Presentation to the Portfolio
Committee on Environmental Affairs
Jacinto Roeha, DME
Questions
·
Who should be regulated?
·
Why specifically mining in the draft Bill?
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To what extent doers the Bill in its current form promote co-operative governance?
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To what extent does the Bill comply with section 9 and 40 of the Constitution?
·
Should Parliament pass conflicting legislation?
·
Can Parliament amend an Act which is not in force yet?
The Mineral and Petroleum
Resources Development Act Passed 26 June 2002;
Presidented asseted 3 October 2002
Awaiting promulgation
Objective
·
National Patrimony
·
Give effect to environmental rights in the Constitution (s 24)
·
No prospecting or mining without an approved EMP (s5(4))
The National Parks Act, 1974
Section 20 "No prospecting or mining of any nature shall be undertaken on land included in a park
Reason - no prohibition existed in mining legislation
This was prior to requirement of mine rehabilitation in mining law
Promoted co-operation 2A, 2B
Sec 48 of Protected Areas Bill
Despite other legislation, no person may conduct commercial prospecting or mining activities
·
In a special nature reserve, national park or nature reserve;
·
In a protected environment without the written permission of the Minister and the Cabinet member responsible for minerals and energy affairs; or
·
In a protected area referred to in section 9(b), (c) or (d)
- Subsection (1) does not affect mining activities which were lawfully conducted immediately before this section took effect
Section 48 MPRDA
Subject to section 20 of the National Parks Act, no
reconnaissance permission, prospecting right, mining right
or mining permit may be issued in respect of
- Land comprising a residential area;
- Any public road, railway or cemetery;
- Any land being used for public or government purposed or reserved in terms of any other law
A permission, permit or right may be issued if Minister
satisfied that
- Desirable in the national interest and sustainable development
- It will take place within the context of environmental policies
Section 104 & Schedule II Applies to community who have mineral and land registered or to be registered in their name
Does not apply in respect of areas were a right to prospect or mine already exist
Conversion will only take place if holder has approved EMP (existing operations);
Unused old order rights will have to follow the new EMP process
Conclusion Current clause 48 creates conflict between two pieces of legislation passed or to be passed by Parliament; and
Legislation must promote co-operative governance and not conflict; and
To create certainty mineral and mining matter should be dealt mining legislation
AMENDMENTS TO DEAT PREFERRED TEXT CLAUSE (2)
The Minister may in consultation with the Cabinet member responsible for minerals and energy affairs, review any mining activities which were lawfully conducted in areas
indicated in 48 (1) (a) (b) and (c) immediately before this section took effect, with a view to determining in the light of representations invited from affected parties, conditions
applicable to the Environmental Management Programmes (EMPs) under which such mining activities should take place, having regard to section 24 of the Constitution.