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Analysis of Legislation and Policies of South Africa on Acid Mine Drainage

AMD is a multi-dimensional issue which is multi-scalar at the same time. Therefore, in order to determine the many challenges that law and governance face, from the South African perspective, Feris and Kotze (2014) are of the view that it is important to first understand some of the critical challenges associated with AMD. Two challenges were listed in this respect, namely (1) environmental challenges: this has been addressed extensively in several areas of this book, particularly, in Chapter 5, and (2) challenges for law and governance: this refers mainly to the insufficient legislation and regulatory practices that were in place several decades ago. Such legal frameworks were supposed to ensure proper rehabilitation of a substantial number of mines that have been left abandoned in South Africa after the completion of mining. In other words, prior to current legislations, numerous historical mining operations had been abandoned by their operators with little or no provision for the remediation of the impacts caused by mining (Deloitte, 2013). For example, prior to the promulgation of the current legislations, mining companies were bound only by the Water Act of 1956, which was insufficient in dealing with mine closures (Naidoo, 2017). Thus, historically, it was legally possible for mines that were no longer profitable to be boarded up and abandoned and the land transferred to the government (Mpofu et al., 2018). Confirmation of this is the Fanie Botha Accord of 1975 (Chamber of Mines). An agreement was reached between the Chamber of Mines and government, which stated that government would take over ownership of abandoned mines that existed before 1976 (Flynn and Chirwa, 2005).

The issue of abandoned and now ownerless mines is very problematic from legal perspective because it leads to a situation which shifts liability to the government as stated already, and ultimately taxpayers, who were not responsible for the pollution and who benefited less from the profits of the polluter(s). Several other challenges for law and governance also exist as discussed by Feris and Kotze (2014).

To start with, in addressing the issue of AMD in South Africa, it is important to note that the Constitution of the Republic of South is pivotal in safeguarding the environment, health and well-being of its people (Feris and Kotze, 2014). Furthermore, a number of statutory regulations are also vital in enforcing the objectives of the constitution. These two elements are discussed further in the subheadings that follow. Mpofu et al. (2018), however, argue that even within the framework of the latest environmental legislations, there is very limited regulation by government in real terms.

4.2.1.1 The Constitution of the Republic of South

Two subsections within Section 24 of the Constitution of the Republic of South Africa deal with the issue pertaining to the environment, whereas Section 27 deals with water matters. For example, subsection (a) of Section 24 calls for an environment that is not harmful to human health or well-being and subsection (b) requires that it is more important for the environment to be protected for the good of present and future generations. In the context of environmental protection, subsection (b) mandates the national government to establish appropriate legislative and other measures that are aimed at preventing pollution and ecological degradation, promote conservation and secure the ecologically sustainable development and utilisation of natural resources. Ecologically sustainable development is simply defined as "using, conserving and enhancing the community's resources so that ecological processes, on which life depends, are maintained, and the total quality of life, now and in the future, can be increased" (Australian Government, 1992).

Section 27 of the constitution provides a formal assurance of the right of access to sufficient water by every person. In this regard, the Water Services Act (WSA) of 1997 mandates the water services authorities to supply water- related services in a sustainable manner which implies that water is not only conserved, but water supplied to consumers is also acceptable for use (WSA, 1997). The aspect of providing water of an acceptable quality requires that local authorities also consider and address the impacts of AMD on its water services, sources and infrastructure when fulfilling its task of supplying water of good quality to its customers (Feris and Kotze, 2014). There is no doubt the ecological impacts of AMD also have various socio-economic effects on local authorities across South Africa as they grapple to give people water in sufficient quantity and an acceptable quality.

4.2.1.2 Statutory Frameworks That Regulate Pollution Caused by Acid Mine Drainage

In South Africa, mining activities are regulated by legislations from the mining, water and environmental divisions (Mpofu et al., 2018). However, according to Thomashausen et al. (2016), there are no specific regulations on AMD. Nevertheless, the provisions under National Water Act (NWA), Mineral and Petroleum Resources Development Act (MRPDA) and National Environmental Management Act (NEMA) on environmental damages may apply to AMD liabilities. In other words, the current environmental legislations relevant to AMD in South Africa includes NEMA, NWA and MRPDA. Therefore, in this subsection the statutory frameworks that may be used to regulate pollution caused by AMD are explored.

4.2.1.2.1 National Water Act

The South African NWA (Act 36 of 1998) provides a framework for the protection, use, development, conservation, management and control of water resources in the country as a whole (DWS, 2017). The NWA has been hailed by the international water community as one of the most progressive pieces of water legislation in the world and a major step forward in the translation of the concept of integrated water resources management (IWRM) into legislation (Schreiner, 2013). The act is premised on balancing the three legs of social benefit, economic efficiency and environmental sustainability and sets out the legal framework for the national government to protect, use, develop, conserve, manage and control water resources in the country (Schreiner,

2013). It also incorporates the principle of subsidiarity - management of water resources at the lowest appropriate level - through catchment-management agencies.

According to a study by Naidoo (2014), the NWA is the principal Act that governs water resource management in South Africa. The Act requires that pollution or degradation of the environment must be prevented or resolved. Furthermore, the NWA states that sustainability and equity are identified as central guiding principles in the protection, use, development, conservation, management and control of water resources (NWA, 1998). These principles recognise the basic human needs of present and future generations, the need to protect water resources, the need to promote social and economic development through the use of water and the need to establish suitable institutions in order to achieve the purpose of the Act (NWA, 1998).

The impact of the laws such as NWA and many others is manifested by aspects such as waste discharge costs and the polluter pays principle that have become important focuses of water management in the South African collieries (Postma and Schwab, 2002). Indeed, the "polluter pays" principle supports NWA and has direct implications for the mining industry which is closely related to AMD. The "polluter pays" principle stipulates that those who are responsible for producing, allowing or causing pollution should be held liable for the costs of clean-up and the legal enforcement (Cordato, 2001). For example, according to Postma and Schwab (2002), the implications of NWA that a mine be held responsible for its impact on water resources even after achieving certified formal mine closure from the Department of Minerals and Energy (DME) remain the basis for long-term water management employing a risk-based approach.

One important implementation instrument of the NWA is the Trans Caledon Tunnel Authority (TCTA). The TCTA is a state owned entity that has become directly involved with the AMD issue (Naidoo, 2014). It was established in terms of government Notice No. 2631 in the Government Gazette No. 10545 of December 1986. However, the 1986 notice has been replaced with Government Notice 277 in the Government Gazette No. 21017 of March 2000, which was circulated in terms of the NWA (TCTA,

2011). The TCTA's aim is to provide a sustainable water supply in the Southern African Region and is directly involved in South Africa's Lesotho Highlands Water Project. The TCTA also provides advisory support to the Department of Water Affairs and Forestry (DWAF) on the AMD project that has been implemented since 2010 (Naidoo, 2014).

4.2.1.2.2 National Environmental Management Act

The National Environmental Management Act No. 107 of 1998 serves as a general framework within which environmental management and implementation plans must be formulated. It serves as a guideline by reference to which any organ of state must exercise any function when taking any decisions in terms of NEMA or any statutory provision regarding the protection of the environment, and it serves as principles by reference to which a conciliator under NEMA must make recommendations and, lastly, guide any law concerned with protection or management of the environment (DWAF, 2008).

The NEMA contains certain principles that are applicable throughout the country by the actions of all organs of state that may affect the environment and applies together with all other appropriate and relevant considerations, which include the state's responsibility to respect, protect, promote and fulfil the social and economic rights in Chapter 2 of the Constitution of the Republic of South Africa (NWA, 1998).

The NEMA is administered by the Department of Environmental Affairs and Tourism (DEAT) and addresses AMD and mining impacts through statutory requirements for Environmental Impact Assessments (EIAs) and Environmental Management Programmes (EMPs) (Hobbs et al., 2008). It must also be noted that the National Environmental Management Amendment Act (No. 62 of 2008) and the NWA stipulate that a person(s) or party answer- able or responsible for any mining operation shall take all reasonable steps to prevent pollution or degradation from taking place (Mpofu et al., 2018). In other words, NEMA requires that pollution or degradation of the environment must be prevented or rectified. If the landowner or person responsible for the pollution fails to take the required action, DEAT may take legal actions and recover the costs from the polluter (Hobbs et al., 2008).

4.2.1.2.3 Mineral and Petroleum Resources Development Act

The Mineral and Petroleum Resources Development Act 28 of 2002 is intended (1) to make provision for equitable access to and sustainable development of the nation's mineral and petroleum resources; and (2) to provide for matters connected therewith (MPDRA, 2002). In terms of the MPRDA, the principles set out in Section 2 of NEMA apply to all prospecting and mining operations (Mpofu et al., 2018). This implies that any prospecting or mining operation must comply with generally accepted principles geared towards sustainable development by incorporating social, economic and environmental factors into the planning and implementation of such operations (Mpofu et al., 2018). It is recognised that NEMA and the MPRDA have laid down new obligations for the mining and other industries, which include the requirement to monitor and remediate pollution of water resources (NEMA, 1998; MPRDA, 2002). Modern South African law in general also recognises that rehabilitative management of mines needs to continue after extractive operations have ended and that planning for the mine closure phase should always be in place. Furthermore, Section 48 (l)(a) of the MPRDA states that closure objectives and how they relate to the mining operation and its environmental and social setting must be included in the EMP that is developed during the planning stages of the mining operations (MPDRA, 2002).

It is also important to note that after the promulgation of the Minerals Act of 1991, all operational mines are required to provide funds to enable environmental and social rehabilitation after mine closure (Deloitte, 2013). The MPRDA of 2002, which, together with General Notice Regulation 527 of 2004 and associated guidelines, provide a methodology which is allowing for the financial estimation of the closure quantum to be provided by the mine; and this estimation is revised annually to ensure sufficient provision of funds (Deloitte, 2013).

4.2.1.3 Summary

The South African Constitution is the supreme law of the land, and Section 24 entrenches a right to a clean environment whilst the Constitution also enshrines a right to clean water in Section 27. All mining activity regulation including licensing is regulated by the MPRDA. Water licensing occurs under the NWA. Environmental regulation is catered for by the NEMA. Indeed, there is no doubt that the impact of mining on the freshwater sources in the river systems of South Africa is of serious concern (Jacobs and Testa, 2014). Unfortunately, a number of studies, so far, have shown that the government's efforts to finally manage AMD problem are compromised by numerous issues that tend to shift the focus away from it (Mpofu et al., 2018). For example, environmental legislation that enables action to address the AMD problem has been found to be inadequate in terms of enforcement (Naidoo, 2014; Mpofu et al., 2018). Furthermore, current policies that govern mining and water usage are inadequate and appear to be subject to abuse by those who are politically connected (Mpofu et al., 2018). However, it is also noted that prior to enactment of a number of legislations such as the MPRDA, numerous historical mining operations had been abandoned by their operators with little or no provision for the rehabilitation of the impacts caused by mining.

 
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