Amendments to NEMA, MPRDA, and NWA: Joint Presentation on Mine Environmental Management

1. NEMA / MPRDA AND NWA AMENDMENTS JOINT PRESENTATION ON MINE ENVIRONMENTAL MANAGEMENT 10 SEPTEMBER 2013

2. OUTLINE • List of Acronyms • Purpose of the presentation • Problem statement • Introduction and Background • Agreements • Earlier amendments • 2011 Agreement • Status Quo/ Differences • Inter-Departmental Project Implementation Committee (IPIC) • MPRDA Bill 2013 • NEMA Bill 2013

3. OUTLINE ...2 • Water Legislation • Sub-ordinate legislation • Joint initiatives by the three Departments • Capacity Implications for Implementation • Implementation date • Additional Amendments required in terms of NEMA

4. Outline 3 • Additional Amendments required in terms of NEM:WA • Additional Amendments required in terms of MPRDA • Concluding Remarks

5. LIST OF ACRONYMS • DEAT – Department of Environmental Affairs and Tourism • DEA – Department of Environmental Affairs • DME – Department of Minerals and Energy • DMR – Department of Mineral Resources • EA – Environmental Authorisation • E&T – Environmental Affairs and Tourism • EIA – Environmental Impact Assessment • M&E – Minerals and Energy • MPRDA – Minerals and Petroleum Resources Development Act

6. LIST OF ACRONYMS ...2 • NEMA – National Environmental Management Act • SEMA – Specific Environmental Management Act • GN – Government Notice • GG – Government Gazette

7. PURPOSE OF THE PRESENTATION • To inform the Portfolio Committee's on Water and Environmental Affairs and on Mineral Resources on: • the history that informed the National Environmental Management Laws Amendment Bill, 2013 and the Mineral and Petroleum Resources Development Amendment Bill, 2013, and • the content of the Bills as far as it relates to environmental matters and the progress made on subordinate legislation to date. • Report on the work of the three Departments, in line with the agreement on aligning the licensing systems for mine environmental management. • The combined approached in line with the work of the Interdepartmental Project Implementation Committee.

8. PROBLEM STATEMENT • Environmental aspects of exploration, prospecting, mining and production activities (mining activities) are currently regulated in terms of the MPRDA. • Mining activities currently require a mining permit, including an EMPR (DMR) a water use licence (DWA), and, for listed activities occurring in a mining area, an environmental authorisation and/or waste management licence, and/or air emission licence (DEA). Licences may also be required in terms of the ICM Act. • These laws have their own process and information requirements and there is currently a lack of integration.

9. INTRODUCTION AND BACKGROUND • During the 2002 – 2008 process of amending the Mineral and Petroleum Resources Development Act, an agreement was reached between the Ministers of DEA & DMR, which intended to: • Adopt an integrated mine environmental management system. • Align the MPRDA with NEMA. • The agreement included the: • Repeal of all the mine environmental management provisions, through the MPRD Amendment Act; • Transfer of MPRDA environmental provisions to NEMA to create a unified law and system covering environmental impact management; • Provision in NEMA for an 18 month window period for the implementation of the environmental provisions relating to mining, prospecting, exploration & production.

10. INTRODUCTION AND BACKGROUND • In principle, the 2008 agreement is as follow: • One system – prescribed by NEMA • Minister of M&E retain mandate as designated competent authority to implement environmental system related to mining and mining areas; • Minister of EA&T instated as appeal authority in mining related environmental authorisations – to enable the Minister responsible for the environment to exercise the function of custodian of the environment; • Transition from the MPRDA managed system to NEMA 18 months from the date where both the NEMA and MPRDA Amendment Bills are in force.

11. INTRODUCTION AND BACKGROUND ...2 • During March & April 2008, the agreement was considered and elaborated in various political fora before being submitted to a joint meeting of the then EA &T and M&E portfolio committees. • The agreement was adopted by the joint portfolio committees meeting with the following addition: - After 18 months of implementation, the environmental management function related to mining will, in its entirety, be transferred to the environmental authority.

12. INTRODUCTION AND BACKGROUND ...3 • In order to give effect to the agreement, the following legislative and regulatory changes were required: • In terms of “one system” • The MPRDA was amended by: • Repealing all provisions related to environmental management; • Making granting of prospecting / mining / reconnaissance applications subject to environmental authorisations (one of the granting conditions); • The NEMA was amended by: • Inclusion of environmental management provisions of the MPRDA currently not adequately covered by NEMA (e.g. financial provisions for rehabilitation; closure; etc.); • Allowing for alignment of processes; • Legislate timeframes for the review of environmental authorisations; • Result – environmental management regulated by NEMA only.

13. INTRODUCTION AND BACKGROUND ...4 • In terms of competent authority - NEMA was amended by: • Assigning competence to the Minister of Minerals and Energy for the implementation of the environmental management system (not to formulate environmental policy, regulations, guidelines and norms & standards). • Environmental management regulated by NEMA only but, for mining, implemented by DME. • In terms of appeal authority - NEMA was amended by: • Assigning the Minister of Environmental Affairs and Tourism as the appeal authority for all environmental authorisations that were issued for mining related activities by the Minister of Minerals and Energy. • In terms of transition • NEMA and MPRDA were amended to provide for transitional arrangements of an 18 month period. • Within NEMA, included a provision to transfer the Minister of M&E’s environmental authorisation competence to the Minister of EA&T within 3 years.

14. INTRODUCTION AND BACKGROUND ...5 • In terms of the EIA Regulations: • Inclusion of content requirements for Environmental Management Programmes and Plans; community consultation; etc (previously in MPRDA); • Listing of Mining (exploration, prospecting; mining, and associated activities in Mining areas) • Included in Basic Assessment and Scoping and Environmental Impact Report lists to 2010 EIA Regulations • Assigning Competent Authority as per NEMA provisions (section 24C) • Prescribe an Appeal process

15. LEGISLATION FLOWING FROM THE 2008 AGREEMENT • Legislative and Regulatory amendments to give effect to agreement were included in the: • National Environmental Management Amendment Act, 2008 (Act No. 62 of 2008) (came into effect on 1 May 2009) • Mineral and Petroleum Resources Development Amendment Act, (came into effect on7 June 2013) • Environmental Impact Assessment Regulations, 2010 (GN R543, GG 33306, came into effect on 18 June 2010) (Entered into force on 2 August 2010) • The activities lists in terms of section 24(2) of NEMA (GN R544, R 545, R546 – GG33306 of 18 June 2010. (Entered into force on 2 August 2010)

16. 2011 AGREEMENT • Ministers met again during 2011 to further discuss mining related matters and alignment of legislative requirements . • A workshop on the amendment of the legislation was held between the Departments of DEA, Water Affairs and Mineral Resources on 26 July 2011. • Resulted in an options report to the Ministers. • The Ministers preferred option 2: • The 2008 agreement without the final transfer of the function to Environmental Affairs • Added: Different authorisation processes resulting from the agreement must be preferably integrated, if not possible, aligned • Added: a last addition was to pay specific attention to mining in ecologically sensitive areas

17. INTER-DEPARTMENTAL PROJECT IMPLEMENTATION COMMITTEE (IPIC)

18. STATUS QUO / DIFFERENCES • The current agreement between the three Departments as reflected in the two Amendment Bills currently before Parliament differs from the 2008 agreement in the following respects: • The mining related environmental function will not be transferred to the Minister of DEA but implemented by the Minister of DMR in terms of the NEMA, but • The Minister of Environmental Affairs will remain the appeal authority for environmental mining activities; • The alignment of regulatory processes was added to the scope of the agreement; and • Provides for Mining restriction in ecologically sensitive areas

19. STATUS QUO / DIFFERENCES ...2 • Mining will be subjected to an Environmental Authorisation process (EIA in terms of NEMA) • This will replace the Environmental Management Plan or Programme (EMP or EMPR) process undertaken as a pre-condition for the Mining Permit or Right in terms of the MPRDA and the NEMA process for ancillary listed activities, • The NEMA process will be authorised by Minister of DMR (competent authority). • The Minister of DMR may appoint Mineral Resource Inspectors, with all the powers of an environmental management inspector to enforce environmental laws as far as it relates to mining. • The mining right and mining permit will follow the MPRDA authorisation process and are issued by Minister DMR. • The Environmental Authorisation and WUL processes would be triggered by the application for the mining right. • Therefore, processes will run in parallel to align and streamline the issuing of various decisions.

20. INTER-DEPARTMENTAL PROJECT IMPLEMENTATION COMMITTEE (IPIC) • The IPIC in March 2012 has been tasked to elaborate the technical detail of this agreement. To date the IPIC had 7 meetings. • The IPIC comprises reps from DMR, DEA (and provinces) and DWA; • Task teams have been established; • Appeals and Legislative Amendments TT, • Co-ordinated Timeframes TT, • Capacity TT, • Enforcement TT, • Joint Planning TT, and • Communication TT

21. INTER-DEPARTMENTAL PROJECT IMPLEMENTATION COMMITTEE (IPIC) ...2 • Appeals and Legislative Amendments TT –streamline Acts, regulations and appeals processes; • Enforcement TT – enforceability of legislation to ensure greater compliance; • Co-ordinated Timeframes TT – time frames and processes between the respective laws; • Capacity TT - capacity to ensure effective implementation; • Communication TT – developed a comprehensive communication strategy for the project; • Joint Planning TT – sharing and co-ordination of spatial information relating to mining, protected areas, world heritage sites and other areas of possible overlaps.

22. MPRDA BILL 2013 • In 2010, the “Strategy for Sustainable Growth and Meaningful Transformation of South Africa’s Mining Industry” was adopted; • The Strategy identified amongst others fragmented licensing mechanisms as one of the key binding constraints to the global competitiveness of the industry; • Consequently, Minister of Mineral Resources and Minister Water and Environmental Affairs agreed on modalities to streamline licensing requirements for mining. • This alignment process has been given effect to in the MPRDA Amendment and NEMA Amendment Bills which are currently before Parliament.

23. NEMA BILL 2013 • The main aim of NEMLA Bill is to ensure further alignment between the MPRDA, NEMA, NEMWA, the NEMA Amendment Act, 2008, the MPRDA Amendment Act, 2008 and also to reflect the further agreements reached between the Departments. • When considering the amendments, these pieces of legislation must be read together. • The NEMLA Bill is summarised as follows: • Minister of DMR is the competent authority to issue environmental authorisations on prospecting, mining, exploration or production activity (confined to the area for which the right has been applied for); • State Departments will have to provide comments within 30 days on applications for environmental authorisations as opposed to 40 days currently stated in NEMA;

24. NEMA BILL 2013 ...2 • The Minister of DMR is empowered to appoint Environmental Mineral Resources Inspectors for the compliance monitoring and enforcement of NEMA and NEMWA in relation to mining activities; • The amendments to the National Environmental Management: Waste Act, 2008 (Act. No. 59 of 2008) regulate the management and control of residue deposits and residue stock piles from an environmental perspective, to be implemented by the Minister of Mineral Resources. • The amendment to NEMAA provide for a transitional arrangement process on pending environmental related appeals lodged under the MPRDA to be finalised under that Act, and for appeals lodged after the commencement of the NEMLA Bill to be processed in terms of NEMA, as amended. • The repeal of section 13 and Schedule to NEMAA to clarify that the environmental management function in mining areas do not transfer the environmental function as far it relates to mining activities to the Department of Environmental Affairs after 36 months.

25. WATER LEGISLATION • No amendments are required to the National Water Act with respect to the licensing process. • There is a policy process currently under way at DWA. • Regulations have been drafted to allow the alignment of permitting systems. • The amendments in this regard, do not include timeframes or processes relating to appeals. • The NWA will require amendments to address amendments to the appeal process.

26. SUB-ORDINATE LEGISLATION / REGULATIONS • Existing environmental impact assessment regulations and listing notices require amendments to • The time frames as agreed to between the three Departments. • To indicate the Minister of DMR as the competent authority • Listed activities for mining • Appeal procedures and timeframes • The DEA has drafted the amendments. The amendments will be ready for public consultation within the next four months. The regulations need to be in force by 8 December 2014.

27. Proposed Process: S&EIR Process ito NEMA & ICM Act MPRDA Application Accepted Pre-application (Optional) EIR and EMPr Draft EIR & Draft EMPr Scoping Report Draft Scoping Report DMR Continues to process MPRDA application BEE Proposal Mine Health and Safety • Application WASTE PROCESS AEL PROCESS DWA PROCESS + 47 days 7 days : Acknowledge & accept or reject 30 days public participation 10 days for EAP to incorporate PP comments 42 days Review Committee 7 days: Acknowledge 35 days accept or reject 193 days 60 days 60 days 300 DAYS (Substantive) GENERAL AUTHORISATION OR NEMWA PROCESS GENERAL AUTHORISATION OR NEMAQA PROCESS GENERAL AUTHORISATION OR NWA PROCESS 30 days 30 days Public Participation 14 days 14 days to finalise Review Committee 250 DAYS (Non- substantive) No substantive changes to Draft Substantive changes to Draft DMR Finalises recommendation for MWP BEE MH&S 57 days if Non substantive 107 days if substantive 7 days Acknowledge 50 days PP if substantially Different form Draft 30 days Accept or Reject WASTE DECISION AEL DECISION WUL DECISION NEMA EA DECISION (20 Days after acceptance of EIR & EMPR) 20 days EA, WASTE, AEL and WUL decisions prerequisite for MPRDA decision ENVIRONMENTAL AUTHORISATION APPEAL FINALISED (60 – 90 days) APPEAL ON EA DECISION PREREQUISITE FOR MPRDA DECISION MPRDA DECISION

28. Proposed Process: BAR Process ito NEMA & ICM MPRDA Application Accepted Final BAR, including Final EMPr Draft Basic Assessment Pre-application (Optional) Draft EMPr • Application WASTE, AEL, DWA PROCESS DMR Continues to process MPRDA application BEE Proposal Mine Health and Safety + + 30 days 7 days : Acknowledge + 30 days public participation 90 DAYS 60 days 60 days GENERAL AUTHORISATION OR NWA PROCESS Review Committee DAYS (Non- substantive) 197 Days (Substrantive) No substantive changes to Draft Substantive changes to Draft 7 days Acknowledge 50 PP if substantially different from Draft 30 days Accept or Reject DMR Finalises recommendation for MWP BEE MH&S 57 days if Non substantive 107 days if substantive Waste, AEL, WUL DECISION NEMA EA DECISION (20 Days after acceptance of BAR) 20 days EA, Waste, AEL and WUL decision prerequisite for MPRDA decision ENVIRONMENTAL AUTHORISATION APPEAL FINALISED (60 -90 days) Appeal on EA decision prerequisite for MPRDA decision MPRDA DECISION

29. Participation in the Interdepartmental Project Implementation Committee (IPIC) on integrating the licensing systems • Joint inspections for compliance monitoring on NWA, MPRDA and NEMA • Development of the Mining and Biodiversity Guidelines • Consideration of mining and sensitive areas such as World Heritage Sites • Implementation of the Inter-Ministerial Committee (IMC) Report on Acid Mine Drainage (AMD) • Development of relevant regulations for effective implementation of integrated licensing system • Investigation of Consequences and Implications for the alignment of the licensing and regulatory systems and legislative amendments

30. CAPACITY IMPLICATIONS FOR IMPLEMENTATION

31. IMPLEMENTATION DATE • The Mineral Petroleum Resources Development Amendment Act, 2008 entered into force on 7 June 2013 and therefore the period of the first 18 month alluded to above already commenced. • The two Departments should therefore be ready to implement the legislation by 8 December 2014, which make the NEMLA amendment urgent as it is a section 76 Bill, while the MPRDA amendment Bill is a section 75 Bill. • To ensure that the authorisation processes associated with mining are aligned, all four acts (NWA, NEMA/ NEMWA and MPRDA) need to be amended and aligned. • The Department of Water Affairs drafted regulations to align the time frames for water use licences in line with the current agreement. The appeals process is different from those of the other two Departments and amendments to the National Water Act, 1998 is required to change the process.

32. Additional legislative amendment s required in terms of the NEMA

33. Additional legislative amendment s required in terms of the NEMA

34. Additional legislative amendment s required in terms of the NEMA

35. Additional legislative amendment s required in terms of the NEMA

36. Additional legislative amendment s required in terms of the NEMA

37. Additional legislative amendment s required in terms of the NEMA

38. Additional legislative amendment s required in terms of the NEMWA

39. Additional legislative amendments - NEMWA

40. Additional legislative amendments - NEMAQA

41. Additional legislative amendment s required in terms of the MPRDA

42. Additional legislative amendment s required in terms of the MPRDA

43. Additional legislative amendment as required in terms of the MPRDA

44. Additional legislative amendment as required in terms of the MPRDA

45. Additional legislative amendment as required in terms of the MPRDA

46. Additional legislative amendment as required in terms of the MPRDA

47. Additional legislative amendment as required in terms of the MPRDA

48. Additional legislative amendment as required in terms of the MPRDA, NEMLA and NWA (if applicable)

49. ADVANTAGES • Processes of applications of respective authorisations will run parallel instead of sequential – with sequential decision making. • Mining authorisation, water use licence and environmental authorisation will be issued within the allocation timeframes. • Another major benefit will be the promotion of compliance through providing and better coordinating the licensing systems. • Integrated environmental management promoted. • Potential to restrict mining in agreed sensitive areas.

50. CONCLUDING REMARKS • Legislative amendments have been effected to both the NEMA and the MPRDA. • Work in the different Task Teams of the IPIC is continuing. • The three Departments are putting together systems for effective implementation of the integrated permitting system • NEMA, NWA and the MPRDA amendment processes are being finalised for implementation of Option 2 of the Matrix. • Additional legislative amendments required in terms of DWA, DMR and DEA Acts.