‘We’re not usurping powers’
The Mercury, August 27, 2007 Edition 1
Tony Carnie
THE Mining Department says it is not sidelining the state’s environment custodian by removing the mining industry from the legal authority of the National Environmental Management Act (Nema).
Responding to questions about attempts to “smuggle” a controversial mining law amendment through parliament, the Department of Minerals and Energy said it was trying to complement, not usurp, the role of the Department of Environmental Affairs and Tourism.
However, the Legal Resources Centre public interest law firm and other groups have demanded public hearings in parliament to discuss what they see as a serious threat to the mandate of the Environmental Affairs Department.
The Legal Resources Centre claimed that the controversial mining law change had been slipped in at the last minute, after the public consultation process had ended.
Asked why the Department of Minerals and Energy wished to exclude mining from the Nema environmental laws, the department said that it supported this law and would incorporate the same principles within the mining laws.
Asked whether the Mining Department could act independently on environmental issues, the department said that it understood the concept of co-operative governance well, and would consult with other departments when it issued mining licences.
On whether its action created a precedent for other government departments to make their own laws, the Mining Department said it did not intend to take over the functions of other government departments, “hence it supports and complements the role and the mandate bestowed upon them as stipulated in the constitution”.
Meanwhile, Environmental Affairs and Tourism Minister Marthinus van Schalkwyk’s spokesman has also disputed reports that his department had been sidelined by mining interests.
“I don’t see it that way because environmental impact assessments (EIAs) for mining have historically never been with us,” said Riaan Aucamp.
Asked whether mining EIAs should, in principle, fall under the common authority of the Environmental Department, Aucamp said: “That’s another debate. It is something which should be dealt with internally by the government.”
Asked whether Van Schalkwyk was concerned that other government departments would seek to circumvent his by authorising nuclear power stations and other major projects, Aucamp said: “We are not in any way worried about other departments going that route.
Posted on August 27th, 2007
Filed under: Newspaper and Media
Prof. Jeremy Ridl:
The comments from the Minister’s spokesperson (Rian Aucamp) are confusing. “Historically” it was a persistent gripe of environmental groups that mining was not a listed activity attracting the need for an EIA and that DME was a law unto itself. When mining was listed under Nema, it was to the approval of all. A little sting in the tail came when the Minister declared that the regulations would only come into effect on 1 April 2007 and not 1 July 2006 with the rest of the listed activities. The Minister did not keep his promise, simple as that.
In the notice that lists mining as an activity requiring an EIA, the competent authority for mining environmental authorisations is the (environment) Minister or “an organ of state with delegated powers in terms of section 42(1) of the Act”. Section 42(1) states:
The Minister may delegate a power or duty vested in him or her in terms of this Act or a specific environmental management Act to—
(a) the Director-General;
(b) an MEC, by agreement with the MEC;
(c) the management authority of a protected area; or
(d) any organ of state, by agreement with that organ of state.
The appointment of the Minister of Minerals and Energy (or her officials) under the power that “any organ of state” may be appointed is not what we were led to believe was promised. We thought that the call that the illogical exclusion of mining from the EIA regulations had been answered. It is disingenuous to bring mining within the ambit of the environmental regulations only to have the EIAs adjudicated by mining officials. That is not what we were promised. The Minister might as well have left mining off the list of activities altogether rather than create the obvious conflicts and difficulties with cooperative governance that must arise.
Not only will there be a duality of functions within DME there will be duplication of competencies as other aspects of Nema that govern EIAs but are not covered by the regulations will be administered by DEAT. This is frowned upon by the Constitution (section 41(1)(g).
Prof. Jeremy Ridl
My biggest fear for the planned mining to take place
in the Transkei is that it does not matter who’s hands
you place the matter in, all are subject to corruption.
As a suggestion I would recommend that the effects
on the ecology after the mining has been done be
closely studied and observed, that these people who
ever they are that are in charge go and look at open
mining sites - and then take a walk a few kilometres
away and see the difference.
I understand that mining at this point in time is a
necessity, but will we only realize when there is
nothing left that we could have found other ways.