Pollution and mining-related waste have the potential to cause an undesirable and negative effect on the health and well-being of people, as well as on the environment. Who needs to be held liable for this?
What is mining waste?
It is important to understand what is meant by “mining waste” in order to understand the extent of liability for the environmental damage it causes.
Section 1 of the Environmental Conservation Act 73 of 1989 defines “waste” as:
An undesirable or superfluous by-product, emission, residue or remainder of any process or activity, any matter, gaseous, liquid or solid or any combination thereof, which:
a) is discharged by any person; or
b) is accumulated and stored by any person with the purpose of eventually discharging it with or without prior treatment connected with the discharging thereof; or
c) is stored by any person with the purpose of recycling, re-using or extracting a usable product from such matter.
The National Environmental Management Waste Act 59 of 2008 acknowledges the importance of avoiding and reducing waste due to the negative and harmful impact of waste on the environment and human health. Section 4(1)(b) specifically excludes residue deposits and residue stockpiles from the scope of the Act and therefore uncertainty remains as to which part of mining waste is regulated under this Act.
The Waste Act defines “waste” as:
Any substance, whether or not that substance can be reduced, re-used, recycled and recovered:
a) that is surplus, unwanted, rejected, discarded, abandoned or disposed of;
b) which the generator has no further use of for the purposes of production;
c) that must be treated or disposed of; or
d) that is identified as a waste by the Minister by notice in the Gazette, and includes waste generated by the mining, medical or other sector.
Although the Act refers to “waste generated by the mining sector”, it excludes residue stockpiles and deposits.
It is disappointing to note that although the mining industry annually constitutes an average of 87% of waste generated in South Africa, the Waste Act does not cover the majority of waste generated by the mining sector. While there are legal definitions for “waste” in South Africa, there is currently no legal definition for “mining waste”.
Who is responsible?
In considering Section 28 of the National Environmental Management Act (NEMA) Kotze and Du Plessis note that “the section clearly intends to hold those liable who caused damage due to an act of pollution, and not necessarily a breach of any statutory provision of duty”. They further state: “The responsible person may still be held liable for pollution damage even though the polluting act was conducted in terms of a valid authorisation and law as long as it can be proved that pollution was not minimised or rectified. It may further entail that an on-going duty rests on the responsible person to minimise and rectify pollution, regardless of whether that pollution was caused by historical, present or future activities.”
Polluters will not be encouraged to reduce and minimise their polluting activities by the limitation of the extent and definition of pollution to unlawful impairment. Mines should be held liable for historic, present and future pollution which is affecting the health and safety of people and further be required to prevent, minimise and/or remedy pollution, as mining related waste has a negative effect on the entire array of interests as safeguarded by Section 24 of the Constitution.
It is important that environmental laws should be well defined so that mining companies are compelled to operate within the legal boundaries and ensure the health and safety of people. The mining industry being allowed by the law or by government to pollute, should not be absolved from liability for damage caused to the health and safety of people.
References & Glossary:
“Residue deposit” is defined in Section 1 of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) as “any residue stockpile remaining at the termination, cancellation or expiry of a prospecting right, mining right, mining permit, exploration right, production right or an older right.”
“Residue stockpile” is defined in Section 1 of the MPRDA as “any debris, discard, tailings, slimes, screening, slurry, waste rock, foundry sand, beneficiation plant waste, ash or any other product derived from or incidental to a mining operation and which is stockpiled, stored or accumulated for potential re-use, or which is disposed of.”
- Campbell, DJ & Craig, T (2005). Organizations and The Business Environment. Oxford: Butterworth-Heinemann, p. 269.
- Kotze, LJ & Du Plessis, W (2007). ‘Absolving historical polluters from liability through restrictive judicial interpretation: Some thoughts on Bareki No v Gencor Ltd.’ Stellenbosch Law Review, 186.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)