INTRODUCTION AND BACKGROUND
The National Environmental Management Laws Amendment Act No. 2 of 2022 (“NEMLAA4”) was assented into law on 24 June 2022 but the majority of the provisions of NEMLAA4 only took effect and came into operation on 30 June 2023. Many of the amendments in NEMLAA 4 have been made to address a wide range of issues that were associated with the One Environmental System (“OES”) that was implemented in 2014, which overhauled the manner in which environmental aspects are addressed, including at mines.
The amendments will affect the following pieces of legislation: the National Environmental Management Act, 1998 (“NEMA”), the National Environmental Management: Air Quality Act, 2004 (“NEM:AQA”), the National Environmental Management: Waste Act, 2008 (“NEM:WA”), the National Environmental Management: Protected Areas Act, 2003, the National Environmental Management: Biodiversity Act, 2004, the National Environmental Management: Integrated Coastal Management Act, 2008 and the National Environmental Management Amendment Act, 2008.
The changes in NEMLAA 4 aim to deter non-compliance with environmental laws by, among other things, introducing new offences, increasing the quantum of fines and administrative penalties where laws or licences have been contravened, and will extend enforcement powers to enable more widespread enforcement of environmental laws.
However, sections 11, 35(a), 57, 60, 61(c), 61(j), 61(k), 62,63, 64,65, 66, 72, 76, 77, 86, 87 and 88 of NEMLAA 4 have not come into effect together with the other provisions. On Monday 26 June 2023 the Constitutional Court, in the case of South African Iron and Steel Institute and Others v Speaker of the National Assembly and Others, handed down a judgment that found that certain provisions of NEMLAA4 are unconstitutional.
It was declared that Parliament has failed to comply with its constitutional obligation to facilitate public involvement in terms of Sections 59(1)(a) and 72(1)(a) of the Constitution in respect of the following provisions of NEMLAA4:
(i) The amended definition of “waste” in Section 61(k);
(ii) The new definition of “commercial value” in Section 61(c);
(iii) The new definition of “trade in” in section 61(j); and
(iv) The transitional provision in Section 88.
WHAT THIS MEANS
The above-mentioned provisions are accordingly declared invalid and unconstitutional. Thus, the current definitions remain in force. Of specific importance to the mining industry is that the definition of waste, residue stockpiles and deposits remain regulated by NEM:WA.
Apart from correcting and clarifying definitions and measures related to aspects of environmental management instruments, appeal processes and financial provisioning requirements, NEMLAA4 also sets new requirements related to section NEMA 24G rectification applications for environmental authorisation and waste management licenses. This rectification process has been expanded to include “successors in title” and “persons in control” of the land on which unauthorised activities are taking place.
The rectification process now includes requirements for public participation and competent authorities are mandated to direct the cessation of the unlawful activities pending the outcome of the rectification application unless there are reasonable grounds to believe the cessation will result in serious harm to the environment. The maximum administrative fine payable in terms of section 24G has now increased from R5million to R10million.
In terms of NEM:AQA, provisions which would allow the licensing authority to revoke and suspend an Atmospheric Emissions Licence where there is evidence of a contravention of NEM:AQA have also not come into effect yet.
National and Provincial environmental departments have the authority to issue enforcement directives relating to breaches of environmental duty of care. NEMLAA 4 has extended the authority to issue directives to Municipal Managers, which will result in a wider range of environmental enforcement.
Lastly, financial provisioning provisions under NEMLAA4 are now operational, and these provisions will replace the 2015 financial provisioning regulations.