The Astronomy Geographic Advantage Act and Prospecting/Mining in the Northern Cape

The Astronomy Geographic Act, 21 of 2007: What does this mean for prospecting and mining in the Northern Cape?

As Rupert Hine once said, “one man’s nightmare is another man’s dream”, and this will undoubtedly be true for certain prospecting and mining right holders in the Northern Cape. South Africa was awarded the right to co-host and build (with Australia, Canada, France, India, Italy, New Zealand, Spain, Sweden, the Netherlands and the United Kingdom) the world’s largest radio telescope, with 100 hectares of “collecting area” (meaning the extent of the area from which the radio telescope will “collect” information).

It has been said that scientists will use this radio telescope to help the world understand how the universe evolved, how stars and galaxies form and change, and what “dark matter” really is. It is expected that “unimaginable discoveries will be made”. A major part of the Northern Cape Province and in particular the Karoo, has been regarded as the (un)lucky place for this project to be carried out. The overhanging question is – at what and whose expense is this project going to be?

The Astronomy Geographic Advantage Act, 21 of 2007

The Astronomy Geographic Advantage Act, 21 of 2007 (the “AG Act”), which was published in 2007, has been enacted to regulate these types of projects. In brief, the AG Act is legislation that gives the Minister of Science and Technology (the “Minister”) the power to protect certain areas, through regulations, that are of strategic importance for astronomy and related scientific endeavours. These areas are defined in the AG Act as Astronomy Advantage Areas (“AAA”). Once the Minister has declared an area to be an AAA, the Minister is required to publish detailed regulations that flesh out what is permitted and prohibited, in the “demarcated” AAA.

A founding provision of the AG Act is section 4(1), which provides that, in the event of any conflict between a provision of the AG Act and other national legislation, the relevant provision of the AG Act will prevail, if the conflict specifically concerns the management or development of an AAA or the protection of such an area.

Furthermore, and very concerning for prospecting and mining right holders in the Northern Cape, is that section 23(1)(a) of the AG Act provides that, notwithstanding any other national or provincial legislation or local by-law, the Minister may, with the concurrence of ICASA where such activities are likely to affect broadcasting service license or broadcasting service, declare that no person may, in a core or central AAA, conduct any prospecting or mining activities.

In effect, and in light of section 4(1) of the AG Act, this appears to mean that in the event of a conflict between the AG Act and the Mineral and Petroleum Resources Development Act, 28 of 2002, as amended, (the “MPRDA”), the AG Act will prevail. It is also imperative to note that sections 19(2)(d) and 25(2)(d) of the MPRDA oblige the holder of a prospecting and mining right to comply with any other relevant law, for example, the AG Act.

Offences and penalties are regulated by section 52 of the AG Act and state that a person convicted of an offence in terms of the AG Act is liable, on conviction, to a fine not exceeding R1 000 000 or to imprisonment for a period not exceeding 5 years, or to both a fine and such imprisonment.

Published Regulations and Declarations

Until recently, not much had been made of the AG Act, but, on 15 December 2017, the Minister published the Regulations on the Protection of the Karoo Central Astronomy Advantage Areas (“SKA Regulations”), which became operational on 15 December 2018. As the name indicates, the SKA Regulations affect portions of the Karoo. The purpose of the SKA Regulations is to prescribe permitted and prohibited land use in the Karoo Central AAA, and stipulate the administrative and procedural requirements relating thereto in terms of the AG Act.

The SKA Regulations, inter alia, include prohibitions on the use of mining equipment that exerts radio frequencies in excess of a certain level. This means that all mining and prospecting right holders affected by the SKA Regulations will need to ensure that their mining machinery is compliant, failing which, the continued use may be regarded as an offence in terms of the AG Act.

The Minister has, also seemingly declared the Sutherland Core/Central AAA. The purpose of the Sutherland Core/Central AAA is again, to preserve the demarcated area of land for achieving the purposes of the AG Act. Whilst no regulations have been published, a number of declarations have been released. Importantly, and in terms of declaration 1(f) to the Sutherland Central AAA, prospecting or mining activities are expressly prohibited. This, in the very least, is evidence of what may be forthcoming in this area.

Whilst on paper it may seem very discerning for prospecting and mining right holders, there are built in provisions in the AG Act and the SKA Regulations that may be of assistance, which include public participation processes in the determination of AAAs and applications and procedures for obtaining permits and exemptions.

Further food for thought is the effect that the AG Act is going to have on new prospecting and mining right applications, section 11 applications and renewal applications in the Northern Cape. At the moment, and as we understand it, this has not yet been addressed by the Department of Mineral Resources.

In light of the aforegoing, another interesting development in our law is the new regulations published by the Minister of Environmental Affairs on 5 April 2019. These regulations lay down the procedure to be followed for the adoption of spatial tools or environmental instruments contemplated in section 24(2)(c) and (e) of the National Environmental Management Act, 107 of 1998. In light of these new regulations, the first thought that comes to one’s mind is whether this radio telescope and the SKA Regulations will be deemed a “spatial tool” or an “environmental instrument”, and the subsequent effect that this may have from an environmental perspective.

Conclusion

Whilst the building of this radio telescope is an extremely exciting and advanced piece of technology which will no doubt be beneficial to our economy in the long run, the question is – at what expense to the utilisation and exploitation of the mineral resources in that area?
Accordingly, prospecting and mining right holders in the Northern Cape ought to ensure that they satisfy themselves as to whether any of their rights fall into one (or both) of the demarcated AAAs. If so, such holders are encouraged to assess the impact, if any, of these new regulations on their existing and future operations. Furthermore, it is pertinent that these holders stay abreast of any publications regarding the demarcation of further AAAs, in order to participate in the public participation processes.

We invite you to make contact with our offices for any further legal advice, opinions and/or assistance relating to the AG Act and the stated regulations, and the impact these regulations may have on your current, future and/or anticipated prospecting and/or mining rights.

Ross McLean & Lili Nupen