Protecting wetlands impacted by the Mpumalanga coal mining industry : a legal analysis

Abstract

Wetlands are seen as one of the most vulnerable ecosystems globally. The protection of wetlands has received increased focus in the South African environmental legal domain in reaction to the realisation that these ecological systems have a progressively more important function in the maintenance of ecologies. Mining is a "landscape-changing" activity with unique impacts on environments such as wetlands, and requires specific regulation of the impact thereof on these ecosystems. Within the Mpumalanga Province, coal mining is associated with specific geological features that are inherently linked to the occurrence of wetlands. Current mining in or near wetlands would primarily require authorisation under two acts, namely the National Water Act 36 of 1998 and the National Environmental Management Act 107 of 1998. The environmental legal framework prior to 1998 was fragmented in that several acts set different objectives under different government departments for the protection of wetlands. Several mines in the Mpumalanga Province commenced prior to the introduction of these acts and the requirement to obtain an authorisation for mining in or near wetlands. Changing legislation over the life of the mine results in uncertainty about the applicability of the legislation to the mining activities. The current legislation governing the protection of wetlands is centred on the restriction of development in or near wetlands by way of defining the term "wetland" and buffer zones for regulation. The challenge with governing the protection of wetlands is that the definition of "wetland" as contained in the various pieces of legislation is not uniform. The references to buffer zones in the legislation (500 meters, 100 meters and 32 meters) are also inconsistent, with no scientific basis on how these buffer zones should be delineated and whether the defined buffer zones are indeed effective in the protection of wetlands. The vagueness of the interpretation of what is meant by "wetland" and "buffer zone", coupled with changes in the legislation over the life of a mine, results in inconsistencies in wetland delineation and the incorrect application of buffer zones by the regulating authority. The definition of a "wetland" should therefore be reviewed, based on a scientific understanding of such areas, so that it is uniform in all legislation governing their protection. The delineation of buffer zones, too, should be revisited, so that it is scientific rather than arbitrary. Legislative requirements should be clear on the authorisations required for mining activities to commence and continue within the buffer zones defined. The implementation of a scientific-based tool to replace the arbitrary buffer included in the South Africa legislative framework would ensure better protection of wetlands.