Constitution; and (iv)
create offences and prescribe penalties for such offences that are appropriate
and acceptable.
(d) The National
Council of Provinces may by resolution reject the regulations within 30 days
after they have been tabled in the National Council of Provinces, and such
rejection must be referred to the National Assembly for consideration.
(e) The National Assembly, after considering any rejection
of a regulation by the National Council of Provinces, and may suspend its
disapproval for any period and on any conditions to allow the Minister to correct a defect.
(f) If the National
Assembly or provincial legislature disapproves of any regulation, the
regulation lapses, but without affecting—
(j) the validity of anything done in terms of the regulation
before it lapsed; or
(ii) a right or privilege acquired or an obligation
or liability incurred before it lapsed.
The
regulations dealing with consultation shall contain detailed provisions to
ensure that whenever a disadvantaged community is to be consulted
certain steps are to be taken including:
Consultation
requirements:
1
Steps relating to the identification of the
community or part thereof that will be materially affected by the mining
application: these may include, in preparation
for a meeting where a community/land rights holders’ resolution will be taken,
village or administrative area meetings must be held and presided over (or
witnessed by) an official; the purpose of these meetings is to facilitate the
adoption of community/land rights holders’ resolution and to appoint persons to
liaise on behalf of the community. Depending on the size of the area concerned,
one meeting may suffice.
2
In this gathering of preliminary information, it is
necessary that the background information and purpose of the meeting be
explained and the roles and responsibilities of the various parties clarified.
3
Initial Meeting With The Stakeholders: An initial meeting with all stakeholders’
groups should be undertaken to explain the purpose and the background to the
procedures and the desired outcomes (e.g. time frame, resolutions, legal
requirements, equitable involvement of women, benefits). Specific information
should be provided on the following:
·
The legal status of the land
·
The land rights and responsibilities of the
community.
·
The role of the various parties (Minister, rights
holders and mining investor/ developer).
·
Who has the right to participate in the proposed
meetings and the rules and conduct of those meetings including gender sensitivity.
·
It must be explained that whilst decisions regarding
land rights should generally be taken by those whose land rights are directly
affected by the decision, those affected must in turn have due regard to the
interests of the broader community of prospective rights holders and those with
reciprocal rights.
4
The community or land rights holders’ resolution
must reflect the following:
·
Identification of land for mining.
·
The kind of mining development proposed on the
identified land. The developer should present the details of the works
programme and the impact assessments or scoping reports. Impact assessments including social and
economic assessments should be designed in collaboration with the stakeholders
and if necessary they must be capacitated with experts of their choice to
advise them.
·
Administration of the benefits accruing from mining.
(The decision should be informed by information on the agency chosen to receive
the benefits on behalf of the community or land rights holders and the legal
arrangements, including lawyer’s trust accounts regulated by agency
agreements).
·
Distribution of benefits to be accrued.
(Specifically the meeting must reach agreement on a project, or list of
projects, to be funded from the benefits. This advance agreement is important
in order to ensure that the funds are disbursed in accordance with the wishes
of the community).
·
A decision on the compensation or alternative
accommodation of land rights holders whose rights are directly affected in the
selected area.
·
Role of structures (including local government and
traditional authority structures) which must be consulted or play a role in the
process of implementing the agreements reached.
5
The legality and validity of the lease / benefit sharing / equity / royalty agreement;
·
The nature of the agency agreement and the trust
arrangements for the administration of funds, taking into account the capacity
of the community;
·
That there is broad agreement among the community on
the distribution and use of benefits arising from the mining project.
Consultation
report:
6
Issues to be covered by the applicant or the
administrator in the consultation report to be made available to those
consulted for comment and, together with any comments, to be considered by the
minister before any new prospecting or mining right or converted prospecting or
mining right is issued by the minister that involves land occupied or used by a
disadvantaged community:
k)
Whether the community requested legal assistance, or
other expert assistance, to assess the consultation report or any impact report
which formed part of the consultation process, and if so, what arrangements
were made to provide such independent legal, or other expert, assistance;
l)
Is there a sub grouping of people with land rights
(including informal land rights) to this specific area? The nature of such
rights should be described. The determination of who precisely should be
included in the category ‘affected rights holders’ should lie with the rights
holders themselves. If, at any point, people assert that they are affected by
the proposed change or decision, then their views should be taken into account.
·
How will the proposed changes affect such rights?
For example will they receive compensation, alternative land?
·
How have the people directly affected been
consulted? Has the process been fair, inclusive and free from intimidation?
What has been their response? Do they agree to the proposed project? Do they
agree to the proposed compensation, alternatives, etc? In this regard, were
there viable options for them to consider and choose between?
m)
Is the area affected the shared property of the
bigger group, with no particular sub grouping having exclusive use rights? If
that is the case, which are the sub groupings with overlapping and shared rights
to the land at issue? Have all these sub groupings been consulted about the
proposed mining project?
n)
Does the proposed project potentially create new
rights and benefits (for example a housing scheme)? Who will get these new
rights and benefits? Will all members of the land-holding group have equal
access to the new scheme? If not, how will the beneficiaries be selected? Will
the beneficiaries have to contribute to the scheme in some way? If so, in which
way? Does this reflect a fair accommodation of the rights of the members of the
group which are affected by the proposed changes?
o)
How will the rights of women be affected?
p)
In assessing whether the decision represents the
views of the majority of rights holders the following factors should be
recorded:
·
If the decision was taken at a general meeting of
rights holders, was this the appropriate forum? Were all sectors and sub
groupings free and able to voice their concerns in such a meeting? Was it
necessary to hold separate meetings of affected stakeholders in order for
sections of the community to attend and express themselves effectively?
·
Was the notice of the meeting effective in ensuring
the presence of members of the landholding group at the meeting
·
How many people attended the meeting? Were
representatives of sub groupings particularly affected by the decision present
at the meeting? Were representatives of sub groupings of the wider group
present? (for example wards, committees, headmen) A list of the names and
status of people who attended in a representative capacity should be annexed.
·
In the event that there was not a consensus, record
the number of people who supported the decision as well as the number of people
who opposed it.
q)
The views of people who opposed the decision must be
recorded especially insofar as these are likely to be adversely affected by the
decision.
r)
If there are people who claim they were not notified
of the meeting or the purpose of the meeting, or that they were excluded from
meeting, this must be recorded.
s)
It must also be recorded whether the impact of the
proposed decision was clearly motivated to the meeting. In particular whether
there was a clear and accurate explanation of how existing land rights are
likely to be affected and who would benefit from the proposed changes.
t)
Were all those present afforded the opportunity to
participate effectively in the meeting and to speak without fear of
intimidation?
Environmental
Suggested additional amendments to
the MPRDA
5. To address the problems with
addressing historic pollution that are described above, we suggest further
additional amendments to the MPRDA. The
text below reflects the suggested text of the amended sections or items of the
MPRDA as published in the amendment bill and adds the suggested additional
amendments in italics.
Suggested
additional amendment of section 43 of Act 28 of 2002
6. By adding the words in italics to the suggested substituted
subsection (1):
“(1) The holder of a prospecting right, mining right,
retention right, [or] mining permit, or the previous holder of an unused old order right or of a old order
mining or prospecting right that has ceased to exist remains responsible
for any environmental liability, pollution, ecological degradation, the pumping
and treatment of extraneous water, and the management and sustainable closure
thereof, until the Minister has issued a closure certificate to the holder
concerned.”
Suggested
additional amendment of section 46 of Act 28 of 2002
7. By adding the words in italics to the suggested substituted
subsection (1):
“If the Minister establishes that the holder of a
reconnaissance permission, prospecting right, mining right, retention permit, [or] mining permit, or
an old order right that has ceased to exist, as the case may be, or his
or her successor in title, is deceased or cannot be traced or, in the case of a
juristic person, has ceased to exist, has been liquidated or cannot be traced,
the Minister may instruct the Regional Manager concerned to take the necessary
measures to prevent pollution or environmental degradation or to rehabilitate
dangerous occurrences or to make the area safe.”
Suggested
additional amendment of Item 10 of Schedule II of Act 28 of 2002
8. By adding the words in italics to the suggested inserted sub
item (4A):
“If no application for a certificate contemplated in section
12 of the Minerals Act or regulation 2.11
of the Mines and Works Act as the case may be has been made, the holder or the owner, or the manager referred to in that section or in that regulation [who] remains liable for complying with
the provisions of that Act or those
regulations and for complying with section 43(1) and must apply for a
closure certificate in terms of section 43.”