Listen to Kirsten Youens on Radio Life & Style in celebration of Human Rights Day, where she and LeahG spoke about why environmental rights ARE human rights and how the two are undeniably linked. Kirsten spoke of the ongoing case in which ALL RISE is representing the community against Tendele Coal Mine on the border of the Hluhluwe-iMfolozi Game Reserve and the effects the mining has on the human and animal life. They also briefly speak about Shell’s seismic blasting.

On 7 March, the Minister of Forestry, Fisheries and the Environment (DFFE) Barbara Creecy, dismissed four separate appeals against the environmental authorisation granted by the Department of Mineral Resources and Energy (DMRE) to the Zululand Anthracite Colliery (ZAC) for its new Mngeni Adit located in Nongoma, northern KwaZulu-Natal. The concerns raised by the four appellants are not isolated to the Mngeni Adit. They come on the back of ZAC’s poor environmental and community track record since the mine opened in 1985.

The effect of the appeal decision is that about 600 residents of the peaceful rural village of Masokaneni, are effectively invisible to the government who is supposed to hold the environment in public trust for the people when making decisions. 

The approval of the Mngeni Adit will result in more than 70 extended families being subjected to dust, light and noise 24 hours a day, seven days a week for five years, preceded by two years of construction. They will also have to endure blasting on a frequent basis. These local residents, mainly subsistence farmers, will lose 8 ha of natural grazing land (the size of about 11 soccer fields) and their water resources will be affected. There is also a real fear of sinkholes from the mining taking place right underneath them, as well as their houses cracking from the blasting. They know, because they have seen this happen in other areas where ZAC has been active.

The fate of these families has been ignored and downplayed – firstly, by the environmental consultants GCS, then by the Department of Mineral Resources and Energy (DMRE) and now by DFFE’s Minister Creecy.

GCS is required by law to identify and assess all the impacts on local socio-economic conditions. This it did not do.  Based on GCS’s flawed Basic Assessment Report (BAR), the DMRE granted the environmental authorisation anyway thus neglecting its duty to ensure that all these impacts were duly identified, assessed and mitigated as part of the EIA process.  Now, the appeal authority, Minister Creecy, has done the same by supporting DMRE’s decision to grant the authorisation despite these glaring omissions being brought to her attention in the appeal lodged by All Rise Attorneys for Climate and Environmental Justice on behalf of the Global Environmental Trust (GET)  and in the appeal lodged by a resident of Masokaneni. 

One of the serious concerns is the increased noise levels that the mining activities will generate. The noise specialists, WardKarlson Consulting, determined this impact to be medium to strong, especially at night, for the receptors positioned in the Masokaneni village.

GCS disregarded this by insensitively stating “the people in the vicinity of these mining activities are already used to the increased noise levels created by the mining activities, hauling vehicles and motor-vehicles” as a result of existing mining operations in the vicinity. GCS is not only dismissive of these loud intrusions and people’s right to an environment that is not harmful to their well-being, but this statement is also misleading. The nearest mining operations are more than 5 km away. One of the impacts of mines that residents constantly complain about is noise, indicating that people do not simply get used to the noise intrusions from mining operations. GCS also distorted the specialist findings by conflating the ratings for all noise receptor sites, most of which were located much further away from site and the adjacent houses of Masokaneni village, thereby minimising the results. This does not accord well with the professional standards required of independent environmental assessment practitioners (EAPs).

The DMRE accepted GCS’s flawed recommendations at face value. Minister Creecy, the appeal authority, in her decision incorrectly relied on an unsubstantiated assumption that these impacts can be reduced by mitigation measures and on a falsehood that people do not live closer than 500m to the shaft boundary. This is difficult to comprehend given that the specialist reports acknowledge that the nearest homesteads are about 200m away and the annotated aerial photographs in GCS’s Basic Assessment Report reveal the distance to be as close as 50m for some homesteads. Whoever was advising the Minister clearly had not read the environmental impact assessment (EIA) reports and the appeal grounds very carefully and showed a lack of care and concern for the residents who will be subjected to untenable living conditions.

Another example of the defective EIA process and the decisions taken by the authorities, is the lack of a social-economic specialist study. Our law requires that in addition to the impacts on the environment, the social and economic impacts MUST be considered, assessed and evaluated, including the benefits AND disadvantages,

Minister Creecy sidesteps this issue and simply echoes ZAC’s response that the project is justified because of the employment and community projects it brings. However, the EIA Regulations make it clear that impacts need to be identified and assessed and cannot simply be ignored because the mine creates employment and has a Social and Labour Plan in place. These types of benefits are not mitigation measures to the residents who will have to suffer the direct adverse impacts of a mine shaft on their doorsteps and mining the coal reserves underneath their houses.

The DMRE defended the lack of a socio-economic study on the disingenuous basis that there was no comment received from any Interested and Affected Parties (I&APs) during the public participation process that requested or identified that such a study was required. This is an absurd justification. As already mentioned, it is the duty of the EAP and the competent authority to ensure that the social and economic impacts are adequately considered, assessed and evaluated, and this is irrespective of whether it is explicitly requested by an I&AP or not.

In any event, the public participation process conducted as part of the EIA process for the Mngeni Adit was inadequate. This is another of GET’s appeal grounds. Contrary to Minister Creecy assertion, the minimum requirements were not met as the lawful occupiers who will be affected by the Mngeni Adit were not notified in the prescribed way and they were not provided with sufficient information in a way that facilitated meaningful participation. Most of their concerns raised at the single community meeting went unanswered, the EIA reports were not accessible and were written in English only. This is unacceptable in the case where the directly affected parties are isiZulu-speaking. 

The other two appeals against Mngeni Adit’s environmental authorisation on numerous other grounds were submitted by Ezemvelo KZN Wildlife, KwaZulu-Natal’s conservation authority, and the uMfolozi Big Five Trust which represents the Traditional Councils of Obuka, Somopho and Mandlakazi. Understandably, KZN Wildlife is extremely concerned about the adverse ecological impacts of the Mngeni Adit and associated mining activities on the biodiversity of the area and the adjacent Hluhluwe-iMfolozi Park it manages, as well as the Black Mfolozi River that flows through the Park. The uMfolozi Big Five Trust is concerned about the impacts on its nearly completed upmarket lodge on the banks of the Black Mfolozi River, about five kilometres from the proposed mining site. 

It must be remembered that ZAC is the same company that has repeatedly flouted environmental laws. Most recently, on 24 December 2021 one of its slurry dams collapsed resulting in 1 ½ million litres of polluted coal water flooding the surrounds, including the Mvalo Stream and pouring into the Black Mfolozi River that flows past rural villages relying on water from the river for their needs, through the Hluhluwe-Mfolozi Park and eventually into the iSimangaliso World Heritage Site. This matter is still under investigation by the authorities. Meanwhile affected communities, I&APs  and supportive NGOs are still waiting for answers.

When Janice Tooley, Director of All Rise representing GET, was asked if Minister Creecy’s dismissal of the appeals is the end of the road, she said that whilst she cannot speak for the other appellants, All Rise was in discussions with GET about taking the environmental authorisation and appeal dismissal on review in the High Court. She added that “it is regrettable that the burden of protecting the environment and vulnerable communities is left to civil society and the courts”.

Link below to EIA reports, environmental authorisation, appeals, responding statements and appeal decision: 

https://drive.google.com/drive/folders/1yhmFXf_AwgM5YW-tuTK93bIivx3OnIlZ?usp=sharing