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SUBMISSION ON THE DWS MASTER PLAN

Wednesday, 07 February 2018 11:20
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WRITTEN SUBMISSION ON THE DRAFT 2.6: NATIONAL WATER AND SANITATION MASTER PLAN (NW&SMP)

 In this document, the Federation for a Sustainable Environment (“FSE”) submits comments on the National Water and Sanitation Master Plan, draft 2.6 (the “draft plan”).

 THE FSE:

 The FSE is a federation of community based civil society organisations committed to the realisation of the constitutional right to an environment that is not harmful to health or well-being, and to having the environment sustainably managed and protected for future generations. Their mission is specifically focussed on addressing the adverse impacts of mining and industrial activities on the lives and livelihoods of vulnerable and disadvantaged communities who live and work near South Africa’s mines and industries.  

 In accordance with the above-mentioned mission, the FSE’s comments are limited to matters pertaining to the mining industry. The FSE’s comments will be substantiated by real examples within the scope of the FSE’s experience and our active participation in a significant number of environmental impacts assessments, environmental management programme reports, water use license applications, environmental authorisations, steering committees, forums, task teams, teams of experts, academic research groups, boards, etc. over a period of 15 (fifteen years).[1]

[1] Kindly note that the Legal Resources Centre assisted with this publication.

INTRODUCTION:

 On 8 December 2017, the Department of Water and Sanitation had completed the National Water and Sanitation Master Plan. This resulted in the Department of Water and Sanitation, under Director-General Mr. Mkhize, to invite various organisations to a Departmental Cluster Working session on 2 February 2017. In terms of this invitation the FSE and the LRC will, inter alia, be making submission on the following issues:[1]

  • the Ecological Reserve and the protection of ecological water structures;
  • compliance and enforcement;
  • the independent economic regulator;
  • the role of civil society;
  • the amalgamation of the WCMA into a single centralised department;
  • you cannot drink paper plans;
  • potential water crisis exacerbated by poor management, aging infrastructure and lack of skills in the right places;
  • lack of data and information resulting from weak monitoring systems; and
  • mining.

THE ECOLOGICAL RESERVE AND THE PROTECTION OF ECOLOGICAL WATER STRUCTURES:

The Ecological Reserve:

One of the founding rights in the South African Bill of Rights is the right to have access to sufficient water.[2] In terms of bringing that right to fruition, the National Water Act 36 of 1998 (the “NWA”) had created a system wherein a reserve would be determined for any major water resource. The primary concern of the reserve was and still is to establish a minimum water level needed to support life (in other words providing sufficient water to the people of South Africa).[3] The manner in which the reserve was calculated was based on two criteria, the ecological reserve and the human reserve.[4] 

Although the human reserve is critical for effectuating the right to water, the ecological reserve is the quintessential component in making sure that the right to water can exist. Without measuring the capabilities of what the aquatic ecosystem can endure in terms of human and ecological consumptions will result in a system that is unsustainable and cannot function which means water cannot be supplied in terms of the Constitution. The importance of the ecological reserve has and is recognised by the Department of Water and Sanitation (“DWS”) and was highlighted as one of the first actions to be undertaken in the second National Water Resource Strategy wherein it stated that the ecological reserve and the classification of the South African rivers will be a priority.

The draft plan deals with water ecological systems under chapter 8. [5] In terms of this chapter, the ecological reserve has only been mentioned twice and in those two instances failed to take into consideration the importance of the reserve. In terms of this, at 8.1.1 the draft plan states “this highlights the importance of using the integrated water resources management tools provided by the NWA, including the ecological reserve, the classification of water resources and the determination and implementation of resource quality objectives.” By reducing the ecological reserve to a management tool removes the constitutional element of having an enforceable right. The Departmental Cluster should take cognisance that this failure to elevate the ecological reserve could open the DWS to potential litigation. 

The second issue pertains to the failure of the draft plan in giving a meaningful programme on how the DWS is going to monitor and evaluate the ecological reserve. Although there are some initiatives, in the draft plan, on how the DWS is going to monitor water courses and systems it needs to undertake further monitoring and evaluation of the ecological reserve to continuously determine if the ecological reserve is sustainable.

The third issue pertaining to the ecological reserve in the draft plan, is the fact that there is such little mention of the ecological reserve are we to assume that the ecological reserve will be removed as a constitutional binding obligation in the new water bill? It must be stated in the white paper on Water, that the ecological reserve together with the human reserve are the only enforcing rights in the that paper. Once again the Department Cluster must take cognisance of the fact that the ecological reserve is an important component.

The FSE and the LRC however, welcome that there will be a concerted effort to increase the determination of the reserves of underground ground water and the estuaries.

Protection of Ecological Water Structures:

In terms of the Water use and environmental authorisations that are continuously given to mining companies, within legally protected areas (including Nature Reserves, Protected Environments)[6], in areas of highest biodiversity such as critically endangered and endangered ecosystems, river and wetland Freshwater Ecosystem Priority Areas (FEPAs) and Ramsar Sites, is becoming a serious issue in maintaining and protecting the Ecological Water Structures. What is important to note the reason why it is becoming difficult in protecting these sensitive areas is the fact that there are a multitude of mining application being submitted on a monthly bases in a single area. The net effect is that the impact compounds the total destruction of the area due to the number of mining’s companies together with the significance of the biodiversity features and the associated ecosystem services.[7]

 To exemplify the above we will give two examples:

Groot Marico Region:

 Environmental authorisation was recently given for the Doornhoek Fluorspar Mine project. However, there are at least 6 other mining applications for that area. To location of these applications fall under an area commonly known as Groot Marico. This area has the following important ecological water and land systems traits:

  • Greenfields;
  • An important ecotone with high species richness, a unique species combination, genetically unique populations and high intra-species genetic diversity;
  • A highly ecologically significant aquatic ecosystem, a designated priority river system (FEPA Rivers);
  • An aquatic Critical Biodiversity Area (CBA2) with the presence of the Vulnerable Marico Barb and the Near Threatened Waterberg Barb which is considered near threatened;
  • The upper reaches of the Marico River, which are in a natural or near natural ecological state;
  • The upper Groot Marico River and Tributaries are Fish Sanctuary Areas, which support three genetically distinct populations of the vulnerable Marico barb;
  • The Klein-Marico River, which present ecological status is categorised as a Class B: Largely Natural;
  • Five major wetland types;
  • The Groot Marico River, which is fed by a number of springs (eyes) within the Groot Marico Dolomitic Aquifer Compartment, an which are highly sensitive from an ecological point of view considering that many red data fauna utilize this area as a source of water and habitat.
  • The main rivers in the area have an ABA status, which means it is pristine water that is drinkable from the source.
  • The Groot Marico river feeds the Gaborone City in Botswana;
  • The area feeds the Orange River, the Limpopo River and various other small tributes. The impact of damaging this area would impact the lives of millions of people and the economy.

Mpumalanga Coal Mining:

Another example is the authorisation of water use license applications and environmental applications within Mpumalanga, a region with high agricultural potential, the highest rainfall, lowest evaporation and highest precipitation in South Africa and the source of 4 major rivers except the Limpopo. The entire Upper Vaal WMA is underlain by coal with significant acid producing potential. 

The subjoined maps show the strategic water focus areas and strategic water source areas within Mpumalanga. If these areas are declared as “no go” areas because of its water yield potential, a large area of Mpumalanga still remains to be mined (31% of the province).  Please see the third subjoined map in this regard.

Notwithstanding these considerations, the fourth subjoined map shows the number of mining and prospecting applications between 2000 and 2016. It can logically be inferred from this map that the entire Mpumalanga is under either mining or prospecting applications.

The goal of the Master Plan to protect and sustainably and equitably develop water resources and “water factories” can only be realised if the DWS, in collaboration with the DEA and the DMR, declares the strategic water focus and source areas within Mpumalanga as no-go areas.

 The rest of the document can be opened as a PDF document.

MINING

HUMAN RIGHTS COMMISSION - REPORT ON THE NATIONAL HEARING ON THE UNDERLYING SOCIO-ECONOMIC CHALLENGES OF MINING AFFECTED COMMUNITIES

The SAHRC launched its Report on the National Hearing on the Underlying Socio-economic Challenges of Mining-affected Communities in South Africa on the 22nd of August 2018. The FSE participated in the Hearing and many of its issues of concern are addressed in the Report. The Report may be opened here as a PDF document.

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Mintails placed into final liquidation

BUSINESS DAY Mintails placed into final liquidation Department of Mineral Resources will join long line of creditors hoping to recoup money 20 September 2018 - 17:27 Lisa Steyn

BUSINESS DAY EXCLUSIVE: Liquidation allows Mintails to shirk environmental liabilities

21 August 2018 - 05:04 Mark Olalde   Pollution: Water resource management consultant Anthony Turton, with the Mintails gold plants and water treatment tanks in the background. Picture: BUSINESS DAY/FREDDY MAVUNDA Mintails Mining and several related companies have announced their liquidation, throwing into question the environmental rehabilitation of highly polluting operations near Johannesburg. Mintails mines and processes gold from a sprawling 1,715ha complex of waste piles and open pits in Krugersdorp and has for years been flagged for noncompliance. Its operations are bordered by informal settlements and suburbs housing thousands of residents, many of whom have complained of health effects, which they blame on radioactive dust and water pollution from Mintails’ mines. Records show that the cost to clean up the environment would be about R330m, but there is only R25.6m available. Observers fear that the situation could deteriorate further, as happened at the Blyvooruitzicht Gold Mine, an abandoned large-scale operation on the West Rand. A case study in the country’s deeply flawed mine closure system, Mintails teetered on the verge of collapse for years and entered business rescue in October 2015. Mariette Liefferink, the activist CEO of the Federation for a Sustainable Environment, tracked Mintails for more than a decade and is now working to intercede in the liquidation proceedings as the legal voice for what she labels the "mute environment". "There was poor planning. [Mintails’] due diligence was flawed. They overestimated the gold grade and the resource that could be reclaimed. "They continued to exploit the resource, to reclaim only the profitable parts and never top up the financial provisions," Liefferink says. As the company slips into liquidation, it passes the brunt of its environmental liability to taxpayers and, to an extent, to other mining companies. After Mintails fought for nearly three years to save the company, business rescue practitioner Dave Lake notified the Johannesburg high court in early August of his intention to liquidate the company. Provisional liquidation was granted on August 17 and a liquidator is expected to be appointed soon. THERE IS NO LONGER A REASONABLE PROSPECT OF RESCUING THE COMPANY. The business rescue plan called for the refurbishment of a gold ore processing plant but, according to a memo dated August 1 that Lake sent to the court and to affected parties, it failed when multiple investors ceased funding Mintails. "There is no longer a reasonable prospect of rescuing the company," the memo read. The liquidator will now decide how to pay back creditors with the remaining assets. Environmentalists fear this process could leave environmental liabilities low on the list of what deserves money. According to the business rescue plan, written in December 2016, Mintails owed various creditors more than R1bn, including a shortfall of about R300m in reclamation funding. Due to a web of involved companies, it remains unclear if a large portion of the already insufficient financial provisions can be accessed for environmental cleanup. DRDGold formerly held one of the mining rights and the corresponding trust fund, which are now in the Mintails group. DRDGold CEO Niël Pretorius says he believes that the trust fund contained R18m but he did not identify the trustees, whose consent is vital to unlocking the money. Documents show the Mintails group acknowledged that rehabilitation would probably cost between R300m and R336.5m, but it declined to top up financial provisions. According to the environmental management programme from one of Mintails’ mining rights: "These liabilities are also historic and predate Mintails’ involvement and should thus not be for Mintails’ account." Experts debate this narrow interpretation of the law. Lake wrote in the business rescue plan: "The Mintails group’s rehabilitation liabilities have remained largely unfunded for some time, and there are simply no free funds available to the [business rescue practitioner] to enable him to immediately provide such funding." Legal Resources Centre attorney Lucien Limacher is representing the Federation for a Sustainable Environment. "This is a trend that has been occurring for a couple of years where mining companies have undertaken a business rescue plan or have applied for liquidation because they have failed to really look after the rehabilitation fund," he says. The Legal Resources Centre sent letters to several government agencies, including the department of mineral resources, the department of water & sanitation and the department of energy, asking them to intervene in the situation and threatening to pursue legal action if the department of mineral resources fails to act. Department of water & sanitation spokesperson Sputnik Ratau says they are "engaging Mintails so that the immediate measures can be put into place to ensure water resources protection. A longer-term plan is required to ensure rehabilitation of the mining-impacted areas." Lake declines to answer questions about the failed business rescue and the liquidation but he wrote for Moneyweb in January 2017 and laid out his argument for Mintails’ use of business rescue: "Mintails was sick – but it wasn’t terminal." Now the situation has become what Liefferink calls "pass the parcel", with Mintails playing the part of a "scavenger company", a term coined by researchers to describe under-resourced outfits that buy the scraps left over from larger mining companies and ultimately abandon them. Large gold, coal and platinum mines rarely, if ever, properly close in SA and there wasn’t one large-scale mine in Gauteng that achieved full, legal closure between 2011 and 2016. Mintails’ case will not affect the law that ring-fences financial assurances for reclamation, Limacher says. "But it is precedent-setting in that mines might now start applying for liquidation to avoid paying the cost of rehabilitation." Mintails’ West Rand concessions came in part from DRDGold, which also remines waste piles, and from Mogale Gold, which was in judicial management when Mintails acquired it in 2006. Since then, Mintails engaged in a pattern of environmental degradation. For example, the department of water & sanitation found in an August 2014 inspection that Mintails transported "slurry/sludge" in unlined trenches, completed insufficient monitoring, spilled slurry from pipelines and implemented no storm water management system at a pollution control dam. In December 2016, polluted runoff from waste piles was found to be seeping through a dam wall into the Wonderfonteinspruit, which has immediate downstream agricultural uses in the community of Kagiso. Now it will largely be up to the liquidator and regulators to protect the environment and public health. "That is the pattern that seems to be followed in the gold mining industry, and, I assume, would be followed in the coal and platinum mining industries, as well. "As soon as a mine is no longer very profitable, it transfers its assets," Liefferink says. "That seems to have the tacit support of the department of mineral resources." However, the department of mineral resources sent a statement that reads: "The department will engage with the appointed provisional liquidators with the intention to safeguard the environmental and social responsibilities." Mintails former CEO Johan Moolman declined to comment except to say he quit on June 26 when he learned a new investor had bought the company. Mvest Capital agreed to purchase Mintails from Paige, a vehicle of the UK-based Harbour family, with the understanding that Mvest would inject R30m into the beleaguered company to stimulate the business rescue plan. Mvest decided against handing over the full amount, paying only R5.5m. Mvest director Matthew Moodley acknowledges the initial agreement and the R5.5m. He says that after a month it became apparent the deal would require more investment to succeed. "With the increased need for working capital in July, Mvest took a decision to withdraw from the transaction," Moodley says, adding that Mvest did not "conclude a transaction with Paige". Liefferink says these companies are all "jumping from a sinking ship". She fears Mintails will go the way of the abandoned Blyvooruitzicht Gold Mine, which was once one of the country’s most productive gold operations and is now a source of pollution, violent illegal mining gangs and headaches for adjacent mines. Mintails has followed a strikingly similar pattern. In the Blyvooruitzicht case, two companies, DRDGold and Village Main Reef, almost completed a business deal to sell the nearly exhausted mine and both walked away, claiming the other carried responsibility. "That whole area, just like Blyvooruitzicht, will be left like it is," Liefferink said. While neighbouring mining companies will probably have to pump water from the void in Mintails’ absence, the consequences of "the dust fallout and the toxic water in the river systems" will be carried by communities and by the municipality. oxpeckers.org Additional reporting by #MineAlert manager Tholakele Nene https://www.businesslive.co.za/bd/companies/mining/2018-08-21-liquidation-allows-mintails-to-shirk-environmental-liabilities/

WATER

Water Crisis

More than two decades ago, science advocate IsmailMore than two decades ago, science advocate IsmailSerageldin forewarned that “the wars of the next centurywill be fought over water, unless we change our approachto managing this precious and vital resource”. Thissentiment is perilously close for comfort for South Africa,whose water crisis is manifesting with dire consequences.Given that the country has done little in the recent past to rectifyits water challenges, it will soon pay the price, financially, socially andeconomically, says Mariette Liefferink, CEO of the Federation for aSustainable Environment (FSE). The rest of the Document may be opened as a PDF document.

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