Monday, August 20, 2007

Mining ministry to call legal shots

Mining ministry to call legal shots

Environment minister may lose power

August 20, 2007 Edition 1
Tony Carnie

THE mining ministry has thumbed its nose at South Africa's official environmental custodian, by declaring that it will now call the legal shots on all future environmental mining disputes.

The move has triggered fears that other government departments may attempt to follow suit and sideline the national environmental department by setting up their own in-house environment branches to approve anything from nuclear power stations to airports or major toll roads.

It has also heightened fears that final decisions to mine the Wild Coast and other ecologically sensitive areas will be handed exclusively to the Department of Minerals and Energy.

However, Speaker of Parliament Baleka Mbete has been asked to intervene urgently following attempts by the mining department to "smuggle" a controversial law amendment through parliament, which could exempt mining activity from safeguards in the National Environmental Management Act.

Durban environmental law specialist Jeremy Ridl said at the weekend he was becoming increasingly "uneasy" about the future of environmental protection laws in the light of several statements made by President Thabo Mbeki, Premier S'bu Ndebele and other senior ministers critical of environmental impact assessment laws.

Ridl said South Africa had enacted some of the best environmental laws in the world over the past 10 years, but he feared they might not be secure.

He sympathised with developers frustrated by bureaucratic delays in granting environmental approvals, but he also believed much of the criticism of environmental impact assessment legislation was overstated.

Ridl said pressure from the government and developers to "streamline" environmental regulation had resulted in messy and ambiguous changes rather than simpler laws.


As a result, the original environmental impact assessment laws had grown from about seven pages in 1997 to 53 pages in 2006, with another 83 pages of amendments published for comment earlier this year.

The overall result was unlikely to please either developers or environmentalists.

Ridl said it was difficult to judge whether proposed amendments to the Minerals and Petroleum Resources Development Act marked the start of a new process to strip power away from Environment Minister Marthinus van Schalkwyk.

However, it was a dangerous precedent to allow "rabbits to look after the lettuce patch", and if the mining department was given such powers on environmental issues, it was a very easy step to give the same powers to other departments.

In the case of the Wild Coast, where an Australian company hopes to mine coastal sand dunes south of Port Edward, environmental consultants have already made it clear that the final decision will be taken by officials in Minister Lindiwe Hendricks's Minerals and Energy Department, not Van Schalkwyk's department.

Late last week attorney Angela Andrews of the Legal Resources Centre wrote to Mbete to voice concern that recent amendments to the Minerals Act created "an entirely new approach" to environmental regulation in the mining industry.

While public hearings were held to discuss the amendments earlier this year, the most controversial changes were not included in draft copies circulated to the public.

Andrews said these amendments were added on June 20, after public hearings were concluded by the portfolio committee on minerals and energy. "Most worrying from a procedural point of view, this substantial change was effected midway through the parliamentary process . . . it was not included in the version of the Bill which the public was invited to comment on, and no public hearings have been held or comments received on this particular amendment," she said in a letter to Mbete and National Council of Provinces Chairman Johannes Mhlangu.

Andrews has urged Mbete and Mhlangu to allow the public to comment on the change, since it affected the legal authority of provinces as well as the fundamental mandate of the environment department.

"Our instructions are further to challenge the constitutional validity of the Bill on procedural and other grounds should it become necessary."


Mining is a listed activity under the newly revised environmental impact assessment regulations, but the mining and environment departments remain at loggerheads over who has final authority to regulate environmental issues when mining is involved.

The power struggle was clearly evident during a meeting of the minerals and energy portfolio committee on June 19.

Jacinto Rocha, the acting director-general of mining, was adamant that his department should be trusted to safeguard the environment during mining operations, though environmental watchdogs argue that it cannot act impartially as player and referee.

Rocha also disputed whether Van Schalkwyk's department had exclusive legal competence to deal with environmental matters. But with no resolution in sight, the environmental impact assessment process on the Wild Coast mining application is already under way.

The environmental consultants say public meetings will be held between now and September and they hope to conclude the environmental impact assessment report towards the end of October.

The public and other interest groups would get 30 days to comment and it was expected that a final decision would be taken by the mining department before February 22.

If the project is approved, as seems increasingly likely, the Wild Coast miners hope to process 15 million tons of sand a year and convert this into products such as paint pigments and glass television screens.

The mining operation would last for nearly a quarter of a century along a 22km-long stretch of coastline in Xolobeni, just south of the KwaZulu-Natal border at Port Edward.

The Wildlife and Environment Society has pointed to several similarities between the Xolobeni and Lake St Lucia dune-mining debates, but its members fear there will be less public debate because the Pondoland area is not as well-known as St Lucia.


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