DEMOCRATIC REPUBLIC OF THE CONGO ENVIRONMENTAL REGULATION
The Democratic Republic of the Congo (DRC), located in central Africa, straddles the Equator and is the second largest country in Africa. The country has a narrow strip of land where the lower Congo River runs into the Atlantic Ocean, providing the country’s only outlet to the sea. The vast central basin is a low-lying plateau, while there are mountains in the east, and a dense tropical rainforest, which spreads throughout the central river basin and eastern highlands. The country has the greatest landmass of tropical rainforests in Africa, covering more than 100 million hectares.
The forests in the eastern sector are very diverse and are one of the few forest areas in Africa to have survived the Ice Age. About 45% of DRC is covered by primary forest, which provides a refuge for several large mammal species, driven to extinction in other African countries. Overall, the country is known to have more than 11,000 species of plants, 450 mammals, 1,150 birds, 300 reptiles, and 200 amphibians. Key environmental issues including poaching, water pollution, deforestation, and environmental damage from mineral mining.
PRINCIPAL LEGISLATION AND REGULATOR
From a general perspective the Law on Fundamental Environmental Protection Principles (Loi No. 11/009 du 09 Juillet 2011 portant Principes fondamentaux relatifs à la protection de l’environnement) (EP Law) emphasises the principle of sustainable development and public participation in decision-making. All development projects, including mining exploitation, are subject to an Environmental and Social Impact Assessment (ESIA) (Art. 21, EP Law). Industrial, commercial or agricultural installations whose exploitation presents a danger to health, safety, the environment, and conservation, or creates a nuisance, are classified according to the gravity of the anticipated danger or inconvenience (Art. 37, EP Law). Other relevant legislation includes the Conservation of Nature Law (Loi No. 14-003 du 11 Fevrier 2014 relative a la conservation de la nature), the Forestry Code (2002) and the Land Law (Loi No. 73-021 du 20 Juillet 1973 portant Régime général des biens, régime foncier et immobilier et régime des sûretés, telle que modifiée et complétée par la Loi No. 80-008 du 18 juillet 1980). From the perspective of the mining industry, specific environmental requirements form a key part of the Mining Code 2002 (as amended in 2018) (MC) and the Mining Regulations 2003 (MR). As noted below, the MR are likely to be amended in the not too distant future and it is anticipated that additional social and environmental provisions will apply.
Key administrative bodies and entities relevant to the environmental aspects of mining operations are the Environmental Agency (EA) and the Directorate for the Protection of the Mining Environment (Environmental Directorate), which are collectively responsible for defining and implementing the mining regulations related to environmental protection; overseeing the technical evaluation of the Mitigation and Rehabilitation Plan (MRP), the Environmental and Social Impact Assessment (ESIA, and the Social and Environmental Management Plan (SEMP); and offering an opinion to the Minister of Mines (Minister) on the granting of mineral rights.
EIA PROCESS AND OTHER PERMITS
Mining titleholders must seek to minimise the environmental impact of their operations; they are required to meet with local authorities to explain the nature, location, and schedule of mining works, and comply with municipal regulations and local customs. There is no environmental authorisation required for reconnaissance, but anyone undertaking mineral prospecting must comply with the code of conduct, as set out in the MR.
The 2018 amendments to the MC introduced the concept of an Environmental Certificate (EC), which is defined as an administrative document issued by the EA upon completion of the environmental and social appraisal attesting that the execution of the project and the operation of the facility comply with environmental and social protection principles (Art. 1(9), MC). Whilst holders of Exploration Licences will be issued with an EC, the 2018 amendments suggest that the authorisation is only a pre-requisite for a Mining Licence (see Art. 76, MC).
In the case of exploration, the EC will be issued based on a review of the MRP by the EA and the Environmental Directorate. Additional details on the requirements for the MRP will form part of the amendments to the MR, at which time this commentary will be updated.
Mining Licence holders will need to conduct an ESIA and submit the documentation, along with an SEMP, for approval prior to the granting of the licence (Art. 71, MC). The ESIA is described as “…a systematic process of identifying, predicting, evaluating and reducing the physical, ecological, aesthetic and social effects of a project […] and enabling an assessment of its direct or indirect consequences for the environment (Art. 1(19), MC). The SEMP must provide environmental specifications for the mining project and consist of a programme to implement and monitor the measures envisaged by the ESIA to eliminate, reduce and possibly compensate for the damaging environmental consequences of the mining project (Art. 1(41), MC). Pursuant to Article 204, MC, the ESIA must include a description of the ecosystem including flora and fauna, soil and topography, air quality, underground and surface water, and must also specify the aspects that may be qualitatively or quantitatively affected by the mining activity. The ESIA must also contain the measures planned for environmental protection, the elimination or reduction of pollution, and site rehabilitation, as well as the verification of the effectiveness of these measures (Art. 204, MC).
The EA and the National Fund for Promotion of Social Services, alongside the Environmental Directorate and, where applicable, any other State organisation which the project concerns, will examine the ESIA and SEMP, as well as the community development plan (Art. 42, MC). Summaries of the ESIA and SEMP must be published on the website of the Ministry of Mines within 15 days of receipt. Should the applicant have a website, it must also publish the documentation. Upon conclusion of the review the EA will, if the opinion is favourable, issue an EC. The opinion and the EC will be forward to the Minister (Art. 42, MC). The timeline for review of the ESIA and SEMP is six months (Art. 75, MC).
The Minister will take a final decision on the issuance of the EC and the subsequent granting of the Mining Licence (Art. 76, MC). Where the opinion on the EC is unfavourable, the Minister will reject the licence application (Art. 76, MC). At each extension of the Mining Licence, new ESIA and SEMP must be approved.
Licence holders are required to set aside funds for the rehabilitation of the site (Art. 258, MC) and provide a security to guarantee compliance with environmental obligations (Art. 204, MC). A community development fund must also be established (Art. 258, MC).