- Minister Barbara Creecy has granted another extension for mining companies to comply with regulations linked to environmental rehabilitation.
- The extension may also compromise the country's ability to meet climate change commitments, says an attorney.
- The regulations ensure that the State does not become liable for the costs of addressing environmental damage caused by mines.
Mining companies have been granted another extension to comply with regulations linked to environmental rehabilitation.
Minister of Environment, Forestry and Fisheries Barbara Creecy granted a 15-month extension for existing mineral rights holders to comply with National Environmental Management Act (NEMA) Financial Provisioning Regulations of 2015. This is the fourth time an extension has been granted.
The extension - till 19 September 2023 - has been allowed while the proposed amendments to the Financial Provisioning Regulations are being finalised.
When the regulations came into effect in 2015, existing mineral rights holders were given a transitional or grace period to comply. The regulations automatically apply to new mines, explained Catherine Horsfield, head of the mining programme at the Centre for Environmental Rights (CER).
There's been pushback from industry, because the regulations under the NEMA put in place higher environmental standard than that of the prior Mineral and Petroleum Resources Development Act. But the regulations were warranted because some mining companies did not address the full extent of the environmental damage of their operations, explained Horsfield.
"The 2015 Financial Provision Regulations improved the environmental standard for rehabilitation and set out the ways in which the money required for that rehabilitation should be secured."
Horsfield explained that mining-affected communities and the State essentially bear the brunt of pollution and environmental degradation if mines do not address the full extent of environmental damage caused by their activities.
Garyn Rapson, partner at Webber Wentzel, shared that the regulations ensure that the state does not become liable for the costs of mitigation, rehabilitation and management of the negative environmental impacts and environmental damage caused by mining activity. These responsibilities should fall with the mineral rights holder.
The regulations facilitate environmentally sustainable mining, said Rapson. They require that mining companies set aside enough funds for the rehabilitation of the environment to address the pollution and damage caused by their activities.
Notably, the regulations require that mines put in place annual rehabilitation to start rehabilitating as they mine and not delay it once all mineral resources are depleted, said Horsfield.
Horsfield believes that the "grace period" for mining companies has been "unreasonably" extended. The regulations have been in place for seven years now, and they were gazetted following a considerable consultation period with stakeholders.
"In 2015, therefore, mining companies already knew what was going to be required of them. So while an initial grace period to enable existing mines to meet the new standards may have been understandable, that grace period has been persistently extended – unreasonably so."
Delaying compliance with the regulations facilitates violations of the NEMA and section 24 of the Constitution which deals with environmental rights, Horsfield added.
Rapson said the delay creates more "desperation" for policy certainty - as the market wants to know what the finalised set of regulations will include. Rapson added that the delay also places the country at risk of meeting its climate change commitments.
"The funds set aside by mining companies must be used to ensure that mining operations are sustainably closed …" Rapson said. The sustainable closure of mines contribute to the country achieving its Nationally Determined Contributions (the targeted emissions).
"Restoring ecosystems, biodiversity, water systems and ensuring that decants, spontaneous combustion of coal and other latent issues are addressed will massively assist in reducing South Africa's carbon emissions," said Rapson.
The Minerals Council of South Africa declined to comment.