2. Introduction
2.1 Background: The History of the Legacy
It is trite that formal mining in South Africa has been happening since time immemorial and for most of its history, the mining industry has not been subjected to comprehensive environmental regulation.120 This has resulted and continues to result in significant adverse environmental related challenges as previous practises in mine planning, closure and rehabilitation neglected the fundamental concepts of sustainable development. It is important to note that, even where mining operations have been discontinued, environmental problems associated with mining frequently continue.121 These environmental problems are inter alia, acid water which emanates from an abandoned mine which causes the pollution of both surface and groundwater. Dust from mine dumps and soil erosion from opencast mines
119 This will be done through a critical assessment of past, present and future of the mining environmental legislative framework and the determination of which controls and policies are most relevant to the improvement of sustainable mine closure and rehabilitation practices.
120 T Muzoroza 'Mining Laws and Policy: A Comparative Analysis of South Africa and Zimbabwe's Mining Laws and Policy Regimes' (Unpublished LLM Dissertation, University of Pretoria, 2010) 57. ‘Mining in South Africa started in 1661 and the first attempts to regulate it only started in 1903, with the Transvaal Mining laws.
These only dealt with safety aspects. Between 1931 and 1951, mining was governed by Mines, Works and Machinery regulations.’ See also NCOP Economic and Business Development. ‘Mining Charter; Derelict and Ownerless mines: progress report by Department of Mineral Resources’. Chairperson: Mr F Adams (ANC, Western Cape), Date of Meeting: 11 October 2010, available at https://pmg.org.za/committee-meeting/12080/, (accessed on 15 May 2016).
121 Kidd (see note 117 above) 225.
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constitutes further environmental challenges which exist because of abandoned unclosed and un-rehabilitated mines.122 As a result, the country is burdened with a negative legacy of abandoned, derelict and ownerless mines.
It is against this background that the United Nations Environment Programme (UNEP) described abandoned mine sites as one of the major outstanding international environmental problems related to mining:123
It is a legacy of centuries old practices and of inadequate, insufficient or non-existent mine closure. The potential costs of rehabilitation, the lack of clearly assigned (or assumed) responsibility, the absence of criteria and standards of rehabilitation and other factors have delayed action by all parties - industry, governments, and communities.124
Accordingly, the UNEP noted that:
In addition to the obvious problems for a community, most of these situations represent a considerable cost to public authorities which are often expected to make the sites secure and prevent ongoing pollution. The public is increasingly demanding action and this visible legacy of the past is producing growing community opposition to current mining activities. The orphan [abandoned] sites problem therefore continues to cast a shadow over all mining at a time when major operators are improving their operations and are trying to improve the image of their sites and their company.125
Thus, it can be argued that issue of mine closure and site rehabilitation have increased in prominence around the world and South Africa in particular due to the legacy of abandoned and derelict mining sites. As a result, the policy and legislative frameworks for dealing and addressing the environmental challenges associated with mine closure and site rehabilitation have been enacted, amended and reconsidered time and again.126 However, even though that may be the case, the environmental risks associated with mine closure and site rehabilitation plus the potential costs to the government and the society, if they are not performed adequately remain as severe as ever.127 The severity of many of the negative environmental impacts that were not considered when mines closed in the past are only beginning to emerge
122 Ibid 225.
123 JF Castrilli ‘Wanted: A Legal Regime to Clean up Orphaned/Abandoned Mines in Canada.’ (2010) 6 McGill Int'l J. Sust. Dev. L. & Pol'y 109.
124 United Nations Environment Programme, Division of Technology, Industry and Economics, Abandoned Mines - Problems, Issues and Policy Challenges for Decision Makers: Summary Report (June 2001) at 14 [UNEP Report 2001] as Cited in Castrilli J.F. ‘Wanted: A Legal Regime to Clean up Orphaned/Abandoned Mines in Canada.’ (2010) 6 McGill Int'l J. Sust. Dev. L. & Pol'y 109.
125 United Nations Environment Programme, Division of Technology, Industry and Economics, Abandoned Mines - Problems, Issues and Policy Challenges for Decision Makers: Summary Report (June 2001) at 14 [UNEP Report 2001].
126 S.B Hewitson ‘An assessment of the quantum for financial provision of mine closures: a Monte Carlo approach’ (unpublished LLM thesis, UCT 2012) 1.
127 Ibid 1.
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now and the cost of cleaning these impacts are extremely high.128 The estimated costs for cleaning, closing and rehabilitating abandoned and derelict mining site,129 ‘have effectively brought the consequences of inadequate environmental rehabilitation in the mining sector into sharp focus’.130 It is submitted that;
the size of liability facing government points to a need to improve the system of performing mining closure and rehabilitation so that they not only performed with sustainability in mind, but also, any damage associated with mining is contained to the extent that the rehabilitation required is funded by the mine concerned.131
However, to achieve this goal there must be significant improvements in the way mining companies make financial provision for mine closure and, most importantly, the accuracy of their financial provision estimates. Kidd opines that, in order to combat the challenges posed by derelict, ownerless and abandoned mines effectively, especially in the long term, provision should be made for the rehabilitation of the affected surfaces, once mining operations finally cease.132
In recent years, however, this has changed significantly and the mining industry is now required to comply with a complex web of mining environmental policies and legislative framework.133 The realisation that past mining practices failed to plan for mine closure and site rehabilitation prompted an increased awareness and inclusion of environmental issues within mine closure planning and rehabilitation. Mining operations and activities that in the past resulted in legacies of abandoned, derelict and ownerless mine sites, ‘are now unacceptable, and require improved mining environmental legislation and control to ensure mine site closure and rehabilitation is completed successfully, in a sustainable manner’.134
128 Ibid 1.
129 Auditor-General Report to Parliament on a performance audit of the rehabilitation of abandoned mines at the Department of Minerals and Energy October 2009. The South African Council for Geoscience estimated that the cost of rehabilitating South Africa’s abandoned mines stood at R30 billion. However, as the 2009 Auditor- general’s report notes, this estimate did not include the long-term treatment of AMD or the construction or operating fees of the plants required to do so, indicating that the figure may well be significantly higher.
130 Colvin et al. ‘Coal and Water Futures in South Africa: A case for protecting headwaters in the Enkangala grasslands.’ (2011) World Wide Fund For Nature WWF-SA, available at http://awsassets.wwf.org.za/downloads/wwf_coal_water_report_2011_web.pdf.
131 Hewitson. (see note 126 above) 3.
132 Kidd (see note 117 above) 225.
133 The Mineral and Petroleum Resources Development Act 28 of 2005 (the MPRDA), the National Environmental Management Act 107 of 1998 (NEMA) and the National Water Act 36 of 1998 (NWA), the National Environmental Management: Biodiversity Act 10 of 2004, the Regulations thereto amongst other Acts regulate the impacts of mining operations conducted in South Africa on the environment and prescribe statutory duties in respect of, inter alia, environmental standards, the mitigation of environmental impacts and rehabilitation of the affected environment.
134 Peck (see note 14 above)
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Thus, the concept of rehabilitation during and after prospecting, exploration and mining activities is now well accepted and is entrenched in law.135
South Africa has passed a number of environmental laws aimed at, among other things, the sustainable development of the country’s natural resources, and there is now a progressive environmental and mining regulatory framework.136 The introduction of environmental legislative and policy frameworks in an endeavour to regulate the mining industry has enhanced the awareness for improved mine closure and site rehabilitation planning, which is fundamental to the sustainable development of mine operations.137 This was against the realisation that a clear, consistent and efficient environmental and mining legislative framework which establishes the parameters for mine closure and site rehabilitation is fundamental for the eradication of the negative legacy of ownerless, abandoned and derelict mining sites, thus the government enacted progressive laws.