Regulations seemingly ignored in Xolobeni mining rights case

13th March 2009 By: Darren Parker

In a highly controversial move, mining entity Transworld Energy Minerals (TEM), a subsidiary of Australian group Mineral Resource Commodities (MRC), was granted the right to mine the heavy minerals sand deposits in the Kwanyana block of the Xolobeni tenement area on the Wild Coast, in the Eastern Cape.

The Grahamstown office of the Legal Resource Centre (LRC) filed a notice of appeal with the Department of Minerals and Energy (DME) on September 3, 2008, regarding the mining right. This was done on behalf of the AmaDiba Crisis Committee (ACC), comprising Xolobeni community members who are concerned about the adverse effects that the mining will have on the local environment and the community.

The DME has since acknowledged receipt of the appeal, but has not complied with the rest of the requirements as set out in Regulation 74 of the regulations in terms of the Mineral and Petroleum Resources Development Act of 2002 within a reasonable amount of time, LRC Xolobeni case lawyer Sarah Sephton tells Mining Weekly.

In accordance with the Act, once the notice of appeal is received by the Minister of Minerals and Energy, Buyelwa Sonjica, her office is compelled to dispatch a copy thereof, within a reasonable amount of time, to TEM, as well as to the person responsible for making the administrative decision to grant the mining right to TEM.

Following this, the granter has 21 days within which to provide reasons for the administrative decision, and TEM has 21 days within which to provide counter representation to the appeal, detailing how its interests would be affected by the outcome of the appeal, as well as the nature of its rights.

Once the Minister has received this documentation, the Act prescribes that she should provide the LRC with this information, after which 21 days is again provided for the appellant to respond in turn.

Over six months have passed since the notice of appeal was received by the DME, and the LRC has only now been made aware that the requisite steps are starting to be adhered to in terms of processing the appeal.

"We have asked for reasons for the decision to grant the mining right and we haven't heard anything further," says Septhon, expressing frustration at the unexplained and unacceptable delay. "From a legal perspective, we would like the matter to be dealt with."

The Minister's spokesperson, Sputnik Ratau, tells Mining Weekly that the DME has forwarded the appeal to TEM, and is expecting a response from the company by March 25, 2009, after which the DME will formulate a response to the LRC's appeal, detailing the reasons for the granting of the mining right.

Why it has taken six months to reach this point has not been adequately explained, although Ratau gives assurance by saying that the entire appeal process will be adjudicated by the Minerals and Mining Development Board.

The LRC says that repeated requests to different government offices involved, from the Director-General's office, to the Minister's office, to the regional manager's office, to acquire information about, and a copy of the decision to grant the mining right to TEM, has elicited no response.

The departments involved have failed to respond to any enquiries about the progress of the appeal or the adherence to time frames set out in Regulation 74.

The appeal lodged by the LRC delayed the official signing and finalising of the mining right grant, which was to take place on October 31, 2008, following the final approval of TEM's environmental management plan. The Director-General granted TEM the right on July 14, however the right will not take effect until the signing has taken place.

Hence, since the appeal was lodged, mining activities in the Xolobeni area have not been put into operation pending the outcome of the appeal. However, the heavy minerals mining right has not been wholly suspended, and this is what the ACC is ultimately fighting for.

The basis of the appeal was that the mining right was granted to MRC without sufficient and reasonable notice to, consultation with, or invitation for comments from the Xolobeni community as an interested and affected party.

This alleged course of action was unlawful, and while MRC maintains that consultations did indeed take place, many community members who will be directly affected by the mining say that they were not consulted as required.

The LRC says that the traditional leadership structures, represented by King Sigcau and Queen MaSobhuza, and the Nkosi of the AmaDiba administrative area, Lunga Baleni, of the Amapondo, were deliberately sidelined in the consultation process, because they were opposed to mining in the area.

Should the Xolobeni mining project go ahead as planned, members of the affected community will face significant and permanent changes to their way of life and connection with the land.

Changes will involve forced relocation, loss of access to farmlands and subsequently loss of access to income and means of subsistence, relocation of ancestral graves, destruction of culturally significant archeological sites, as well as negative impacts on the residents' health and general quality of life.

The LRC says that the project will result in "unacceptable levels of pollution and damage to the environment and its residents, and will fundamentally alter the life of the community to its detriment, and environment for generations to come".

The Department of Environmental Affairs and Tourism has also indicated strong objections to, and concerns with regard to, the proposed mining developments in the area, after seeing the draft environmental-impact assessment report, and has notified the DME of these concerns.

Further, the LRC states that the AmaDiba community has the right to legally secure tenure of their communal land under the Constitution and the Interim Protection of Informal Land Rights Act 31 of 1996. This means that mining may only take place once TEM has acquired a Community Resolution, which is issued by the Department of Land Affairs and the traditional authorities in the community, consenting to the mining and setting out the terms of compensation to be paid back to the community.

Further strengthening the ACC's case, is that this resolution was not obtained.

The issue has also been taken up with the South African Human Rights Commission, with the allegation that seven of the fundamental human rights enshrined in the Constitution have been violated.

These include: the right to an environment that is not harmful to people's health, to have the environment preserved and protected for the benefit of present and future generations, the right to human dignity, the right to freedom of expression and assembly, as well as the rights to freedom of trade, occupation, profession, property, and access to information.

The LRC says that that TEM has inaccurately and misleadingly suggested that black economic-empowerment company Xolobeni Empowerment Company (XolCo), which holds a 26% stake in the project, represents the AmaDiba community. However, the LRC says that XolCo is a private entity that is commercially reliant upon TEM and does not, and cannot, represent the community members living in the area.