Landowner consent for an environmental authorisation for mining activities

The National Environmental Management Act 107 of 1998 (NEMA), 2014 Environmental Impact Assessment Regulations (EIA Regulations) were subject to a number of amendments which came into effect on 11 June 2021. One significant amendment to the EIA Regulations was the deletion of Regulation 39(2)(b) which exempted an applicant for an Environmental Authorisation for mining activities from having to obtain landowner consent. The CDH alert from 12 August 2021 unpacked the implications associated with this amendment in more detail.

9 Mar 2022 2 min read Environmental Law and Mining & Minerals Alert Article

At a glance

  • The Environmental Impact Assessment Regulations (EIA Regulations) under the National Environmental Management Act (NEMA) were amended in June 2021, removing the exemption for mining applicants from obtaining landowner consent for Environmental Authorisation.
  • The Mineral and Petroleum Resources Development Act (MPRDA) changed the rights of landowners in the mining sector, giving the state custodianship of mineral resources. Mining is crucial for generating employment and investment in South Africa.
  • In March 2022, the amendment to the EIA Regulations was withdrawn due to lack of public consultation. The requirement for landowner consent for mining activities is reinstated, but a water use licence is still needed, allowing landowners to block mine development. The withdrawal of the amendment is seen as positive for the mining industry.

The Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) brought about significant changes in the mining sector, especially in relation to rights of landowners. Before the MPRDA came into effect, the owner of land was also the owner of the resources beneath the land and had the freedom to sell the rights to the resources to a third party, who in turn acquired a limited, yet real right to explore and extract resources on another person’s land. The MPRDA moved away from this approach as the state now has custodianship of the nation’s mineral and petroleum resources to address the inequalities of the past. The promotion of exploration and mining is critical to South Africa’s dire need to generate employment and investment, particularly foreign direct investment. The MPRDA has the framework to facilitate the acceleration of mining projects.

The June 2021 amendment of the EIA Regulations was in direct conflict with the need to promote mining investment. In reconsideration, the Minister of Forestry, Fisheries and Environment published a notice on 3 March 2022, whereby the amendment resulting in the deletion of Regulation 39(2)(b) was withdrawn. The rationale for the withdrawal is stated to be premised on the lack of public consultation prior to the June 2021 amendment. Although Regulation 39(2)(b) has been reinstated with retrospective effect from 11 June 2021, as if the amendment had never occurred, it is noteworthy that landowner consent is still required for a water use licence (WUL). A landowner accordingly still has the ability to block mine development on his land as no mine can operate without such a WUL. The rationale for the withdrawal of the June 2021 amendment appears debatable, and one can only hope that the deletion of Regulation 39(2)(b) will be placed on the back-burner and eventually forgotten.

CDH previously postulated that the deletion of Regulation 39(2)(b) may have been the death knell to the mining industry in South Africa, as such this withdrawal will be welcomed with open arms.

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