Local Government, Environmental Affairs and Development Planning

[a and b] It must be noted that the Department of Mineral Resources and Energy [“DMRE”] is the competent authority in terms of section 24C(2A) of the National Environmental Management Act, 1998 [Act No. 107 of 1998) [“NEMA”] for listed or specified activities that are directly related to the prospecting or exploration of a mineral or petroleum resource, or the extraction and primary processing of a mineral or petroleum resource. The Department of Environmental Affairs and Development Planning [DEA&DP] and CapeNature are commenting authorities in terms of section 24O of NEMA, 1998 to provide comments on environmental impact assessment [“EIA”] applications for listed or specified activities pertaining to prospecting right and mining approval applications. It is important to note that these comments are guided by strategic provincial information in terms of the Western Cape Biodiversity Spatial Plan and Coastal Risk information. Once the authorities are notified by either the environmental assessment practitioner or another organ of state of an application for environmental authorisation pertaining to listed or specified activities for a prospecting right, mining permit or mining right, the DEA&DP and CapeNature would participate in the EIA process by providing comments on the relevant EIA report.

The DEA&DP is also responsible for exercising the constitutional mandate for Provincial Planning which can be divided into a Spatial Planning role and a Land Use Management role. In terms of Spatial Planning or forward planning, the role is to compile province wide planning policy which we mainly do through the Provincial Spatial Development Framework. With respect to mining, the aim is to identify province wide where mining resources are to be found, to plan for the sustainable protection of the resource and to ensure that the extraction does not adversely impact on other land uses, including the conservation of priority biodiversity and ecosystems.

The second part of Provincial Planning involves Provincial Land Use Management. The Western Cape has legislated in the Western Cape Land Use Planning Act, 2014 [Act No. 3 of 2014] [“WC LUPA”] that certain activities such as shale gas extraction and normal mines larger than certain areas also trigger a Provincial Land Use management process and which therefore also (over and above a municipal and approvals in terms of the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002)) require an approval from the Provincial Minister.

The DEA&DP also has a further mandate in respect of Municipal Planning. In terms of section 156[7] of the Constitution, the Western Cape Government has the role of capacitating, support, monitoring and regulating the exercise by municipalities of the municipal planning function. The DEA&DP therefore has compiled the WC LUPA, assists municipalities with their by-laws, zoning schemes which makes provision for mining rights, and the approval processes to obtain the land use rights. The DEA&DP also provides technical support specifically to the Matzikama Municipality in dealing with mining applications and where necessary, also provide capacity to deal with backlogs and bottlenecks. The DEA&DP monitor the performance of the municipalities in dealing with applications and provide necessary support where needed.

[c] The DEA&DP and CapeNature are only commenting authorities for applications for environmental authorisation directly related to the prospecting or exploration of a mineral or petroleum resource, or the extraction and primary processing of a mineral or petroleum resource. The DEA&DP and CapeNature would however indicate in its comments on an EIA application pertaining to a prospecting right, mining permit or mining right, if it objects to such an application. The DEA&DP would further provide recommendations for consideration by the DMRE during its decision-making process.

[d] Every environmental authorisation must, as a minimum, ensure that adequate provision is made for the ongoing management and monitoring of the impacts of the activity on the environment throughout the lifecycle of the activity. The management of environmental restoration during and after mining activities falls outside the legislative mandate of the DEA&DP. The management of environmental restoration during and after mining activities is the responsibility of the holder of the environmental authorisation granted for the prospecting right, mining permit of mining right, as well as that of the DMRE. The Minister responsible for mineral resources may designate a person as an environmental mineral resource inspector for the compliance monitoring and enforcement of the provisions of the NEMA, or a specific environmental management Act in respect of which powers are conferred on him or her. The Minister responsible for environmental affairs may, with the concurrence of the Minister responsible for mineral resources, if the environmental mineral resource inspectors are unable or not adequately able to fulfil the compliance monitoring and enforcement functions, designate environmental management inspectors to implement these functions in terms of this Act or a specific environmental management Act in respect of which powers have been conferred on the Minister responsible for mineral resources.