BUSINESS
MINING RIGHTS
TAKE TIME
By Eamonn Ryan
Time and legislative uncertainty are just two of the challenges that face quarry investors applying for mining rights .
The timeframes provided by the Mineral and Petroleum Resources Development Act ( MPRDA ) are in certain instances not adhered to , resulting in lengthy delays . Gwen Mathebula , senior associate at Shepstone & Wylie Attorneys , says that given this , applicants need to appoint experienced environmental assessment practitioners ( EAP ) and take all reasonable steps to verify whether the EAP complies with the EIA regulations to ensure that there aren ’ t any further delays , or any delays , in the application process that could be resolved efficiently .
“ Where one finds the biggest delays taking place in the application process is applicants submitting documents that do not conform or meet the minimum legislative requirements as prescribed in the MPRDA Regulations and NEMA . The EIA regulations set out in detail the appointment and general requirements for EAPs and specialists , and ideally an applicant should confirm the experience of the prospective consultant to ensure he or she complies ,” explains Mathebula .
Required documents
The documents that are required to be submitted are :
• Regulation 2.2 plan
• Mine works programme
• Social and labour plan
• BEE structure and the BEE shareholders ’ agreement , which governs the consortium relationship
• Applicant / BEE shareholders agreement and the share certificates .
“ Areas identified as ‘ non-compliant ’ could potentially delay the application process . Once the correct documentation is submitted , the application will follow the processes as stipulated . However , if the Department of Mineral Resources ( DMR ) is of the view that the applicant has not met the minimum requirements , the Minister may , in order to achieve the objectives of the Act , issue a directive in terms of s29 of the MPRDA , directing specified information or data to be submitted by the applicant within a stipulated time period ,” she says .
Time is one of the challenges when applying for a mining right for a quarry . Although quarries are usually smaller than the typical mine , they nonetheless have to comply with the same process . The MPRDA sets out timelines for the application process , but in certain instances these timelines are not adhered to , says Mathebula . “ Applicants often sourced thirdparty investment for the asset and these investors primarily want certainty as to when the license will be issued .”
The public participation process with interested parties is an integral component of the application process , says Mathebula . Conducting a public participation process that does not meet the minimum legislative requirements could potentially expose the applicant to appeals based on poor consultations . Consultations should ideally be viewed as an ‘ ongoing ’ process . Therefore , it is advisable that applicants consult with the right people from inception and inform them when the competent authority has made a decision .
“ To avoid any difficulties , applicants therefore need to consult as prescribed by law . This applies as much to a quarry as to a mine ,” says Mathebula .
Timelines
The timelines of the steps of the process are as follows :
Shepstone & Wylie
Gwen Mathebula , senior associate at Shepstone & Wylie Attorneys , specialises in mining law .
• Submission of the mining right application can be made online , including the application for the environmental authorisation . The hardcopy application should be submitted to DMR on the same or following date .
• DMR should accept or reject the application for the environmental authorisation within 10 days .
• The applicant is instructed to conduct the scoping process and submit the report within 30 days .
• The scoping report , which has been subjected to a public participation process for at least 30 days , should be submitted to DMR within 44 days , including comments raised at the public participation .
• DMR must accept or refuse the scoping report within 43 days of receipt .
• The EIA report , inclusive of the specialist reports and the environmental management programme , must be submitted within 106 days of the acceptance of the scoping report .
• The notification in writing can be submitted to the effect that the EIA and the EMPr will be submitted within 156 days of the receipt of the application , on the grounds that there are significant changes or new information not contained in the reports consulted on during the public participation .
• DMR must within 107 days of receipt of the EIA and the EMPr , grant or refuse the environmental authorisation . ■
12 _ QUARRY SA | SEPTEMBER / OCTOBER 2018