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Civil Society: Alarmed by Sasol/Natref "dispute"

Written by  Wednesday, 08 October 2014 07:51
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A number of civil society organisations have written an open letter to the Minister of Environmental Affairs about the attempts by Sasol and National Petroleum Rifiners of SA to set aside minimum emission standards defined in the Air Quality Act. 

The Honourable Edna Molewa MP
Minister of Environmental Affairs
Environment House
473 Steve Biko Arcadia
By email: This email address is being protected from spambots. You need JavaScript enabled to view it.
This email address is being protected from spambots. You need JavaScript enabled to view it.
This email address is being protected from spambots. You need JavaScript enabled to view it.

6 October 2014

Dear Minister Molewa


As civil society organisations and citizens working towards the achievement of environmental rights and environmental justice in our communities across South Africa, the signatories to this letter were alarmed by Sasol and the National Petroleum Refiners of SA (Natref)’s 2013 notification of applications for exemption and postponement of their compliance with minimum emission standards under the Air Quality Act.
When Sasol and Natref then instituted a court application against you and the National Air Quality Officer in May 2014 in an attempt to set aside most of South Africa’s hard-won air pollution regulations for big industry, we were appalled. If this litigation succeeds, it will have incalculable negative consequences for South Africa’s environment, air quality and the health of our people.
We understand from your statement in the National Assembly on 17 September 2014 that you have agreed to talk to Sasol to find a solution to this “dispute”. It is our considered view that the only just resolution is for Sasol and Natref to withdraw their court application, tender the legal costs incurred by the State to date, and take the necessary steps to comply with the law.
We urge the Minister to bear in mind the following in her talks with Sasol and Natref management:
1. Sasol and Natref’s operations all fall within the Vaal Triangle Airshed Priority Area and the Highveld Priority Area – declared by you and your predecessor in terms of the Air Quality Act because of the extremely poor air quality in these areas - which frequently exceeds South African ambient air quality standards - and in order to protect the health of people living in the Priority Areas. Sasol and Natref’s emissions are a significant cause of this poor air quality and contribute to negative health impacts.
2. The “polluter pays” principle in the National Environmental Management Act requires that “the costs of remedying pollution, environmental degradation and consequent adverse health effects and of preventing, controlling or minimising further pollution, environmental damage or adverse health effects must be paid for by those responsible for harming the environment”.
3. Sasol is an extraordinarily profitable company. Sasol’s headline earnings per share were up 14% to a record R60.16 in the year ended June 2014. During that year, Sasol’s operating profit increased by 7% to R41.7 billion. That profitability has been achieved at an extraordinary cost to our environment over many decades.
4. Despite this, one of Sasol’s key arguments is that the benefits of legal compliance are just not worth the costs. We believe that it is both inappropriate and immoral to compare the costs to be incurred by Sasol to reduce their pollution to the cost to human health if they fail to comply with air quality laws. Moreover, it is not for any single entity to determine whether or not it should comply with the law by reference to its own cost benefit analysis. It appears that Sasol’s arrogance leads it to believe otherwise.
5. If Sasol and Natref succeed with their court application, numerous polluting industries – including all of Eskom’s coal-fired power stations – will no longer have to comply with the air pollution standards that would otherwise have come into effect on 1 April 2015. The impact of this on human health and the environment will be dire. Sasol and Natref claim that, until new standards are set, they will simply comply with emission standards that they themselves have determined. This is not only unacceptable, but manifestly unfair on those facilities that have incurred the required capital costs to comply with the emission standards.
6. If you or the National Air Quality Officer grant Sasol and Natref any indulgences in relation to their obligations to comply with the emission standards, it will open the door for all polluting industries in South Africa to demand the same relaxations. This will set an appalling precedent for compliance with environmental laws in South Africa, diminish the authority of the government and the Department, and put the health and constitutional rights of South Africans at risk.
7. Since the passing of the Air Quality Act in 2005, Sasol and Natref were aware that minimum emission standards would become mandatory. As you pointed out in Parliament, Sasol was a key player in the five-year long multi-stakeholder process convened to determine appropriate minimum emission standards for big industry. It had certainty of these standards since early 2010. Subsequently, it lobbied the Department to obtain standards – published in November 2013 – that are significantly more lenient for petroleum industry combustion installations than those published in 2010. Despite this involvement – and the now-weaker standards – Sasol and Natref have failed to make the investments necessary to enable them to comply with these standards. The failure of Sasol’s and Natref’s management to approve the necessary expenditure to ensure compliance means that, regardless of the outcome of their court challenge, Sasol and Natref are likely to argue that there is not enough time to comply with the regulations when they come into effect in April 2015. This is a clear indication that Sasol and Natref’s involvement in this process was conducted in bad faith.
Sasol derived extraordinary benefits from the apartheid state. What we as civil society expect from such a company is compliance with our country’s laws, and corporate leadership and accountability. Instead, this extremely profitable company has resolved to lead the charge against the State’s efforts to protect the constitutional rights of all South Africans to an environment not harmful to their health and well-being.
The preamble to the National Environmental Management Act recognises that “many inhabitants of South Africa live in an environment that is harmful to their health and well-being”. We urge you to stand strong to protect the rights of all South Africans who already suffer disproportionately from the damage that Sasol and Natref have inflicted on our environment, and to ensure that future generations of South Africans are not destined to suffer the same fate.

Signed by (in alphabetical order):
Centre for Environmental Rights www.cer.org.za
Earthlife Africa Johannesburg www.earthlife.org.za
Federation for a Sustainable Environment  www.fse.org.za
Greenpeace Africa www.greenpeace.org/africa/
groundWork www.groundwork.org.za
Habitat Council
Highveld Environmental Justice Network
South Durban Community Environmental Alliance www.sdcea.co.za/
Table View Residents’ Association
Vaal Environmental Justice Alliance


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SATURDAY STAR | 19 APRIL 2019, 7:41PM | SHEREE BEGA Picture:Yvette Descham On August 13 2013, Billy M heard gunshots at the gate of his house. He didn't know who fired the gun, and, worried that local traditional leadership might be involved, he didn't report the incident to the police. For the next five years, the community activist from Fuleni, a small rural village in KwaZulu-Natal bordering one of SA's oldest and largest wilderness areas, the Hluhluwe iMfolozi Park, continued to receive threats.  "We know our lives are in danger. This is part of the struggle," he says, simply. Billy M's account is contained in a new report released this week, 'We know Our  Lives Are in Danger’: Environment of Fear in South Africa’s Mining-Affected Communities, which documents how community activists in mining areas face harassment, intimidation and violence. The report details how in Billy M's case, mining company Ibutho Coal had applied for rights to develop a coal mine in Fuleni in 2013. The development would have required the relocation of hundreds of people from their homes and farmland and destroy graveyards. "The mine's environmental impact assessment estimated that more than 6000 people living in the Fuleni area would be impacted. Blasting vibration, dust, and floodlights, too, could harm the community," says the report."During the environmental consultation processes, Billy M led opposition that culminated in a protest by community members in April 2016."The company reportedly abandoned the project in 2016 while another firm, Imvukuzane Resources is reportedly interested in mining in the area.The 74-page report, compiled by Human Rights Watch, the Centre for Environmental Rights (CER), groundWork, and Earthjustice, describes a system designed to "deter and penalise" mining opponents.The authors conducted interviews with more than 100 activists, community leaders, environmental groups, lawyers representing activists, police and municipal officials, describing the targeting of community rights defenders in KwaZulu-Natal, Limpopo, Northwest, and Eastern Cape between 2013 and 2018. They report intimidation, violence, damage to property, the use of excessive force during peaceful protests, and arbitrary arrest for their activities in highlighting the negative impacts of mining projects on their communities. "The attacks and harassment have created an atmosphere of fear for community members who mobilise to raise concerns about damage to their livelihoods from the serious environmental and health risks of mining and coal-fired power plants," write the authors."Women often play a leading role in voicing these concerns, making them potential targets for harassment and attacks."But municipalities often impose barriers to protest on organisers that have no legal basis while government officials have failed to adequately investigate allegations of abuse."Some mining companies resort to frivolous lawsuits and social media campaigns to further curb opposition to their projects.  The government has a Constitutional obligation to protect activists," write the authors. Picture: Shayne Robinson, Section 27 Authorities should address the environmental and health concerns related to mining "instead of harassing the activists voicing these concerns,” remarks Matome Kapa, attorney at the CER.The report starts with the high-profile murder of activist Sikhosiphi “Bazooka” Rhadebe, who was killed at his home after receiving anonymous death threats in 2016. Rhadebe was the chairperson of the Amadiba Crisis Committee (ACC), a community-based organisation formed in 2007 to oppose mining activity in Xolobeni in the Eastern Cape.  "Members of his community had been raising concerns that the titanium mine that Australian company Mineral Commodities Ltd proposed to develop on South Africa’s Wild Coast would displace the community and destroy their environment, traditions, and livelihoods. More than three years later, the police have not identified any suspects in his killing."Nonhle Mbuthuma, another Xolobeni community leader and spokesperson of the ACC, has also faced harassment and death threats from unidentified individuals. "I know I am on the hit list.… If I am dying for the truth, then I am dying for a good cause. I am not turning back," she says.But other mining areas have had experiences similar to that of Xolobeni. "While Bazooka’s murder and the threats against Nonhle have received domestic and international attention, many attacks on activists have gone unreported or unnoticed both within and outside the  country."This is, in part, because of "fear of retaliation for speaking out, and because police sometimes do not investigate the attacks", the authors found.The origin of these attacks or threats are often unknown. "So are the perpetrators, but activists believe they may have been facilitated by police, government officials, private security providers, or others apparently acting on behalf of mining companies. "Threats and intimidation by other community members against activists often stem from a belief that activists are preventing or undermining an economically-beneficial mining project. In some cases, government officials or representatives of companies deliberately drive and exploit  these community divisions, seeking to isolate and stigmatize those opposing the mine."The Minerals Council South Africa, which represents 77 mining companies, including some in the research areas, responded that it “is not aware of any threats or attacks against community rights defenders where (its) members operate”.The authors state that while the mining sector and the government emphasise how mining is essential for economic development, "they fail to acknowledge that mining comes at a high environmental and social cost, and often takes place without adequate consultation with,or consent of, local communities".The absence of effective government oversight means that mining activities have harmed the rights of communities across South Africa in various ways. "Such activities have depleted water supplies, polluted the air, soil, and water, and destroyed arable land and ecosystems."Researchers also documented cases of police misconduct, arbitrary arrest, and excessive use of force during protests in mining-affected communities, "which is part of a larger pattern in South Africa".Last year, the Centre for Applied Legal Studies (CALS) at Wits University documented various efforts by traditional authorities to stifle opposition to mines in their communities. "In some cases, traditional authorities label those opposing mines as anti-development and troublemakers, thus alienating and stigmatising them.As a result, community members are often afraid to speak out against a mine in open consultations," CALS found.Research by the SA Human Rights Commission, too, has found that community members sometimes “are afraid to openly oppose the mine for fear of intimidation or unfavourable treatment (by the Traditional Authority)."The SAHRC says many mining-affected communities are experiencing “the creation of tension and division within communities as a result of mining operations.Sometimes, threats and intimidation against activists come from community members who have been promised economic benefit from the proposed project or are politically allied with the government or traditional authority."Local communities often do not benefit from mining activities, says the report. "Although South African law requires the development of social and labour plans (SLPs) that establish binding commitments by mining companies to benefit communities and mine workers, CALS has documented significant flaws in the development and implementation of SLPs."Despite the environmental and social costs of mining, the government is not adequately enforcing relevant environmental standards and mining regulations throughout South Africa. The SAHRC has found that the Department of Mineral Resources (DMR) often fails to hold mining companies accountable, "imposing few or no consequences for unlawful activities and therefore shifting the costs of pollution to local communities."Compliance with regulatory obligations, as well as monitoring and enforcement of such responsibilities, remains a crucial concern in the context of mining activities," says the SAHRC, noting how the DMR and other governmental agencies often do not respond to complaints filed against mines by community members.The report's authors describe how the lack of government action and oversight has also helped make the mining industry one of the least transparent industries in South Africa. Information that communities require to understand the impacts of mines and to hold mining companies accountable for harmful activities is often not publicly available. "Such information includes environmental authorisations, environmental management programs, waste management licences, atmospheric emission licences, mining rights, mining work programmes, social and labour plans, or compliance and enforcement information."The only way to access such information is through a request under South Africa’s access to information law, a procedure that the World Health Organisation has called 'seriously flawed' and which the DMR regularly flouts. In addition, mining companies and the government rarely consult meaningfully with communities during the mining approval process, resulting in uninformed and poor government and industry decisions that do not reflect community perspectives or have their support," says the report.The authors assert how the threats, attacks, and other forms of intimidation against community rights defenders and environmental groups have created an environment of fear "that prevents mining opponents from exercising their rights to freedom of opinion, expression, association, and peaceful assembly, and undermines their ability to defend themselves from the threats of mining".In its November 2018 review of South Africa’s compliance with the International Covenant on Economic, Social and Cultural Rights, the UN Committee on Economic, Social and Cultural Rights expressed concern about “reports of human rights defenders, particularly those working to promote and defend the rights under the Covenant in the mining and environmental sectors, being threatened and harassed". It recommended that South Africa provide a safe and favourable environment for the work of human rights defenders to promote and protect economic, social, and cultural rights, including by "ensuring that all reported cases of intimidation, harassment, and violence against human rights defenders are promptly and thoroughly investigated and the perpetrators are brought to justice". Mining activist Mariette Liefferink, who made submissions to the UN committee, tells how it has become increasingly difficult to work as an environmental rights defender in South Africa.   "There is an overwhelming body of evidence of intimidation, whether it is by means of frontal attacks or more insidious attacks on activists."International and South African law requires South Africa to guarantee the rights of all people to life, security, freedoms of opinion, expression, association, and peaceful assembly, and the rights to health and a healthy environment, say the authors."The attacks, threats, and obstacles to peaceful protest described in this report prevent many community activists in South Africa from exercising these rights to oppose or raise concerns about mines, in violation of South Africa’s obligations." 


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