Section 49 Mineral and Petroleum Resources Development Act
Section 49(1)(a) of the Mineral and Petroleum Resources Development Act allows the Minister to prohibit or restrict the granting of any reconnaissance permission, prospecting right, mining right or mining permit in respect of land identified by the Minister for such period and on such terms and conditions as the Minister may determine.
The Minister may declare this prohibition or restriction after considering the:
- National interest,
- Strategic nature of the mineral in question; and
- Need to promote the sustainable development of the nation’s mineral resources.
To make this declaration, the Minister must:
- Determine the period for which the declaration must apply;
- Determine the terms and conditions for the declaration; and
- Invite representations to be made by relevant stakeholders on the proposed declaration.
Type of legal protection
Once this area is declared, all mining operations (and other operations related thereto) will either be restricted or completely prohibited, depending on the declaration.
Section 49 has been used by the Department of Mineral Resources on a number of different occasions to obtain a moratorium on certain kinds of applications for rights or permits. Notably, the Minister used section 49(1) to declare:
- A temporary moratorium on the processing of new prospecting rights applications from 1 September 2010 for a six month period;
- A moratorium on the processing of all new applications for reconnaissance permits, technical cooperation permits, exploration and production rights related to hydraulic fracturing, or “fracking”.
- Strong protection: Such a prohibition would send a strong message that government regards the protection of water source areas as a priority.
- Limited application: The protection applies only to mining activities, whereas water source areas are impacted by multiple activities.
- No protection against previously authorised threatening activities: The declaration does not affect existing reconnaissance, prospecting right, a mining right, a retention permit or a mining permit. Thus, the declaration does not apply retrospectively.
- No effect on acceptance of applications: Even where section 49 declarations have been put in place, the Department of Mineral Resources has in the past accepted applications on the basis that they comply with the requirements of sections 17 and 23 of the Mineral and Petroleum Resources Development respectively.
- No correlation to National Environmental Management Act : Although one of the resultant effects of declaring a “no-go” area for mining would be the conservation of the environment, the terms and conditions to be determined for this declaration are not defined nor are they linked to the National Environmental Management Act in any way.