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Mei 2018
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Not a level playing field
W
hile the commencement of the
One Environmental System in
terms of South Africa’s Nation-
al Environmental Management
Act confirmed the environmental govern-
ance of the country’s mining sector in terms
of one law, we are still left with dual system
of decision-making favouring the mining
sector.
In order to ensure the principle-based legiti-
macy of our environmental-legal dispensa-
tion, Government should abolish the One
Environmental System and level the envi-
ronmental governance playing field once
and for all.
Historical tension
Producers and miners in South Africa have
been at loggerheads with one another
since diamonds and gold were first discov-
ered in this country towards the end of the
19th century. These historical tensions have
had significant direct and indirect effects
on the socio-economic and socio-political
development of South Africa and continue
to this day.
While both industries have in recent times
lost some ground in terms of their direct
contribution to South Africa’s Gross Do-
mestic Product (GDP), they remain fun-
damentally important to the country’s
future economic development and prosper-
ity. Simmering tensions remain, however,
particularly in light of seemingly ever-ex-
panding mining activities into high-value
agricultural areas.
Against this backdrop, the perceived prefer-
ential position of the mining industry in terms
of South Africa’s governing environmental
legislation remains highly controversial.
The One Environmental
System
On 8 December 2014, Government began
rolling out the much heralded so-called ‘One
Environmental System’. This system, which
is recorded in section 50A of South Africa’s
flagship environmental law (the National
Environmental Management Act, 1998 or
‘NEMA’), entails an agreement between the
Ministers responsible for Environmental
Affairs, Mineral Resources and Water with
the aim of integrating the mining industry
into the environmental management system
applicable to other industries.
In terms of the changes effected as a re-
sult of the One Environmental System to
NEMA (which in its own words is supposed
to ensure integrated environmental man-
agement), the responsibility for granting of
prior environmental authorisation for cer-
tain listed activities which may have a sig-
nificant effect on the environment, is split
between:
The Minister of Environmental Affairs
(or the provincial ministers responsible
for environmental affairs in their respec-
tive provinces).
The Minister responsible for Mineral
Resources, for specific listed activities
relating to prospecting and mining for
terrestrial minerals, as well exploration
for and production of oil and gas.
This situation is highly suspect. It immedi-
ately begs the question of how it can be that
a Minister whose primary responsibility is
to facilitate mining – an extractive industry
which as a matter of course entails signifi-
cant harm to the environment – is allowed
to make decisions that have a direct bearing
on the Constitutionally-enshrined right of
every person in South Africa to an environ-
ment that is not harmful to his or her health
or well-being, particularly when that Minis-
ter is also responsible for granting mining
rights.
Obviously, the present situation (which was
originally intended to only be an interim ar-
rangement) creates a conflict of interests by
allowing the Minister of Mineral Resources
to be both player and referee in the deci-
sion-making process concerning both the
granting of rights to undertake mining activ-
ities and granting environmental authorisa-
tions for activities that stand to significantly
harm the environment. This position also
runs contrary to the also Constitutionally-
enshrined right of every person to adminis-
trative action that is lawful, reasonable and
procedurally fair.
To make matters worse, section 50A of
NEMA stipulates that any proposed amend-
ments to the provisions relating to pros-
pecting, exploration, mining or production
in NEMA or any other law that may have
the effect of amending the provisions of the
One Environmental System, must be sub-
ject to concurrence between the Minister of
Environmental Affairs, the Minister respon-
sible for Water Affairs and the Minister re-
sponsible for Mineral Resources.
The above stipulation has the inescapable
effect of creating a hostage situation with
respect to environmental governance in
South Africa in so far as it requires the con-
sent by the Minister of Mineral Resources
should the Minister of Environmental Affairs
(or the Minister of Water and Sanitation)
wish to exit the agreement which gave rise
to the One Environmental System. Many
commentators have queried the legality of
section 50A as a whole as a result of this
particular stipulation in NEMA.
Of some comfort is the fact that the Minis-
ter of Environmental Affairs is designated to
be the competent authority with respect to
appeals against decisions on environmen-
tal authorisations that are granted by the
Minister of Mineral Resources. However,
appealing decisions on environmental au-
thorisations can often be complicated and
costly, often requiring specialist legal ad-
vice. This situation also had the compli-
cating effect of highlighting the different
approaches to environmental governance
between the Department of Environmental
Affairs, the respective Provincial Depart-
ments of Environmental Affairs and the De-
partment of Mineral Resources.
The current dispensation, by arguably fa-
vouring by the mining industry, has since
its inception been a source of discomfort
with respect to the perceived fairness and
legitimacy of environmental governance in
South Africa. While supporters of the sys-
tem argue that it has brought the mining
sector fully into the environmental govern-
ance dispensation created under NEMA
(and should for that reason alone remain
in place), the implementation of the system
remains fraught with difficulty and its suc-
cess highly questionable (as has been dem-
onstrated in a number of court cases on this
issue in recent times).
At the heart of this current controversy re-
mains the principally-flawed creation of a
dispensation entailing an uneven playing
field, whereby a certain set of rules dealing
with a fundamental constitutional right ap-
plies to one industry, but not to others.
Not only does this get in the way of sound
environmental governance, it also creates a
dangerous precedent in our Constitutional
dispensation. In order to ensure the princi-
ple-based legitimacy of our environmental-
legal dispensation, Government should
abolish the One Environmental System and
level the environmental governance playing
field once and for all.
Contact Janse Rabie at
janse@agrisa.co.zaor 076 451 9601.
RELEVANT
JANSE RABIE,
head: Natural Resources, Agri SA