SOUTH Africa’s environmental authorities have strongly rejected heavy minerals mining plans that could cause irreversible and extensive damage to pristine parts of the Wild Coast – but the Department of Minerals and Energy is still considering granting a mining licence.
And in a development described by leading environmental lawyers as “bizarre”, “plain nonsense” and “patently ridiculous”, the Department of Environmental Affairs has admitted to a bungle by submitting its official objections “too late” to be taken into account by the Department of Minerals and Energy (DME).
The Human Rights Commission (HRC) has also recently stepped into the fray, investigating complaints that people living in the areas earmarked for mining were not properly consulted about the lasting and irreversible impact that mining operations will have on the environment – and their lives.
Commissioner Leon Wessels confirmed this week that the HRC was due to summons the ministers of Environmental Affairs and Minerals and Energy to a “subpoena hearing” to assist with investigations. He said this followed the failure of both departments to submit information requested by the HRC.
The mining controversy revolves around plans by Australian company Mineral Commodities to extract 15 million tons of heavy minerals a year, for the next 25 years, from sand dunes along a strip of coastline of international ecological significance.
This section of the coastline includes five estuarine systems between the Wild Coast Sun at Port Edward and Mkambathi nature reserve 22km south.
The Department of Environmental Affairs and Tourism has officially objected to these mining plans on the grounds that they could cause irreversible damage to estuaries, pollute ground water and cause a permanent loss of biodiversity and even the extinction of aquatic fauna.
Other “grave concerns” include fears that the vast ecotourism potential in the areas could be destroyed.
The department also says an environmental impact assessment (EIA) was not conducted properly by the mining company’s consultants, with specialist studies absent on pollutants likely to be produced, how dunes would be rehabilitated, waste storage and treatment plans.
Separate authorisations were also still required for associated bulk infrastructure developments, including roads, sewage, water supplies and electricity to support the mining.
This is according to a comprehensive environmental report submitted recently to the Department of Minerals and Energy, which is the regulatory authority responsible for awarding mining licences.
The report was obtained this week through the Promotion of Access to Information Act by social worker John Clarke, who has been instrumental in lobbying against the mining plans.
Clarke believes the Environmental Affairs objections effectively end a battle against the mining plan that divided the people in the affected areas.
But now the attention of environmental watchdog groups and lawyers has turned to statements from the Department of Environmental Affairs that it had submitted its official objections “too late”.
This “unfortunate administrative error”, said Environmental Affairs spokesman Mava Scott, meant Minerals and Energy Minister Buyelwa Sonjica was under no obligation to consider the objections.
“The minister has the discretion of deciding whether to grant the mining right,” said Scott.
But his comments have been scoffed at by two leading environmental lawyers who argue that the gravity of the objections is sufficient to stop the controversial mining operations from taking place, irrespective of any “record of decision” from the DME.
“Any decision that ignores these objections from a national department on the basis that they were filed out of the specified period will be unlawful,” said lawyer Richard Spoor.
Environmental law specialist Jeremy Ridl agreed. “Those officials need to be sent back to school to read the relevant legislation – and our constitution.”
Ridl said the constitution required inter-governmental co-operation while the Promotion of Administration of Justice Act provided for late objections “particularly in such instances where we are dealing with a serious travesty of environmental justice”.
Ridl said all organs of state were subservient to the National Environment Management Act, with the Department of Environmental Affairs the final authority on the implementation of this legislation.
“Any decision on a development that has a negative impact on the environment and does not have approval from the Department of Environmental Affairs and Tourism is not legitimate and can be challenged by any member of the public,” said Ridl.
“We will do this if necessary, and compel the Environmental Affairs Minister (Marthinus van Schalkwyk) to discharge his duties properly,” said Ridl.
Spoor agreed that Enviromental Affairs had supreme authority in this regard and has also publicly challenged authorities to enforce laws at their disposal to stop the Xolobeni mining project on the Wild Coast.
Newly appointed spokesman for the DME, Bheki Khumalo, said the department had yet to decide on whether to allow the Xolobeni mining project to go ahead and could not say when a decision would be made.
He said although the objections had been submitted late, these had been noted in meetings during the consultation process. Mining representatives had also addressed these issues in the final application to his department, said Khumalo.
He said the view of the DME legal department was that the DME was the final authority on this matter but “would work closely with other government departments and take their views into account, as has been done so far”.
Ridl said there was confusion over who had the final legal authority because Environmental Affairs had, for administrative reasons, appointed DME the competent authority to assess all EIAs related to mining proposals.
This, said Ridl, resulted in the DME playing the dual role of not only promoting mining but also acting as referee in safeguarding the environment.
“That’s an irreconcilable conflict of interests,” said Ridl.
But Ridl said this was only an administrative regulatory role and legislation still required that the Environmental Affairs Minister approve all EIAs. This, he said, meant the DME could not issue the Xolobeni mining licence without Environmental Affairs consent.