TARISAI MUGUNYANI: Mining operations must be held to highest standard of rehabilitation

The SA Presidential Climate Commission defines the just energy transition as “the transition of SA's energy sector … away from coal towards cleaner sources of energy”.

Practically, this means that in working towards a low emissions and climate resilient economy it is critical that all elements related to this transition are taken into consideration.

We cannot speak of such a transition without critiquing and being aware the of the role of labour, business, government and, most importantly, the lives at the centre of it all.

In working towards a low emissions and climate resilient economy there is a need to take into consideration all elements involved in the just transition process, such as labour, business, government and, most importantly, communities.

If the state undertakes this “transition” to defund fossil fuels and facilitate a transition to clean renewable energy, the state must also be steadfast in creating conducive policies and regulations for the transition. It is critical that the regulatory systems allow environmental protection and socioeconomic development.

Where economic development is concerned, the state must ensure adequate financial provision that will enable the rehabilitation and closure of mines and support sustainable end-use of the land. This is particularly vital with regard to coal mines.

This means that in undertaking this transition to defund fossil fuels and facilitate a transition to clean renewable energy the state needs to ensure that that there is enabling legislation to see to it that there are mechanisms supporting those who are most vulnerable to the effects of climate change. It is therefore critical that there are legislative mechanisms that support this process.

This means the regulatory systems must allow for environmental protection and socioeconomic development. As part of environmental regulatory systems, the state must ensure there is adequate financial provision that will enable the rehabilitation and closure of mines and support sustainable end use of the land, in this instance coal mines. 

The main law in SA that enables this financial provision is the National Environmental Management Act and the financial provision regulations published in terms of the act. Financial provision is defined as a form of security provided before the start of mining. It requires mining companies to assess what it will cost to rehabilitate the impact of their operations on the environment. That money must then be secured and set aside for the eventuality of mine closure.

The current financial provision regulations only apply to mining rights obtained after 2015. Given that mining rights often last for periods of 30 years, there are many existing mines that are not subject to the regulations. 

There have been numerous draft iterations of the financial provision regulations since 2015, and these have been subject to several compliance extensions and proposed overhauls. Some of the proposals aim to provide transitional arrangements to holders of mining rights obtained before November 20 2015 to be compliant with the current regulations, particularly in the assessment of the adequacy of the monies already set aside for mine closure and rehabilitation. 

In February the forestry, fisheries and environment minister again amended the transitional period contained in regulation 17B of the financial provision regulations of 2015, to allow the holder of a right or permit granted in accordance with the Mineral and Petroleum Resources Development Act (MPRDA) who applied for the right or permit before November 20 2015, to continue making financial provision in accordance with regulations 53 and 54 of the regulations published under the MPRDA. In other words, a person who applied for a right or permit prior to that date is not yet required to comply with the financial provision regulations. 

In the previous amendments to regulation 17B, the minister always specified a date by when the transitional period would expire and when all holders would be required to comply with the financial provision regulations. However, in this instance regulation 17B was amended to provide that the transitional period will continue to apply until the minister publishes a date.

This perpetual extension is made worse by the already common practice of inadequately assessed financial provision, inappropriately approved financial provision and a failure to collect or account for financial provision from mining companies on the part of the department of mineral resources and energy. 

Consequently, the state and mining-affected communities bear the brunt of failed or absent environmental rehabilitation, while polluters that cause serious environmental degradation bear no responsibility for their damage. This loophole allows them to simply abandon mines, forgoing any financial or environmental accountability. Considering these policy gaps, it is critical that the improved protection provided for by the 2015 financial provision regulations is brought into effect, requiring that all mining companies are subject to the Nema regime. 

Delaying compliance with the new regulations once the 2022 draft proposed regulations have been gazetted will facilitate ongoing violations of Nema and section 24 of the constitution, which says people living in SA have the right to an environment that does not harm their health or wellbeing.

If we are to truly achieve a just transition, it is imperative that all mining companies are held to the highest standards of rehabilitation at all of their operations, new and existing. From the outset they must provide adequate financial provision to ensure harm they cause to the environment can be properly rehabilitated. Rehabilitation should not be considered an afterthought, but a priority.

The minister must ensure there are regulatory mechanisms that support mine closure and rehabilitation for purposes of the just transition by gazetting the latest iteration of the financial provision regulations. 

• Mugunyani is an attorney working on the mining programme at the Centre for Environmental Rights.