On 28 November 2019, the Minister of Mineral Resources and Energy (Minister) published
Draft Amendments to the Mineral and Petroleum Resources Development Regulations, 2019, for public comment (Draft Amendments).
The Draft Amendments envisage various amendments to the Mineral and Petroleum Resources Development Regulations (MPRDA Regulations) published under the Mineral and Petroleum Resources Development Act, No 28 of 2002 (MPRDA).
We set out below the most notable aspects of the Draft Amendments:
Consultation with Interested and affected Persons
Regulation 2 of the MPRDA Regulations sets out the requirements and manner of lodging of an application for any permission, right or permit made under the MPRDA. Prior to the Draft Amendments, regulation 3 of the MPRDA Regulations set out the steps required to be taken by the Regional Manager or designated agency to make known to
interested and affected persons that an application contemplated in regulation 2 was accepted by the Department of Mineral Resources and Energy (DME) and being considered for approval or rejection.
Regulation 3 determined that
interested and affected persons meant "a natural or juristic person or an association of persons with a direct interest in the proposed or existing operation or who may be affected by the proposed or existing operation". The Draft Amendments propose to expanded the definition of “interested and affected persons” to be set out in regulation 3 to include, but not to be limited to, specifically listed stakeholders which include: host communities, landowners (both traditional and title deed owners), traditional authorities, land claimants, lawful land occupiers, holders of informal rights, the Department of Agriculture, Land Reform and Rural Development, and any person (including on adjacent and non-adjacent properties) whose socio-economic conditions may be directly affected by the proposed prospecting or mining operation, the Local Municipality and the relevant Government Departments, agencies and institutions responsible for the various aspects of the environment and for infrastructure which may be affected by the proposed project.
The Draft Amendments also propose to add regulations obliging:
- an applicant under regulation 2 (application for any permission, right or permit made under the MPRDA ) to consult with landowners, lawful occupiers and interested and affected persons, as contemplated in sections 16(4)(b), 22(4)(b) and 27(5)(a) of the MPRDA, in accordance with the terms of the public participation process prescribed in Chapter 6 of the Environmental Impact Assessment Regulations, 2014 (EIA Regulations); and
- a holder of a reconnaissance permission, reconnaissance permit, mining permit, prospecting permit, and mining right to give at least 21 days written notice of his/her intention to commence with operations to the landowner or lawful occupier of the land, as well as the Regional Manager.
Social and Labour Plan
The Draft Amendments propose to amend regulation 41 of the MPRDA Regulations dealing with the "Objectives of the Social and Labour Plan", to now include the additional obligation on a mining right holder to ensure that its contribution to socio-economic development extends to
labour "sending areas" and not just to the areas in which it operates. With "labour sending" defined in the Draft Amendments to mean "areas from which a majority of mineworkers both historical and current, are or have been sourced".
The Draft Amendments further propose to amend regulation 42 of the MPRDA Regulations dealing with the "Submission of a Social and Labour Plan", to now include an obligation on a mining right holder to consult with communities and relevant structures on the contents of the Social and Labour Plan, within 180 days from the date of receiving notification of acceptance for a mining right from the Regional Manager, to ensure that it addresses the relevant needs of such communities and is aligned with the updated integrated development plans of such Relevant Structures.
In addition the above proposed amendments, the Draft Amendments propose to include important regulations on:
- the publication requirements relating to an approved Social and Labour Plan;
- the five yearly review of an approved Social and Labour Plan; and
- collaboration efforts related to approved Social and Labour Plans.
Environmental regulation for Mineral development, Petroleum Exploration and Production
The Draft Amendments propose to repeal almost all of the regulations which relate to environmental matters (being regulation 47 - regulation 73), however, excluding regulations 56 (Principles of mine closure), 57 (Application for mine closure), 61 (Closure objectives), and 62 (Contents of closure plan).
Proposed amendments to MPRDA Regulations relating to notices to Minister under section 52 of the MPRDA
Under section 52(1) of the MPRDA, a mining right holder must, after due consultation with the relevant and interested parties, notify the Minister where:
- prevailing economic conditions cause the profit to revenue ratio of a mine to be less than 6% on average for a continuous period of 12 months, or
- if any mining operation is to be scaled down or to cease with the possible effect that 10% or more of the workforce or more than 500 employees, whichever is the lesser, are likely to be retrenched in any 12-month period.
The Draft Amendments propose to amend the MPRDA Regulations to include a detailed procedure on submitting this notice in terms of section 52 of the MPRDA and further propose to include in the MPRDA regulations a detailed list of items required to be included in the notice to be sent to the Minister.
Pollution Control and Waste management regulation:
Under regulation 73 of the MPRDA Regulations dealing with the management of residue stockpiles and deposits, the Draft Amendments propose to include in the MPRDA Regulations the specific details to be included by an applicant in its application when applying for the approval of the Minister to use the surface of land in a way which may be contrary to the objects of the MPRDA.
Amendment of the regulations relating to appeals under section 96(1)(a) of the MPRDA
Regulation 74 of the MPRDA Regulations deals with appeals made in terms of section 96 of the MPRDA against administrative decisions taken by the relevant actors in the DME and sets out the procedures, requirements and applicable timelines relating to such appeals.
The Draft Amendments propose to make substantial and somewhat problematic changes to regulation 74 as contained in the MPRDA Regulations. In this regard, the most problematic amendments relate to:
- the timing of submission by a party of its written notice setting out its intention to appeal an administrative decision;
- the fact that the Draft Amendments seem to negligently leave out the discernment between appeals submitted pursuant to section 96(1)(a) of the MPRDA and appeals submitted in terms of section 96(1)(b) of the MPRDA and the fact that the Draft Amendments only seem to apply to appeals submitted pursuant to section 96(1)(a) of the MPRDA; and
- the replacement of the Director-General with the Minister as the party responsible to adjudicate appeals submitted pursuant to section 96(1)(a) of the MPRDA.
Important to note is that the Draft Amendments invite interested and affected parties to submit written representations to the DME within 30 days of publication of the Draft Amendments, thus being 20 business days with the last day for public comments falling on the 2nd of January, 2020 (with the 16th, 25th and 26th of December and the 1st of January all being public holidays).
A further aspect to take note of is that as the Draft Amendments are amendments to subordinate legislation (i.e. regulations published under the main Mineral and Petroleum Resources Development Act, 28 of 2002) an the Minister is thus not bound to make changes to the Draft Amendments based on the comments received. The Minister does, however, have a duty to take such public comments into account before publishing the final amendments to the Regulations.