|
ENVIRONMENTAL LAWS AMENDMENT ACT, 25 OF 2014
SET ASIDE BY THE HIGH COURT
MacRobert wishes to draw your attention to the following:
The publication of the Environmental Laws Amendment Act, 25 of 2014 (NEMLAA 2014) was set aside by the High Court on 22 May 2015 in the matter of Aquarius Platinum SA (Pty) Ltd v Minister of Water and Sanitation and Others, High Court of South Africa, Gauteng Division, Pretoria, Case No. 75622/2014.
The judgment reverses the application of the National Environmental Management: Waste Act, 59 of 2008 (NEM:WA) to Mine Residue Stockpiles and Deposits and also reverses the jurisdiction of the Minister of Mineral Resources in such matters. The court apparently also aimed to rectify certain uncertainties relating to the transition of EMPR's under the MPRDA to Environmental Authorisations in terms of the National Environmental Management Act, 107 of 1998 (NEMA). It appears however that by setting aside the NEMLAA 2014 (and thereby reversing the deletion of Section 14(2) of the NEMLAA 2008), the court would unwittingly merely confirm 8 December 2014 as the date on which the majority of these changes did take place. The judgment, once confirmed, would therefore have the desired outcome in respect of the NEM:WA, but not in respect of the NEMA. Further, many of the provisions of the MPRDA which the court assumed were deleted by the NEMLAA 2014, were in fact already erroneously deleted during 2013. The reversal of the NEMLAA 2014 will certainly not cure those matters either.
Notwithstanding the above, the judgment is not in effect until such time as it is confirmed by the Constitutional Court. It is possible that the draft regulations pertaining to mining with regards to management of mine Residue Stockpiles and Deposits may see the light before then, which would remove much of the rationale for the court's decision with respect to the application of the NEM:WA. The period leading up to the promulgation of the regulations would still have to be addressed. As far as the interplay between the MPRDA and the NEMA is concerned, the Constitutional Court will hopefully consider the transitional arrangements in Section 12(4) of the NEMLAA 2008 (providing for the preservation of an MPRDA EMPR under the NEMA), which appears not to have featured in the ruling.
Finally, the ruling has only limited implications for mines in respect of the Contaminated Land provisions in Chapter 8 of the NEM:WA. These requirements are largely unaffected in relation to the mining sector, save for the possible reversal of jurisdiction back to the Department of Environmental Affairs, should the judgment be confirmed by the Constitutional Court.
On that subject, you are cordially invited to a Breakfast Seminar and Panel Discussion on Contaminated Land on Wednesday, 3 June 2015. Please follow this link for details and booking.
For any queries you are welcome to contact our environmental and mining law division:
Kenneth Cameron
(012) 425 3514
kcameron@macrobert.co.za
Caroline Pepermans
(012) 425 3522
cpepermans@macrobert.co.za
Doné van Heerden
(012) 425 3494
dvheerden@macrobert.co.za
|
