07 March 2017 at 7:59 am
On 23 February 2017, the Department of Environmental Affairs (DEA) issued a statement on its website entitled “Environmental Affairs clarifies matters around permission granted to Atha-Africa ventures to mine within the Mabola protected environment in Mpumalanga province”. The DEA’s statement aimed to “correct misinformation being disseminated in the public space”, and referred to “a number of allegations made by non-governmental organisations (NGOs)” not named in the statement.
The Centre for Environmental Rights are the attorneys of record for a Coalition of eight civil society and community organisations (see full list below) challenging the many decisions made to allow this coal mine to be built inside a declared protected environment and strategic water source area. The CER has, on behalf of their clients, issued a number of statements about this case. WWF South Africa also issued a statement on 7 February 2017 after it became known that the Ministers of Environmental Affairs and Mineral Resources had given permission for this mine.
The legal challenges in this case will ask the courts to ultimately decide whether the Ministers and the various authorising departments complied with their Constitutional and other legal obligations when giving this mine the go-ahead. The Coalition undertaking these challenges will therefore not respond to each of the statements made by the DEA. However, it is important to set the record straight on a few key statements made by the DEA.
- While it is correct that the surface operation of the proposed mine would be located outside the Mabola Protected Environment, the majority of the underground mine would be inside the Protected Environment. The risks posed by the underground mine are orders of magnitude higher than the surface operations.
- It is incorrect that Atha-Africa Ventures (Pty) Ltd’s (Atha) mining right application was “essentially an application for renewal of mining rights, as the prospecting rights for the area were previously held by BHP Billiton until 2011.” In law, a prospecting right previously held does not give the holder of that right an entitlement to a mining right. Moreover, this area was declared a protected environment before the mining right was awarded to Atha. When notice was published of the intention to declare the Mabola Protected Environment, Atha was one of a number of mining companies that objected to the proposed declaration. The declaration was made after consideration of those objections by the MEC. As far as we are aware, none of these mining companies took any legal action to challenge the declaration at the time.
- Even if the National Environmental Management: Protected Areas Act does not “explicitly” require a public participation process, Minister Molewa’s decision is subject to the Constitution and the public participation provisions in section 4 of the Promotion of Administrative Justice Act (PAJA). Failure to comply with PAJA means that her decision is likely to be set aside by a court on review.
- Despite this, there was no public consultation on the Ministers’ decision under the Protected Areas Act to allow mining in this protected environment. The Coalition repeatedly asked the DEA for an opportunity to make representations to the Minister of Environmental Affairs as to why this permission should not be granted, but no such opportunity was given. Neither of the Departments nor the Ministries involved notified the Coalition of the fact that they were considering this decision under the Protected Areas Act, nor did they notify them after they had made their respective decisions. The CER obtained the decision as an annexure to a petition by Atha to the Minister of Water & Sanitation, and only directly from the DEA through a formal request under the Promotion of Access to Information Act.
- Moreover, no regard was had to the fact that all of the decisions on which the Ministers relied when giving their permission for this mine are either under appeal, or are subject to court proceedings. The appeal against the environmental authorisation – to be decided by the Mpumalanga MEC for Environment, the appeal against the water use licence – to be decided by the Water Tribunal, the appeal against the environmental management programme – to be decided by the Director General of the DMR, and the review of the Mining Right – to be decided by the North Gauteng High Court, are all pending.
- Although the DEA states that it is “satisfied that potential impacts have been clearly highlighted and the proposed mitigation of impacts identified and addressed in the Environmental Impact Report”, in making her decision Minister Molewa relied on a version of the environmental impact assessment report for the proposed mine that that DEA itself rejected in 2014 for containing insufficient information in relation to several key aspects of concern. In its letter of rejection of the 2014 report, the DEA highlighted numerous issues which it required to be addressed in an amended report. An expert review commissioned by the Coalition has confirmed that these issues were never fully addressed in the amended report that was subsequently submitted by Atha.
In addition to being inside a declared protected area, the proposed mining area is a source of three major rivers – the Tugela, the Vaal, and the Pongola – that provide precious freshwater to many thousands of downstream water users. These users will all be affected if a source of those rivers is compromised. The area has been classified as one of 21 Strategic Water Source Areas by the South African National Biodiversity Institute and the Council for Scientific and Industrial Research in a project supported by the Water Research Commission and key government departments. Strategic Water Source Areas are the 8% of our land that provides more than 50% of our freshwater. South Africa is currently experiencing the worst drought in 30 years, with a state of drought disaster declared in 8 of our 9 provinces, including Mpumalanga.
In these circumstances, it is disappointing that civil society and community organisations have to step in, at great cost, to remind the Ministers and the various departments of their duties to hold the environment and water resources in public trust for the people of South Africa.
 The eight coalition members that the CER is representing are:
- Earthlife Africa Johannesburg
- Mining and Environmental Justice Community Network of SA (https://www.facebook.com/mejcon/)
- Endangered Wildlife Trust
- BirdLife South Africa
- Federation for a Sustainable Environment
- Bench Marks Foundation
- Association for Water and Rural Development (AWARD)
 CER media releases on this matter:
 It is not enough to rely on public participation processes in other licensing decisions made under other legislation. The factors to be considered under the Mineral and Petroleum Resources Development Act, the National Water Act, and the National Environmental Management Act are all vastly different from the Protected Areas Act, which requires the state to act as trustee of protected areas, and “to promote sustainable utilisation of protected areas for the benefit of people, in a manner that would preserve the ecological character of such areas”.
 When listing the information considered by the Ministers in their reasons for the decision under the Protected Areas Act, no mention is made of the voluminous papers filed in appeals and court proceedings against the various licences.
 Summarised in application for review of mining right, Founding Affidavit, para 80. See http://cer.org.za/programmes/mining/mining-and-environment-litigation-inventory
 The same area is the site of a declared endangered ecosystem by the Minister of Environmental Affairs under the National Environmental Management: Biodiversity Act. Wetlands in the immediate vicinity of the proposed mining area are recognised as National Freshwater Ecosystem Priority Areas, and there are a number of threatened faunal species that occur in the area. Furthermore, in the most recent Mpumalanga Biodiversity Sector Plan prepared by the Mpumalanga provincial government, considerable portions of the proposed mining area are defined either as “Irreplaceable” or “Optimal” Critical Biodiversity Areas.
Media queries: CER Communications Manager, Annette Gibbs [email protected] 082 467 1295