The dual environmental system: Not a level playing field

May 2018

JANSE RABIE, head: Natural Resources, Agri SA

While the commencement of the One Environmental System in terms of South Africa’s National Environmental Management Act confirmed the environmental governance 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 legitimacy of our environmental-legal dispensation, Government should abolish the One Environmental System and level the environmental 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 discovered 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 Domestic Product (GDP), they remain fundamentally important to the country’s future economic development and prosperity. Simmering tensions remain, however, particularly in light of seemingly ever-expanding mining activities into high-value agricultural areas. 

Against this backdrop, the perceived preferential 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 result of the One Environmental System to NEMA (which in its own words is supposed to ensure integrated environmental management), the responsibility for granting of prior environmental authorisation for certain listed activities which may have a significant effect on the environment, is split between: 

• The Minister of Environmental Affairs (or the provincial ministers responsible for environmental affairs in their respective 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 immediately 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 significant 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 environment that is not harmful to his or her health or well-being, particularly when that Minister is also responsible for granting mining rights. 

Obviously, the present situation (which was originally intended to only be an interim arrangement) creates a conflict of interests by allowing the Minister of Mineral Resources to be both player and referee in the decision-making process concerning both the granting of rights to undertake mining activities and granting environmental authorisations for activities that stand to significantly harm the environment. This position also runs contrary to the also Constitutionally-enshrined right of every person to administrative action that is lawful, reasonable and procedurally fair.

To make matters worse, section 50A of NEMA stipulates that any proposed amendments to the provisions relating to prospecting, 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 subject to concurrence between the Minister of Environmental Affairs, the Minister responsible for Water Affairs and the Minister responsible 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 consent 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 Minister of Environmental Affairs is designated to be the competent authority with respect to appeals against decisions on environmental authorisations that are granted by the Minister of Mineral Resources. However, appealing decisions on environmental authorisations can often be complicated and costly, often requiring specialist legal advice. This situation also had the complicating effect of highlighting the different approaches to environmental governance between the Department of Environmental Affairs, the respective Provincial Departments of Environmental Affairs and the Department of Mineral Resources. 

The current dispensation, by arguably favouring 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 system argue that it has brought the mining sector fully into the environmental governance dispensation created under NEMA (and should for that reason alone remain in place), the implementation of the system remains fraught with difficulty and its success highly questionable (as has been demonstrated in a number of court cases on this issue in recent times).

At the heart of this current controversy remains the principally-flawed creation of a dispensation entailing an uneven playing field, whereby a certain set of rules dealing with a fundamental constitutional right applies 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 principle-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.za or 076 451 9601.

Publication: May 2018

Section: Relevant