Illegal mining can have devastating impact on ecosystems | IOL opinion piece by Mariette Liefferink

A few weeks ago, 31 illegal miners died after a methane gas exploded in a mine in the Free State. Last Friday, 17 people died after a gas leak explosion in an informal settlement in Germiston. It is reported that illegal miners were busy processing gold when the gas

The Federation for A Sustainable Environment was invited on May 16 to accompany the Hawks on an operation targeting illegal mining operations in Zuurbekom, an agricultural and residential area, within the West Rand of Gauteng. What the Hawks found during this
operation illustrates the risks and hazards of illegal mining. Besides the risks to human life, health and wellbeing, illegal mining can have devastating impacts on surface and groundwater resources, air quality and sensitive and protected ecosystems.

It was found that the illegal miners were using cyanide for the leaching of gold. The cyanide levels (free cyanide and weak-acid dissociable cyanide (WAD)) at one of the dams and its outlet, used for the leaching of the gold, were 428mg/l and 798mg/l respectively.

The limit for Free Cyanide is 0.01mg/L according to the International Cyanide Management Institute (ICMI) and the World Bank’s standard.

The risks of cyanide to human health and the environment are well-known. Cyanide is a rapidly acting poison, as it disrupts the process of cellular respiration and exposure to small amounts of cyanide can be deadly regardless of the route of exposure. Cyanide enters air,
water, and soil. Accidental spills of cyanide solutions into rivers and streams have produced massive kills of fish and other aquatic biota.

The cessation of mining without proper closure and remediation has resulted in the proliferation of unlawful mining.

Legislation governing mine closure in South Africa has been in existence for many years but challenges posed by mine closure persist. The legal requirement for mine closure can be traced back to the Mines and Works Act, 27 of 1956. The Act required the holder of a mining
license to prepare and submit a basic rehabilitation plan and fence the area, after which a closure certificate was issued. The Minerals Act, 50 of 1991 introduced stricter environmental requirements and required that environmental impacts assessments be carried out and that proper closure plans be prepared. Following the implementation of the Minerals Act, the Department of Minerals and Energy developed a Departmental Policy on Mine Closure, which was incorporated in the Mineral and Petroleum Resources Development Act, 28 (MPRDA) of 2002.

The Regulations of the MPRDA prescribe the requirements to obtain a closure certificate. A holder of a mining right must apply for a closure certificate upon lapsing or abandonment of his right/permit; cessation of prospecting or mining operations; or relinquishment of any portion of land to which the right/permit/permission relates. Within 180 days from these situations occurring, the holder must complete and submit a prescribed closing plan, including an environmental risk report, to the Regional Manager of the Department of Mineral Resources and Energy (DMRE). Only after the chief inspector and the Department of Water and Sanitation (DWS) have confirmed in writing that the provisions have been complied with pertaining to health and safety, and the management of potential pollution to water resources may a closure certificate be issued.

Notwithstanding the above-mentioned responsibilities, liabilities and duties for mine closure under the MPRD Regulations, the National Environmental Management Act, 1998 (NEMA), the Environmental Impact Assessment (EIA) Regulations and the Financial Provision
Regulations, and the requirements for progressive rehabilitation, loopholes exist, which enable mining companies to circumvent closure duties and which in turn, result in a proliferation of illegal mining activities.

Management of the economic, social, political and environmental impacts of mines closure are now of paramount importance to South Africa because of retrenchments, widespread poverty, unemployment and the resultant increase in illegal mining.

Due to the changing political economic landscape of the mining industry in South Africa, the Department of Mineral Resources and Energy acknowledged that the current mine closure policy and legislation is outdated and does not cater for the challenges arising from and associated with mine closure.

As a consequence, the National Mine Closure Strategy was drafted. The draft National Mine Closure Strategy was specifically structured to deal with this unfamiliar territory. The intention of the Strategy is “to achieve the desired outcomes through a programme that will enhance existing policy, statutes and regulation governing mine closure. The imperative was directed towards the preparation for a post-mining economy in a productive and sustainable environment, for mining-dependent communities and mineworkers who have lost their jobs as a result of mine closures”.

Notwithstanding the noble intentions of the draft National Mine Closure Strategy, which was finalised in or about May, 2022, the Strategy is still awaiting signature from the Minister of Mineral Resources and Energy. This delay has undesirable impacts, including the proliferation of illegal mining.

The term “derelict and ownerless mines” is not defined in the MPRDA. However, the Mine Closure provisions in this legislation provide some guidance on mine closure process, which depicts that mines are only regarded as closed when the closure certificate is issued in terms
of section 43 of the MPRDA.

Derelict and ownerless mines can be defined as mines whose owners or mining rights or lease holders have abandoned and are not operating nor maintaining to mitigate and manage their associated health and environmental impacts as well as those mines whose owners or operators can no longer be traced. These would comprise of mines that were operational during the period when environmental management at the mining sites was not well regulated.

South Africa’s long and rich mining history has left a legacy of approximately 6,000 abandoned mines in the country. In many cases, these mines can have a significant impact on the health and safety of local communities. According to a 2008 Council of Geoscience Report titled “South Africa’s Strategy for the Management of Derelict and Ownerless Mines”, the public health and safety impacts include those due to physical features of the mines such as open shafts, unstable slopes on dumps and pits, collapse features and abandoned mine infrastructure and other hazards such as contaminated water and soil, mining chemicals, explosives, radioactivity, windblown dust and in in the case of coal mines, spontaneous combustion of coal and coal waste. In addition to these hazards, it also allows for illegal miners to access these abandoned sites and the tardy process of the rehabilitation of derelict and ownerless mines has resulted in a proliferation of illegal mining.

While the MPRDA prescribes the requirements for closure, the MPRDA does not specifically address artisanal and small-scale mining (ASM). In order to address this gap, the ASM policy was published on March 30 2022 by the Minister of Mineral Resources and Energy, which proposes to create a formalised, sustainable artisanal and small-scale mining industry in South Africa, to criminalise illegal mining operations (as opposed to ASM) and to promote job creation.

The ASM Policy defines “artisanal mining” as traditional and customary mining operations using traditional or customary ways and means. This includes the activities of individuals using mostly rudimentary mining methods, manual and rudimentary tools to access mineral ore, usually available on the surface, or at shallow depths. “Small-scale mining” is defined as a prospecting or mining operation that does not employ specialised prospecting, mechanised mining technologies, chemicals including mercury and cyanide or explosives; or the proposed prospecting or mining operations, do not involve investment or expenditure which exceed such amount as may be prescribed.

The ASM Policy prescribes the investment threshold for artisanal and small-scale mining and makes provision for a graduation process (from artisanal miner to small scale mining and from small scale miner to medium, junior or emerging mining, respectively). ASM is to be licensed through the issuance of either an Artisanal Mining Permit or a Small-Scale Mining Permit, through a “first come, first served” system, together with the “invitation system”, which will allow for the invitation of applications by Government for ASM Permits in designated areas. Registered ASM Permits will be enforceable against third parties and may be transferred, mortgaged and/or capitalised.

The ASM Policy furthermore contemplates that:
– ASM Permits are to be reserved for South Africans.
– Priority will be given to co-operatives.
– ASM mining operations may be limited to surface and open case mining only, subject to the design of a risk-based system that considers the depth and mining methods to be used by ASM miners.
– ASM Permit holders will be empowered to trade in the open market and to get involved in the value chain of mineral development.
– ASM operators and large-scale mining (LSM) operators are encouraged to co-exist, including through the use of Tributing Agreements.
– ASM miners will have access to the mining of “tailings dumps” and “historic residue deposits and stockpiles”.
– ASM entities will be liable to pay royalties as well as tax.
– ASM entities will have to comply with current environmental, and mine health and safety laws. Government will train, empower and educate ASM miners on aspects of compliance with environmental management, water use and health and safety requirements and will design accessible policy tools and guidelines for the ASM industry.
– Stringent reporting standards will be implemented to track the progress of the ASM industry and enforcement of the reporting requirements by the ASM industry on production, employment statistics, and the payment of taxes and royalties.

– The ASM Policy is silent as to how the graduation process will operate.
– Criteria for the invitation system is still unknown.
– The duration of an ASM Permit, once it is issued, is not specified in the ASM Policy.-
– The extent of the ASM Permits has not been capped.
– The ASM Policy will require appropriate legislative amendments for its proper implementation.
– The MPRDA, to be read with the common law, limits the Minister of Mineral Resources and Energy’s jurisdiction to residue stockpile and deposits to the exclusion of tailings created prior to the commencement of the MPRDA. As such, access to dumps owned by the common law owners is a complex proprietary issue, which may present challenges for both ASM Permit holders and owners of the tailings.
– “Mine”, used as a verb in the MPRDA does not include extraction activities in residue stockpiles. Extraction of minerals from residue stockpiles constitutes processing that does not require a separate mining permit or mining right. The MPRDA is silent regarding the ability of holders of mining rights and mining permits to transfer the ability to process stockpiles to others.
– The co-existence of ASM operators with LSM operators may present challenges with the apportionment of liabilities related to environmental degradation and pollution, rehabilitation and closure.
– The DMRE is to be the primary regulator of ASM operations in South Africa and will have oversight of the implementation of the 2022 ASM Policy. However, the DMRE’s enforcement of the implementation of current legislation is wanting. The inadequacy and inefficacy of the DMRE’s enforcement was illustrated in a 2018 Parliamentary Report 2 . It was reported that:
– “The DMRE has failed to implement effectively and carry out the intentions of Parliament to ensure that all mines rehabilitate the damage they cause.
– “Changes to the mining law were made by Parliament after 2002 to ensure that in mining, as elsewhere, the polluter must pay.
– “The new laws have not proven effective in avoiding this situation where the state and the taxpayer still ends up paying for the environmental harm caused by mining”.

Without effective enforcement, the integrity of the ASM Policy falls flat.

The weak enforcement by the DMRE of non-compliances with environmental legislation, loopholes in our current legislation, retrenchments and downscaling, the chronic and serious structural problem of unemployment and poverty, and inequality are the basic drivers of
illegal mining. The stakes are high: the lives of people and communities are involved, as is the survival of the mining companies in the market and the sustainability of our environment and water resources.

*Mariette Liefferink is CEO of the Federation For A Sustainable Environment
**The views expressed do not necessarily reflect the views of Independent Media or IOL

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