Sustainability law firm Warburton Gunn Attorneys partner Adam Gunn tells Mining Weekly that South Africa has strong environmental laws to regulate the mining industry.

Currently, opencast mining is regulated in the same way as underground mining in South Africa. The main legislation regulating mines is the Mineral and Petroleum Resources Development Act (MPRDA). Other resource-specific legislation becomes applicable depending on the nature and size of the operation, such as the National Water Act (NWA) and the Air Quality Act.

The most recent and well-known South African high-profile legal dispute is the case involving the sub- sidiary of Australian mining company Coal of Africa Limited, Limpopo Coal, which intended to build a large open- cast coal mine, known as Vele Colliery, in close proximity to the Mapungubwe National Park and World Heritage Site, in Limpopo, near the Botswana border.

In August 2010, a coalition of civil society organisations – the Mapungubwe Action Group – expressed concern about the granting of mining rights to Limpopo Coal by the Department of Mineral Resources. The coalition launched an interdict against Limpopo Coal and the Minister of Mineral Resources.

“The applicants were represented by the Centre for Applied Legal Studies and were concerned about the protection and maintenance of the environmental integrity of the area in and around Mapungubwe for current and future generations, as it relates to the natural habitat, ecosystems, cultural heritage and related aspects of the environment,” Gunn points out.

The mine and the Save Mapungubwe Coalition agreed to discuss the matter and entered into a memorandum of understanding (MoU), where an agree- ment was reached to share information and form a joint environmental committee, which would monitor the operation.

Currently, the community (repre- sented by the Coalition) has become disillusioned with the process, owing to the mine’s unfulfilled promises, and has pulled out of the MoU. The Coalition is considering pursuing other legal avenues to voice its grievances with the drawn-out process.

Gunn notes that there have been other similar types of disputes concerning opencast operations in the country, but that, to date, few have been brought to court.

International Cases

“In April, a Chilean court ordered the suspension of operations at gold producer Barrick Gold Corp’s Pascua-Lama gold mine, in the Andes mountains, which straddle the border region between Argentina and Chile, owing to the fact that it is in a highly sensitive environmental area. However, the project is most significant, as it is a large operation, which is worth about $8-billion,” states Gunn.

He says that South African courts are not bound to follow the court rulings of other countries, but could use the findings of these courts if the findings are deemed relevant to a local case, especially if there is no case law prece- dent in South Africa pertaining to the matter.

“I do believe that the principles of the case are universal and, if a mine was breaching environmental laws in South Africa, the courts would cer- tainly have grounds to suspend or end operations at the mine,” asserts Gunn.

Financial gain is still prioritised over environmental concerns, though some of South Africa’s legislation relating to holding mines accountable for gross environmental infringements is on par with the highest international standards, such as those contained in the NWA, he states.

Air Quality Monitoring Update

Last year, Mining Weekly reported that the Department of Environmental Affairs had released the draft National Dust Control Regulations (NDCR), under Section 32 of the National Environmental Management: Air Quality Act of 2004.

“I do not believe that its eventual implementation will make a big differ- ence, as all it will do is make industry best-practice law when it does come into effect as an Act,” he says.

There are two types of dust which authorities monitor, explains Gunn.

“One type, commonly known as PM10, is 10 µm in diameter, which is so small that it can get into one’s lungs, potentially causing serious health problems. The other, called nuisance dust, we can actually see and is not as damaging to one’s health,” explains Gunn.

What mines have tried to do is to keep dust pollution at less than 600 mg/m2 a day for 30 days, notes Gunn.

“The draft NDCR proposes a restriction of less than 600 mg/m2 a day for a thirty-day period in residential areas, and in nonresidential areas between 600 mg/m2 and 1 200 mg/m2 a day for a 30-day period, which is not dissimilar to the situation at present,” he concludes.