A coalition of eight civil society and community organisations, represented by the Centre for Environmental Rights (CER), which is resisting a proposed coal mine inside a declared protected environment and strategic water source area in Mpumalanga, has stepped up its resistance, with further legal proceedings pending.
In July, the coalition of prominent civil society organisations launched additional proceedings in the Pretoria High Court, which include a judicial review application to set aside the decisions of the Ministers of Mineral Resources and Environmental Affairs to allow for a coal mine to be built inside a declared protected environment.
The application is coupled with an interdict to prevent the start of any mining activities, pending the outcome of the review.
The 15-year Yzermyn underground coal mine has been proposed by India-based mining company Atha-Africa Ventures inside the Mabola Protected Environment, outside Wakkerstroom.
In terms of the National Environmental Management: Protected Areas Act, commercial mining is prohibited in declared protected environments unless both the Ministers of Mineral Resources and Environmental Affairs give their permission.
The approvals were given despite “fundamental flaws” in the mine’s environmental impact studies, leading to a series of court challenges and appeals pending against each of the licences granted to the mine, and without any public participation, according to the CER.
Of key concern to the coalition is that Mabola falls within the Ekangala Drakensberg strategic water source area, which has been identified by the Council for Scientific and Industrial Research as strategic to the protection of the interests of all South Africans from a water security perspective, CER executive director Melissa Fourie tells Mining Weekly.
“To have a coal mine here . . . is not something that can be negotiated, which is why we ended up having to go to court,” Fourie says.
Atha-Africa Ventures was granted licences and approvals by the national Department of Water and Sanitation and the Mpumalanga Environment Department prior to concurrence by the Ministers.
Currently, Atha-Africa Ventures holds an unsuspended mining right, an approved mine works programme, an approved environmental management programme, an unsuspended environmental authorisation, an unsuspended water use licence and formal permission by the Ministers.
All the approvals have been challenged by the coalition through internal appeals, and a High Court judicial review of the mining right is under way, Fourie notes.
While Atha-Africa Ventures has requested an extension to start mining, the environmental authorisation is under appeal but remains unsuspended and is therefore not a hindrance to mining operations.
The appeal panel hearings were concluded on August 15 and 16, and the parties await the outcome.
The coalition believes it has good prospects of success in all these proceedings. “If necessary, the coalition will take this matter to the Constitutional Court,” Fourie tells Mining Weekly.
The mining industry itself has recognised – including through the Mining and Biodiversity Guideline – that there are areas where mining should not be allowed, and industry leaders have expressed the need for certainty. Mining companies incur significant expense even before rights are granted, which will be wasted if those rights are set aside in due course, explains Fourie. “It is in the interests of all stakeholders that government declares no-go areas for mining where scientific evidence recommends, and then makes decisions consistent with those no-go areas.”
Fourie hopes the case will set a legal precedent with a view to avoiding situations where decision-makers fail to apply key provisions in the Mineral and Petroleum Resources Development Act, “which requires mining rights be refused if it will cause ‘unacceptable pollution or degradation of the environment’, and that statutory requirements in the National Water Act, the National Environmental Management Act, the Protected Areas Act, the Spatial Planning and Land Use Management Act, and the Constitution be observed”.
Atha-Africa Ventures refutes that this project will cause unacceptable pollution, as all scientific studies show that this will not be the case when mitigated in accordance with the recommendations of scientific experts. The company asserts that there is “overwhelming” evidence that, historically, coal mining did take place on the farms where the Mabola Protected Environment has been declared. Scientific experts have found 18 historic adits and mines but no evidence that suggests these old mines have caused acid mine drainage.
Nevertheless, Atha-Africa Ventures plans to install a water treatment plant should acid mine drainage occur. The water treatment plant would, in turn, support water security.
Two matters are of further key concern to Fourie. For the company’s proposed social and labour plan, a socioeconomic specialist study was undertaken by WSP Environmental, which concluded that “the low skills level within the local communities [indicate] that the skills that are required by Atha for the mine are unlikely to be found within the local communities”.
Addressing this deficiency, “including the potential for employment of local communities and skills development opportunities, as well as the development of social facilities and local development potential”, would demand significant resources. She, however, notes that Atha’s social and labour plan provides for expenditure of only about R7.74-million over five years.
Atha-Africa Ventures says that, at peak production, the mine would employ 576 people, with most of the workforce, particularly for the unskilled and semiskilled grades, sourced locally.
Further, Fourie highlights, the financial provisions made for the environmental management programme after mine closure appear incongruous. She notes that, if the mine is built, the provision of R5.764-million would be “inadequate by orders of magnitude, given the acid mine drainage that would result from this mine, which would require water treatment many decades from now”.
“To comply with the new financial provision regulations, Atha would have to increase [its] financial provision exponentially – our experts estimate that total rehabilitation costs for this mine would have a present value of more than R300-million.”
According to Atha-Africa Ventures, the financial provision will fluctuate, based on yearly audits.
Meanwhile, Atha-Africa Ventures senior VP Praveer Tripathi has called for dialogue between the relevant stakeholders and industry experts to discuss the project and its implications.
He avers that, as a basic principle, the declaration of a protected environment is not done to prohibit mining, but to further a “spirit of coexistence” where a mine and such an environment could coexist.
“This mining project has been so important that the regulators – since the beginning, when the protected environment was being declared – have always tried to find a balance and keep the principles of sustainable development in mind.
“The concept of sustainable development is ‘man-centric’; there cannot be an environment where there is no human development,” he says, positing that this concept should also be understood.
Tripathi argues that the nongovernmental organisations (NGOs), “have misunderstood the project and created certain fears that are unscientific and bogus”.
“Most of the fears . . . can be easily allayed by our specialists and ourselves . . . that would be the best win-win situation,” he suggests.
While the general environmental area forms the source of three rivers, the Yzermyn project’s surface imprint will only be 22.4 ha, Tripathi cites, emphasising that Atha-Africa Ventures will not disturb the upper ground level during mining, but only focus on the coal zone.
In between these zones, a dolerite and sandstone layer will act as an impermeable boundary between the surface and lower groundwater levels.
“When we access coal . . . even though we will be impacting the underground water aquifers, the springs and other water sources close to the surface that derive their strength from the shallow aquifers will not be affected at all,” he avers.
“[Atha/Yzermyn has] been elevated to a status . . . far beyond this mine’s anticipated significance. “It is a very small mine when you compare it to the South African total coal production perspective,” Tripathi comments, noting that the company anticipates remaining a junior market player.
Coal accounts for about 11% of South Africa’s foreign exchange earnings, which Tripathi hopes Yzermyn will contribute toward, while also assisting the local community with supplier development and small and medium-sized enterprise development.
Tripathi suggests that the court case, in addition to the general investment climate and the publication of the new Mining Charter, will not promote foreign direct investment in mining, adding that the current period is unsettling for prospective investment, whether it is for prospecting or mining.
He, however, underscores the importance of the Yzermyn case, highlighting that it is about achieving a coexistence model in a country that “desperately needs socioeconomic upliftment, while protecting the environment – we are committed to that”.
“We strongly believe that there is a scientific disconnect between the emotional and ideological opposition to this mine versus actual scientific evidence gathered by the specialists during the course of the environmental-impact assessment. “We have therefore invited, time and time again, the NGOs opposed to this development to engage in a dialogue but, sadly, they are only interested in lawfare and not constructive developmental dialogues,” he says.