Review of minerals Bill could prove a ‘legislative procedural nightmare’

The return of the controversial Mineral and Petroleum Resources Development Amendment Bill to the National Assembly has the potential to become a legislative procedural nightmare.

It could either lead to years of meetings and negotiations going down the drain, or a chance to fix the shortcomings to satisfy investors and the country, according to opposition parties’ representatives on mineral resources in Parliament.

President Jacob Zuma last week sent the Bill – which was passed by Parliament in March and sent to him for assent – back to the National Assembly for review because it did not pass constitutional muster.

The Democratic Alliance (DA) shadow minister of mineral resources James Lorimer said they were very pleased that government had realised that the Bill had problems.

“I identified eight shortcomings with the Bill, five of them procedural and three substantive. The president has come back and addressed four of those eight, which leaves us with some problems, especially with regard to oil and gas.

“Oil and gas are not mentioned in the president’s objections, which, if one were to interpret the parliamentary joint rules, means we are not able to reconsider those aspects [of the Bill]. 

“However, there is one thing that Parliament can do and this may be what they [the ANC] are planning to do, and that is to say the entire thing is so flawed that the Bill has to be withdrawn and reintroduced, and that is certainly what we would recommend.”

He said that would give the committee a chance to address all the problems.

“At the moment,the procedural difficulties of deciding which bits go back to the National Assembly, which only go back to the NCOP and what can they do is not clear, so we could end up with a huge mess.

From our point of view, the best thing would be to get Parliament to vote to rescind it and then to start again, not with a fresh slate because that would take a lot of time and there is already a lot of uncertainty with investment. 

“But because a lot of the Bill is already in place, it wouldn’t take that long for the contentious parts to be fixed. Otherwise it risks becoming a legislative procedural nightmare.”

Return of the Bill ‘not all bad’
ANC MP and mineral resources committee chairperson Sahlulele Luzipho said it was too early to tell how the process will unfold.

“We will wait for the office of the speaker to send it [back] to the committee. So far, I have not received the document myself. It will be at the discretion of the speaker to send to the committee. I don’t want to put the cart before the horse.”

He said he could not comment on any points raised by the presidency regarding the Bill until it was sent back to the committee for review.

Inkatha Freedom Party spokesperson on mineral resources Essie Esterhuizen said the return of the Bill to the National Assembly could take them back to square one, especially if the Bill is returned to the committee.

“All the work that has been done, all the meetings with the Chamber of Mines and the different role players has gone to waste; it has now gone for a loop. This will now open it up to debate again and it will take many years before it will be approved. 

“The Bill was first gazetted in 2012, and it took a while to go through the processes. I guarantee it will take more than a year again to go through public participation and debates before it is approved.

“The whole process started [unofficially] in 2010, imagine how long this will now take?”

He said the return of the Bill to the National Assembly was not all bad, as it could lead to a more robust debate on the minerals issue, especially during the public participation processes.

Spokesperson Mac Maharaj on Sunday said the president had found a number of faults on the Bill as it stood, and was required by the Constitution to refer it back to the National Assembly for reconsideration.

Some of the issues include the lack of sufficient public participation facilitation by the National Council of Provinces and the provincial legislature, a compressed consultation period and insufficient notice of the public hearings held by the provincial legislature.

The Bill also gives Mineral Resources Minister Ngoako Ramathlodi power to amend or repeal certain instruments as and when the need arises, effectively bypassing the constitutionally-mandated procedures for the amendment of legislation, as it stands now.

The president also said in a statement that the Bill should have been referred to the National House of Traditional Leaders “for its comments in terms of Section 18 of the Traditional Leadership and Governance Framework Act in that the Bill impacts upon customary law or the customs of traditional communities by: allowing persons to enter upon land to conduct an investigation after notifying and consulting with the owner, occupier or person in control in terms of Section 50, and in so doing ignores the consent principle in customary law; and amending the definition of “community” in Section 1 of the Amendment Act”.

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