The right to mine in a ‘protected area’ in South Africa: Mining and Environmental Justice Community Network of South Africa v Minister of Environmental Affairs

Abstract

This note assesses the right to mine in a ‘protected environment’ in South Africa within the prescripts of s 48 of the National Environmental Management: Protected Areas Act 57 of 2003 (NEMPAA). This issue will be evaluated through a critical analysis of the High Court decision in Mining and Environmental Justice Community Network of South Africa v Minister of Environmental Affairs (hereafter, MEJCON). At the outset, it is imperative to note that a ‘protected environment’ is a type of ‘protected area’. A ‘protected area’ is defined as a precisely demarcated geographical area regulated through legal and other mechanisms to guarantee the long-term protection of the environment and the concomitant ecosystem services and cultural values. However, NEMPAA does not clearly define the meaning of the term ‘protected area’. The Act merely states that a ‘protected area’ refers to ‘any of the protected areas’ stipulated in s 9 of NEMPAA. In this regard, s 9 of NEMPAA provides a list of the ‘kinds of protected areas’, including special nature reserves, national parks, nature reserves and protected environments. In essence, a ‘protected environment’ is used to, inter alia, ‘protect the area if the area is sensitive to development due to its biological diversity; natural characteristics; scientific; cultural; historical; archaeological or geological value and scenic and landscape value provision of environmental goods and services’. According to the NEMPAA, the Minister