New legal framework for mine dumps defines ownership

The amendments and further proposed amendments to the Mineral and Petroleum Resources Development Act (MPRDA) are an attempt to clarify the regulation of mine dumps created before the commencement of the MPRDA, says law firm Cliffe Dekker Hofmeyr.

However, the environmental regulation of such dumps that were intended to be reprocessed were previously unclear and the amendments have not yet resolved this, says the firm's environmental director Sandra Gore.

“When the MPRDA was first promulgated in 2002, it did not regulate mine dumps created prior to the coming into operation of the Act,” says Cliffe Dekker Hofmeyr senior associate Giada Masina.

Mine dumps produced under rights granted before the MPRDA (old-order rights) and which were classified as movable property, were capable of being processed by the owners thereof without having to first obtain a mining right or mining permit under the MPRDA.

This resulted in gaps in the environmental regulation of mine dumps. No environmental management programme was needed under the MPRDA. It was also arguable that mine dumps intended for reprocessing, were not ‘waste’ and did not require a waste management licence under the MPRDA, says Gore.

Meanwhile, the MPRDA Amendment Act has resulted in the definitions of 'residue stockpile' and 'residue deposits' being amended to include references to old-order rights.

The concept of an old-order mine right was only introduced when the MPRDA was first promulgated in 2002. “Therefore, the amendments to the abovementioned definitions do not apply retroactively and will only expand the ambit of the definitions to dumps created under old-order rights on or after the commencement date of the amendments, being June 7, 2013,” Masina explains. The amendments will therefore not include mine dumps in the definitions if they were created under such rights prior to the commencement date.

The gaps in environmental regulations of mine dumps created by old-order rights before June 7, 2013, therefore remain, states Gore.

Whether environmental management programmes are, in fact, currently required at all under the MPRDA Amendment Act is also arguable, she adds. A transitional arrangement has been introduced, whereby environmental authorisations under the National Environmental Management Act (Nema) will be required for mineral activities from December 2014. Until then, all requirements for environmental management programmes have been deleted in the Amendment Act.

Meanwhile, the MPRDA Amendment Bill 2013 aims to bring mine dumps created prior to the promulgation of the MPRDA under the ambit of the Act.

“If the Amendment Bill was to be enacted on the basis of the draft released in June 2013, a reclamation permit would be required to process and reclaim minerals in historic mine dumps,” notes Masina.

She adds that the proposed amendments were cause for concern in the mining industry, as the provisions could constitute the unconstitutional expropriation of property, and the maximum period for which reclamation permits could be granted was unrealistic, which could result in a deprivation of property.

The Amendment Bill proposes that a reclamation permit only be granted if the applicant holds an environmental authorisation. “Reclamation is, however, not an activity listed under Nema, which requires an environmental authorisation. Further, given the misalignment between the MPRDA and Nema, it is arguable that such environmental authorisation will not be required without further amendments,” says Gore.

“Because the Amendment Bill, as it is currently drafted, may result in unconstitutional expropriation of property, the proposed amendments to the Amendment Bill, recommended by the Department of Mineral Resources and released by the Parliamentary Portfolio Committee in November 2013, are welcomed,” says Masina, adding that these proposed amendments aim to abolish the concept of reclamation permits and rather afford security of tenure to the owners of historical mine dumps.

In terms of the proposed amendments, if the mine dump is situated within an existing mining area, the holder of the mining right/permit will have the exclusive right to apply for the amendment of its mine work programme to include the dump in the mining right.

As all provisions relating to environmental management programmes have been deleted, there is currently no strict requirement for the holder of a mining right/permit to amend its environmental management programme if these amendments are introduced. There is also no requirement in the MPRDA for a holder to obtain an environmental authorisation under Nema when the transitional provisions commence in December 2014.

However, if the mine dump is situated outside an existing mining area, the owner of the dump will have the exclusive right to apply for a mining right or permit, explains Masina. An application for a mining right or permit would only be accepted if an environmental authorisation has been applied for.

There are also proposed amendments to the Waste Act, which, if enacted, would remove the regulation of residue stockpiles and deposits from the Waste Act and see them regulated by the Waste Act. Further amendments would, however, be needed if the proposed amendments to the MPRDA are enacted, to clarify the environmental regulation of mine dumps situated in an existing mine area, says Gore.