Fri Mar 17, 2017 7:01 pm
Edna Molewa’s defence of her decision on Atha Africa Ventures is inaccurate
For those of us who fight for communities’ voices to be heard in applications for authorisations, her statement is unfathomable
17 March 2017 - 05:59 AM Melissa Fourie and Bobby Peek
Environmental Affairs Minister Edna Molewa’s opinion piece published on March 11 is understandably defensive. She is the first minister of environmental affairs to have given approval for a coal mine inside a declared protected area. Her decision has been widely criticised by civil society organisations and in the media, and she will soon have to answer for her decision in court.
The mine proposed by Atha Africa Ventures is a 15-year underground coal mine. Atha’s own environmental consultants found the risks posed by this mine in this area to be so serious as to recommend that the area be regarded as a no-go area for mining.
The Mabola Protected Environment, declared under the Protected Areas Act in 2014 by the Mpumalanga MEC for environment, is a source of three major rivers — the Tugela, the Vaal and the Pongola — that provide precious freshwater to many thousands of downstream water users.
The area has been classified as one of 21 strategic water source areas by the South African National Biodiversity Institute and the Centre for Scientific and Industrial Research, in a project supported by the Water Research Commission, the Department of Water and Sanitation and the Department of Environmental Affairs.
Strategic water source areas are the 8% of our land that provide more than 50% of our freshwater. SA is still experiencing the worst drought in 30 years, with a state of drought disaster declared in 2016 in eight of our nine provinces, including Mpumalanga. This coal mine will de-water and pollute this precious resource.
Against this background, the arguments put forward by the minister in defence of her decision are inaccurate, and disappointing.
Molewa writes that Atha’s mining right application was "essentially an application for renewal of mining rights, as the prospecting rights for the area were previously held by BHP Billiton until 2011". In law, a prospecting right does not give the holder of that right an entitlement to a mining right, and the granting of a mining right is most certainly not a "renewal" of a prospecting right.
This area was declared a protected environment before the mining right was awarded to Atha. Atha was one of a number of mining companies that objected to the proposed declaration, and the declaration was made after consideration of those objections by the MEC. None of these mining companies took any legal action to challenge the declaration at the time.
Even in her op-ed, Molewa ignores the fact that all of the decisions on which the ministers of environmental affairs and mineral resources relied when giving their permission for this mine are either under appeal, or are subject to court proceedings. The appeals brought by eight nongovernmental organisations and community organisations against the environmental authorisation, the water use licence, the environmental management programme and the judicial review of Atha’s mining right — to be decided by the High Court in Pretoria — are all pending.
The minister states that she is "satisfied that potential impacts have been clearly highlighted and the proposed mitigation of impacts identified and addressed in the Environmental Impact Report". However, in making her decision Molewa relied on a 2014 version of the environmental impact assessment report that the Department of Environmental Affairs itself rejected for containing insufficient information in relation to key aspects of concern — issues that have never been addressed by Atha. Moreover, expert reports show that it is not possible for the polluting effects to be mitigated adequately.
This is not sustainable development: this is development that jeopardises our environmental sustainability, our water security and our ability to adapt to climate change.
The minister attempts to defend "transparency on mining authorisations". To those of us who fight every day for communities’ and civil society organisations’ voices to be heard in applications for these authorisations, and who know how difficult it is to get access to mining rights, environmental management programmes, closure plans, financial provision amounts and social and labour plans, her statement is unfathomable.
Molewa says that "the mining sector has come a long way in pursuing actions that seek to avoid, minimise and mitigate the harmful effects of mining on sensitive ecosystems". We and our partners on the ground see no evidence for such a claim. In fact, we see the opposite.
The mining industry continues unabated to apply for prospecting and mining rights in sensitive areas; for example, in and near the West Coast National Park, the Hluhluwe-Fuleni Game Reserve and the Mapungubwe Unesco World Heritage Site. The Department of Mineral Resources continues to grant those rights, even in cases where this is clearly unlawful.
Just this week, the Supreme Court of Appeal handed down judgment in the case of Mpumalanga Tourism and Parks Agency v Barberton Mines, confirming that the prospecting right awarded to the company inside the Barberton Nature Reserve should not have been awarded, and that no prospecting can take place in this reserve. The judgement finally puts an end to the company’s relentless fight to be able to prospect inside this area of unique geology and critical biodiversity.
The real question is why ministers Molewa and Zwane have gone out of their way to authorise this mine for export coal inside a protected area and a strategic water source area. Why did the department’s Mpumalanga regional manager overrule the recommendations of junior staff to refuse this mining right, as court records have shown? Why did the minister of mineral resources step in and remove environmental conditions attached to the mining right by the mineral resources director-general?
And why did the Department of Water and Sanitation, which vigorously opposed this mine during the mining rights application, suddenly change its mind and grant a water-use licence for a coal mine inside a strategic water source area?
No doubt all will become clear in court in due course. But it should not be civil society and community organisations that are forced to defend our environment and water resources at great cost, when it is the constitutional mandate of the state, and in particular of the minister of Environmental Affairs, to protect them.
• Fourie is the executive director of the Centre for Environmental Rights; Peek is the Director of GroundWork.