Landowner consent requirement withdrawn for mining related EA applications

Welcome news for mining companies as the contentious landowner consent requirement introduced in June 2021 has now been withdrawn for mining related environmental authorisation or waste management licence applications.

With effect from 3 March 2022, consent is no longer required for environmental authorisation (EA) or waste management licence (WML) applications for mining related activities, where the EA/WML applicant is not the owner or person in control of the land intended for such activities. This consent requirement was introduced through a raft of amendments to the Environmental Impact Assessment Regulations (EIA Regulations) which were gazetted on 11 June 2021. The contentious requirement had resulted in several unintended consequences including the (in some cases indefinite) deferment of mining related EA/WML application submissions, in instances where landowner consent has been unreasonably withheld.

In response to the regulation 39(b) amendment, the Minerals Council South Africa (MCSA) launched a court application to review and set aside the introduction of the consent requirement. The MCSA also engaged the Department of Forestry, Fisheries and the Environment (DFFE) in parallel to the judicial proceedings, with the objective of seeking alignment on this impractical requirement. It is anticipated that the court proceedings will now be withdrawn.

The withdrawal of the consent requirement is a welcome development and aligns with the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), which together with the National Environmental Management Act 107 of 1998 and the EIA Regulations, provide a more than adequate stakeholder consultation framework. This regime is complemented by the internal remedy available under section 54 of the MPRDA in terms of which parties can agree on commercial terms relating to access to land, or as a last resort, request the Department of Mineral Resources and Energy to intervene, where access to land is unreasonably withheld.

The withdrawal is backdated so it is as if this consent requirement never existed. The Minister indicated that her reason for the withdrawal was because of lack of consultation, which seems to leave the door open for DFFE to try introduce this requirement again in future (this time not through the backdoor).


These materials are provided for general information purposes only and do not constitute legal or other professional advice. While every effort is made to update the information regularly and to offer the most current, correct and accurate information, we accept no liability or responsibility whatsoever if any information is, for whatever reason, incorrect, inaccurate or dated. We accept no responsibility for any loss or damage, whether direct, indirect or consequential, which may arise from access to or reliance on the information contained herein.

© Copyright Webber Wentzel. All Rights reserved.

Webber Wentzel > News > Landowner consent requirement withdrawn for mining related EA applications
Johannesburg +27 (0) 11 530 5000
Cape Town +27 (0) 21 431 7000
Validating email against database, please wait...
Validating email: please wait...
Email verified: Please click the confirmation link sent to your mailbox, also check junk/spam folder. If you no longer have access to this email address or haven't received the verification email then email
Email verified: You are being redirected to manage your subscription
Email could not be verified: Please wait while you are redirected to the Subscription Form
Unanticipated error: Saving your CRM information Subscription Form