High court judgement: Mining subject to planning and environmental approvals

24 Aug 2010

Tensions and a difference of interpretive legislative opinion led to a deadlock in the Western Cape high court during April 2010 between the three spheres of government in terms of how mining activities are regulated.

A decision now passed by the Western Cape high court, 20 August 2010, paves a clear outline of how and why national, provincial and municipal legislation must be considered on an integrated level before decisions are made which will impact on the socioeconomic landscape of citizens and more specifically on the environment within which we live.

Judges Davis and Baartman delivered their judgement in the Cape High Court case:

City of Cape Town and Minister of Local Government, Environmental Affairs and Development Planning versus Maccsand (PTY) Ltd and the Minister of Minerals and Energy and others (case no. 4217/2009 and 5932/2009).

The central dispute to this case was for the court to rule on whether a mining permit or mining right granted under the Minerals and Petroleum Resources Development Act 28 of 2002 (MPRDA) exempts the holder from having to obtain authorisation for its mining activities in terms of laws which regulate the use of that land, in particular the provisions of the Land Use Planning Ordinance 15 of 1985 (LUPO) and the National Environment Management Act 107 of 1998 (NEMA).

The implications of this judgement are significant as it affirms the correct interpretation of the Constitution and specifically how the powers conferred on each sphere of government must be recognised and taken into consideration during the interpretation of the various legislative frameworks which govern the three spheres. The ruling further confirmed that mining decisions do not "trump" (override) all other legislation.

The judgement in terms of LUPO stated: "the Constitution does not refer expressly to exclusive national competencies. When these sections are examined together, it is clear that the Constitution does not detail exclusive national competence but carves out areas for provinces and municipalities, leaving the balance, being areas which are not so specified, to national government.

"In other words, the functional competence of the national government is defined by way of an examination of the functional competencies of the local and provincial government and not the other way round. The Constitution does not give national legislation the right to take away the planning functions of municipalities".

In terms of NEMA the judgement stated: "the requirement for environmental authorisation under NEMA in respect of listed activities was not removed because the activity may now be regulated in terms of another law. Notwithstanding the processes and authorisations under other laws including the MPRDA, that an environmental authorisation under NEMA must be obtained".

This judgement therefore confirms what environmental authorities and municipalities have been arguing for years. More importantly, the judgement also makes it clear that even though different regulatory requirements must therefore be met, over and above the MPRDA, this does not mean that the different "spheres of control cannot coexist even if they overlap".

"While the requirements in terms of the MPRDA will ensure that a proposed mining operation will be optimal, the requirements in terms of NEMA will ensure that the mining will be done in an environmentally sustainable manner, with the requirements in terms of LUPO ensuring that the mining operations are desirable taking into account the planning considerations for the applicable municipal area.

"This particular judgement clarifies why it is important for us as the custodians of legislation and more specifically as the administration voted into power by the people of the province, to make informed decisions which acknowledge and consider all legislative frameworks," says provincial MEC for Local Government, Environmental Affairs and Development Planning, Mr Anton Bredell.

Summary of court order

• Maccsand may not commence or continue with mining operations until and unless authorisation has been granted in terms of the Land Use Planning Ordinance 15 of 1985 for the land in question to be used for mining
• Maccsand may not commence or continue with mining operations on the properties until and unless an environmental authorisation has been granted in terms of the National Environmental Management Act 107 of 1998 (NEMA) for the carrying out any applicable listed activity on the land in question (in this instance items 12 The transformation or removal of indigenous vegetation of three hectares or more or of any size where the transformation or removal would occur within a critically endangered or an endangered ecosystem listed in terms of section 52 of the National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004) and the transformation of an area zoned for use as public open space or for a conservation purpose to another use of GN No. R. 386 of 21 April 2006
• Maccsand is interdicted from commencing or continuing with mining operations on the properties until and unless the LUPO and NEMA authorisations has been obtained
• Maccsand and the Minister of Mineral Resources must pay the costs of all the parties.

Statement issued by theWestern Cape Environmental Affairs and Development Planning, August 24 2010

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