Mining in or Close to Protected Areas

[Lisbeth]

Courts deliver big wins for environment

Sipho Kings 16 Nov 2018 00:00

NEWS ANALYSIS

South Africa’s environment law has a strange loophole. In theory, every activity that would harm the environment falls under the National Environmental Management Act (Nema) and the Acts linked to it. This allows the government to uphold everyone’s constitutionally guaranteed right to a healthy environment.

Nema is what should give the environment department teeth.
But mining is exempt because of a 2014 takeover by the mineral resources department of most environmental oversight for mining.

That department’s mandate is to expand mining to boost the economy. And such an exemption isn’t new; the power of mining is hardwired into the DNA of South Africa’s legal history. It is, after all, mining that created Johannesburg, drove the early economy, made billionaires and gave substance to the stock exchange.

But mining also caused the acid mine drainage crisis, gives workers silicosis, creates waste that enters people’s lungs and uses shelf companies to declare bankruptcy when the time comes to pay to rehabilitate the environment after mining activities damaged it.

The 2014 decision was bitterly opposed by civil and environmental groups. They argued that the minerals department would now be the judge and jury, without the skills required to be executioner, when it came to ensuring mines repaired the environment.

The Mail & Guardian reported at the time that the 2014 decision was, in effect, giving the minerals department carte blanche over the environment. With the focus on more mines to create more tax revenue, the environment would be exploited with little regard for the negative effects of mining.

In that year’s State of the Nation address, then president Jacob Zuma said the move was to streamline “regulatory and licencing approvals for environmental impact assessments, water licences and mining licences”. This was a “very positive development”, he said.

Now, far-reaching court decisions are pulling apart the way in which the mining department discharges its job of looking after the environment, and questioning how positive a development this has been.

In a stinging rebuke last week, the high court ruled in defence of a wetland in Mpumalanga. This has created a precedent that rights groups say they will use to challenge other cases when mines threaten the environment.

The Mpumalanga case goes back to 2011 when the government published a list of ecosystems that were threatened and in need of protection. In 2014, one of these, in southern Mpumalanga, was declared as the Mabola Protected Environment. The wetlands and grassland in the area were classified as “irreplaceable critical biodiversity areas”. Half-a-dozen rivers start in the area, feeding Mpumalanga and KwaZulu-Natal.

In 2016, the ministers of mining and environment gave permission for an underground coal mine in Mabola. The mine, Atha-Africa Ventures, is owned by an Indian-based company. Its black economic empowerment (BEE) partner included two cousins of Zuma. The minister’s decision was arrived at without public consultation, which led to eight civil and environmental groups challenging it.

Ruling on this challenge, Judge Norman Davis said “there was no transparency in the decision-making process”. This was “disturbing”, given that the beneficiaries of the mine are overseas, and the BEE component is “politically connected”.


Critically, the court focused on how environmental protection was ignored by both ministers. Protected areas are the one place in which mines have to get the go-ahead from the environment department, and they require the written permission of the environment minister.

In theory, each minister should do their own calculations to see whether the mine has promised to do enough to protect the environment and the people surrounding it. This allows each minister to apply their expertise. In the Mabola case that did not happen.

The court ruled that both the environment and mining ministers had looked at permissions granted by other departments, and the mine’s filling out of the right forms, and exercised a “tick-box approach”.

That was “simply wrong” and the ministers had “not appreciated their distinctive duties”, the court ruled.

These duties are governed by the precautionary principle, which is hammered into South African law. It holds that it is better to be safe and to reject an application for a development than to approve one which could do untold damage.

Not taking that into account was, according to the court, “an impermissible abdication of decision-making authority”.

In sending the entire project back to the point of consultation with affected citizens, the court concluded that the minister’s failures “would constitute a failure by the state of its duties as trustees of vulnerable environments”.

The court ruling has set a precedent: the departments tasked with protecting the environment have to do due diligence. They have to do more than tick boxes when it comes to looking after the environment. Importantly, the minerals department now has to do the work entrusted to it in the 2014 agreement to give it most oversight over the environmental aspects of mining.

This decision follows a judgment earlier this month by the Constitutional Court in a case between residents of villages that fall under the Bakgatla Ba Kgafela tribal administration, near Rustenberg in the North West, and a would-be mining company.

The company, Itireleng Bakgatla Mineral Resources, had reached an agreement with a traditional authority to mine communal land. People were evicted to make space for the mine.

About 17-million people live in the former homelands, where tenure is usually controlled by traditional leaders through permission to occupy permits. The residents are meant to be protected by the Interim Protection of Informal Land Rights Act.

This Act recognises that most people hold informal land rights and cannot be deprived of them without their consent. This means that mines have to consult residents, through the rural development and land reform department.

But companies repeatedly bypass residents by reaching agreements with traditional authorities, with the mineral department’s blessing, which means the department can tick the box for consultation and grant permission for mining to go ahead.

But, in the Itireleng Bakgatla case, residents objected and took the case all the way to the Constitutional Court. The court ruled that the department, and mining companies, have to recognise the informal land rights Act and that mining cannot go ahead without the proper consultation of every landowner.

Read together, the environmental and land rights judgments are a serious blow to the carte blanche attitude of the minerals department and its mandate to expand mining. Mining companies will now have to consult all residents.

The minerals department will also have to do more than tick boxes based on information given by mines when it comes to looking after the environment.

[Richprins]

Conservation is not a big thing for the government. Money is, however.

[Lisbeth]

Rio Tinto: ‘We have nothing to do with World Heritage mining row’

ISIMANGALISO MINING CONTROVERSY

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By Tony Carnie• 20 November 2018

Mining giant Rio Tinto and its local subsidiary, Richards Bay Minerals, have denied any involvement in the controversial application to dig for heavy minerals on the doorstep of the iSimangaliso (Lake St Lucia) World Heritage Site.

The prospecting application, by the Eyamakhosi Resources empowerment group, has triggered a flood of objections from environmental groups that believe mining could damage the World Heritage Site and also destroy nearly 500ha of pristine coastal dune forest.

The 500ha prospecting area is located just north of the current dune mining operations of Richard Bay Minerals, in an area that the company previously targeted for future mining operations.

In 2010, Rio Tinto withdrew its application to mine the area because of previous commitments to avoid environmental damage on the immediate periphery of any World Heritage Sites.

Rio declined recently declined to comment on speculation that the company might be involved in a new back-door venture, via Eyamakhosi Resources.

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This is part of the pristine indigenous dune forest that has been targeted for mining exploration on the edge of the iSimangaliso World Heritage Site. The prospecting area includes two of the country’s tallest coastal sand dunes, which are prone to slumping or collapse due to human disturbance. Pictures: Supplied

However, following the publication of an article in Daily Maverick earlier this month, Rio Tinto has now issued a statement to distance itself from the Eyamakhosi proposal.

Richards Bay Minerals (RBM) managing director Werner Duvenhage said it was “wholly false” to suggest that his company was connected with the venture.

“RBM is in no way involved with this or any mining application relating to this land. We have been very transparent in terms of future mining plans, which are within our current mining footprint and in our potential future expansion zone in the Zulti South area, which is located to the south of the Richard’s Bay metropolitan area,” he said.

RBM was then asked to clarify whether the company would therefore refuse to process any mineral ore from Eyamakhosi at its smelter facility at Richards Bay, but the company did not respond.

Assuming that RBM is not willing to process Eyamkhosi, the next closest mineral smelter facility is located in Empangeni and is owned Tronox KZN Sands.

Responding to queries, company spokesperson Melissa Zona Tronox said: “Tronox is not involved with the Eyamakhosi prospecting application” but she did not respond to a question on whether Tronox would accept ore for processing.

Eyamakhosi has also remained silent, with chief executive Sicebi Mthethwa declining to respond to previous email queries.

The iSimangaliso Action Group, an environmental coalition whose members helped to derail a previous RBM attempt to mine in the heart of the park in the late 1980s, has called for Eyamakhosi to disclose who its shareholders are.

Spokesman Bryan Ashe said no shareholder details had been declared so far, other than Mthethwa (who previously worked for RBM).

Ashe noted that apart from its location on the boundary of the World Heritage Site, the prospecting area was also located in a protected State Forest

He said the indigenous forest had been transferred to the control of the Department of Environmental Affairs, with the intention of incorporating into the iSimangaliso Wetland Park.

The Wildlife and Environment Society of South Africa (Wessa) has also lodged a formal objection to the mineral prospecting plan.


This is part of the pristine indigenous dune forest that has been targeted for mining exploration on the edge of the iSimangaliso World Heritage Site. The prospecting area includes two of the country’s tallest coastal sand dunes, which are prone to slumping or collapse due to human disturbance. Pictures: Supplied

“Since the iSimangaliso Wetland Park World Heritage site is a conservation area of national and international importance, any activity that might detract from the conservation status of the World Heritage site cannot be permitted.

“There is little doubt that prospecting for minerals in such an area will have serious and long-lasting impacts on the conservation status of the area and hence cannot be permitted under any circumstances,” said KZN branch chair Margaret Burger.

Andrew Zaloumis, head of the newly-established Wild Equity Foundation, says there had been numerous shortcomings in the latest environmental impact assessment process which had prevented stakeholders from participating in a meaningful way.

“In the absence of a conclusive economic viability (study) for a mining operation in this area that takes into consideration the negative knock-on effects on those most reliant on tourism and natural resources, the destruction that prospecting would cause is reckless and wanton,” says Zaloumis, a former chief executive of the iSimangaliso Wetland Park.

Just to add to the controversy, an independent environment consultant who prepared an ecological impact assessment on the project has withdrawn from the project.

Consultant Peter le Roux said he was provided with inadequate information about the prospecting application, some of which was fundamental to assessing potential impacts.

If mining were to go ahead, Le Roux said he believed there would be “significant negative impacts” on the indigenous forest. DM

[Lisbeth]

Mining opponents operate in ‘environment of fear’

16.04.2019

‘We know our lives are in danger’: Attacks on anti-mining activists and environmental defenders documented in new report. Andiswa Matikinca investigates


Gunshots at the gate: ‘Billy M’ led opposition by community members at Fuleni that culminated in a protest in April 2016. Photo: Phila Ndimande

In the village of Fuleni, in the foothills of one of South Africa’s oldest and largest wilderness areas, the Hluhluwe iMfolozi Park, an activist codenamed “Billy M” has received threats over the past five years from unidentified sources.

He believes these threats are linked to his role in opposing a coal mine that would have required the relocation of hundreds of people from their houses and farmlands, and would have destroyed their graveyards. The proposed mine’s environmental impact assessment estimated that more than 6,000 people living in the Fuleni area would be impacted, and that blasting vibration, dust and floodlights could harm the community.

During the environmental consultation processes conducted by Ibutho Coal, which applied for rights to develop a coal mine in Fuleni in 2013, Billy M led opposition by community members that culminated in a protest in April 2016. The company reportedly abandoned the project in 2016, but in 2018 a new company, Imvukuzane Resources Ltd, applied for a prospecting licence in Fuleni.

Billy M reported hearing gunshots at the gate of his house on the night of August 13 2013. He did not report the incident to the police and although he did not know who was responsible for the shots he stated that he was worried traditional leadership in the area might have been involved.

He says he has recently been warned by community members that he will be in trouble if he continues to oppose mining.

“We know our lives are in danger. This is part of the struggle,” Billy M told researchers in an interview in March 2018.

His statement is the title of a report documenting the harassment, intimidation and violence community activists in mining areas in South Africa face. Launched on April 16 2019 at Constitution Hill in Johannesburg, the report – We know our lives are in danger: Environment of fear in South Africa’s mining-affected communities – was compiled by Human Rights Watch (HRW), an international NGO that conducts research and advocacy on human rights, together with local environmental NGO groundWork, the Centre for Environmental Rights (CER) and Earthjustice.

Documenting threats, attacks and other forms of intimidation against mining-affected communities between 2013 and 2018, the report focuses on the Eastern Cape, Limpopo, KwaZulu-Natal and North West provinces. It also highlights intimidation against environmental defenders via strategic litigation against public participation (SLAPP) lawsuits and social media campaigns.

These tactics have created an overall environment of fear when it comes to activism in mining-affected communities, the reports says.

“The issue is as topical as ever. Only last week, there was an arson attack against one of the activists’ home and armed men threatened his family. The activist was going to be at the launch, but had to return home because of renewed threats at the weekend,” said HRW spokesperson Birgit Schwarz on the eve of the launch.


Unidentified killers: No one has been brought to book for the 2016 assassination of Sikhosiphi ‘Bazooka’ Radebe (left). Photo courtesy Nonhle Mbuthuma

Bazooka assassination

The most well-documented attack was the assassination in March 2016 of Sikhosiphi “Bazooka” Radebe, chairperson of the Amadiba Crisis Committee, a community-based organisation opposing titanium mining plans in Xolobeni. Radebe was killed by unidentified men in his home in the Eastern Cape and to date no one has been brought to book for his killing, which the community believes was linked to his activism.

Commenting on the assassination, CER attorney Matome Kapa said such incidents serve to spark more resistance and strengthen the environmental justice movement in South Africa.

“In terms of the law taking its course, that is something I am not sure I can comment on, but one thing I know is that as activists we will continue pushing to ensure that the law does indeed take its course,” said Kapa.

Over the past year, clashes have erupted between the police and community members at Xolobeni, and in November 2018 the Pretoria High Court held that the government had to obtain Free, Prior and Informed Consent from the community before granting any mining rights in the area.

Although accounts from the Xolobeni community have garnered domestic and international attention, many threats and attacks against activists in other parts of the country have gone unreported or haven’t received as much attention.

About 20km away from the proposed Fuleni mine several community activists critical of the Somkhele coal mine have experienced threats, physical attacks and damage to their property. This, they believe, is in response to their opposition to Tendele coal mine, the subject of court cases and protest action.

Elsewhere in KwaZulu-Natal, “community members opposing Chelmsford coal mine in Newcastle have also experienced threats because they oppose mining”, says the HRW report.

In Limpopo’s platinum belt, activists opposing mining have also received threats warning them to withdraw from their activism or “face the consequences”.


In the frontline: Women activists from mining communities protest at the Pietermaritzburg High Court on August 24 2018. Photo: Rob Symons

Women activists

The report points out that women activists have often been targeted by their communities for voicing their concerns about the harms of mining that impact them directly. Women activists from KwaZulu-Natal interviewed in the report have received several death threats because of their activism.

“Lebogang N”, an activist from Fuleni, said she had received several death threats from fellow community members who were hoping that a coal mine could bring them jobs. She did not report these threats to the police and also turned down offers of support by NGOs to help her leave the community.

“If I had left I would have worried about my family, especially my daughter,” she said.

Research cited by the report has found that threats against women activists has adverse effects not only on them but on their families and children as they are usually the primary caregivers.

Community activists are also targeted by traditional authorities who in some instances have “consented” to mines on behalf of communities without consulting them. The branding of activists as being “anti-development” puts them at further risk and is, according to the report, a tactic created to weaken and isolate them.

The report documents instances of police misconduct, arbitrary arrest and excessive use of force during protests in mining-affected communities, which it says is part of a larger pattern in South Africa.

Municipalities and local government authorities have also had a hand in stifling activism from mining-affected communities by placing bureaucratic burdens on protest organisers, making it difficult and sometimes impossible for protests to take place.

“When the community members apply for a protest [about mining], we call a so-called rapid-response meeting. The goal is to prevent the march from happening,” the report quotes a municipal official from Limpopo interviewed on August 8 2018.

When municipalities reject or delay approving protest applications, communities often protest without approval, which often leads to police violence and arrests of activists, the report finds.

Although everyone has a constitutional right “to assemble, to demonstrate, to picket, to peacefully and unarmed present petitions”, community members who were interviewed for this report said they struggled with tedious and lengthy protest notification processes created by municipal authorities.

“Government and all those actors need to allow space for communities to exercise their human rights to freedom of expression, to peaceful assembly, to protest,” said attorney Ramin Pejan, from United States-based legal organisation Earthjustice.

“The key part of this report is to respect the human rights of these communities and to allow them in a democratic country to express their concerns,” he said.

[Lisbeth]

Much objection against mining next to Marloth Park

An application to mine 17 975 hectares between Marloth Park and Komatipoort has resurfaced, and residents and stakeholders can now lodge their complaints in regards to the environmental impact.



AUTHOR
Retha Nel - 31.05.2019

MARLOTH PARK – Residents and stakeholders were adamantly against an application to mine 17 975 hectares in the area at a short-lived public participation meeting on Tuesday morning.

The application was lodged by Manzolwandle Investments, which had Marloth Park residents up in arms in August. At that time, more than 300 letters were sent in from interested and affected parties, the majority objecting.

Several people received emails on Monday afternoon inviting them to a public participation meeting at the Engen Garage in Hectorspruit on Tuesday morning and, despite the short notice, a group mobilised.

They were greeted by representatives of Singo Consulting, who are doing an environmental impact assessment (EIA) and then informed them that only residents of Mjejane were supposed to attend.

This caused an uproar and several attendees remarked on the irregular nature of proceedings.

It was decided to adjourn the meeting and arrange another in Marloth Park to ensure all affected parties could attend.

The consultants hope to host meetings in the various areas that would be affected and need to do so before July 19, when all comments need to be in.

The proposed mining area encompasses “Tenbosch 162 JU (excluding portion 46, 74, & 90), all portions (excluding 01) of the farm Vyeboom 414 JU, all portions of the farm Turfbult 593 JU and all the portions of the farm Tecklenburg’s Ranch 548 JU”. This stretches from the edge of Marloth Park to the edge of Komatipoort.

The application is for open cast and underground mining of coal, pseudo-coal and torbanite or oil shale resources. The mine is expected to have a lifespan of 30 years.

An aeromagnetic survey of the area was done in 2012 and studies into the area’s mining potential done in subsequent years, leading to this application.

Many nearby residents are concerned about the potential environmental impact. The EIA by Singo Consulting will include specialist studies on air quality, biodiversity, blasting and vibration, hydrological studies, risk assessment, heritage and traffic management.

The draft document will be available from June 20 to July 19 at the Komatipoort Public Library or from Singo Consulting on 013-692-0041.

Community members can register as interested and affected parties and then raise their concerns or provide suggestions to enhance the benefits of the proposed project.

Denis Goffinet, chairman of the Marloth Park Property Owners Association, said residents are determined to fight the application, as they have done several times. At the meeting, several of them confirmed this standpoint to Corridor Gazette.

However, other local communities in Nkomazi hope that the project will succeed as the creation for more jobs is sorely needed.

[Lisbeth]

Petition: Stop mining in Kruger National Park, South Africa

https://secure.avaaz.org/en/community_p ... NKQib%2Ben

[RogerFraser]

SANPARKS on Twitter:

Kruger National Park
@SANParksKNP
·
4h
In the wake of reports regarding the proposed mine within the vicinity of the Park, this is a confirmation that the KNP is aware of the proposed mining rights application, and has registered as an interested and affected party.We recognize the potential impact of such a mine on the direct boundary of the Park. The proposed site furthermore falls is an important ecological support area, which also poses broader landscape and downstream concerns.Joint consultation with environmental and socio-economic experts are underway.

We will sit down with Conservation Manager, Dr Marisa Coetzee, to give more clarity on this burning issue.

[Lisbeth]

To open a mine in the proposed area is void of common sense and lacks completely any respect for the environment and apart from the possible (certain) damages to the river, a sore sight on the border of the Kruger National Park and the Marloth conservatory not to talk about the quality of the air.

[Richprins]

Now Sanparks can feel what it is like to be on the other end of a public consultation rubber-stamp exercise!

[Lisbeth]

Under which ministery is "mining" placed? In any case, SANParks must have quite a few cards to play