The mining sector is under increasing global scrutiny to implement environmentally sustainable methods of resource extraction. The global environmental management regulatory trends are moving towards requiring mining companies to ensure they address water scarcity, become more accountable to indigenous and local communities, reduce carbon emissions and minimize hazardous mining processes. Zimbabwe’s environmental management laws and regulations, particularly in mining, are lagging significantly behind international best practices. The laws are more flexible than prescriptive.For example, Part XI of the Environmental Management Act (Chapter 20:27), provides that no new mining project can be implemented without the project developer carrying out an environmental impact assessment study, producing a report and, the director of the Environmental Management Agency issuing an environmental impact assessment licence. Typically, the measures proposed for eliminating, reducing or mitigating any anticipated adverse effects the mining project may have on the environment, and the proposed ways of monitoring and managing the environmental effects of the project, are contained in an environmental management plan. The environmental management plan forms the basis of the terms and conditions of the environmental impact assessment licence. The Act, however, does not prescribe which environmental management targets, benchmarks or thresholds must be met, or provisions which may not be contravened, by the developer. For example, the Act and regulations do not prescribe how much capital must be set aside for mine closure and rehabilitation. Enforcement of sanctions is not always consistent.
This is a source of frustration, from a compliance perspective, for mining companies that come from more developed regulatory regimes where there are clear set parameters and certainty on sanctions and penalties, as well as remedial measures. In our view, this poses a significant opportunity for mining companies operating under Zimbabwe’s environmental management regimes. Companies are, therefore, in a position to set their own parameters and craft their own environmental management plans that meet international best practice standards and satisfy the expectations of their stakeholders.
Applicability of the Environmental Management Act to mining operations that commenced prior to and after March 2003
There exists a peculiarity in that the Act does not strictly apply to brownfield mining operations that commenced before the coming into force of the Act in March 2003.
Although these brownfield mining operations are required to comply with the waste management, hazardous substance, and emissions regulations, they are not strictly expected to comply with the requirement to conduct an environmental impact assessment study, develop an environmental management plan and obtain an environmental impact assessment licence. This is potentially problematic as a legacy mine can find itself in a position where it does not have a mine closure plan which is approved and monitored by the Environmental Management Agency. In such a case, the mine would only be required to comply with the mine closure requirements outlined in the Mines and Minerals Act (Chaper21:05) and regulations which fall far short of international standards. (The Mines Act in Zimbabwe has not been amended in recent times making its provisions far inferior to the current environmental, social and governance provisions that are becoming a global standard for mining companies).
However, mining companies which began operations before March 2003 are permitted to voluntarily conduct an environmental impact assessment study, draft a management plan and obtain a licence either for a specific project or for the entire mining operation. Again, this provides the mining company with the opportunity and flexibility to choose the better environmental management standards. Therefore, there exists parallel laws pertaining to environmental matters in Zimbabwe, one under the Environmental Act and the other under the Mines and Minerals Act.
An opportunity to do better
At first glance, Zimbabwean environmental management laws may seem outdated. There is a lack of clarity around benchmarks, targets and prescribed norms and standards. However, the absence of regulation should provide mining companies with an opportunity to go the extra mile. Mining companies have the opportunity to create their own environmental management plans, with the oversight of the Environmental Management Agency, which meet international norms and standards. Most importantly, mining companies can create and adhere to environmental management plans that inspire local community support, government goodwill, aid in minimising reputational risk and encourage sustainable investment practices.
Copyright : Re-publication of this article is authorised only in the following circumstances; the writer and Africa Legal are both recognised as the author and the website address www.africa-legal.com and original article link are back linked. A bio for the writer can be provided on request.