Mining in Sensitive Areas: Balancing Conservation & Development. Portfolio Committee for Environmental Affairs

Transcription

1 Mining in Sensitive Areas: Balancing Conservation & Development Portfolio Committee for Environmental Affairs 1

2 Overview of presentation 1. Background 2. Legislative context 3. Efforts to balance conservation and development 4. Governance and Institutional Issues: The One Environment System 5. The Mabola case 6. The Authorisations for Mabola 7. Conclusion 2

3 1. Background Due to escalating demand for minerals, mining increasingly being undertaken in remote and biodiversity rich areas that were not previously explored Mining has potential to impact directly or indirectly on society and ecosystems throughout life cycle of a project and beyond Ecological impact may occur at ecosystem, species and genetic levels Interface between mineral deposits, high agricultural productive land and critical biodiversity areas Dynamics of managing mining and biodiversity 3

4 2. Legislative context (I) United Nations 2030 Agenda for Sustainable Development and Sustainable Development and Sustainable Development Goals (SDGs) advocate the principle of sustainable development, with 3 pillars: social, economic and environment as the bedrock of the National Development Plan (NDP) which guide all our actions as a Department and as a country Constitution Section 24: right of citizens to environment that is not harmful to health or wellbeing. The Constitution advances the principle that our natural resources may be developed in an orderly and ecologically sustainable manner, whilst promoting justifiable social and economic development. National Environmental Management Act (NEMA) - Sets out principles for environmental decision-making towards sustainable development for compliance by all. Section 24(2A) makes provision for the Minister to prohibit or restrict listed or specified activities in specified geographical areas, if this is necessary to ensure the protection of the environment, the conservation of resources or sustainable development Specific environmental legislation such as the National Environmental Management: Biodiversity Act and Protected Areas Act In addition, a number of legislative instruments exist, such as the Environmental Impact Assessments (EIAs) and Strategic Environmental Assessments (SEAs) guide ways in which a number of activities, including mining, should be conducted in a sustainable manner. 4

5 2.Legislative context (II) The above is complemented by parallel legal instruments that guide activities in the respective natural resource extraction sectors National Water Act (NWA) ensures that the nation s water resources are protected, used, developed, conserved, managed and controlled in a way which takes into account basic human needs, equitable access, socio-economic development, reducing pollution etc. Mineral and Petroleum Resources Development Act (MPRDA) guarantees sustainable development of SA s mineral and petroleum resources through integration of social, economic and environmental factors Section 49 of MPRDA allows for DMR Minister to restrict or prohibit mining in certain areas - the Minister has the power to... prohibit or restrict the granting of any reconnaissance permission, prospecting right, mining right or mining permit in respect of land identified by the Minister for such period and on such terms and conditions as the Minister may determine the purpose is to reduce administrative burden and litigation, and ensure protection of critical biodiversity areas As such, no decisions on development applications are granted without consideration of the said activity s long-term impacts on water quality and water security The application of these instruments enables us to balance the need for environmental conservation, with economic development 5

6 2. Legislative context (III) NEMBA Does not explicitly address mining issues, however, advocates that the disturbance of ecosystems and loss of biological diversity is avoided or minimized and remedied Makes provision for development of tools that promote integrated and coordinated biodiversity planning (e.g. bioregional plans, Biodiversity Management Plans for species and ecosystems and, list of ecosystems and species that are threatened and in need of protection ) Other new tools e.g. biodiversity offsets have emerged for balancing biodiversity and development interests. This tool ensures that significant residual impacts of developments are remedied, as required by NEMA 6

7 2. Legislative context (IV) NEMPAA Section 48 excludes commercial prospecting or mining activities in World Heritage Sites, Marine Protected Areas, national parks, nature reserves, etc. Such activities are allowed in Protected Environments with written permission from DMR and DEA Ministers Provides for review of old lawful mining activities (before Act came into force ) Section 48 empowers the Minister to prescribe conditions under which those activities may continue in order to reduce or eliminate the impact of those activities on the environment or for the environmental protection of the area concerned When applying section 48, the Minister must take into account the interests of local communities and the environmental principles referred to in section 2 of NEMA 7

8 3. Efforts to balance conservation and mining (I) 3.1 MINING AND BIODIVERSITY GUIDELINE Joint initiative Citation: Department of Environmental Affairs, Department of Mineral Resources, Chamber of Mines, South African Mining and Biodiversity Forum, and South African National Biodiversity Institute Mining and Biodiversity Guideline: Mainstreaming biodiversity into the mining sector Guideline underscores the importance of healthy ecosystems in supporting human wellbeing, and guide where mining should take place to facilitate sustainable development Guideline ensures that South Africa s incredible biodiversity and life supporting ecological process are not compromised and neither is its ability to derive sustainable development from its incredible mineral wealth. Guideline contains summary of biodiversity legislation applicable to mining, spatial overview of mineral resources in relation to areas of high biodiversity significance including threatened ecosystems, and guidance on mitigating biodiversity impacts from different phases of mining (including when to offset) 8

9 Category Legally protectedmining prohibited Biodiversity priority areas Highest biodiversity importancehighest Risk for Mining High biodiversity importancehigh risk for mining Moderate biodiversity importance Moderate risk to mining Implications for mining Protected areas (including National Parks, Nature Mining is legally prohibited as the land is: Reserves, World Heritage Sites, Protected Environments, Protected in terms of the Protected Areas Provincial Nature Reserves) Act Areas declared as such under Section 49 of the Mineral Identified by the Minister of Mineral Resources Act Resources in terms of S49 of the Mineral Resources Act Critical endangered and endangered ecosystems Critical Biodiversity Areas (or equivalent areas) from provincial conservation plans River and wetland Freshwater Ecosystem Priority Areas (FEPAs), and 1km buffer of river and wetland FEPAs Ramsar Sites The significance of the biodiversity features in these areas and the associated ecosystem services (e.g. water flow regulation and water provisioning) are, if they have been correctly identified, very likely to prove to be fatal flaws for mining because these areas are necessary to ensure protection of biodiversity, environmental sustainability, and human wellbeing. Protected area buffers (including buffers around National Parks, World Heritage Sites, and Provincial Nature Reserves) Transfrontier Conservation Areas (remaining areas outside of formally proclaimed protected areas) Other identified priorities from provincial conservation plans High water yield areas Coastal Protection Zone Estuarine functional zone Mining options are limited in these areas of high biodiversity importance, and fatal flaws for mining projects are possible. Ecological support areas Vulnerable ecosystems Focus areas for protected area expansion (land-based and offshore protection) These areas of moderate biodiversity value may constrain mining options, but are unlikely to represent a fatal flaw for mining. 9

10 10

11 3. Efforts to balance conservation and mining (II) 3.2 BIODIVERSITY OFFSETS Biodiversity offsets are measurable conservation outcomes (sustainable) resulting from actions designed to compensate for negative residual impacts on biodiversity arising from project development after appropriate prevention and mitigation measures have been taken DEA, through a stakeholder consultation process has developed a National Biodiversity Offsets Policy in order to provide a uniform and harmonised framework (published for public participation on 31 March 2017 Government Gazette No 40733) (60 Day comment period until 31 May 2017) Mining impact should be avoided (by design or location) or mitigated 11

12 3. Efforts to balance conservation and mining (III) 3.2 BIODIVERSITY OFFSETS (Cont) Where impact can neither be avoided nor mitigated, it should be offset by investing in biodiversity conservation as a last resort. Offsets should be considered as a last option and is NOT an option if the project has a fatal flaw This may involve funding the protection of a neighbouring conservation area or purchasing of an equivalent area of land for conservation Operates on the principle of no net loss to biodiversity, and replacing like with like Advisable to develop during early stages of planning /exploration or as soon as development starts 12

13 4. Intergovernmental Co-operation - The One Environment System The One Environment System which came into effect on 8 December 2014 aims to harmonise and streamline the regulatory environment relating to mining The system represents government s commitment to improve the ease of doing business and further enhance SA s global competitiveness as a mining investment destination An Interdepartmental Committee co-ordinated by DGs of Environmental Affairs, Mineral Resources and Water & Sanitation is in place, with technical committees on specific issues (Joint Planning, Permitting/Authorisation, Compliance and Enforcement, Legislation and Appeals, Communication) Ministers of the 3 departments provide oversight 13

14 4. Additional safeguards against environmental degradation In terms of NEMA the Minister has identified activities which by their nature have potentially detrimental impacts on the environment. Since December 2014, mining has been included among the activities requiring environmental authorisation. Environmental impact assessment is undertaken to identify measures to avoid, mitigate and remediate environmental impacts and facilitate consultation. NEMA and the Financial Provisioning Regulations require that environmental liability must be assessed by parties undertaking prospecting, mining, production, exploration and that sufficient financial provision must be set aside with the aim of rehabilitating and remediating adverse environmental impacts. 14

15 4. Additional safeguards against environmental degradation (continued) Environmental Management Frameworks (EMFs) have been developed over the years with the aim of assessing the status quo of specific geographical areas, identifying the desired state of such geographical areas and identifying how such a desired state can be reached. Whenever an EMF has been compiled for a geographical area, its findings must be taken into account in individual EIA applications. The mining and biodiversity guideline discussed above identifies areas of biodiversity significance that should be avoided by mining developments. Currently a screening tool is being developed which will further identify environmental sensitivities, to be assessed during the EIA process that must be undertaken. 15

16 4. Additional safeguards against environmental degradation (continued) Other instruments are being developed to flag environmental sensitivities and require environmental assessment. NEMA section 24(2A) has been promulgated on 18 December 2014 and mandates the minister to prohibit or restrict the granting of environmental authorisation for identified activities in specific geographical areas for such period and under such conditions as is deemed appropriate - if it is necessary to ensure the protection of the environment, conserve resources or ensure sustainable development. Minimum information requirements: minimum environmental information requirement for the submission of a Spatial Development Framework (SDF) which sets the environmental requirements for excluding listed activities and meeting the requirements of various biodiversity plans Assessment protocols for biodiversity developed through contract and consultation process to provide guidance on assessments required, information provision through assessment and consistency for review 16

17 5. The Mabola Case (I) Mabola Protected Environment is located in the Magisterial District of Pixley ka Seme Local Municipality, covering an area of 8,360 hectares It is a Stewardship site aimed at expanding formal network of protected areas within the province through mainstreaming of biodiversity conservation into other sectors in order to support conservation and sustainable resource use. Biodiversity Stewardship is particularly effective in multiple use landscapes where biodiversity priority areas are embedded in a matrix of other land uses. The management objectives for the Protected Environment ito the draft management plan address resource management, utilisation management (agriculture, mining, tourism) and benefit flow management in the context of sustainable development 17

18 5. The Mabola Case (II) Mabola is declared as a Protected Environment, which is the only category of Legally Protected Area where mining may be allowed with written permission from the 2 Ministers under strict conditions, in order to ensure that development takes place in a sustainable manner A mining licence for an underground operation (not for open-cast mining) with storage offsite is essentially an application for renewal of mining rights, as the prospecting rights for the area were previously held by BHP Billiton until 2011 The area where the Mabola Protected Environment is located is the subject of numerous prospecting and mining interests, with several licenses having been issued in the past The specific portion of the area where the requisite surface infrastructure of the mine will be located is not part of the Legally Protected Area wherein mining is prohibited 18

19 6. The Authorisations: Mining (I) An application for a mining right was officially granted in terms of section 23(1) of the MPRDA on the 14 April 2015 The mining right comes into effect on the date on which the Environmental Management Programme (EMPr) is approved by the Regional Manager - 28 June 2016 In terms of section 25(2) of the MPRDA, mining activities must commence within one (1) year of the effective date The mining right was granted subject to securing the necessary authorisations such as the water use license, environmental authorisation and compliance with applicable legislation The mining company conducted prospecting activities for a targeted area of 2,500ha out of the approved 8,360ha The proposed mining activities would potentially impact an area of approximately 200ha (184.91ha to be exact) of the farm Yzermyn However, the Final Environmental Impact Assessment Report (FEIR), indicates that the development footprint of the surface infrastructure will only impact on 22.4ha (approximately 12%) of the ha 19

20 6. Mabola: locality map 20

21 6. Authorisations: Other (II) An application for a Water Use Licence in terms of the National Water Act, 1998 (Act No. 36 of 1998) was lodged with the Department of Water and Sanitation (DWS) DWS issued a Water Use License with conditions on 07 July 2016 Mpumalanga Provincial Department of Economic Development, Environment and Tourism (DEDET), issued the Environmental Authorisation (EA) in terms of NEMA and the 2010 Environmental Impact Assessment Regulations on the 07 June 2016 The Environmental Authorisation took into consideration a number of specialist studies, including a socio-economic impact study as well as a Social and Labour Plan which is part of the mining right. The public consultation process was undertaken as part of the EA The Minister considered all the above processes and authorisations in processing the NEMPAA section 48 decision 21

22 6. Authorisations: NEMPAA Section 48 (III) DEA Minister took the following into consideration: Decision by the MEC regarding the declaration of Mabola as a Protected Environment, and its associated processes; Draft Mabola Protected Environment Management Plan; Mining right and approved Environmental Management Programme; Environmental Authorisation, Environmental Impact Report dated January 2014 and its associated specialist studies and the stakeholders consultation report; Water Use License from DWS; Mining and Biodiversity Guidelines; and NEMA section 2 Principles Ministers of DEA and DMR communicated the decision to the mining company, explaining the reasons for the decision. This letter was signed by the Minister of Environmental Affairs on the 20 August 2016 and by the Minister of Mineral Resources on the 21 November 2016 The letter furthermore lays out in detail the strict conditions under which the scope of permission granted. 22

23 7. Conclusion SA law is clear that there should be remedies in place to mitigate the environmental impacts of the exploitation of natural resources. Mining companies are further required to make financial provision by way of rehabilitation trusts or financial guarantees through financial institutions or with insurance policies In the case of the Mabola application, DEA is satisfied that potential impacts have been clearly highlighted and the proposed mitigation of impacts adequately addressed in the Environmental Impact Report The Mining Right, the Water Use License application and the Environmental Authorisation all have inherent public participation processes spelt out in terms of their respective legislative provisions. Furthermore, before the proclamation of Mabola as a protected environment, a full public participation process was followed DEA is working with the DMR, DWS and SANBI to further protect the broader area of the determined water catchment zone. This may in future include the declaration of Chrissiesmeer, Wakkerstroom, and Steenkampsberg as areas where mining is strictly controlled or restricted in terms of Section 49 of the MPRDA 23

24 The End 24