Industry intelligence
Star gazing could come at a cost
While the building of the Square Kilometre
Array (SKA) telescope is one of the most exciting
projects in South Africa’s scientific and academic
fields with long-term benefits to the country’s
economy, it is likely to affect the use and
exploitation of mineral resources in the Northern
Cape. This is according to Lili and Ross McLean
of law firm Nupen Staude de Vries Incorporated.
In a recent report they write: “Prospecting
and mining right holders in the area are likely
to be affected by the Astronomy Geographic
Advantage Act 21 of 2007 (the AG Act), which
gives the Minister of Science and Technology
the power to protect areas that are of strategic
importance for astronomy activities, along with
the Regulations on the Protection of the Karoo
Central Astronomy Advantage Areas (SKA
Regulations), which became operational in
December 2018.
While both these documents appear to govern
what happens in the sky, they provide parameters
for activity on the ground in and around the
SKA, currently under construction in the Karoo.
It is for this reason that mining and exploration
companies intending to mine or prospect in the
Northern Cape need to pay close attention to the
implications of these identified boundaries.
The AG Act gives the Minister the ability
to demarcate Astronomy Advantage Areas
(AAA), to protect areas that are of strategic
importance for astronomy and related scientific
endeavours.
Section 4(1) of AG Act provides that, in the
event of any conflict between a provision of the
AG Act and other national legislation such as the
Mineral and Petroleum Resources Development
Act, 28 of 2002 (MPRDA), the AG Act will
prevail, if the conflict specifically concerns the
management or development of an AAA or the
protection of such an area.
In addition to the SKA Regulations, the
Minister has declared the Sutherland Core/
Central AAA, to preserve the demarcated area
of land for achieving the purposes of the AG
Act. While no regulations have been published,
several declarations have been released, and
importantly, prospecting or mining activities are
expressly prohibited in the Sutherland Central
AAA. This, in the very least, is evidence of what
may follow in this area.
While it may seem very concerning for
prospecting and mining right holders, there are
provisions built into the AG Act and the SKA
Regulations that may be of assistance, which
include public participation processes for the
determination of AAAs and applications and
procedures for obtaining permits and exemptions.
Further food for thought is the effect that the
AG Act is going to have on new prospecting and
mining right applications, proposed sales and/
or purchases of rights and renewal applications
in the Northern Cape. At present, it appears as
though this has not yet been addressed by the
Department of Mineral Resources.
The SKA Regulations specifically prohibit the use
of mining equipment that emits radio frequencies
in excess of a certain level, which means that all
mining and prospecting right holders in the area
must ensure that their machinery is compliant.
Continued use of non-compliant equipment may
be regarded as an offence in terms of the AG Act.
Mining and prospecting right holders ought
to bear in mind section 4(1) of the AG Act in
the event of any conflict with the MPRDA.
Furthermore, and importantly so, the MPRDA
obliges prospecting and mining right holders to
comply with any other relevant law, for example,
the AG Act.
Another interesting development in South
African law include new regulations published
by the Minister of Environmental Affairs in
April 2019, which lay down the procedure
to be followed for adopting spatial tools or
environmental instruments described in the
National Environmental Management Act, 107
of 1998. These raise the question of whether the
radio telescope and the SKA Regulations will
be deemed a “spatial tool” or an “environmental
instrument”, and what the environmental
implications of this could be.
Prospecting and mining right holders in the
Northern Cape should establish whether any of
their rights fall into a demarcated AAA. If they
do, it is time to assess the impact, if any, of these
new regulations on existing and future operations,
and plan accordingly.