Abstract
M.A.
Recent appeals against decisions by the Department of Minerals and Energy to authorise the
establishment of new mines indicate that the Minerals Act does not allow for the taking of land
use decisions which satisfy the expectations of environmental control authorities and interested
and affected parties. Of particular concern is the fact that Minerals Act ostensibly does not
allow for the "no-go" option when it is clear that a new mine will have a negative impact on the
environment or on surrounding land uses. A critical evaluation of the rationale behind the
structuring of the Minerals Act finds that it is designed to protect the common law position of
the mineral rights holder, which guarantees him the right to mine his minerals wherever it is
situated. The environmental provisions of the Minerals Act are mitigatory in nature and do not
allow for the refusal of a mining authorisation purely on the grounds that mining activities will
cause unacceptable environmental impacts. Refusal to allow mining may constitute
expropriation and the State may have to compensate the mineral rights holder in such cases.
From a comparison of the Minerals Act with other environmental legislation and a
a)
consideration of environmental and mining policy it appears that the legislature specifically
excluded mining from the ambit of such legislation to protect the position of mining as a major
contributor to the economy and as a vehicle to promote the achievement of reconstruction and
development goals.
Within this context an amendment of the Minerals Act is proposed to incorporate integrated
environmental management principles in a way which protects the common law position of the
mineral rights holder while simultaneously limiting the impact on the fiscus, should it be
necessary to compensate mineral rights holders when the "no-go" option is applied. The
creation of an ad hoc interdepartmental body is proposed to ensure that all applications for the
establishment of new mines are considered by a multi-disciplinary team.