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Legalbrief   |   your legal news hub Saturday 21 May 2022

Victory over Mabola coal mine plan but battle continues

Environmental justice campaigners were jubilant at last week's decision to set aside a decision allowing a coal mine in a protected area to go ahead, but elsewhere in SA the battle to prevent greedy corporates from harmful mining continues, writes Legalbrief. The Gauteng High Court (Pretoria) has set aside a 2016 decision allowing a new coal mine to be developed in the Mabola Protected Environment in Mpumalanga, says News24. The decision had been made by former Mineral Resources Minister Mosebenzi Zwane and late Environmental Affairs Minister Edna Molewa. The court order was won by a coalition of eight civil society organisations, which challenged a range of authorisations permitting an underground coal mine in a strategic water source area and a protected area. Under the Protected Areas Act in 2014, the Mpumalanga Government declared the Mabola Protected Environment part of more than 70 000 ha of protected areas in the Mpumalanga grasslands, said Sharon Pollard, spokesperson for the Association for Water and Rural Development. ‘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 Ministries 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, making it procedurally unfair. The court also ordered that the Ministers should comply with sections 3 and 4 of the Promotion of Administrative Justice Act and take into account the interests of local communities and environmental principles referred to in section 2 of the National Environmental Management Act. The Ministers were also ordered to defer their reconsideration until after the Environmental Management Programme and Water Use Licence appeals have been determined.

In his judgment, Judge Norman Davis severely criticised Zwane and Molewa for not being transparent, and denying concerned parties a say when they granted permission for Atha to open the huge underground coal mine in the protected wetlands area. According to a report in The Citizen, Davis lashed out at the Ministers for failing in their duties and seemingly following a ‘tick-box’ approach by simply granting a licence because Atha had the necessary approvals from other departments while ignoring a report about the impact of mining on the wetlands and relying on documents they never saw, and without considering the impact of their decision on the environment. Mashile Phalane, spokesperson for the Mining and Environmental Justice Community Network of SA (Mejcon-SA) said the judgment was a victory for environmental justice. ‘Mejcon-SA is deeply invested in issues of accountability. This judgment reinforces the fundamental importance of fair and transparent decision-making,’ he said. Catherine Horsfield, attorney and mining programme head at the Centre for Environmental Rights, welcomed the judgment. ‘It confirms to government and to all developers proposing heavily polluting projects in environmentally sensitive areas in SA that exceptional circumstances must be shown to exist to justify that proposed development,’ Horsfield said. ‘SA 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,’ she noted.

Meanwhile, a national coalition of environmental groups, including the former iSimangaliso Wetland Park CE Andrew Zaloumis, has lodged strong objections to a dune mining exploration venture on the southern boundary of the iSimangaliso (Lake St Lucia) World Heritage Site. According to a Daily Maverick report, Zaloumis, now director of the Wild Equity Foundation, said there was no doubt that prospecting or mining directly on the boundary of a World Heritage Site ‘flies in the face of our constitutional responsibility to exercise a duty of care for the environment’. The prospecting rights application has been made by Eyamakhosi Resources (Pty) Ltd, a hitherto unknown company owned by former Richards Bay Minerals (RBM) employee Sicebi Mthethwa, which has no track record in mining or rehabilitating environmental impacts from mining. Mthethwa’s proposed venture has aroused concern that he may be acting as a proxy for the Rio Tinto controlled RBM mining company which was forced to abandon its ambitions to mine inside the reserve more than 20 years ago. Eight years ago, RBM also abandoned separate plans to mine on the periphery of the reserve – exactly the same piece of land that Mthethwa has now targeted for heavy minerals exploration. Significantly, an independent consultant who was asked to assess the ecological impacts has pulled out from any more participation in the EIA project, after AtEnksosi apparently failed to provide him with information that he considered to be ‘fundamental to the process of assessing potential impacts’. Several groups have lodged objections to the report, including the Wildlife and Environment Society of SA, the Game Rangers Association of SA, the iSimangaliso Action Group, and the Botanical Society of SA’s KZN Coastal Branch. Bryan Ashe, co-ordinator of the iSimangaliso Action Group, said no public consultation had been held by AtEnkosi, except with traditional authorities.