HUMAN RIGHTS COMMISSION - REPORT ON THE NATIONAL HEARING ON THE UNDERLYING SOCIO-ECONOMIC CHALLENGES OF MINING AFFECTED COMMUNITIES
The SAHRC launched its Report on the National Hearing on the Underlying Socio-economic Challenges of Mining-affected Communities in South Africa on the 22nd of August 2018. The FSE participated in the Hearing and many of its issues of concern are addressed in the Report. The Report may be opened here as a PDF document.
Financial Mail Cover Article: May 30 – June 5 2019, attached for download.
As you are aware, amendments have been proposed to the Financial Provisioning Regulations, 2015 which substantially change the amended version that was gazetted for comment in November 2017, and discussed in the stakeholder workshops held since the release of the November 2017 version and the 2nd half of 2018. The proposed amendments were gazetted on Friday 7 May 2019, and a period of 45 days have been allowed in which to received inputs and comments.
In order to explain the rational for the changes and to provide a platform for further engagement before the close of the comment period, the Department will hold a stakeholder workshop as indicated below:
Date: 12th June 2019
Venue: To be confirmed but will be held in central Pretoria
Time: 8h30 – 12h30
The gazetted regulations can be downloaded from the Departments website at: https://www.environment.gov.za/
We look forward to engaging with you further on these important regulations at this planned workshop.
New statistics released in Parliament show that 118 mines around South Africa are polluting rivers, inadequately testing for contamination or otherwise dirtying South Africa’s waterways.
The figures, released by the minister of water and sanitation, Gugile Nkwinti, also show that 115 mines are known to be operating without proper water permits. This represents a significant increase from 2014, when the South African Human Rights Commission found 39 mines to be noncompliant.
Violators are spread across every province and include major corporations such as AngloGold Ashanti, De Beers, Glencore and Anglo American Platinum.
In response to parliamentary questions posed by Freedom Front Plus MP Anton Alberts, the minister released the data, compiled by the department, in April.
It showed that during the past financial year, more than 15% of the 712 mines licensed to use or to have an effect on water sources had failed to comply with the water-use licences that stipulate the conditions of that usage.
Asked what steps would be taken to address the deficiencies, Nkwinti responded: “It is not clear why transgressors resort to operation of mines without the requisite authorisation; however, the department continues to intensify activities to protect the water resources, as mandated by the National Water Act.”
Alberts told Oxpeckers Investigative Environmental Journalism that he had referred the list of transgressions, which covers the years 2015 to 2018, to the department’s Blue Scorpions regulatory unit. This is the group tasked with finding people who break water law, and fining them.
“Even though mines are a part of our economy, we need to find a balance between just getting the profits out of the ground and leaving nature spoiled and people who live there becoming sick,” said Alberts.
The data covers a wide range of permit violations: polluted water discharged directly into the environment, waste piles contaminating groundwater, unlined wastewater retention ponds, oil spills, insufficient monitoring, excessive dewatering of the underground void and poor record-keeping.
As climate change continues to worsen South Africa’s water security, the mining industry’s number of water-related infractions is rising.
In 2017-2018, the department found 10 more mines significantly out of compliance with their water-use permits than the year before, and 38 more than in 2015-2016.
Much of the mining negatively affecting water is in the coalfields of Mpumalanga and Limpopo, which ranked first and second, respectively, in the number of mines out of compliance with their water-use licences.
Saul Roux, a science and policy specialist at the nonprofit legal group Centre for Environmental Rights, said acid mine drainage poses mining’s most significant threat to clean water resources. Coal mining on the Highveld overlaps with large portions of the country’s 22 designated strategic water-source areas, which provide 60% of all South Africans with water, he said. “Our scarce water resources are affected throughout the coal life cycle, including direct effects on water quality during coal mining, effects of air pollutants on water resources and coal ash contamination of groundwater,” Roux said.
But companies’ responses to questions about the data highlighted the disorganisation in the government bureaucracy meant to police them. In recent years, the department has had only 35 compliance and enforcement officials to cover the entire country. This is according to a report by the South African Water Caucus, a group of nongovernmental organisations and trade unions set up to study water use.
The data listed elevated levels of pollutants at Glencore’s Mpumalanga mines, for example, but company spokesperson Lerato Setsiba said the department had not informed the company of the infraction.
“Glencore has an extensive water-monitoring network on all sites where water qualities are measured every month and investigations are conducted on any exceedance of water quality,” Setsiba said in a statement.
Other major mining companies also defended their infractions.
Anglo American Platinum’s spokesperson, Jana Marais, responded to the findings that several of its mines, including the Twickenham Platinum Mine in Mpumalanga, discharged polluted water. She said the company was spending millions of rand on upgrading water infrastructure at the mine and that an external audit had found higher compliance with water permits than the department found.
Chris Nthite, AngloGold’s representative, said the company was aware of the listed violations — which included waste spillages, stormwater management issues and unauthorised water use — and had addressed them. “[AngloGold] has offered measures to remedy any problem, or has not been contacted further.”
The department’s spokesperson, Sputnik Ratau, did not respond to requests for comment on why the department allowed mining companies to continue operating with outstanding infractions.
Neither did the department of mineral resources. Its spokesperson, Ayanda Shezi, instead referred questions about potential inter-agency co-operation in the policing of mining companies back to the water department.
With water pollution continuing largely unchecked, environmental activists have taken to the courts to protect water resources in both the coalfields and gold-mining basins.
Mariette Liefferink, chief executive of the Federation for a Sustainable Environment, said her group is in the process of filing litigation against the ministers of water and sanitation and of mineral resources, among other parties, for their role in the environmental catastrophe unfolding at the Mintails SA gold mines on the West Rand.
A parliamentary inquiry revealed late last year that the government allowed mining to continue at Mintails after mine waste spilt into waterways and children had drowned in open mining pits.
This inquiry also revealed that the company’s liabilities ran to R460-million — that is the amount of money the company would require to repair all the damage to the environment.
In the 2015-2016 period, Mintails complied with less than a quarter of its water-use licence requirements, according to the data released in Parliament.
With the company liquidated, mining at the operations near Krugersdorp have largely halted and any proceeds are flowing back to investors in London.
“There is a significant lack of political will, which means polluters can continue with impunity to ignore directives,” Liefferink said. — oxpeckers.org
This report was sponsored by #MineAlert and the Open Society Foundation for South Africa
DOCUMENTS SUPPORTING THIS ARTICLE HAVE BEEN ATTACHED.
Please see attached Financial Provisioning Notice. Comments are due 45 days from the date of publication (Notice published on 17 May 2019).
The FSE recently presented a keynote address at the Australian Centre of Geomechanics’ 22nd International Conference on Paste and Tailings.
Please find attached hereto the programme and the FSE’s sample paper.
SUCCESS: ATHA’S PETITION TO THE SUPREME COURT OF APPEAL FOR LEAVE (PERMISSION) TO APPEAL THE PROTECTED AREAS JUDGEMENT DENIED!
The High Court, in January 2019, dismissed Atha’s application for leave to appeal. Atha petitioned the SCA for leave to appeal the Protected Areas judgement that was obtained in the High Court in November, 2018 by a Coalition of NGOs, of which the FSE is a party to.
The SCA dismissed Atha’s petition for leave to appeal, with costs. This means that Atha doesn’t have permission to appeal the Protected Areas judgement and is required to pay the costs incurred in opposing the petition. The Court Order is attached.
The judgment secured in November 2018 remains intact.
For background: In 19 March 2019 the CER on behalf of the Coalition lodged the Coalition’s answering affidavit to Atha’s petition with the SCA. Attached is the affidavit. Atha was entitled to reply to the Coalition’s answering affidavit by 2 April 2019, but they did not exercise that right.
Find the following documents attached for donwload:
The FSE is in possession of the subjoined presentations and supporting documentation pertaining to the Gauteng EIA Sector Stakeholder Seminar, which the FSE will forward on request.
The FSE’s presentation is attached hereto.
These documents include:
1. EAPASA and
2. The Federation for a Sustainable Environment.
The FSE is a member of the Department of Water and Sanitation’s Steering Committee for the Continuation of the Integrated Vaal River System reconciliation Strategy Study – Phase 2 and participated in the 2nd SCC which was held on the 13th of February, 2019.
The Agenda included the following Items:
i. Eradication of Unlawful Irrigation
ii. DWS Water Management Plans
iii. Implementation of LHWP Phase 2
iv. Noordoewer/Vioolsdrift Dam Feasibility Study
v. Water Quality Management
4. Water Balance Status
The FSE will supply the above-mentioned presentations on request.
A Battle to Hold Mining Company Accountable
Mintails left behind a R460 million ‘environmental mess’
Saturday Star | 23 Feb 2019 | SHEREE BEGA
MINTAILS, a gold mining company on the West Rand, has long been red-flagged for causing environmental damage at its operations. | BHEKIKHAYA MABASO African News Agency (ANA)
MARIETTE Liefferink toys absently with the faux gold necklace coiled tightly around her neck like a scarf.
“Perhaps, if people ask me, I can say we can all look pretty with imitation gold,” she says, flashing a smile.
The 65-year-old mining activist does not wear real gold – and she never will. The reason lies all around her here on the polluted gold fields of the West Rand.
Today, the chief executive of the Federation for a Sustainable Environment (FSE) is showing the R460 million environmental “mess” left behind by Mintails, a liquidated gold mining and tailings processing company listed on the Australian Stock Exchange.
She gestures to a cluster of unrehabilitated mine dumps on Main Reef Road. “At all their sites, there’s no access control, no stormwater and dust control or any other mitigation or management of the dumps and tailings storage facilities. This has created opportunities for zama zamas to conduct their mining operations.”
For the past 12 years, Liefferink’s quest has been to obtain “justice for communities, future generations and the mute receiving environment” affected by Mintails expansive operations stretching across Krugersdorp and Randfontein.
She has spent hundreds of hours compiling complaints and requests to authorities for investigations and enforcement, lodging Promotion of Access to Information Act requests and analysing water quality results.
The embattled firm applied for business rescue in October 2015, but was liquidated in September last year. It has an unfunded environmental liability of R485 million, but only around R25 million financial provision in its environmental rehabilitation funds.
The “delinquency”, argues Liefferink, is not only on the part of the firm and its directors but also the Department of Mineral Resources (DMR) and the Department of Water and Sanitation (DWS) for their non-enforcement of the National Environmental Management Act (NEMA), National Water Act and the Minerals and Petroleum Resources Development Act (MPRDA).
“The DMR, as well as the DWS, allowed Mintails to operate from 2012 to 2018 without a mining right, an approved environmental management programme report and financial provisions.”
While the DMR and DWS issued the company with several pre-directives and directives for non-compliance since 2013, these were not enforced.
“This resulted in this unfunded environmental liability of R460 million, clusters of open pits of 40m deep, partially reclaimed tailings storage facilities, unrehabilitated footprints and toxic and radioactive dams.”
Last week, the Legal Resources Centre (LRC), which represents the FSE, sent a final letter of demand to the DMR and DWS, to urgently intervene in addressing Mintails’ pollution. If the departments did not adequately respond by yesterday, the matter will head to court imminently.
The letter states that the DMR and DWS must enforce their directives as a matter of urgency and provide a date by when compliance must be achieved by the liquidators and directors.
“The DWS, the Mintails Group and their violations was an agenda item on every Wonderfonteinspruit catchment management forum meeting with minutes taken. No action was taken by DWS,” states Lucien Limacher, the acting regional director of the LRC, in the letter.
The letter demands that the DMR and the DWS must issue new directives to the liquidators and directors of Mintails to start remedial action and “contain the toxic sludge that is currently polluting and degrading the environment as a matter of urgency”. Further damage is allegedly being caused by continuing open pit mining.
The DMR “must take reasonable measures to remedy the situation” or apply to a competent court should the Mintails Group not comply or inadequately comply with the directives.
“Should the Mintails Group not comply with the directives, in terms of NEMA, the DMR (must) issue an ex parte application against the Mintails Group to attach and seize property and cover the expenses of the rehabilitation in terms of section 45 of the MPRDA.”
The letter also states how the DMR and the Commission and Intellectual Property Commission “must hold accountable the directors of Mintails for the rehabilitation infringements by bringing a delinquency application” under the Companies Act.
“The directors have grossly abused the position of director, intentionally or negligently, inflicted harm upon the company and the subsidiaries, acted in a manner that amounted to gross negligence and have repeatedly been personally subject to directives from the DMR and DWS.”
In November, a report by the Parliamentary portfolio committee on mineral resources stated how the DMR had failed to ensure Mintails had made the required provision to repair over R300m of environmental damage. The report was sparked by a probe into Mintails collapse by investigative environmental journalism unit, Oxpeckers.
“The committee is often confronted by instances of the devastation caused by careless mining where the DMR says it is a state liability because no one can be found to take responsibility.
“In the case of the Mintails operation, this mine went into business rescue in 2015, at a time when the mining company had an unfunded environmental liability of over R300m. It had saved barely R20m for all its responsibilities.”
The committee’s report noted how Mintails disputed its environmental liability, employing consultants who offered estimates far lower than those of the DMR.
The National Nuclear Regulator (NNR), which conducted a site visit in December as the waste had a “radioactive/nuclear element, according to the FSE, says an internal process is under way.
“You can rest assured that the NNR will play its regulatory role and discharge its responsibilities in accordance with its mandate regarding this matter,” it says.
Sputnik Ratau, spokesperson for the DWS, explains how it issued Mintails with a pre-directive in November 2017. “This required Mintails to cease the seepage of Lancaster Dam wall, clean historic spillages along the reclamation pipeline, rehabilitate the wetlands in the proximity of its tailing storage facility and address inadequate stormwater management.”
But the Mintails response to the pre-directive was “deemed unsatisfactory” by the DWS in a letter dated June 28 2018.” The firm then submitted a detailed implementation plan to curb the pollution to the DWS on July 2.
However, when Mintails was placed under provisional liquidation in August last year, this “derailed all the progress that was achieved through the pre-directive process”.
The DWS is now seeking legal advice internally. “Does the issued pre-directive and commitment made by Mintails carry over to the liquidators, directors and business rescue practitioner? Are the directors and business rescue practitioner legally obliged to comply to the issued pre-directive and implementation plan submitted by Mintails?
“Are the liquidators legally obligated to deal with operational issues such as a directive and pollution considering that they are appointed for a limited period to collect all the assets of the mine to settle the claims of its creditors and distribute any of the remainder of the assets to the shareholders of the mine.”
The DWS was previously advised in a similar case that it is not the duty of liquidators to manage the day to day business. “Their objective is to realise assets on behalf of creditors. As such, liquidators cannot be directed to manage pollution.”
Liefferink worries about impunity. “It would appear when a mining company is in business rescue or liquidation, then the directors and liquidators have no duty of care and simply walk away. The environment, future generations and communities must carry the impact, as in the case of Blyvoor and Aurora. That is totally contrary to the polluter pays principle.”
Ratau says the DWS would conduct a site investigation with the liquidators yesterday to “verify the allegations of pollution”.
The mandate of rehabilitation rests with the DMR. “However, DWS is engaging the DMR to ensure that water resources are protected.”
The Legal Resources Centre, which represents the FSE, sent a final letter of demand to the Department of Mineral Resources and the Department of Water and Sanitation, on the 14th of February, 2019 to urgently intervene in addressing Mintails’ pollution. If the departments do not adequately respond by the 22nd of February, 2019, the FSE shall proceed to initiate legal action.
Letter of demand and annexures attached for download.
New blow for would-be Mpumalanga coal miner
29 January 2019 | By John Yeld
Surprise move by MEC for Environmental Affairs Vusi Shongwe
A new blow has been dealt to attempts to open a coal mine in protected Mpumalanga grasslands. Photo: supplied
A surprise, flip-flop decision by Mpumalanga MEC for Environmental Affairs Vusi Shongwe has delivered another blow to an Indian mining company trying to establish a huge new coal mine in a critical water catchment area.
Shongwe’s decision has reignited a vicious Twitter exchange about the proposed mine.
Atha-Africa Ventures, a local subsidiary of India-based transnational mining and minerals company Atha Group, is attempting to develop the Yzermyn coal mine, an underground mine with a projected 15-year-lifespan that lies within the Mabola Protected Environment (MPE).
The MPE was proclaimed in January 2014 to help protect a strategic water catchment and crucial biodiversity area of the highly threatened Mpumalanga grasslands and wetlands.
In November last year, during a legal challenge to the mine, Shongwe suddenly published a Notice of Intention in the Provincial Gazette to exclude three of the properties that make up the proposed coal mine from the protected environment – a move that would have effectively paved the way for mining.
In an affidavit, Shongwe explained that he had been approached during March 2018 by members of the local community with a request to exclude the protected properties.
But in mid-December – and equally unexpectedly – Shongwe signed a new notice to withdraw his original Notice of Intention, with no reasons being given for his change of heart. That decision was published in the Provincial Gazette on 25 January.
The Centre for Environmental Rights (CER) had filed a 22-page objection to the proposed excision of the coal mining properties from the MPE, pointing out that Shongwe’s plan was to facilitate the development of the proposed Yzermyn coal mine.
The CER said that, as part of his initial rationale for wanting to excise the properties from the protected area, Shongwe had included a memorandum dated 6 March 2018 from a Volksrust-based civic organisation, the Voice Community Representative Council, that purported to represent the majority of people living in the Dr Pixley Ka Isaka Seme Municipality.
The memorandum, that had raised “serious concerns” about declaring the Mabola Protected Environment, had been accompanied by a petition signed by some 8,500 community members, Shongwe said.
However, the CER pointed out in its objection that the petition was dated 30 August 2013, and had been submitted to then environment MEC “Pinky” Phosa when she was considering declaring the Mabola Protected Environment. “The Petition is of little, if any, relevance to the Exclusion Notice presently before the Honourable MEC [Shongwe],” the CER argued.
Responding to an invitation by GroundUp to comment, Atha-Africa said it had not made any representations on Shongwe’s original Notice of Intention and did not have any comment on the matter.
“Atha is aware that the community of Dr Pixley Ka Isaka Seme opposed the declaration of the Mabola Protected Environment in 2014 and a petition was signed by over 9,000 community members against the declaration. Only the local community can comment if this latest decision to withdraw the notice of intention to exclude properties from Mabola Protected Environment has the community’s buy-in or not,” the company said.
However, that careful response was in sharp contrast to what transpired on Twitter.
Environmental journalist Elise Tempelhoff posed a question to Atha-Africa senior vice-president Praveer Tripathi on Twitter, asking whether Shongwe’s latest decision meant that Atha-Africa had now “given up” on Mabola.
The head of the Voice Community Representative Council, Thabiso Nene, who tweets as @madlokovu15, jumped in with a reply, labelling Tempelhoff’s question “disgusting”.
In a second tweet to Tempelhoff, Nene said:
“Fun hw u have been absent when community was rejecting CER [Centre for Environmental Rights]. Bt not surprise yo kind tell the story of the elite. Watch the next move of the community. We will not rest till we have our democratic way. Even if Atha give up, community will not quite [quit].”
Both Nene’s tweets also tagged Tripathi, who has waged a bitter Twitter war against opponents of Atha-Africa’s proposed coal mine but who insists that his tweets reflect his personal views and not his company’s.
Tripathi tweeted several times, tagging both Tempelhoff and Nene. One of his Tweets reads:
“If the community gives up it would mean that a handful of foreign funded anti-development anti-people CSO’s [Civil Society Organisations] with media in their support can stop any development and employment with their slick lies. Their tactics are abominable but what’s more sick is that media can’t see it.”
In other tweets, he makes new derogatory and defamatory remarks about the CER, which is representing the eight members of a Coalition opposing development of the proposed coal mine. This was despite Tripathi telling the Minerals Council of South Africa (formerly the Chamber of Mines) – in response to a formal complaint to the council by the CER – last year that he would be “more sensitive” in his social media comments about those opposing his company’s attempt to mine coal at Yzermyn.
This Economic Impact Assessment Report is one of the additional specialist studies requested by the Department of Mineral Resources (DMR) in 2018 for the Basic Assessment Report (BAR) process being conducted for the Tja Naledi Barrage Sand Mine, located along the banks of the Vaal River, on the northern boundary of the Ngwanthe Local Municipality in the Fezile Dabi Magisterial district, Free State Province.
While it has not been possible to undertake a strategic economic assessment of suitable land use developments for this area (as requested by the local Federation for Sustainable Environment (FSE) during the assessment process), this Economic Impact Assessment has gone beyond the normal scope of assessing the positive economic impacts of the proposed mining amendment, and considered the negative economic impacts.
The Report concluded:
“Our recommendation is that DMR carefully consider how they will ensure the effective management of the cumulative impacts of sand mining in this and other areas along the Vaal River. To do this, it will be necessary to develop a regional perspective on the existing sand and gravel mines as well as the applications for mining rights, and develop a regulatory strategy that can manage the number of mines in each locality and the economic impacts on other economic activities.
With respect to the current applications by Tja Naledi and Pure Source, the economic impacts of these mines on existing economic activities and the marginal economic situation for these mines, suggests that it would not be appropriate to approve these mining applications at this stage. Alternatively, they could be approved subject to the mitigation measures recommended and included in their EMPs, if and when the mine’s business financials are proven to be viable (given the broader market context) and can cover the cost of the mitigation measures that are needed to minimise the visual, noise, dust and traffic impacts. This may encourage the mining companies to look for sand mining opportunities in areas where the visual, noise, dust and traffic impacts are minor.”
The above recommendations by the independent consultants (Eviro Works) are seen by the FSE, Vaal Eden Committee as significantly supportive of its arguments that sand mining is not the best practicable environmental option for the area.
The Report is attached for download.
The FSE contributed to the article titled “Caught between a rock and hard place”...
Notification of the Withdrawal of the Application of an Amendment of the Environmental Authorisation and Environmental Management Programme for the Sweet Sensation Sand Mining Operation in Free State
The concerted efforts and submissions to the Department of Mineral Resources and...
FSE - DONATION OF TREES AND TREE PLANTING IN SIMUNYE, WEST RAND IN ASSOCIATION WITH SOUTH DEEP MINE
The FSE, in association with Gold Fields’ South Deep Mine, donated 40 white Karee Trees (Searsia penduline) during Arbor Week to the mining affected community of Simunye in the West Rand and participated in the tree planting ceremony with the community of Simunye, the local Municipality and officials from South Deep Mine. The FSE also delivered a presentation during the ceremony.
Article also available for download as an attachment.
Millions of South Africans are exposed to radioactive radon gas in their homes and workplaces every day, as the naturally occurring gas escapes through cracks in the earth. The second leading cause of lung cancer in several countries, radon breaks down and when inhaled, decaying atoms emit alpha radiation that can damage the DNA. There are no safe levels of radon concentration. The United States Environmental Protection Agency emphasises any radon exposure has some risk of causing lung cancer. Carte Blanche investigates why South Africa has no regulations to protect against radon accumulation in the home and what you can do to test your home and prevent lung cancer. Watch the video here.
Economics & Finance Courses at the University of the Witwatersrand. Mining for Development: The Taxation Linkage - Understand taxation for development and sustainability in mining. View the course here. Enrolment starts on the 7th of October 2019.
Attached documents:1. DWS Eutrophication SA & GA PSC 1 BID2. PSC 1 Meeting A...
Toxic green algae in the Vaal River is caused by eutrophication, which harms wat...