A showdown looms in government circles over which government department will preside over environmental impact assessments (EIA) for mines. There is confusion about who will have the final say, after the publication of new EIA regulations.
The two players in the showdown, the Department of Environmental Affairs and Tourism (DEAT) and the Department of Minerals and Energy (DME), have both claimed responsibility for approving EIAs for new mines.
As things stand at the moment, DEAT is the authority for all EIAs except mining. Under current legislation mining activities are regulated according to a different set of rules, says Chippy Olver, director general of environmental affairs and tourism.
‘Current legislation leaves the DME with the final say,” he says. ‘It allows mining companies to bypass DEAT and deal only with the DME to approve mining EIAs.”
This is because DME drew first blood. In May 2004 it promulgated the new Mineral and Petroleum Resources Development Act. The Act effectively underwrote what had been the norm in practice for years, by stipulating that applicants for mining rights must conduct EIAs under the authority of the DME.
DEAT hit back with new EIA regulations, drafted in June 2004 and revised in January 2005. They claim mining as one of the scheduled activities that require an EIA to be authorised by environmental affairs.
The situation has left many people wondering about which department ultimately rules on mining EIAs, and whether two separate EIAs will have to be done for the different departments.
The environmental authorisation programme followed by the DME is the only procedure new mines have to adhere to at the moment, pending the finalisation of DEAT ‘s EIA regulations.
The DME requires an environmental management plan to be completed as part of the licence conditions for new mines. In managing this programme, the mining department works and consults with the relevant provincial environmental department, but not necessarily with the national DEAT. The minister of minerals and energy considers all inputs, including those from the provincial environmental departments, before ruling on the environmental plan.
‘Mining is not currently listed as an activity that requires an EIA to be done before it is given the go-ahead,” says Joanne Yawitch, deputy director general of environmental quality and protection at DEAT. ‘The DME does its own internal environmental management plan on the mine site, before issuing a licence to a mine company.”
Critics say it is the role of the DME to encourage mining activities, so how can it be expected to ensure that the environment is looked after properly? Ian Sampson, an environmental lawyer, says people often view this situation in the sense of asking the wolf to look after the sheep.
He says this does not mean the DME is not taking its role as environmental watchdog seriously. ‘However, I think DEAT should regulate the whole EIA process. DME’s function is to promote mining and there will always be a debate on whether promoting mining activities and regulating environmental damage can be done at the same time. Can the DME wear two hats?”
Yawitch believes DEAT should be allowed to make decisions about something as potentially destructive as mining. ‘We believe it is important that mining also goes through the EIA process, as with other activities,” she says.
Her director general agrees. Olver says the EIA regulations are being changed because ‘no developer, including miners, should have special treatment in getting EIAs approved”.
Last June Marthinus van Schalkwyk, Minister of Environmental Affairs and Tourism, questioned whether it is apt for the DME to rule on such an important environmental issue.
‘Historically, mining is the one area where the minister of environmental affairs is not the final judge on the EIA,” he told Earthyear in an interview. ‘That is something that I think needs debate.”
The amended draft EIA legislation was gazetted for public comment in January and is expected to be implemented sometime this year. Yawitch’s department keenly awaits feedback from the DME on the proposed changes. She says extensive consultation between the two departments must take place.
Yawitch says the two departments cannot run two parallel EIAs. If both demand their own environmental studies, the EIA process will become even more drawn out and frustrating than it already is.
‘If the two departments integrate the licensing process, instead of having to administer seven or 10 environmental management plans, it will be much better,” says Yawitch. ‘The best would be to do one big EIA.”
Sampson points out that the current confusion is bad for investment. Mining houses are reluctant to spend money in areas of uncertainty that could lead to losses.
‘Mining houses want to comply. They want to know how to deal with the legislation, administration and what is expected from them,” he says. ‘But who do they listen to?”
‘This issue should have been resolved a long time ago, and constitutionally the two departments are required to sort it out. This can become a great example of coordinating legislation if they can resolve their differences.”
The two departments deny a rift around EIAs, but the Pondoland saga has exposed their differences.
The Pondoland area on the Wild Coast has been the focus of intense concern for more than two years, since it became known that an Australian consortium, Mineral Resource Commodities, plans to mine the coastal dunes at Xolobeni for ilmenite. The consortium’s prospecting rights were converted into a preferential lease in May last year, allowing it to apply for a mining licence from the DME.
Pondoland is deeply impoverished and in desperate need of development. It is also a hotspot of biodiversity and an ecologically sensitive area. DEAT wants to develop eco-tourism in the region, while the Eastern Cape authorities and the DME promote mining as a driving force to boost development.
An EIA could ultimately decide the fate of Pondoland, and whichever department has the decision-making power over the EIA will have the authority on the decision. In other words, the stakes are high for the region.
At the moment, no one wants to take responsibility for the mining decision. Van Schalkwyk said last June the final decision on whether mining in Pondoland will go ahead does not lie with his department but with the DME. But that was before the proposed changes in the EIA regulations.
Yvonne Mfolo, director of communications at the DME, contradicted this last year by passing the buck to Van Schalkwyk. She said the environment minister would ultimately decide whether mining goes ahead in Pondoland, because he presides over the EIA process.
The continuous passing on of responsibility between the two departments indicates there are unresolved issues between them. It is still unclear whether, even if the new EIA regulations came into play, the Pondoland mining decision will fall to DEAT.
Olver says there will be a transitional period during which the amendments will be phased in. Depending on when Mineral Resource Commodities applied for the licence, it might still have to deal with the DME and not DEAT.
Mines don’t totally bypass DEAT at the moment. Yawitch says some elements of mining, such as waste dumps, do need an EIA to be approved by DEAT. The new air quality legislation also requires an EIA for activities that will pump gases into the atmosphere.
In terms of water use, the DME and the Department of Water Affairs and Forestry have to cooperate to ensure that the mines adhere to the National Water Act. These two departments have a good relationship and it is this type of cooperation that DEAT envisions for its partnership with the DME.
It is not too late for the two departments to ride off into the sunset together with a solid partnership, in which the environment will be the ultimate winner.