De Beers withdraws Groot Marico application
SATURDAY STAR / 8 JANUARY 2019, 12:07PM / SHEREE BEGA
One of the three eyes that supplies water to the Groot Marico River. PABALLO THEKISO
Mining giant De Beers has withdrawn its application to prospect for potential diamond-bearing rock in the highly sensitive catchment of the Groot Marico River.
This comes after a judicial review application was launched by a community organisation, Mmutlwa wa Noko, which works to maintain the integrity of the pristine river and its catchment, last year.
Mmutlwa wa Noko launched the application after the now-deceased Minister of Environmental Affairs, Edna Molewa, dismissed over 140 appeals in 2016, against the environmental authorisation granted to the mining firm.
“The Groot Marico, which is fed by dolomite eyes, is one of the last remaining surface-flowing fresh water resources in the North West,” said Mmutlwa wa Noko. “The waters of the upper Groot Marico River, across which the prospecting rights application falls, is so pure that it is safe to drink directly from the river. It is one of the few remaining free-flowing stretches of river in South Africa.”
Last July, the Groot Marico Biosphere Reserve was declared by Unesco, becoming the first biosphere in North West, safeguarding its dolomitic aquifer system.
In November 2015, De Beers had applied for environmental authorisation to prospect for kimberlite in the areas of Swartruggens, Mabaalstad/Koster and Groot Marico within the Groot Marico River catchment.
“The application area lies immediately upstream of the town of Groot Marico and the adjoining township of Reboile, both of which are dependent on the Groot Marico River for water,” said Mmutlwa wa Noko.
Prospecting was granted to De Beers in February 2016, and over 140 appeals were submitted.
In December 2017, the appeals directorate of the Department of Environmental Affairs informed interested and affected parties that Molewa had dismissed the appeals.
“On June 6, 2018, Mmutlwa wa Noko launched judicial review proceedings in the North Gauteng High Court against the minister, the regional manager of minerals regulation and De Beers. De Beers did not oppose. The minister and regional manager both opposed.
“On October 23, our attorney was informed by the State Attorney that De Beers was excluding from their application the areas of Modderfontein, Vergenoeg and Wonderfontein, and also that the Department of Mineral Resources (DMR) was unconditionally withdrawing its opposition in this matter. On October 25, 2018, the State Attorney filed a notice of withdrawal for DMR.
“At this stage, no notice of withdrawal has been submitted for the minister, but the minister's office has not submitted an answering affidavit within the time allowed by the High Court rules.
“Accordingly, the matter has been set down on the unopposed motion roll for a judge to officially set aside the granting of the environmental authorisation on the first available court date, which is May 6.
“This means that there will be no prospecting or mining by De Beers in the application areas within the Groot Marico River catchment. The judicial review application had the desired effect,” it said.
The Groot Marico River catchment is a key strategic water resource for the North West and has been declared a national freshwater ecosystem priority area by the SA National Biodiversity Institute.
The river is of international significance as it provides Gaborone with water and ultimately becomes the Limpopo River, which flows through South Africa, Botswana, Zimbabwe and Mozambique.
The Federation for a Sustainable Environment (FSE) also appealed the authorisation of the De Beer's application.
“The reasons for our appeal were an alleged flawed public participation process and the fact that this matter resolves around the issue of prospecting in an area of highest biodiversity importance and a National Freshwater Ecosystem Priority Area,” explained Mariette Liefferink, the chief executive of the FSE.
High Court refuses mining company’s leave to appeal
A strategic water source area already protected by law is protected by the courts.
Sasha Planting / 23 January 2019 00:41
Mining companies have left a heavy imprint on Mpumalanga, a biodiverse region vital to SA's water supply. Civil society is fighting back. Image: Supplied
Yesterday the North Gauteng High Court refused mining company Atha Africa leave to appeal the court’s decision to set aside permissions for a new coal mine inside a declared protected environment.
This is a victory for the eight civil society organisations represented by the Centre for Environmental Rights (CER), which have opposed the mining venture since 2015. At the time, then minister of mineral resources Mosebenzi Zwane and the late minister of environmental affairs, Dr Edna Molewa, granted Atha-Africa Ventures – an Indian-owned mining company – the right to mine coal in an area in Mpumalanga that was declared a Protected Environment in January 2014.
Known as the Mabola Protected Environment, it was declared such by the Mpumalanga provincial government as part of more than 70 000 hectares of protected area in the Mpumalanga grasslands. This followed years of 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, the two ministers gave their permission for a large 15-year coal mine to be built inside the Mabola Protected Environment.
This was move was greeted with dismay by South Africa’s green lobby.
The Mabola Protected Environment is situated outside Wakkerstroom in Mpumalanga and falls within what has been classified as one of 22 Strategic Water Source Areas by the South African National Biodiversity Institute, a government body, and the Council for Scientific and Industrial Research (CSIR). Strategic Water Source Areas constitute just 8% of SA’s land but provide more than 50% of our freshwater.
“The organisations opposing this particular mine do so because the proposed mine would be inside a declared protected area and a strategic water source area: with acid mine drainage estimated to require water treatment until 2097, the mine would threaten water security not only in the local area but in the region,” says CER attorney Catherine Horsfield. “The damage that this mine would do to water resources cannot be undone. The organisations that have brought this action are deeply committed to job creation and improving the quality of life of local people, but we also know that instead of bringing wealth and livelihoods, coal mining has devastated the lives, health and well-being of communities across the Highveld.”
In November 2018 the Pretoria High Court set aside the ministers’ approval and referred the decision back to them for reconsideration.
Relying on the decisions of others
The court set aside the decision on the basis that the decision-making process was not transparent, was procedurally unfair (there was no public participation process) and the ministers failed to independently and distinctively apply their minds to the decision, instead relying on the decisions of other decision-makers in relation to other approvals.
In light of the lack of transparency and public participation, the court handed down a punitive costs order against the ministers and the MEC.
Yesterday, the court heard Atha Africa’s application for leave to appeal the November decision to a full bench of the high court. The court refused Atha’s application and awarded costs against it.
The ministers of mineral resources and environmental affairs, as well as the Mpumalanga MEC, had also applied for leave to appeal the court’s decision but withdrew their application yesterday. The court ordered that the state pay the coalition’s wasted legal costs in preparing to oppose that application.
The coalition that brought the court application to set aside permissions for the proposed coal mine comprises the Mining and Environmental Justice Community Network of SA, groundWork, Earthlife Africa Johannesburg, BirdLife SA, the Endangered Wildlife Trust, the Federation for a Sustainable Environment, the Association for Water and Rural Development, and the Bench Marks Foundation.
Directive issued by the Department of Mineral Resources to Protea Mine, Magaliesburg pursuant the FSE’s complaints regarding the Mine’s alleged non-compliances.
Document attached for download.
THE FSE’s COMMENTS ON THE ENVIRONMENTAL IMPACT ASSESSMENT AND ENVIRONMENTAL MANAGEMENT PLAN REPORT BLYVOOR GOLD MINING PROJECT
Find the document attached for download.
Article by Mark Olalde & Andisiwe Matikinca can be read by clicking the headline below.
FSE's monthly report for November 2018 is attached for download.
FSE’s COMMENTS ON THE ENVIRONMENTAL IMPACT ASSESSMENT REPORT FOR THE PROPOSED BLYVOOR GOLD MINE PROJECT NEAR CARLETONVILLE, WEST RAND, GAUTENG – please see attached.
Media report attached for download.
FSE's Monthly Report for October 2018 is attached for download.
On Thursday, the 8th of November 2018, 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 vulnerable environment, particularly where it has been stated that ‘most people would agree, when thinking of the tomorrows of unborn people that it is 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:
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.”
THE NEMPAA JUDGEMENT IS ATTACHED FOR DOWNLOAD.