This Section constitutes a regulatory governance framework for the proposed Project.

Transcription

1 4 LEGAL AND POLICY FRAMEWORK The authorisation process associated with the proposed Section 102 Amendment of the existing Consolidated Mining Right (Ref: MP 30/5/1/2/2/133MR) is being carried out in line with South Africa s environmental legislation to ensure that reasonable measures are taken to warrant environmental protection and to promote sustainable development. This Section constitutes a regulatory governance framework for the proposed Project. 4.1 NATIONAL LEGISLATION Constitution of the Republic of South Africa The Constitution of the Republic of South Africa is the legal source for all law, including environmental law, in South Africa. The Constitution enshrines the basic, fundamental and inalienable rights of the citizens of the Republic The Mineral and Petroleum Resources Development Act The Mineral and Petroleum Resources Development Act (MPRDA) (Act No. 28 of 2002) was enacted, together with its associated Regulations (published 23 April 2004), on 01 May The MPRDA provides that South Africa s mineral and petroleum resources belong to the nation and that the DMR is the custodian thereof. The MPRDA allows the DMR to promote equitable access to these resources, as well as give effect to Section 24 of the South African Constitution by ensuring the nation s mineral and petroleum resources are developed in an efficient and ecologically sustainable manner. By virtue of Section 37(1) of the MPRDA, the NEMA principles apply to the mining sector and therefore the mining industry must adopt a risk-averse and cautious approach; prevent negative impacts or effects of their activities on the health and well-being of people and the environment; and pay for all their pollution since they remain liable for the effects of their policies, projects, programmes, products, processes, services or activities throughout their life cycles. In terms of Section 102 (as amended 21 April 2009) of the MPRDA, a mine may not amend a Mining Right, a Mining Works Programme, environmental management programme or an environmental authorisation issued in terms of the National Environmental Management Act, 1998, without the written consent of the Minister. The proposed MWE underground works, the construction of the Adit 5, overland conveyor and servitude road and the new Central Discard Dump would require an amendment of the Kangra Coal Consolidated EMPr. In practice, the DMR expects the holder of a mining right to conduct an EIA and submit an Environmental Impact Assessment Report 4-1

2 (EIAR) and EMPr prior to the mentioned consent being granted for the EMPr amendment. Additionally, an updated Mine Works Programme (MWP) will be submitted to the DMR together with the amended EMPr as well as a copy of the existing and approved Social and Labour Plan (submitted in May 2014), as it covers the same properties and communities and is thus still applicable. Applicability to the Project The proposed expansion into the Maquasa West Extension area, the construction of the Adit 5, overland conveyor and servitude road and the new discard dump would require an amendment to the EMPr and therefore an approval of the EMPr addendum is required from the DMR before the development may commence. The current application process comprises an application for an addendum to the 2014 EMPr Consolidation and Amendment National Environmental Management Act Section 2 of the NEMA provides for a comprehensive array of principles which cumulatively aim to create among others, corporate socially responsible behaviour by establishing legal liability for environmental damage, as well as damage to human health and well-being. Any decision taken in respect of the application for environmental authorisation should take into account these principles which include the Polluter Pays Principle, the Precautionary Principle, the Preventative Principle and the Cradle-to-Grave Principle. Apart from these principles, the NEMA also contains mechanisms, procedures and structures to facilitate pollution prevention, minimisation and remediation. A duty of care is contained in Section 28, which encompasses the main liability provision which applies retrospectively (includes historical pollution). Section 24(1) of the NEMA requires that the potential consequences for, or impacts on the environment must be considered, investigated, assessed and reported on to the Competent Authority (CA). Where an environmental impact assessment has been identified as the instrument to be utilised in achieving the aforementioned, an application for environmental authorisation needs to be obtained. The identified activities are listed under GN R983, R984 and R985 of the NEMA EIA Regulations. The proposed MWE underground works, the construction of the Adit 5, overland conveyor and servitude road and the new Central Discard Dump trigger certain listed Activities under the EIA Regulations (December 2014). The Activities triggered are listed in Table

3 Table 4.1 NEMA Listed Activities triggered by the proposed Project Activity No. Listed Activity Description Triggered By GN R983: Listing Notice 1 12 The development of (x) buildings exceeding 100 square metres in size, and (xii) infrastructure or structure with a physical footprint of 100 square meters or more; where such development occurs (c) of no development setback exists, within 32 metres of a watercourse, measured from the edge of a watercourse. 19 The infilling or depositing of any material of more than 5 cubic metres into, or the dredging, excavation, removal or moving of soil, sand, shells, pebbles or rock of more than 5 cubic metres from (i) a watercourse The proposed development footprints of infrastructure within the Adit 5 is as follows: The development footprint of the overland conveyor is m 2 Both the overland conveyor and Adit 5 are within 32 metres of several watercourses (unnamed tributaries). The overland conveyor and its' servitude road will cross watercourses. It is expected that construction will involve the infilling and excavation/removal of soil, sand or rock of more than 5m 3 from these watercourses. 21 Any activity including the operation of that activity which requires a mining permit in terms of section 27 of the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002), including associated infrastructure, structures and earthworks directly related to the extraction of a mineral resource, including activities for which an exemption has been issued in terms of section 106 of the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002). Kangra coal is an existing coal mine and is operating under the current 133MR. 24 The development of (ii) a road with a reserve wider than 13.5 metres, or where no reserve exists where the road is wider than 8 metres. 25 The development and related operation of facilities or infrastructure for the treatment of effluent, wastewater or sewage with a daily throughput capacity of more than 2000 cubic metres but less than cubic metres. 27 The clearance of an area of 1 hectares or more, but less than 20 hectares of indigenous vegetation, except where such clearance of indigenous vegetation is required for (i) the undertaking of a linear activity. The servitude road for the overland conveyor has a width of 10.2 m. Water treatment plant and sewage treatment plant developed for the treatment of less than 15,000m 3 per day. The footprint of the entire adit is Ha but the area that will require clearing for adit infrastructure (e.g. Control Room, Offices, Overburden, Sub Station, Berm, Adit, Store Yard and Water Treatment Plant) is Ha (as above). The overland conveyor and servitude road are excluded from this Activity 4-3

4 Activity No. Listed Activity Description Triggered By as these are linear activities. 30 Any process or activity identified in terms of Section 53(1) of the National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004). The area for the proposed infrastructure falls within the Eastern Highveld Grassland ecosystem which is listed by SANBI as Vulnerable. GN R984: Listing Notice 2 15 The clearance of an area of 20 hectares or more of indigenous vegetation, excluding where such clearance of indigenous vegetation is required for (i) The undertaking of a linear activity; or (ii) Maintenance purposes undertaken in accordance with a maintenance management plan. GN R985: Listing Notice 3 4 The development of a road wider than 4 metres with a reserve less than 13.5 metres in (a) Mpumalanga Province (ii) outside urban areas, in: (ee) critical biodiversity areas as identified in systematic biodiversity plans adopted by the CA or in bioregional plans The proposed discard dump will require the clearance of an area exceeding 20 hectares in extent. The width of the overland conveyor is 2m and the servitude road has a width of 10.2 m. There is no road reserve. The Mpumalanga Biodiversity Conservation Plan (MBCP) has identified this area as Highly Significant which means that any significant habitat loss may cause these areas to become irreplaceable. 12 The clearance of an area of 300 square metres or more of indigenous vegetation. (c) in Mpumalanga (ii) within critical biodiversity areas identified in bioregional plans. 14 The development of (iii) bridges exceeding 10 square metres in size; In addition, the area for the proposed infrastructure falls within the Eastern Highveld Grassland ecosystem which is listed by SANBI as Vulnerable. This ecosystem has been gazetted as a listed ecosystem in terms of the National list of ecosystems that are threatened and in need of protection (Government Gazette No of 9th December 2011). The construction of the adit will involve the clearance of m2, of vegetation. The overland conveyor and servitude road will require the clearance of m2 of vegetation. The proposed area for the surface infrastructure has been identified in the Mpumalanga Biodiversity Conservation Plan (MBCP) as Highly Significant which means that any significant habitat loss may cause these areas to become irreplaceable. Bridges will be constructed for the overland conveyor and servitude road at several points along the planned route. 4-4

5 Activity No. Listed Activity Description Triggered By (iv) dams, where the dam, including infrastructure and water surface area exceeds 10m 2 in size; (vi) Bulk storm water outlet structures exceeding 10m 2 in size; (x) buildings exceeding 10 m 2 in size; (xii) infrastructure or structures with a physical footprint of 10 m 2 or more; The construction of the adit ( m 2 ), overland conveyor and servitude road ( m2) is within 32m of an unnamed tributary that falls within a Listed Ecosystem in terms of the National list of ecosystems that are threatened and in need of protection GN No and an area identified as highly significant in terms of the MBCP. - where such development occurs (c) if no development setback has been adopted, within 32 metres of a watercourse, measured from the edge of a watercourse; (ii) outside urban areas, in: (ff) critical biodiversity areas or ecosystem service areas as identified in systematic biodiversity plans adopted by the CA or in bioregional plans Identification of the CA for the EIA under the EIA Regulations identifies the DMR as the CA for those activities directly related to extraction of a mineral resource. Applicability to the Project The proposed MWE underground works, the construction of the Adit 5, overland conveyor and servitude road and the new Central Discard Dump would trigger a number of activities thus requiring that a full EIA process be undertaken National Water Act One of the main and ever-continuing concerns in South Africa is the sustainability of water management, and the costs associated with the prevention and remediation of pollution in a country with an average rainfall far below international standards. The National Water Act (NWA) is one of the government s answers to some of these challenges and functions as sectoral legislation within the framework of NEMA. Section 19 of the NWA mirrors the provision of Section 28 of NEMA and addresses the prevention and remediation of the effects of pollution. Section 21 of the NWA lists 11 consumptive and non-consumptive water uses. Section 22 of the NWA provides that water may be used if it is permissible in terms of Schedule 1 of the NWA, is an existing lawful water use defined under 4-5

6 Section 32; is permissible under a General Authorisation Notice published in terms of the Section 39, or if it is licensed in terms of Section 40 of the NWA. The following water uses are triggered by the proposed development: Section 21(g) - Disposing of waste in a manner which may detrimentally impact on a water resource; Section 21 (c): Impeding or diverting the flow of water in a water resource; and Section 21 (i): Altering the bed, banks, course or characteristics of a watercourse. Applicability to the Project A water use licence is required for the above listed water uses triggered by the proposed MWE underground works, the construction of the Adit 5, overland conveyor and servitude road and the new discard dump. An Integrated Water Use Licence Application (IWULA) and an accompanying Integrated Water and Waste Management Plan (IWWMP) need to be submitted to the DWS to apply for the WUL in respect of the proposed water uses. This process is currently being undertaken by Golder and Associates. Government Notice 704 (GN704) Section 26 (1) of the NWA makes provision for the Minister of Water Affairs to make regulations to control, monitor, modify or prohibit various practices related to water use. GN 704 was promulgated by the Minister on 4 June 1999 in Government Gazette vol. 408, No (GN704). The GN704 Regulations were published in terms of Section 26 (1), (b), (g) and (i) of the NWA and pertain specifically to water uses for mining and related activities. Section 3 of the GN704 makes provision for exemption from the requirements of the GN 704 schedules. This exemption will only be granted if the mine can prove that they have implemented measures according to the best practice guidelines and regulations that will ensure the protection of the water resources at all times. Applicability to the Project Exemption is required from Regulation 4 (a) of the GN704 due to the proposed discard dump being located within 100m of a surface water resource. This application will be made as part of the IWULA report to be submitted to the DWS. 4-6

7 4.1.5 National Environmental Management: Waste Act The National Environmental Management: Waste Act, 2008 (Act No. 59 of 2008) (NEMWA) fundamentally reformed the law regulating waste management, and for the first time provides a coherent and integrated legislative framework addressing all the steps in the waste management hierarchy (waste avoidance, reduction, re-use, recycle, which is the overall approach that informs waste recycling, recovery, treatment and safe-disposal as a last resort). The NEMWA (Section 5 (2)) provides that the Act should be interpreted and guided in accordance with the NEMA principles. The objects of the NEMWA are to protect health, well-being and the environment by providing reasonable measures for, inter alia, remediating land where contamination presents, or may present, a significant risk of harm to health or the environment. The NEMWA provides for a licensing regime specific to waste management activities. It replaces the historical system of permits issued in terms of the repealed Section 20 of the Environment Conservation Act, 1989 (Act No. 73 of 1989) (ECA). Category A activities require a basic assessment process and Category B activities require a Scoping and EIA process as prescribed in the NEMA regulations. On 2 June 2014 the amendment to the NEMWA was published (effective on the date of publication), providing that residue stockpiles, which includes discard dumps, were included under Schedule 3 of the NEMWA as hazardous waste. This means that the proposed discard dump requires a Waste Management Licence (WML) in terms of the NEMWA. Following the above mentioned amendment, Government Notice Regulation 633 (GNR633) was published in Government Gazette No on 25 July 2015, which amended the Waste Management Activities List (published in Government Notice No. 921, of 29 November 2013 as amended by Government Notice No. R. 332 of 2 May 2014). This amendment specifically lists the establishment or reclamation of residue deposits and stockpiles as a waste management activity, which requires a WML. Applicability to the Project A WML is required for the following Category B activity now listed under the Waste Management Activities List: (11) The establishment or reclamation of a residue stockpile or residue deposit resulting from activities which require a mining right, exploration right or production right in terms of the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002). The CA for the NEMWA application is the DMR. 4-7

8 The WML application will be undertaken separately to this process. It is, however, noted by Kangra Coal that no disposal may occur onto the proposed discard dump until all licenses have been obtained. Government Notice Regulation No. 632, published in Government Notice on 24 July 2015 (GNR632) ( Regulations Regarding the Planning of Residue Stockpiles and Residue Deposits from a Prospecting, Mining, Exploration or Production Operation ) must be adhered to in respect of the proposed discard dump. Applicability to the Project The GNR632 provides that the planning, management and assessment of the residue stockpile must be undertaken in accordance with the regulations set out therein. The planning, i.e. design, waste characterisation, geotechnical study and groundwater assessment was undertaken in accordance with the relevant regulations and DWS best practices National Environmental Management: Air Quality Act The National Environmental Management: Air Quality Act (Act No. 39 of 2004) (NEM:AQA) commenced on 11 September 2005, and was brought into full force on 1 April The previous Atmospheric Pollution Prevention Act (APPA) of 1965 was repealed on 1 April Section 8 of the Act provides for the setting of national air quality standards, monitoring and management of air quality and emissions. Section 32 deals with dust control measures and provides for the Minister to prescribe measures for the control of dust in specified places or areas, either in general of by specified machinery or in specified instances the steps to be taken to prevent nuisance or other measures aimed at the control of dust. Section 34 provides for measures to control noise. These measures may be promulgated through regulations. As none have been promulgated, it appears that the noise control measures promulgated in terms of the Environment Conservation Act, 1989 (Act No. 73 of 1989) (ECA) still apply. Section 21 of the NEMAQA makes provision for the listing of activities which result in atmospheric emissions, which must be licensed prior to commencement in accordance with Section 22 of the NEMAQA. Applicability to the Project No Atmospheric Emission Licence is required in terms of the NEMAQA. 4-8

9 The storage and handling of ore and coal not situated on the premises of a mine or works is listed in Subcategory 5.1 of Government Notice No. 248, published in GG No on 31 March The proposed discard dump and other activities falls within a mining right area, therefore this listed activity is not triggered National Heritage Resources Act The National Heritage Resources Act (NHRA) (Act No. 25 of 1999) aims to introduce an integrated system for the management of South Africa s heritage resources. Further, the Act empowers civil society to nurture and conserve their heritage resources so that they can be passed on to future generations. The Act provides a framework for the management of heritage resources in South Africa and to protect heritage resources of national significance. In order to meet these objectives, the Act introduces an integrated system that can allow for the identification, assessment and management of heritage resources in South Africa. Applicability to the Project There is the potential to impact on heritage resources and as such a Heritage Impact Assessment has been undertaken in conformance with the South African Heritage Resources Agency (SAHRA) National Environmental Management: Biodiversity Act The National Environmental Management: Biodiversity Act (NEM:BA) (Act No. 10 of 2004) has as an objective to provide for the management and conservation of biological diversity within the Republic and of the components of such biological diversity. As such the focus of this legislation is on the preservation of species and ecosystems irrespective of whether or not they are situated in protected areas. Chapter 4 of the NEM:BA is particularly relevant and provides for: The protection of threatened or protected ecosystems, with particular emphasis on critically endangered, endangered, vulnerable and protected ecosystems. List of Threatened Ecosystems (Notice 1002 of Government Gazette dated 9 December 2011). Listing of species that are threatened or in need of protection to ensure their survival in the wild, while regulating the activities, including trade, which may involve such listed threatened or protected species and activities which may have a potential impact on their long-term survival. - Threatened or Protected Species Regulations (Regulation 152 of 2007). The protection of our natural systems from invasive species. 4-9

10 Chapter 5 of this Act specifically deals with Species and Organisms Posing Potential Threats to Biodiversity. To summarise, the purpose of Chapter 5 is to: Prevent the unauthorised introduction and spread of alien species and invasive species to ecosystems and habitats where they do not naturally occur; To manage and control alien species and invasive species to prevent or minimise harm to the environment and to biodiversity in particular; and To eradicate alien species and invasive species from ecosystems and habitats where they may harm such ecosystems or habitats. Furthermore Section 73 (2) states that a person who is the owner of land on which a listed invasive species occurs must: Notify any relevant CA, in writing, of the listed invasive species occurring on that land; Take steps to control and eradicate the listed invasive species and to prevent it from spreading; and Take all the required steps to prevent or minimise negative impacts to biodiversity. Applicability to the Project The area for the proposed Adit 5 and overland conveyor falls within the Eastern Highveld Grassland ecosystem which is listed by SANBI as Vulnerable. This ecosystem has been gazetted as a listed ecosystem in terms of the National list of ecosystems that are threatened and in need of protection (Government Gazette No of 9th December 2011). The impacts on this ecosystem will be assessed in the EIA Environmental Conservation Act The Environment Conservation Act (ECA) (Act No. 73 of 1989) allows the Minister of Environmental Affairs and Tourism (now the Ministry of Water and Environmental Affairs) to make environmental regulations; including regulations associated with noise. Noise Control Regulations In terms of Section 25 of the Environmental Conservation Act (ECA), the national noise-control regulations (GN.R154 in Government Gazette No dated 10 January 1992) were promulgated. The noise-control regulations were 4-10

11 revised under Government Notice Number GNR.55 of 14 January 1994 to make it obligatory for all authorities to apply the regulations. Subsequently, in terms of Schedule 5 of the Constitution of South Africa of 1996, legislative responsibility for administering the noise control regulations was devolved to provincial and local authorities. Provincial Noise Control Regulations exist in the Free State, Western Cape and Gauteng provinces, but the Mpumalanga province has not yet adopted provincial regulations in this regard National Legislation associated with Land Reform and Security of Tenure Based on the significance of land in both the national and personal arenas of South Africa, the relevant legal structures or tools used to redress discriminatory land legislation, ensure security of tenure, and to establish communal access and title to land are presented in Table

12 Table 4.2 Legislation associated with Land Reform and Security of Tenure Legislation Applicability to Project Applicability to this Project Land Reform (Labour Tenants) Act (Act No. 3 of 1996) Extension of Security of Tenure Act (Act No. 62 of 1997) Communal Property Associations Act (Act 28 of 1996) Enactment of this Act was intended to provide security of tenure for labour tenants 1 and those persons occupying or using land as a result of their association with labour tenants; and to provide for the acquisition of land and rights to land by labour tenants; The Act recognised that the institution of labour tenancy in South Africa (still dominant in 1996) was the result of racially discriminatory laws and practices which led to the undermining of human rights and denial of access to land; It intended to ensure adequate protection of labour tenants (as people disadvantaged by unfair discrimination) in order to promote their full and equal enjoyment of human rights and freedoms; and It established measures to assist labour tenants to obtain security of tenure and ownership of land and thereby prevent further prejudice against them. This Act was intended to provide for measures with State assistance to facilitate long-term security of land tenure (including purchase of land); It was intended to regulate the conditions of residence on certain land; The Act was to prevent unfair eviction, by farm owners, of labour tenants from their homes and avoid the hardships and social conflict that could arise in such situations; and The Act promotes the achievement of long-term security of tenure for occupiers of land, where possible through the joint efforts of occupiers, landowners and government bodies while giving due recognition to rights, duties and interests of the landowner. This Act shapes landownership in the Study Area. The Act was developed to address the need for communities to form Communal Property Associations (CPAs) in order to acquire, hold and manage property. The Act also outlines that CPAs must be non-discriminatory, equitable, democratic and accountable to members so that members are protected against abuse of power by other members. Central to the Act, and working in harmony with the Land Reform and the Extension of Security of Tenure Acts, described above, is the creation of a tool through which communities could reinforce the security of their land tenure. Once registered and approved, a CPA has the authority to sue and be sued, and acquire rights and dispose of immovable property. They also become liable for immovable property, real rights by mortgage, servitude or lease. By law, a CPA must continue despite changes in leadership, or exit of members from the association. Any decision to dissolve the CPA, change the constitution, or to This Act is not applicable in this case. This Act is not applicable in this case. CPA s in the Project area have been included in stakeholder engagement activities and given the opportunity to comment on the proposed Project activities. (1) 1 A 'labour tenant' is a person who is residing, or has a right to reside, on a farm, or has a right to use cropping or grazing land on a farm in return for labour, or is a child or grandchild of such a person. 4-12

13 Legislation Applicability to Project Applicability to this Project dispose of or acquire property requires an inclusive decision making process and majority agreement. It is illegal for any one person to grant or purport to grant community property rights of a CPA. 4-13

14 Legal Requirement Summary The proposed Project will require the authorisations, licences and permits listed in Table 4.3. Table 4.3 Authorisations required for the Project Statute Requirement Competent Authority MPRDA An EIA be conducted and an EMPr submitted National Department of Minerals and Resources NEMA Then EIA and EMPr will be undertaken according to the NEMA Regulations National Department of Minerals and Resources (2014) NEMWA WML to be applied for separately National Department of Minerals and Resources NWA IWULA to be applied for separately. Process is currently being undertaken. National Department of Water and Sanitation 4.2 NATIONAL STANDARDS South African National Standards (SANS) as published by the South African Bureau of Standards (SABS) In terms of the Standards Act, 2008 (Act No.8 of 2008), the Council of the South African Bureau of Standards (SABS) published the South African National Standards (SANS). The SABS is responsible for maintaining South Africa's database of more than 6,500 national standards, as well as developing new standards and revising, amending or withdrawing existing standards as required. The SABS commercial services can be divided into the following clusters: Chemicals; Electro-technical; Food and Health; Mechanical and Materials; Mining and Minerals; Services; and Transportation. Water Quality Of applicability to this Project is the South African National Standard for drinking water (SANS 241-1:2011), applicable to both the potable use of surface and ground water. Noise SANS 10103:2008 (The Measurement and Rating of Environmental Noise with Respect to Annoyance and to Speech Communication) provides the maximum average background ambient sound levels, L Req,d and L Req,n, during the day and night respectively to which different types of developments may be 4-14

15 exposed. Based on onsite measurements, the ambient sound levels on and around the proposed Project Site correspond to the rating levels for a rural area. As such, the acceptable Zone Sound Levels used include: Day (06:00 to 22:00) - L Req,d = 45 dba. Night (22:00 to 06:00) - L Req,n = 35 dba. SANS also provides a guideline for estimating community response to an increase in the general ambient sound level caused by an intruding noise. If is the increase in noise level, the following criteria are of relevance: 3 dba: An increase of 3 dba or less will not cause any response from a community. It should be noted that for a person with average hearing acuity, an increase of less than 3 dba in the general ambient noise level would not be noticeable. 3 < 5 dba: An increase of between 3 dba and 5 dba will elicit little community response with sporadic complaints. People will just be able to notice a change in the sound character in the area. 5 < 15 dba: An increase of between 5 dba and 15 dba will elicit a medium community response with widespread complaints. In addition, an increase of 10 dba is subjectively perceived as a doubling in the loudness of a noise. For an increase of more than 15 dba the community reaction will be strong with threats of community action. SANS 10328:2008 Methods for Environmental Noise Impact Assessments National Environmental Management Act (Act No. 107 of 1998) Public Participation Guideline (GN.R807 of 2012) Summary of Guideline In 2010, the Minister gazetted a new set of regulations on the requirements for conducting EIAs in terms of Chapter 5 of NEMA. In order to assist potential applicants, interested and affected parties and environmental assessment practitioners to understand their role, the DEA has produced a series of guidelines. These guidelines must be read in line with NEMA and the EIA Regulations of 2010 as they do not substitute primary legislation. The guideline updates and revises the draft integrated environmental management guideline which was developed in The public participation guideline provides for inter alia: the minimum legal requirements for public participation processes (PPP); the steps of a PPP; guidelines for planning a PPP; and a description of the roles and responsibilities of the various role players. 4-15

16 4.2.3 Water Quality Guidelines Water quality guidelines for both surface and groundwater are applicable to the Project, based on the following water users identified for the Project area: Aquatic ecology; and Stock watering. The following guidelines published by DWAF are applicable: DWAF, South African Water Quality Guidelines. Volume 7: Aquatic Ecosystems; and DWAF, South African Water Quality Guidelines. Volume 5: Livestock Watering. Derivation of Surface and Groundwater Screening levels using the Water Quality Standards and Guidelines Using baseline surface water and groundwater quality results, the South African Water Quality Standards for Drinking Water (i.e. SANS241:2011), and the South African Water Quality Guidelines for both Aquatic Ecosystems and Livestock Watering, site specific surface water screening levels were derived. Surface Water Criteria The following rationale was followed to develop the surface water standards: The most conservative of the aquatic ecology/drinking water/livestock watering guidelines was adopted as the screening level, except in the instance where the average baseline surface water quality exceeded the screening level. Where the baseline surface water quality exceeded the screening level, the screening level was set to a value two standard deviations higher than the mean for that parameter in baseline surface water. In the case of the major cations and anions, the most conservative screening level was for drinking water. However, due to the extremely low Total Dissolved Solids (TDS) of the baseline surface water, if the drinking water screening levels are adopted, this will result in the TDS exceeding the aquatic ecology screening levels of less than a 15% change in baseline conditions. In order to account for this, screening levels for major cations and anions were calculated assuming stoichiometric dissolution of CaSO 4 or NaCl to the point at which the TDS was 15% above the baseline value. 4.3 NATIONAL PLANS AND POLICIES Table 4.4 highlights a selection of national plans and policies which are deemed most applicable to the proposed Project. 4-16

17 Table 4.4 National Development Policy Context Plan/Policy National Development Plan 2030 (2012) (NDP) Key Aspects/Objectives The NDP, adopted by the ANC National Conference in Mangaung (2012) envisages an economy that serves the needs of all South Africans rich and poor, black and white, skilled and unskilled, those with capital and those without, urban and rural, women and men. The Vision is that, in 2030, the economy should be close to full employment; people will be equipped with the skills they need; ownership of production will be less concentrated and more diverse (where black people and women own a significant share of productive assets); and the economy will be able to grow rapidly, providing the resources to pay for investment in human and physical capital. New Growth Path (2009)(likely to be superseded by the NDP 2030 but still in place) Subsequently, the NDP proposes to create 11 million jobs by 2030 by: - Realising an environment for sustainable employment and inclusive economic growth. - Promoting employment in labour-absorbing industries. - Raising exports and competitiveness. - Strengthening government s capacity to give leadership to economic development. - Mobilising all sectors of society around a national vision. Presents growth objectives nationally and per province. Mpumalanga Province (and Gert Sibande District Municipality) having to proportionally contribute towards the achievement of increased employment in, amongst others Jobs Drivers in the main economic sectors: Government Outcomes (adopted in 2010) Medium Term Strategic Framework (MTSF) (2009) in Agriculture smallholder schemes jobs in agro processing by additional jobs in Mining by 2020, jobs by 2030, not counting the downstream and side stream effects jobs as per the Industrial Policy Action Plan 2 targets in manufacturing by jobs in Business and Tourism by 2020 One of the 12 Outcomes of public service delivery priorities highlighted in the New Growth Path and relevant to this Project is Outcome 7: Vibrant, Equitable And Sustainable Rural Communities And Food Security, to be achieved through: - Sustainable agrarian reform and improved access to markets for small farmers. - Improved access to affordable and diverse food. - Improved rural services and access to information to support livelihoods. - Improved rural employment opportunities. - Enable institutional environment for sustainable and inclusive growth. Seeks to identify the major strategic choices needed to deal with poverty and underdevelopment. Key objectives include: - Reduction of poverty and underemployment. - Provision of skills required by the economy. - Ensuring that South Africans can fully exercise their constitutional rights and enjoy the full dignity of freedom. - Achievement of a better national health profile and reduction in preventable deaths. - Reduce serious and priority crimes. - Position SA strategically as an effective force in global 4-17

18 Plan/Policy National Spatial Development Perspective (NSDP) (initiated in 1999) The International Council on Mining and Metals (ICMM) Key Aspects/Objectives relations. Argues that government s social objectives will be best achieved through infrastructure investment in economically sustainable areas with proven development potential. Therefore, areas displaying little or no potential for growth should only be provided with the constitutionally mandated minimum levels of services, and the focus of government spending should rather be on the people, i.e. social development spending. Government spending on fixed investment, beyond the constitutional obligation to provide basic services to all citizens (such as water, electricity as well as health and educational facilities), would therefore be focused on localities of economic growth and/or economic potential in order to attract private-sector investment, stimulate sustainable economic activities and/or create long-term employment opportunities (1). Aims to not only provide a strategic assessment of the spatial distribution and socio-economic characteristics of the South African population, but to gain a shared understanding of the distribution of economic activities and potential across the South African landscape based on this the NSDP sets out a number of guidelines for infrastructure development in South Africa. Although not policy or legislative, the International Council on Mining and Metals (ICMM) have published a set of guidelines on good practice guidance on mining and biodiversity (Johnson and Starke, 2006) The Mining and Biodiversity Forum of South Africa, 2009 (Pre-publication Guidelines for South Africa) The South African Mining and Biodiversity Forum (SAMBF) was established in 2005 to provide a platform for cross-sectoral interaction and co-operation in order to improve biodiversity conservation and management in the mining sector. A review of the status of biodiversity management in the mining industry in South Africa was published (Kuntonen-van t Riet, 2007) and a need for the establishment of biodiversity guidelines was identified. The good practice guidance on mining and biodiversity, published by the ICMM was prepared for an international audience, and was therefore generic in nature. A pre-publication document in the South African context was released in 2012 called Mainstreaming Biodiversity Into Mining: A Guideline For Practitioners And Decision Makers In The Mining Sector. This guideline document was compiled to incorporate local biodiversity information and best practice guidelines, specific to South Africa. The Guideline aims specifically to integrate relevant biodiversity information into decision making about mining options and how best to avoid, minimise or remedy biodiversity impacts caused by mining, and in so doing support ecologically, economically and socially sustainable development. 4.4 REGIONAL LEGISLATION Mpumalanga Parks Board Act (Act No. 6 of 1995) The objectives of this Act are as follows: to provide effective conservation management of natural resources of the Mpumalanga Province; (1) It s worth noting that the Local Municipalities of Mkhondo and Pixley KaIsaka Seme are defined within the NSDP classification as areas of Combined Poverty and Economic Activity with high levels of poverty concentration situating them within the environment identified for sustainable economic development while being in need of significant social development spending. 4-18

19 to promote the creation of economic and employment opportunities in pursuit of nature conservation and biodiversity; to ensure that natural systems, biodiversity and ecological functions and processes in the Mpumalanga Province are maintained; to determine and enforce limits to sustainable utilization of natural resources; to contribute to the advancement of scientific knowledge, and facilitate Technology transfer in respect of conservation; and to provide information and extension services to the public on conservation management, problem species, legal aspects of conservation and other conservation matters Mpumalanga Tourism and Parks Agency Act (Act No. 5 of 2005) This Act provides for the establishment of the Mpumalanga Tourism and Parks Agency (MTPA) and for the management thereof by a Board; to provide for the sustainable development and improvement of the tourism industry in Mpumalanga; to provide for conservation management of the natural resources of Mpumalanga; to confer powers and functions upon the Agency; to provide for the registration of certain persons and entities directly involved in tourism; to provide for transitional arrangements; and to provide for matters incidental thereto Mpumalanga Conservation Act, 1998 (Act No. 10 of 1998) To consolidate and amend the laws relating to nature conservation within the Province and to provide for matters connected therewith Regional Plans and Policies Table 4.5 highlights a selection of provincial plans and policies seen to be most pertinent to the proposed Project. Table 4.5 Regional Development Policy Context Policy Mpumalanga Economic Growth and Development Path (MEGDP) (2011) Key Aspects/Objectives The primary objective of the MEGDP is to foster economic growth that creates jobs, and reduce poverty and inequality in the Province. Main economic sectors (all of which occur in the Gert Sibande District) identified as key to spur economic growth and employment creation and of relevance to this Project include: Agriculture and forestry through: - Skills development; 4-19

20 - Support for small-scale farmers and agri-business; - Fast-tracking the settlement of outstanding land claims; - Optimal utilization of restituted and distributed land; - Increased acquisition of agricultural land for the previously disadvantaged; and - Revisiting of current legislation to create balanced development in areas of competition between mining and farming. Mining and energy through: - Upgrading and maintenance of coal haulage network; - Increased levels of higher skilled graduates; - Expanding the water network and increase reliance on water transfer schemes; - Increase South Africa s load and improve alternate energy supply; - Establishment of a mining supplier park to enhance enterprise development in the province; - Resolve land claims to release land for development. Comprehensive support to small-scale mining enterprises to exploit opportunities presented by corporate social; and - Investment initiatives, retreatment of sub-economic deposits and dumps, and dimension stones. Tourism and cultural industries through: - Broadening and diversifying the primarily nature-based tourism product offerings of Mpumalanga into other segments of the market and subsequently grow the economy that create jobs through: Mpumalanga Biodiversity Conservation Plan Sustained investment in all aspects of the industry new products, destination marketing, human capital development in the service industry; Investing in economic infrastructure, e.g. airport, International Conference Centre, sports Academy, roads for tourism routes, etc. Comprehensive support to SMMEs to exploit opportunities in the tourism and cultural industries. The biodiversity of Mpumalanga has been recorded and catalogued by the Mpumalanga Parks and Tourism Authority (MPTA) for more than 10 years in what is referred to as the Provincial Biobase Project. This data has been combined and analysed to produce a spatial plan for biodiversity conservation and designed to serve as an environmental decision support tool. Information for the MBCP has been sourced from a draft of the Land-use Guidelines for Biodiversity Conservation Categories in Mpumalanga (Ferrar and Lötter, 2007). The spatial plan groups the province s biodiversity assets into six conservation categories: 1. Protected Areas (PA) - currently under formal biodiversity protection. 2. Irreplaceable areas - in urgent need of PA status. 3. Highly Significant areas - requiring strict land-use controls. 4. Important and Necessary areas - requiring special care. 5. Least Concern - providing sites for development. 6. No Natural Habitat remaining - providing preferred sites for all forms of development Mpumalanga Tourism and Parks These areas have been mapped for the Project area, both in terms of the area s sensitivity rating and impact assessment. To promote national uniform standards in Environmental Management Plans (EMP s) the Mpumalanga Tourism and Parks Agency (MTPA) 4-20

21 Agency Guidelines for Biodiversity Assessment have set minimum standards that need to be conformed to in terms of Biodiversity Assessments for development applications. These guidelines cover flora, fauna, aquatic and wetland systems. 4.5 INSTITUTIONAL AND ADMINISTRATIVE FRAMEWORK National, Regional and Local Authorities This section briefly presents aspects of South Africa s institutional structures that are relevant to the proposed Project. The levels of government outlined will have varying jurisdiction over the Project. Therefore an understanding and interaction between the parties will be necessary throughout the Project s lifecycle. South Africa is a constitutional democracy that is made up of three government structures: national, provincial and local government, each obtaining powers from the Constitution. It is a sovereign, democratic state and is divided into nine provinces that each have provincial legislature. The provincial government, and in the case of this proposed Project, the Mpumalanga Provincial Government, is responsible for providing a strategic vision and framework for the province, as well as ensuring cooperation between municipalities and ensuring each municipality performs their respective functions. The district and local municipalities are each responsible for the provision of services and infrastructure within their municipal boundaries. This is facilitated through the development and implementation of Integrated Development Plans (IDPs), Spatial Development Frameworks (SDF) and Local Economic Development (LED) Plans, amongst others. The proposed Project is located within the Mkhondo and Pixley Ka Seme Local Municipalities which fall within the greater Gert Sibande District. These two Local Municipalities are further divided into Wards. Of relevance to the proposed Project are Wards 2 and 3 of the Mkhondo Local Municipality (MLM) and Wards 5 and 10 of the Pixley Ka Seme Local Municipality (PKSLM) (Figure 4.1). 4-21

22 Figure 4.1 Contextual Map: Province, District and Municipality 4-22

23 At the national level, there are a number of Departments within whose domain the Project would fall including: The Department of Mineral Resources to enable a globally competitive, sustainable and meaningfully transformed minerals and mining sector to ensure that all South Africans derive sustainable benefit from the country s mineral wealth. The Department of Agriculture, Rural Development, Land and Environmental Affairs - to ensure the protection of the environment and conservation of natural resources, balanced with sustainable development and the equitable distribution of the benefits derived from natural resources. The Department of Water and Sanitation - to ensure that all South Africans gain access to clean water and safe sanitation, the water sector also promotes effective and efficient water resources management to ensure sustainable economic and social development. The Department of Energy - to ensure secure and sustainable provision of energy for socio-economic development. The Department of Agriculture, Forestry and Fisheries to ensure a a united and prosperous agricultural sector, with the aim of supporting sustainable agricultural development. The Department of Rural Development and Land Reform to develop a Comprehensive Rural Development Programme (CRDP) throughout the country. The Department of Land Affairs - provide an equitable and sustainable land dispensation that promotes social and economic development. Specific impacts relating to the Project would be monitored and managed at the Provincial level in relevant departments and through local government, which includes district and local municipalities, and wards Traditional Authorities The continuing significance of the role of traditional leadership within South African society is currently under discussion. This has been particularly so since the scrapping of Apartheid-era legislation, the Black Authorities Act (1951), which employed divide and rule tactics to undermine traditional power structures. Many laws enacted to replace this Act however continue to perpetuate some of the instituted traditions, marginalising women and rural communities where about one third of South Africa s population still lives. Against this backdrop it is worth noting that the chieftaincy structure still operates in the proposed Project Area, albeit not strongly. Of relevance to the Project are Chiefs Yende, Mthetwa and Tshabalala. 4-23