The Delphic Provision: Who is responsible to enforce compliance of NEMA?
05 Apr 2017
On 8 December 2014, the agreement between the three Departments of Mineral Resources (DMR), Environmental (DEA) and Water Affairs, also known as the “One Environmental System” became a reality. In principle, this was aimed at streamlining environmental approvals, monitoring and enforcement for South African mines and to create a “one stop shop” which the industry had been advocating for some time.
On 20 March 2017, the Western Cape High Court handed down a lengthy and complicated judgment in favour of Mineral Sands Resources (MSR), represented by Hogan Lovells SA. The court held that a warrant obtained by the DEA to effect search and seizure pursuant to complaints of criminal violations of the National Environmental Management Act (NEMA), was unlawfully obtained, inter alia, because the DEA no longer had jurisdiction to police NEMA in respect of mining activities.
Although there was consensus in the industry that the DMR became the competent authority to issue environmental authorisations, where listed activities are triggered after December 2014, the question of who may prosecute violations of NEMA was an issue marred in confusion. In the MSR case, the DEA took about 16 months to determine internally whether they still retained jurisdiction to prosecute mines for environmental violations. Even within the departments themselves, the prosecuting jurisdiction remained a vexed topic and an apparent cooperation agreement between the DMR and the DEA to conduct the search and seizure at MSR unraveled on the morning of the execution of the search warrant.
The amendments creating the One Environmental System were not only extremely complicated, but a contention that the DMR became the sole licensing and enforcement agency for environmental compliance at mines, did not sit well with interest groups who think that the DMR is soft on environmental compliance.
Section 38A of the Mineral and Petroleum Resources Development Act (MPRDA), read with s31D of NEMA were two of the most important amendments dealing with the enforcement jurisdiction of the DMR and the DEA. S38A provides that the DMR is responsible to implement NEMA at mines. One would have thought that the section was clear and that it meant that the DMR now had the sole jurisdiction to monitor and enforce compliance of NEMA at mines, but as the MSR case demonstrated, it was not that simple.
The DEA argued that the One Environmental System did not oust its jurisdiction and that there was resultantly dual jurisdiction between the DMR and the DEA to police NEMA compliance at mining sites. To avoid what appeared to be the plain language of s38A, the DEA argued that the section was only there to give legislative context to the amendments. It was argued that s38A was enacted to contextualize s38B, which is not yet effective and which will provide an Environmental Management Programme under the MPRDA that will be deemed to be an environmental authorization under NEMA.
The court characterized s38A as a Delphic provision – meaning that it was obscure, ambiguous and enigmatic. -This is not to suggest, however, that the drafters of the amendments consumed hallucinogenic substances when they drafted that section of the amendments as may have been the case with the Oracle of Delphi in ancient Greece, but rather, that the section was shrouded in as much mysticism as the ancient priestess and her prophecies.
Having made a careful and comprehensive analysis of the various provisions of NEMA, the MPRDA and the National Water Act, the court held that the DEA no longer had jurisdiction to monitor or enforce compliance of NEMA in respect of mining activities.
This judgment is, and will be, hailed as a victory for the mining industry, which has for some time advocated that the DMR should be the sole policing authority in respect of mining activities. However, the judgment must not be interpreted to create a geographical exclusion zone at mines where the DMR has exclusive jurisdiction and DEA may not act.
Firstly, the delineation of jurisdiction between the DMR and the DEA in respect of NEMA, depends on the activity being inspected. If it is related to mining, then the DMR has jurisdiction, but if it is not, then the DEA would retain jurisdiction. This regrettably leaves some grey areas open for interpretation, but the judgment goes a long way to clear up some of the inherent confusion that reigned post the implementation of the One Environmental System.
Secondly, the court left open the question of whether an accusation of a breach of the general duty of care created under NEMA, would not still be capable of being prosecuted by the DEA. In our view, the MSR judgment is a pioneering one that will go a very long way to clarify the jurisdiction of the DMR to police NEMA at mines and how complaints from interested parties should be managed by the two departments. Hopefully, it will also give guidance to the various national and provincial departments as to how they need to approach environmental compliance and enforcement within the mining industry.
Download the National Environmental Management Act here.
(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)