Africa Wild

Damage to West Coast beaches from mining can be kept to 'acceptable' levels, say consultants
2018-09-26 07:39

John Yeld


This cliff at the Tormin mine on the West Coast has collapsed. It has been alleged that the company caused the collapse. (Archive photo supplied to GroundUp)


Consultants employed by Australian company Mineral Sands Resources (MSR) have acknowledged that the massive expansion of mining for mineral sands on 10 West Coast beaches north of the Olifants River estuary will cause unavoidable environmental damage, but claim that the damage can be reduced to "acceptable" levels.

This is one of the key findings of a draft Environmental Impact Assessment (EIA), part of a new application by the controversial Australian mining company, published on September 18 for public comment, GroundUp reported.

The draft EIA has been released while MSR is still waiting for a decision on its separate application to condone earlier flouting of environmental regulations. The company had already started work on the proposed expansion before approval had been granted by the Department of Mineral Resources.

MSR, a subsidiary of Mineral Commodities Ltd, that trades on the Australian Securities Exchange as MRC, owns and operates the 120-hectare Tormin Mineral Sands Mine on the West Coast near Lutzville. The company extracts extremely rich concentrations of mineral sands such as zircon, ilmenite, rutile, magnetite and garnet from below the high-water mark.

Last year, it applied to extend mining operations to another 10 beaches north of the existing mine. This would involve mining the inter-tidal zone over 43.7ha and widening the haul road over six hectares, as well as mining a 75-hectare "strand line" (former shoreline) area inland of Tormin's existing processing plant.

Tormin also wanted approval for an additional 64-hectare infrastructure and plant expansion area.

On November 22, the department refused environmental authorisation, saying it was not satisfied with the way the impact assessment process had been conducted or with the company's compliance with legal requirements.

A site inspection by the department's staff had revealed that Tormin had contravened the National Environmental Management Act (NEMA) by unlawfully starting work on listed activities.

In other words, it was already doing some of the things for which it was applying for authorisation. The department also said that the mining company and its consultant – Rondebosch-based consulting company SRK – had not disclosed these NEMA contraventions to the department, to other state organs or to the public.

Tormin then submitted a Section 24G application in terms of NEMA regulations for "rectification of unlawful commencement of the listed activities" – in essence, for legalising an unlawful act ­– and restarted the environmental impact assessment process for the mine's expansion.

This will involve mining sand between the low-water mark and the "toe" of the coastal dunes and/or cliffs (with a 10-metre buffer zone) to an average depth of six metres. Strip mining of the inland strand line will be undertaken progressively using excavators to extract the mineralised sand layer up to a maximum depth of 30 metres, with an average of 10 metres.

Although the department has not yet ruled on the 24G application, a new draft EIA was released last week with a 30-day comment period.

The consultants note that most of the area under application falls within a Critical Biodiversity Area, designated to promote coastal resource protection and to maintain ecological processes

However, they say, specialist studies did not identify any specific areas that should be designated as "exclusion zones". These studies have shown that the extension project is "generally acceptable", they say.

"The Tormin Mine extension project will result in unavoidable adverse environmental impacts. None of these adverse impacts are considered unacceptably significant and all can be managed to tolerable levels through the effective implementation of the recommended mitigation measures. In addition, the project will directly and indirectly benefit the local and regional economy."

They conclude that on purely environmental grounds - "the project's potential socio-economic and biophysical implications" - the application should be approved, provided the proposed mitigation measures were taken.

Concerns raised by interested and affected parties during the initial phase of the EIA included:

authorisation should not be granted as MSR was not compliant with its existing authorisations and approvals at Tormin;
insufficient information had been provided about the proposed beach access roads and beach mining areas;
the removal of sand might result in beach, cliff and dune erosion, and setback lines should be stipulated;
the extension of the mine would restrict public access to the coast, affecting the tourism value of this stretch of coastline; and
rehabilitation would be "very difficult".

The executive summary of the draft EIA can be downloaded from the SRK website, and hard copies are available at the Lutzville public library, Vredendal library and SRK's Rondebosch offices.

A Public Open Day is being held at the Lutzville Hotel on Wednesday, October 3, between 15:00 and 18:00.

Facts about the Tormin mine

As at February 1, 2017, when Tormin Mine was operating at full production, MSR employed 216 people, of whom 170 were from the local area, with about 88% of local employees categorised as Historically Disadvantaged South Africans (HDSA).

Approximately 80 additional employment opportunities will be created by the proposed mine extension, predominantly at the Mineral Separation Plant.

Up to 300 jobs will be created in the construction phase.

Residents closest to the mine comprise farmers and farmworkers, with the nearest formal communities located more than 13km to the east of the mine, along the Olifants River.

The three main settlements of Vredendal, Lutzville and Koekenaap are described in more detail below due to their size and regional importance, as well as the large number of Tormin employees that reside in these towns.

Lutzville is located approximately 25km east of the Tormin Mine. The closest town to the mine is Koekenaap, about 19km to the east.

The small town of Lutzville experienced rapid population growth between 1991 and 2001, with the increase in mining activities in the area, but the annual growth rate reduced to around 1.43% per year in 2011.

The Lutzville population was estimated at 8 000 in 2014 (based on the Matzikama Municipality Spatial Development Framework of 2014).

The town's population is employed mainly in the mining and agricultural sectors, the latter entailing largely viniculture and tomatoes.

The rural population in Lutzville is declining, indicative of increasing urbanisation within the area (Matzikama Municipality IDP, 2014).

https://www.news24.com/Green/News/damag ... s-20180925

From the photo it looks as if all of it could collapse any time

Court challenge to Mpumalanga coal mine

By John Yeld for GroundUp• 15 October 2018

Case is significant for the future of South Africa’s protected areas.

While much of her work was widely admired and supported, the legacy of the late Edna Molewa, who was Environmental Affairs minister, is not uncontested. And perhaps nowhere more so than in her decision to allow a new coal mine to be developed within a critical biodiversity and water conservation area of the highly threatened Mpumalanga grasslands.

This week, from Tuesday to Thursday (16 – 18 October), that decision – and by extension also Molewa’s environmental legacy – will be under the spotlight in the Pretoria High Court. The controversial mining authorisation within the formally proclaimed Mabola Protected Environment is being challenged by a coalition of eight environmental and social justice groups.

It is one of six legal challenges that the coalition is bringing against decisions by various government departments and authorities that, collectively, opened the way for the development of the Yzermyn underground coal mine at Mabola by Atha-Africa Ventures. This is the local subsidiary of an India-based transnational mining and minerals company, Atha Group.

Atha-Africa, which says it was invited to invest in South Africa by the South African government in terms of the BRICS partnership, acquired prospecting rights in the Mabola area near Wakkerstroom from BHP Billiton in 2011. It has set about acquiring a mining right over 8,360 hectares on 12 farms.

Required authorisations included:

1. The granting of a mining right by the Minister of Mineral Resources;

2. Approval of an environmental management programme for the mine by the Department of Mineral Resources;

3. Environmental authorisation for the mine in terms of the National Environmental Management Act (NEMA) by the Mpumalanga Department of
Agriculture, Rural Development and Environmental Affairs;

4. The granting of a water use licence in terms of the National Water Act by the Department of Water and Sanitation

5. A land use change application under the Spatial Planning and Land Use Management By-law by the Dr Pixley Ka Isaka Seme Local Municipality.

The first four authorisations have been granted or approved, and all five are currently being legally challenged or objected to by the coalition.

But there was also a sixth authorisation that was required, and it was – arguably – the most crucial of all: permission to mine within a protected environment proclaimed in terms of section 48 of the National Environmental Management: Protected Areas Act (NEMPAA).

This section prohibits mining in a protected environment, even if other statutory authorisations are in place. However, it also creates an exception, if the ministers responsible for the environment and for mining both grant written permission for commercial mining to take place within the protected environment.

The 8,772ha Mabola Protected Environment, which lies about 50km north-east of Wakkerstroom and covers parts of both Mpumalanga and KwaZulu-Natal, was declared on 22 January 2014, along with four other wetland areas in Mpumalanga. The declaration was made partly because Mabola is recognised as a high-yielding, highly strategic water catchment area that provides water for South Africa’s economic heartland in Gauteng as well as to neighbours Swaziland and Mozambique. It was also proclaimed for its unique biodiversity that include Red Data List threatened bird species such as the critically endangered Rudd’s Lark.

All of the proposed underground mining is planned within the protected area, while the surface infrastructure of the mine, to be constructed on a much smaller area of approximately 22.4 hectares, falls outside of the protected area but is still largely classified as “Irreplaceable Critical Biodiversity” and “Optimal Critical Biodiversity”, and falls within a “Protected Area Buffer”.

Despite the uncontested significance of the Mabola Protected Environment, NEMPAA section 48 permission for Atha-Africa to mine here was granted jointly by Molewa as Environmental Affairs minister and by then minister of Mineral Resources Mosebenzi Zwane.

It is this permission that is the subject of this week’s judicial review being brought by the coalition.

The coalition consists of eight partners: Mining and Environmental Justice Community Network of South Africa; groundWork; Earthlife Africa Johannesburg; BirdLife SA; Endangered Wildlife Trust; Federation for a Sustainable Environment; Association for water and Rural Development; and the Bench Marks Foundation.

The Mining and Environmental Justice Community Network is in turn a network of communities, community-based organisations and community members whose environmental and human rights are affected, directly or indirectly, by mining and mining-related activities.

The respondents are the Minister of Environmental Affairs; the Minister of Mineral Resources; Atha-Africa Ventures (Pty) Ltd; the Mabola Protected Environment Landowners Association; and the MEC for Agriculture, Rural Development, Land and Environmental Affairs of Mpumalanga.

The applicants want an order reviewing and setting aside the approval by the two ministers, and for the ministers to be ordered to reconsider their decision while taking full account of “all relevant considerations”.

The three government departments are contesting the application.

Atha-Africa is not opposing the setting aside of the section 48 permission and reconsideration by the ministers. But it is opposing the applicants’ request to the court to also order the two ministers to defer any decision regarding the NEMPAA application until after the final outcomes of various administrative appeals against other authorisations obtained by Atha-Africa. It is also opposing the applicants request for the decision to be deferred until after the mining company has made “full and secure financial provision” for the complete rehabilitation of the protected area affected by mining, including the treatment of any polluted water.

While the applicants are unhappy about many aspects of what they believe to be the unjustified approval of the Yzermyn coal mine, there is one aspect that worries them greatly: the secrecy with which Molewa and Zwane gave their respective permissions for the NEMPAA Section 48 requirement.

Atha-Africa sent its section 48 request for permission to mine in the protected environment on 3 May 2016. Molewa considered this application on 20 August 2016 and duly granted the mining company the required written permission. Three months later, on 21 November 2016, Zwane signed off his co-approval. There were no public statements, no media releases and – significantly – no correspondence with any of the interested and affected parties informing them of this decision.

It was only on 31 January the following year that they became aware, and then only in an indirect way.

The Centre for Environmental Rights (a member of the Mining and Environmental Justice Community Network of SA, the first applicant) asked the Department of Water and Sanitation for documentation relating to the granting of the water right to Atha-Africa by the minister so that the coalition could make representations in this regard. In its response, the department sent a copy of the mining company’s letter to the minister – and attached to it was a copy of a document recording the written permissions from Molewa and Zwane the previous year.

“This was the first time that either the applicants or CER (Centre for Environmental Rights) learned of the NEMPAA decisions,” the applicants’ Heads of Argument state. “It thus emerged that the applicants and the public had deliberately been kept in the dark for several months by both Atha and the two Ministers and their departments, with the result that they were not heard before the NEMPAA decisions were taken.

“This is denied by the Ministers [in their answering affidavits] but the denial is a completely bare one. Nothing is said to refute the detailed explanation provided by the applicants for their assertion in the founding affidavit. To the contrary … the applicants and the CER were met with sustained stonewalling by the Environment Minister, the DEA (Department of Environmental Affairs) and the Minerals Minister.”

Government lawyers will be arguing that the Section 48 written permission was granted subject to “multiple” conditions, and that by the time Atha-Africa had applied for it, these other authorisation processes had already been completed. “Given the inter-related authorisations required, the Ministers took a decision to incorporate these processes into their decision-making. They decided that, instead of approaching the issues anew, the Ministers incorporated into their decision-making, the processes followed in respect of other authorisations … The factual matrix was the same.”

Sadly, Molewa died after a short illness on 22 September, so she will not be in the Pretoria High Court this week to listen to legal arguments about whether her decision was correct and justified, or incorrect and requiring to be revisited.

Zwane, a highly controversial figure during his short tenure as Minerals Resources minister from 23 September 2015 to 25 February 2018 when he resigned following allegations of State Capture – particularly over his role in the Vrede dairy farm and Gupta family wedding saga – has been replaced by Gwede Mantashe.

The outcome of this week’s Mabola review application will be crucial for the future of South Africa’s unique biodiversity and for its vital – and irreplaceable – future water supplies. DM

Court drama as state tries to force through coal mining plan

By John Yeld for GroundUp• 17 October 2018

Last minute bid to change boundaries of Mpumalanga protected area.

In a last-minute move, the government is attempting a new strategy to push through a coal mine in a formally protected Mpumalanga wetland area.

This week, the Pretoria High Court was to have heard an application to review the government’s hush-hush 2016 approval of a coal mine in the Mabola Protected Environment, a strategic water catchment and crucial biodiversity area of the Mpumalanga grasslands.

But in a surprise move on Friday afternoon that caught even the government’s legal team by surprise, Mpumalanga MEC for Environmental Affairs Vusi Shongwe published a Notice of Intention in the Provincial Gazette to exclude properties that make up this proposed coal mine from the Mabola Protected Environment. In other words he intends to change the boundaries of the protected area.

This was just one court day ahead of the review application court case being brought by a coalition of eight environmental and social justice groups. They are challenging the permission to mine within a protected environment that was slipped through quietly by the then national Mineral Resources and Environmental Affairs ministers – Mosebenzi Zwane and the late Edna Molewa – in the latter half of 2016. This is the only way that mining can proceed in a formal Protected Environment like Mabola, which was created in 2014.

On Monday, citing Shongwe’s notice in the Provincial Gazette, the State Attorney representing the three government departments involved – Shongwe’s department and the departments of Environmental Affairs and of Mineral Resources – filed a postponement application, requesting the High Court to postpone the coalition’s review application indefinitely.

Formal notice of the State Attorney’s application only reached the coalition’s lawyers, the Centre for Environmental Rights (CER) at 3.13pm on Monday, and they had to work until the early hours of Tuesday morning to file an answering affidavit.

In her affidavit, Catherine Horsfield, an attorney at the CER and head of the CER’s Mining Programme states that at 1.32pm on Monday, she was called by a Mr Mathebula of the State Attorney’s office. He told her that following the publication of Shongwe’s Notice of Intention on Friday, the state respondents wanted to postpone the coalition’s application.

“Mr Mathebula said the MEC had been approached some time in March 2018 by members of the community with a request that he exclude the protected properties from the MPE (Mabola Protected Environment).”

Mathebula also told her that he and the state’s legal team had only learned of Shongwe’s Notice of Intention on Friday evening.

Horsfield states in her affidavit that the MEC had given no warning of his notice in the gazette.

She describes the publication of the notice “a court day but one before the hearing” as “a disingenuous, mala fides (bad faith) attempt by the MEC to pull the rug from under this court”.

Horsfield said in a statement after Tuesday’s court proceedings that Judge Norman Davis had stood the matter down until Wednesday morning, requiring that MEC Shongwe to explain the late publication of the notice to the court. DM

More here:

https://www.news24.com/SouthAfrica/News ... n-20181017

Edit: I see is the same as Lis posted

State loses bid to postpone coal mining hearing

By John Yeld for GroundUp• 19 October 2018

Court dismisses application with punitive costs.

The government has lost an attempt to side-step a High Court challenge to its controversial decision to allow coal mining in a protected area in the threatened Mpumalanga grasslands.

On Wednesday, Judge Norman Davis of the Pretoria High Court dismissed the state’s application to postpone indefinitely a review application being brought by a coalition of eight environmental and social justice groups.

The coalition wants the joint permission given in 2016 by former Mineral Resources minister Mosebenzi Zwane and former Environmental Affairs minister, the late Edna Molewa, to mine coal in the Mabola Protected Environment to be set aside, and for the current ministers of those two portfolios to undertake a fresh assessment.

The state initiated its unsuccessful postponement application just hours before the main review hearing was due to start on Tuesday morning.

It brought the application because on Friday afternoon, Mpumalanga MEC for Environment Vusi Shongwe dropped a bombshell by publishing a Notice of intention to exclude four properties that make up the proposed coal mining area from the Mabola Protected Environment that had been declared early in 2014.

The state, taken by surprise by Shongwe’s action, argued in its postponement application that this development would make any decision in the review application moot.

On Tuesday, Judge Davis instructed Shongwe to file an affidavit setting out his version of events, including why his notice had been gazetted just one court day before the review application was to be heard.

In his affidavit, filed that afternoon, Shongwe stated that his Notice of Intention had been signed on 27 September but had only been gazetted in the Provincial Gazette on 12 October.

He stated that he had received a memorandum dated 6 March 2018 from a Volksrust-based organisation, the Voice Community Representative Council, that claimed to represent the majority of the community residing in the Dr Pixley Ka Isaka Seme municipality.

“The memorandum was accompanied by a petition signed by approximately 8,500 community members. The community has serious concern about the impact of declaring the area in question [the proposed coal mine] as part of the MPE (Mabola Protected Area).”

The stated concerns were “complex” and included that the procedure followed by his predecessor in declaring the Mabola Protected Area had been “flawed” and there had been “insufficient consultation with the affected communities”, Shongwe said.

He added that he’d also discussed the issue with the late Edna Molewa.

Explaining why he had published his Notice of Intention just one court day before the start of the review application, Shongwe said:

“It genuinely did not occur to me at any point that I ought to bring the proposed notice to the attention of my attorney of record in this matter or to the attention of the Court.

“To my mind the current litigation raised the questions of whether or not the decisions reached by the Ministers [Molewa and Zwane] … were lawful or not. I did not appreciate that the notice would have any relevance for decisions already taken.

“It is only when I had a telephone discussion with Mr Mathebula [of the State Attorney’s office] on 14 October 2018, that it was explained to me that the notice has a direct bearing on the current litigation.”

Shongwe also said he’d been unaware that the coalition’s review application had been set down for hearing from Tuesday to Thursday this week.

“I categorically state that I did not intend any disrespect to the Court. I humbly apologise for any perceived disrespect or any inconvenience caused.”

However, after hearing argument, Judge Davis dismissed the state’s postponement application with punitive costs on an attorney and client scale ­– often a signal of a court’s anger or displeasure at the conduct of a litigant.

The main review hearing then started.

Mabola case sets new boundaries for protected areas

18.10.2018

Judicial review of Cabinet decision to open Mabola strategic water zone raises questions about the status of mining in protected environments. Tholakele Nene reports


Turning point: The battle over whether mining should be allowed in Mabola could set a precedent for protected environments throughout South Africa

On the eve of a seminal court application about mining in Mabola, Mpumalanga MEC of Agriculture, Rural Development, Land and Environmental Affairs Vusi Shongwe gazetted a notice of intention to change the boundaries of the protected area.

The proposed amendment would excise four properties “to promote coexistence of mining activities and conservation within the area”, and to “ensure balance towards the use of socio-economic benefits… while promoting environmental protection and sustainability”, according to the notice.

Underground coal mining would go ahead on the four farms, identified as Portion 1 of Kromhoek 93 HT, Remainder of Kromhoek 93 HT, Goedgevonden 95 HT and Remainder of Yzermyn 96 HT. A fifth farm that was not included in the protected area, Portion 1 of Yzermyn 96 HT, would be used for surface mining infrastructure.


Strategic snip? The five farms coloured in blue would be excluded from Mabola and used for coal mining. Source: Provincial Gazette Extraordinary, 22 January 2014

Setting a precedent

The publication of the notice on October 12, days before the judicial review in the Pretoria High Court started on October 16, threatened to stall the proceedings. Eight civil society organisations, represented by the Centre for Environmental Rights (CER), are challenging a 2016 decision by former mineral resources minister Mosebenzi Zwane and the late environment minister Edna Molewa to permit mining in Mabola.

The battle over whether mining should be allowed in Mabola could set a precedent for protected environments throughout South Africa. When Oxpeckers broke the Mabola story in 2015, 11 protected environments had been declared and at least 20 new areas were being negotiated.

Shongwe’s notice of intent to “cut out” the four mining-affected farms sparked heated debate on Twitter feeds. Chief executive of mining company Atha Africa, Praveer Tripathi, tweeted that the notice “presumably” nullified the judicial review, to which associate from Richard Spoor Attorneys Johan Lorenzen responded, “… it appears to suggest the opposite. The review challenges the lawfulness of mining in a protected environment. Instead of defending the lawfulness, the state tries to remove environment status. If the review was going to fail this wouldn’t be needed.”

Unprotecting a protected area

The four farms are part of the Mabola Protected Environment, comprising 21 farms that are privately owned and were declared protected in 2014. The original declaration stated the intention was to “enable the owners of the land to take collective action to conserve biodiversity and to seek legal recognition therefore”.

Totalling 8,772 hectares, Mabola is part of one of 21 strategic water resource areas, which together form the catchments for 50% of South Africa’s freshwater supply, and also provides water beyond South Africa to neighbouring countries Swaziland and Mozambique.

Oxpeckers asked CER director Melissa Fourie if MEC Shongwe could “unprotect” certain parts of Mabola and what the repercussions would be. She said the MEC does have legal powers to do this, although it has never happened before under the Protected Areas Act and it is not an overnight process.

“Yes, in terms of the Act an MEC may exclude areas from a declared protected environment, but only after a proper process has been followed – a process prescribed by the Act. Over and above broad public consultation, that process would include consultation with the minister of environmental affairs and other national organs of state affected by the proposed notice,” she said.

These would include the ministers of mineral resources, water and sanitation, land and rural affairs, the municipality in which the area is situated, the provincial government and the provincial conservation agency, as well as any “lawful occupier with a right in the land or in any part of the area affected”.

After publishing the notice, Shongwe applied for an indefinite postponement of the judicial review, prompting the CER to produce an answering affidavit opposing the motion.

Shongwe replied in defense that he had acted in the interest of 8,500 community members in the Pixley ka Seme municipality who had signed a petition in March 2018 raising concerns about the impact of declaring Mabola a protected area.

“It genuinely did not occur to me at any point that I ought to bring the proposed notice to the attention of my attorney in this matter, or to the attention of this court,” he stated.

The notice calls for public inputs on the proposed excision within 60 days and provided contact details of the acting chief director: environmental affairs, PN Ntuli, for further inquiries.

However, when Oxpeckers called Ntuli for details on the farms to be excluded, she said she was not the right person to speak to about this and referred us to the MEC’s communications department. We talked to a number of government officials in various offices in the department, who also seemed confused about the notice.

On October 17, Judge Norman Davis, who is hearing the judicial review in the Pretoria High Court, refused Shongwe’s motion to postpone the proceedings and ordered the state to pay the costs of the postponement application. The hearing continued, and Judge Davis reserved judgment on October 18.

– additional reporting by Andiswa Matikinca

Find the Mabola licenses and authorizations, including the documents relating to this case, on #MineAlert here.

Media Release: Court victory for South Africa’s protected areas in Mabola case

8 November 2018

Today, the North Gauteng High Court set aside the 2016 decisions of former Mineral Resources Minister Zwane and the late Environmental Affairs Minister Molewa to permit a new coal mine to be developed in the Mabola Protected Environment near Wakkerstroom, Mpumalanga.

The case was brought by the coalition of eight civil society organisations challenging a range of authorisations that have permitted an underground coal mine in a strategic water source area and a protected area.

The Mabola Protected Environment was declared under the Protected Areas Act in 2014 by the Mpumalanga provincial government as part of the declaration of more than 70 000 hectares of protected area in the Mpumalanga grasslands. This followed years of extensive research and planning by a number of government agencies, including the Department of Environmental Affairs, the South African National Biodiversity Institute and the Mpumalanga Tourism & Parks Agency.

In 2016, without public consultation and without notice to the coalition, the two Ministers gave their permission for a large, 15-year coal mine to be built inside the Mabola Protected Environment.

The Court set aside the permission and referred the decision back to the two Ministers for reconsideration on the basis that the Ministers did not take their decisions in an open and transparent manner or in a manner that promoted public participation, and that the decisions were therefore procedurally unfair.

The court criticised the Ministers for relying on the processes followed by other decision-makers instead of exercising their discretion under the Protected Areas Act independently, referring particularly to their failure to apply a cautionary approach when dealing with "sensitive, vulnerable, highly dynamic or stressed ecosystems" as "an impermissible abdication of decision-making authority".

The court also held that: "A failure to take South Africa's international responsibilities relation to the environment into account and a failure to take into account that the use and exploitation of non-renewable natural resources must take place in a responsible and equitable manner would not satisfy the 'higher level of scrutiny' necessary when considering whether mining activities should be permitted in a protected environment or not. Such failures would constitute a failure by the state of its duties as trustees of a vulnerable environment, particularly where it has been stated that 'most people would agree, when thinking of the tomorrows of unborn people that is it a present moral duty to avoid causing harm to the environment'" (at 11).



The permission for this mine given by Molewa and Zwane was the first in South Africa for a new mine to be permitted in a protected environment. Earthlife Africa, the Mining and Environmental Justice Community Network of South Africa (MEJCON-SA), the Endangered Wildlife Trust, BirdLife South Africa, the Federation for a Sustainable Environment, the Association for Water and Rural Development (AWARD), the Bench Marks Foundation and groundWork, represented by the Centre for Environmental Rights, challenged the late Environmental Affairs’ Minister’s and the former Minerals Minister’s decisions to allow this mine to go ahead.

The court ordered that on reconsideration of the application for permission to mine in the Mabola Protected Environment, the Ministers are directed to:

- comply with sections 3 and 4 of the Promotion of Administrative Justice Act (PAJA);
- take into account the interests of local communities and the environmental principles refer to in section 2 of the National Environmental Management Act (NEMA) "with a strict measure of scrutiny";
- defer their decisions on reconsideration until after the Environmental Management Programme and Water Use Licence appeals have been determined;
- not grant permission in terms of section 48(1)(b) of NEMPAA unless a management plan for the Mabola Protected Environment has been approved by the MEC in terms of section 39(2) of the Protected Areas Act and the management plan’s zoning of the area in which the intended mining is to take place permits such mining.

The High Court expressed its criticism of "a disturbing feature in the conduct of the Ministers" and endorsed the submission made by counsel for the coalition that "ethical environmental governance and behaviour is enhanced simply by exposing it to the glare of public scrunity". What resulted was "an unjustifiable and unreasonable departure from the PAJA presripts and lead to procedurally unfair administrative action." The High Court ordered the Ministers and MEC to pay the coalition’s legal costs on an attorney and client (punitive) scale.

“South Africa has long recognised that the grasslands of Mpumalanga, KwaZulu-Natal and Free State are incredibly important to South Africa’s natural heritage. The grasslands are important water sources, and home to a range of production sectors that underpin economic development. In the case of Mabola, the Protected Environment falls inside a strategic water source area which feeds some of South Africa’s biggest rivers,” says Yolan Friedmann, Chief Executive Officer of the Endangered Wildlife Trust. “Moreover, protected areas not only help protect our biodiversity – particularly our incredible wildlife – and important natural ecosystems, but are also a key part of South Africa’s reputation as a global tourist destination.”

Mashile Phalane, spokesperson for the Mining and Environmental Justice Community Network of South Africa (MEJCON-SA) says: "This judgement is a victory for environmental justice. We want to see protected areas actually protected against mining by our government as custodians of the environment on behalf of all South Africans. This custodianship is violated if decisions that have such important consequences are taken behind closed doors. MEJCON-SA is deeply invested in issues of accountability. This judgement reinforces the fundamental importance of fair and transparent decision making."

Catherine Horsfield, attorney and mining programme head at the Centre for Environmental Rights, welcomed the judgement. “It confirms to government and to all developers proposing heavily polluting projects in environmentally sensitive areas in South Africa that exceptional circumstances must be shown to exist to justify that proposed development. South Africa is a water-stressed country, and the Mabola Protected Environment, where the coal mine would be located, has particular hydrological significance for the country as a whole.

“The judgement also confirms the foundational principles of our law that went awry when the Ministers made their decisions to permit mining here. These are that no decision of this magnitude can be made unless a fair, proper and transparent decision-making process has been followed.”

Anger over ‘back door’ St Lucia dune mining plan

By Tony Carnie• 8 November 2018

Wetland
A floating dredger sucks heavy minerals from coastal sand dunes north of Richards Bay. A new company has set its sights on similar mining operations in a protected natural forest on the southern boundary of the iSimangaliso World Heritage Site.

Eight years ago, Richards Bay Minerals abandoned separate plans to mine on the periphery of the reserve – exactly the same piece of land that has now been targeted for heavy minerals exploration.

A national coalition of environmental groups, including the former iSimangaliso Wetland Park chief executive Andrew Zaloumis, has lodged strong objections to a dune mining exploration venture on the southern boundary of the iSimangaliso (Lake St Lucia) World Heritage Site.

Zaloumis departed his leadership position prematurely just over a year ago after clashing with property developers and sugar farmers while trying to reverse ecological damage to one of Africa’s oldest game reserves and largest estuarine lakes.

Earlier this year, Zaloumis was described as an “unsung hero” of community conservation by Mavuso Msimang, a former member of the uMkhonto weSizwe Military High Command, former chairman of the South African National Parks and Isimangaliso Wetland Park Authority and current chairman of Corruption Watch (South Africa).

Zaloumis, now director of the Wild Equity Foundation, said there was no doubt that prospecting or mining directly on the boundary of a World Heritage Site “flies in the face of our constitutional responsibility to exercise a duty of care for the environment”.

The prospecting rights application has been made by Eyamakhosi Resources (Pty) Ltd, a hitherto unknown company owned by former Richard Bay Minerals (RBM) employee Sicebi Mthethwa, which has no track record in mining or rehabilitating environmental impacts from mining.

Mthethwa’s proposed venture has aroused concern that he may be acting as a proxy for the Rio Tinto controlled RBM mining company which was forced to abandon its ambitions to mine inside the reserve more than 20 years ago during one of the country’s most heated environmental debates.
The proposed new mining exploration block (yellow) on the southern boundary of the iSimangaliso World Heritage Site, directly north of the current dune mining operations by Rio Tinto subsidiary Richards Bay Minerals (RBM).

Mthethwa has previously declined to comment on these suggestions, while RBM said it would not discuss the activities of other mining companies or “internal discussions”.

Eight years ago, RBM also abandoned separate plans to mine on the periphery of the reserve – exactly the same piece of land that Mthethwa has now targeted for heavy minerals exploration.

More recently Mthethwa’s environmental advisers, AtEnkosi Consultants, published a draft basic environmental impact assessment report which concluded that prospecting and drilling up to 200 exploration pits in the area would not cause any “significant environmental impacts” that could not be mitigated “provided that best practise prospecting methods are used”.

Significantly, however, an independent consultant who was asked to assess the ecological impacts has pulled out from any further participation in the EIA project, after AtEnksosi apparently failed to provide him with information that he considered to be “fundamental to the process of assessing potential impacts”.

Reacting to the draft EIA report, Zaloumis complained in a written submission to Mthethwa and AtEnkosi that the draft EIA report was “grossly non-compliant” with the government regulations and should be rejected by the Department of Mineral Resources.

Zaloumis also stated that the report does not consider the specific impacts of prospecting or mining in the buffer zone of a World Heritage Site and also failed to recognise that it was classified as a protected indigenous state forest.

Several other groups have also lodged objections to the report, including the Wildlife and Environment Society of SA (Wessa), the Game Rangers Association of SA, the iSimangaliso Action Group and the Botanical Society of South Africa’s KZN Coastal Branch

Bryan Ashe, co-ordinator of the iSimangaliso Action Group, complained that no public consultation had been held by AtEnkosi, apart from meeting with traditional authorities in the area.

The group, made up of several former members of the Campaign for St Lucia, noted that the proposed prospecting and mining area contained two of the highest coastal sand dunes in the country as well as endangered dune forest.

The Wildlife and Environment Society said the location of the project on the boundary of a Unesco World Heritage Site elevated the issue to a matter of national conservation and environmental concern.

“We have reviewed the (draft EIA report) and submit, with the greatest of respect, that it is deficient in a number of respects and in our view fatally non-compliant with the EIA Regulations,” the society said.

AtEnksosi claimed that during the prospecting phase there would be no “mass clearing of vegetation” and that there was no need to create new access roads into the dune forest.

However, aerial photographs of similar drilling exploration work by RBM in the area reveals evidence of an extensive road network that is still visible 14 years later.

AtEnksosi and Mthethwa were asked whether they wished to respond to the criticisms made by the environmental coalition and other critics of the plan, but no response was received.

They also failed to respond to queries on the reasons why ecological consultant Peter le Roux has withdrawn from the EIA process. DM

How #MineAlert helped Mabola

16 November, 2018

An anonymous tip-off sparked a sustained investigative journalism trail and a precedent-setting High Court judgment, writes Julia Thomas


At the Mabola crossroads: the case highlights the broader significance of protected areas. Photo: Johnny Miller/AfricanDrone

Oxpeckers journalists working for our #MineAlert platform played a crucial role in the lead-up to the decision by the North Gauteng High Court last week to set aside permissions for mining in the Mabola protected area in Mpumalanga.

The ruling is a landmark victory for environmental defenders and a precedent-setting case for future development efforts in South Africa’s protected environments.

The decision by Judge Norman Davis came after almost four years of vigilance on the part of journalists and civil society organisations in exposing a project that might have otherwise remained undisclosed from the public.

The application for judicial review was brought by a coalition of eight organisations, represented by the Centre for Environmental Rights (CER), which have challenged a range of authorisations permitting Indian company Atha Africa Ventures to construct the Yzermyn coal mine inside a key water zone.

“The case highlights the broader significance of protected areas and the government’s duty, as the custodian of those protected areas, to ensure that they are not eroded willy-nilly by the kind of development that will undermine the reason for their protection,” CER attorney Catherine Horsfield said.

After being alerted by whistle-blowers in 2015 to the mining plans, several different Oxpeckers journalists have consistently followed up to secure authorisations from provincial and national government agencies under the Promotion for Access to Information Act (PAIA). These licences and authorisations are shared on the open-source #MineAlert tool.

Over the years seven Oxpeckers investigative environmental journalists have covered the Mabola saga and its implications for the fledgling regulatory framework evolving around protected environments.

Scrutiny of the authorisations helped the journalists to break several new angles on the story, including the one that led to the High Court decision – the exposé that, without any public notification, the ministers of environmental affairs and of mineral resources signed off on coal mining in Mabola.

Judge Davis rejected this decision by the ministers on the grounds that the permissions were not granted in a transparent manner that consulted the public.


Downstream impacts: Mabola is a test case for regulations evolving around protected water zones. Photo: Johnny Miller/AfricanDrone

National strategy

Mabola, an area near Wakkerstroom comprising wetlands, rivers and endangered grasslands, received protected area status in 2014 as part of a declaration of 70,000ha of land in Mpumalanga by the provincial government under the National Protected Areas Expansion Strategy.

The need for and regulation of protected areas is set out in a new draft strategy released in early November 2018 for public comment. The evolving framework, first published in 2008, sets goals of protecting biodiverse areas with a legal designation and achieving “improved representation, ecological sustainability and resiliency to climate change”.

South Africa’s protected areas network “currently falls far short of representing all ecosystems and maintaining ecological processes”, the strategy states, indicating that rivers and wetlands are poorly represented. “Rapid expansion of mining” is cited as a primary threat to ecosystems in Mpumalanga.

Mabola is a test case for the status of mining in protected areas. Judge Davis criticised the ministers for relying on authorisations given by other competent authorities instead of exercising their independent discretion under the Protected Areas Act, citing their failure to apply a cautionary approach when dealing with “sensitive, vulnerable, highly dynamic or stressed ecosystems”.

He also noted a “disturbing feature in the conduct of the ministers” and an “impermissible abdication of decision-making authority” which failed to include a “higher level of scrutiny” when considering endorsing mining activities in a protected area.

“The judgment sets out precisely what kind of process must be followed when considering whether to permit commercial mining in a protected environment. It also sets out the sequencing of approvals before mining will be permitted in a protected environment,” Horsfield said.

What happens now?

- Atha Africa has not announced whether it intends to continue pursuing its application for mining in Mabola. “Atha Africa Ventures can confirm receipt of Judge N Davis’s judgment announced on November 8 2018… We will discuss the judgment along with its implications for the company with our legal team and will issue a statement thereafter,” the company said in a media release.
- In light of the Davis judgment, future reconsideration of the mining application must comply with relevant sections of the Promotion of Administrative Justice Act and take into account the interests of local communities and the environmental principles enshrined in the National Environment Management Act. Decisions must also be deferred until decisions have been made on the ongoing appeals against the environmental management plan and water use licence.
- Argument before the Water Tribunal to review the appeal against Atha Africa’s water use licence is due to be heard on December 5 2018.
- Oxpeckers filed a PAIA request on September 6 2018 asking the Department of Mineral Resources (DMR) whether Atha Africa had received an extension of the period in which it needs to start mining operations at Mabola. A response from the national DMR offices on October 17 stated that the request for access to records was partially granted. Oxpeckers has been unable to get a response from the Mpumalanga offices which should supply the documents in terms of the PAIA decision.