We are very proud to announce that Kirsten Youens was awarded third place in the category of outstanding human rights activist, social justice activist, pro bono woman lawyer at the Woza Awards.
WOZA AWARDS are annually presented to women lawyers in Africa in recognition of their outstanding dedication, achievements and contribution to the profession, whether it services, legal education, human rights or the pro bono sector.
Non-Executive Director Mawande Mazibuko accepted the award on Kirsten’s behalf. “When one is given the opportunity to work in an environment where your work primarily concerns speaking up for those who cannot speak for themselves; the crushed, the oppressed, those orphaned and widowed due circumstances of injustice, it requires you to be selfless and unrelenting in your pursuit for justice.
Kirsten Youens is a legal practitioner who has displayed such selflessness in the face of significant and dangerous opposition.
The All Rise Law Clinic Board would like to congratulate Kirsten on this prestigious recognition and award and also thank her for continuing to pursue environmental and climate justice for the communities she serves.”
In an extraordinary show of public solidarity for ALL RISE, 38 civil society organisations have come out in support of an earnest call on the National Union of Mineworkers; Mpukunyoni Traditional Authority; Mpukunyoni Community Mining Forum; the Association of Mineworkers and Construction Union to and their representative attorney to:
• Respect Pretoria high court Judge Noluntu Bam’s 4 May ruling that Tendele Coal Mining’s 2013 application for a mining right (to expand its Somkhele operations) failed to comply with the law; and that the decision of officials in the Dept. of Minerals and Energy to award that right was invalid; • Respect the right of the Mpukunyoni people to assert their constitutional rights without fear of reprisal; and • Respect the right of their attorneys (ALL RISE) to act without fear of harassment, intimidation and defamation.
* Amongst the most serious transgressions was Tendele’s “fundamental breach of the law with regard to public participation”.
The 38 organisations’ letter follows a 17 May 2022 statement titled “Mpukunyoni Community calls on All Rise and their funders to account to the community for their efforts to close Tendele Mine” which attacks All Rise, demanding to know the source of its funding, accusing it of wanting to close the mine and stating that All Rise’s actions are “tantamount to a gross human rights violation”.
Note: ALL RISE Attorneys represent the Mfolozi Community Environmental Justice Organisation, the Global Environmental Trust, Mining Affected Communities United in Action, ActionAid, and the Southern Africa Human Rights Defenders Network.
All Rise is truly humbled by the support and thanks every single organisation that signed this letter. An attack on one is an attack on all.
SIGNED BY: Amnesty International South Africa
Bench Marks Foundation
Socio-Economic Rights Institute of South Africa (SERI)
Centre for Applied Legal Studies
Centre for Environmental Rights
Earthlife Africa
Mining Affected Communities United in Action (MACUA) and Women Affected by Mining United in Action (WAMUA)
Just Share
KZN Violence Monitor
Lawyers for Human Rights
Southern Africa Human Rights Defenders Network (SouthernDefenders)
ActionAid South Africa
Global Witness
Helen Suzman Foundation
Africa Coal Network
Environmental Defender Law Center
Global Environmental Trust
groundWork
350Africa.org
Natural Justice
Health Justice Initiative
BirdLife South Africa
P.E.A.C.E. Foundation Trust
EarthLore Foundation
EMS Foundation
Ian Player Magqubu Ntombela Foundation Trust
Living Limpopo
Animal Law Reform South Africa
Beauty Without Cruelty South Africa
Love Africa Marketing
Rhinos in Africa
Wilderness Leadership School
Future 4 Wildlife
Vervet Monkey Foundation
Global White Lion Protection Trust
Centre for Animal Rehabilitation and Education
The Wildlife and Environment Society of South Africa (WESSA)
The southern white rhino has been to the brink of extinction and back, but even as it continues to be under threat from poachers, its survival is largely thanks to the conservation work of one park. Today, most of these rhinos can trace their ancestry back to the Hluhluwe-iMfolozi Park (HiP) in KwaZulu-Natal, South Africa,”CNN reported in June 2020.
It was Ian Player and his mentor, Magqubu Ntombela, a game ranger and descendant of the great Zulu chiefs, Shaka and Dingaan, who set up wilderness trails in the iMfolozi and sparked a global wilderness consciousness movement.
As Player wrote, “everyone who comes to the wilderness is changed by it, no one who sleeps on the ground underneath the blaze of southern stars and hears the roar of the lion, the coughing of the leopard, the howl of the hyena, the scream of the elephant and smells the smoke of wild wood burning is ever the same again.”
And in what must be recognised as one of the greatest conservation achievements of all time, Ian Player’s “Operation Rhino” achieved a 1,000% growth in the white rhino population in the 1960s saving the 40 Southern White Rhino left in the 1940s from extinction. Operation Rhino took place in the Hluhluwe-iMfolozi Park which is also the oldest proclaimed game reserve in Africa, having been established in 1895.
The Park sits on a coal belt and has, for over two decades, been subjected to the difficulties of having two coal mines as its neighbours on both its north and east boundary. Coal mining is polluting, noisy and not a good neighbour for the communities they inflict their pollution on nor the wild areas where animals and people live peacefully and, (gasp) even thrive. It seems utterly bizarre that coal mining would be given a place adjacent to ancient wild heritage and centuries-old Zulu culture — but that’s exactly what happened.
And continues to happen. The situation as it stands today is that there are three prospecting applications — for coal mining on the western and southern borders of the Hluhluwe-iMfolozi Game Reserve respectively — and two coal mine expansion applications (for coal on the western and eastern borders of the Hluhluwe-iMfolozi Game Reserve respectively) as well as several in the near vicinity.
One of the main causes of the climate crisis is the fossil fuel industry which, particularly in South Africa, is still being pursued in spite of the damage it causes to the environment and at grassroots level in the communities in which the mining takes place.
Coal mining repeatedly forecloses on alternative, more sustainable land uses; undermines biodiversity conservation efforts; impacts heavily on water resources; strips people of their land rights; destroys subsistence-based livelihoods and cultural heritage; causes division in the community; and erodes people’s right to an environment that is not harmful to their health or wellbeing — a right afforded to them by Section 24 of the Constitution, 1996.
Freshwater ecosystems, including rivers and wetlands, are particularly vulnerable to coal mining and related activities that can often result in irreversible damage or longer-term gradual, cumulative impacts. Coal mining will result in significantly reduced water quality due to acidification and ferric sulphate (which kills fish and other aquatic fauna), hydrocarbons, coal dust and nitrate deposition, together with high turbidity.
South Africa has 22 water source areas which are the source of our five major river systems and which support approximately 60% of South Africa’s population. The Mfolozi Headwaters is one of these areas with the Black Mfolozi, Pongola and Lenjane Rivers being the main rivers which flow from Mfolozi Headwaters. It feeds a number of free-flowing rivers including the Mkuze, Nsonge, Ndonweni, Ngogo, Mfule and Nyalazi.
Three Ramsar Sites: Kosi Bay, Lake Sibaya and St Lucia system fall within this water source area.
The Mnyaba and Nyalazi river systems are classified as nationally important Freshwater Ecosystem Priority Areas (Fepas), the Mnyaba river has a “medium-high” Ecological Importance and Sensitivity (EIS) rating and Nyalazi River has been rated medium in terms of EIS. The White Mfolozi is identified as being a strategic spatial priority for conserving South Africa’s freshwater ecosystems and supporting sustainable water resources.
The St Lucia Estuary is one of the main components of the iSimangaliso Wetland Park, a Unesco World Heritage Site. The estuary is by nature dynamic. It is driven, at any given point in time, by five rivers and sea water inflows through an estuarine mouth. Of the rivers, the Mfolozi is the largest. The wetland park supports a range of plant, bird, fish, and animal species.
All of these mines and prospecting applications fall within the Mfolozi Catchment or are situated along the Mfolozi River. The Black Mfolozi flows through ZACs mining right area and into the Hluhluwe-iMfolozi Park. A drainage line flows through Zululand Anthracite Colliery’s (ZAC) Nqolothi coal siding (which stockpiles coal for transport) and into the Nhlungwane stream, which is a tributary of the Mfolozi River. ZAC abstracts water from the Black Mfolozi River in an amount we are unable to ascertain but the annual water requirement for its proposed expansion is 190,453.69m3 per annum.
According to Tendele’s water licence (which we have appealed to the Water Tribunal) it abstracts up to 750,000m3 per annum from the Mfolozi River and abstracts (by way of dewatering) 2.5-million m3 per annum from the ground.
According to South Africa’s National Climate Change Adaptation Strategy, 2019 (approved in August 2020), access to fresh water, which is already a major challenge in these areas, is predicted to become a much bigger problem as the climate crisis intensifies, with potentially devastating effects. South Africa is to experience drier conditions overall with higher water demand and deteriorating water quality in river systems, water storage reservoirs and groundwater. Our current water usage already exceeds reliable yield.
In most climate-crisis scenarios projected for South Africa, future water supply availability will worsen considerably by 2050. Decreased availability of water in rivers is a result of the net effect of increased temperatures and increased evaporation, combined with shifts in the timing and amount of rainfall; changes in the timing of high and low flows due to changes in rainfall patterns; and a higher incidence of floods as heavy rainfall events increase.
According to the Adaptation Strategy, in the event of future water shortages, meeting the reserve (i.e. water quality and quantity needed to satisfy basic human needs and protect aquatic ecosystems to ensure ecologically sustainable development) must take priority over water uses in the mining sector. If basic human and environmental needs are not given precedence, as required, this could have significant impacts for environmental and human health — resulting in breaches of fundamental constitutional rights to a healthy environment and the right of access to sufficient food and water.
Essentially, what is happening in northern KwaZulu-Natal, in a Freshwater Ecosystem Priority Area, is a war on water and our climate resilience.
To have any more mining and prospecting rights issued on top of all the current mining is evidence that the Department of Mineral Resources and Energy (DMRE) has absolutely no intention of protecting the natural areas of the country or meeting our climate commitments. What DMRE is doing is showing complete disregard for any other department in government and for the people of South Africa.
If not for community organisations and civil society opposing these many applications, there is no doubt that DMRE would just grant all the applications that come its way. With environmental authorisations also being issued by DMRE, both the environmental authorisation and the mining right are granted without issue or delay.
Unless they are opposed by us, the people.
Let’s be honest. No one wants to drive through the wasteland of filth that is an open-cast coal mine before entering a game reserve. No one wants to spend time in a wilderness area when the light and noise pollution from a mine ruins the experience. No one and no animal wants to drink water from a river that is polluted by mine waste. No person would choose to live next to a mine and be exposed to dust, noise and pollution every day.
While the world moves away from coal, South Africa welcomes more and more. What DMRE is doing by issuing mining licences in this area is nothing short of ecocide.
Judgment in the long-standing matter of MCEJO and Others v Minister of Minerals and Energy and Others was handed down on the evening of 4 May 2022.
In her well-reasoned 48-page judgment Judge Bam finds in favour of the Applicants by rejecting all of Tendele’s arguments and declaring Tendele’s mining right invalid. The Minister’s decision in dismissing the appeal against the grant of the Mining Right and the approval of the Environmental Management Programme is also declared invalid and set aside. The Applicants, the Mfolozi Community Environmental Justice Organisation (MCEJO), the Global Environmental Trust, MACUA, SAHRDN and ActionAid SA, are elated by the victory.
By way of background, in May 2016 Tendele was granted a mining right of 212 km2 to significantly expand its Somkhele opencast coal mine, located in northern KwaZulu-Natal, subject to approval of an Environmental Management Programme (EMP). Tendele’s EMP, prepared as part of a Scoping and Environmental Impact Assessment (EIA) under the Mineral and Petroleum Resources Development Act (MPRDA) was approved several months later in October 2016. The applicants appealed to the Minister of Minerals and Energy in August 2017 against the Department of Mineral Resources’ (DMR) decision to grant it. The Minister subsequently dismissed MCEJO’s appeal in June 2018. In November 2018 the applicants brought an application in the Pretoria High Court to review and set aside the 2016 Mining Right, the approval of the EMP and the Minister’s appeal decision in Tendele’s favour.
The Court determined three main issues, namely: i) the defective Scoping and EIA; (ii) the ground based on the Interim Protection of Informal Land Rights Act (IPILRA); and (iii) defects in public participation [para 24] Judge Bam states in her no-holds barred judgment that “the wheels came off” during the scoping phase “when the regional manager of DMR, KwaZulu-Natal (RM), allowed Tendele’s consultants, GCS, to dictate to him how Tendele intended to carry out the exercise that would lead to the Scoping Report instead of insisting on compliance with the law” [para 14] She further states that “[i]ndeed the record shows that the RM accepted Tendele’s Scoping Report, even though it had been compiled without consultation with interested and affected parties and without providing proof of the information shared during the consultation, which was clearly in violation of the law”. [1]
Judge Bam provides detailed interpretation of the law around scoping and EIA and refers to Tendele’s view that the scoping phase required no public participation as “a fundamental breach of the law with regard to public participation”. She further states that “Tendele’s attempts to justify their exclusion of groups … was nothing short of egregious”. The Scoping/EIA failed to meet the demands of legislation. She states that “[t]he attitude displayed by Tendele during the scoping phase of it’s application process is offensive. It portrays Tendele as an ‘unbridled horse’ that showed little or no regard for the law” [2]
A large portion of the judgment deals with the applicants’ accusation of Tendele riding roughshod on the rights of the community in that the applicants’ members were neither consulted nor did they consent to the deprivation of their communal rights to the land in terms of IPILRA. 3 [para 39] The Court refers to Tendele’s ‘disturbing’ defence that ‘since the grant of a mining right does not extinguish the right of a landowner or any other occupier of the land in question; the question of compensation does not arise”. [3] According to Tendele’s interpretation of IPILRA the requirements of compensation and section 2(4) (community consent) are only triggered when the deprivation is caused by a disposal of land. [4]
Judge Bam finds that “Tendele’s interpretation appears to lose sight of the fact that it is interference with the use, enjoyment or exploitation or diminution to the occupation or ownership that brings about compensation. For this reason, how the deprivation arises should not water down the compensation element provided for in IPILRA. Tendele’s interpretation epitomizes the ‘blinkered peering at an isolated provision in a statute’ that the court warns against in Scribante as opposed to reading the statute purposively… Tendele’s’ interpretation waters down, if not renders nugatory, the protection offered by IPILRA to shield the informal rights holders. Such interpretation cannot be allowed”. [5]
Tendele’s second defence that it obtained consent from the Inkosi, is also shot down in flames by Judge Bam. The referenced consultations with iziNdunas who provided consent by way of a Resolution of the Traditional Authority “says nothing more that the [traditional authority] granted consent to Tendele. There is no evidence to support that the applicants were lawfully deprived of their informal rights in terms of IPILRA. There is no evidence of invitation to the community and its representatives, no agenda, no minutes, no evidence of who was present. The Resolution on its own does not meet the requirements of IPILRA”. [6]
Judge Bam’s final reason why Tendele’s defence must fail is centered around the fact that a decision to grant consent to a mine “has far reaching consequence in so far as the mining operations ability to interfere with the occupiers’ and landowners’ rights.” [7]With reference to the court in The Ingonyama Trust and Advancement of the South African Constitution and Others v The Ingonyama Trust and Others, Judge quotes:
“Consent must be given freely, without duress or deception, and with sufficient legal competence to give it….Consent must be properly sought and freely given, and the person whose consent is required must have full and reliable information relating to the scope and impact of the subject matter, and must have the choice to give or withhold his or her consent.”
“In all, Tendele did not obtain consent as envisaged in section 2 of IPILRA and the applicants ground therefore succeeds”.[8]
The appeal is therefore remitted back to the Minister for reconsideration in accordance with the findings of the judgment. [9]
In summary, the findings and the effects thereof are:
The Scoping/EIA was unlawful. Prior to the Minister making a decision on the Appeal, a valid Scoping/EIA must be conducted.
There was no consent in terms of IPILRA. Prior to the Minister making a decision on the Appeal, informed consent must be obtained from the majority of those whose land rights will be affected by the mining operation.
The public participation process was defective. Prior to the Minister making a decision on the Appeal, a full public participation process must be conducted, and such process must comply with the requirements of the Public Participation Guidelines in terms of the National Environmental Management Act, 1998 and Chapter 6 of the Environmental Impact Assessment Regulations, 2014.
Costs were awarded to the applicants, including the costs of two counsel for this application and the Rule 7 application which was brought by Tendele in December 2020 and withdrawn at the 11th hour in March 2021.
“Tendele is the author of its own misfortune. “Had DMR and Tendele complied with the law back in 2013 when this mining application process began, none of this would have been necessary. The Court has made it clear that the people of the land must be seen, must be heard, and must be consulted when their rights are going to be so fundamentally affected. The fact that the DMR and Tendele ignored the law and the people for so long is the reason that the applicants were forced to bring this application. It has been a long road but finally they have won.” Kirsten Youens, attorney for the Applicants.
The applicants wish to thank Legal Aid SA for its assistance in this matter.
This article appeared in the Daily Maverick on the 212 April 2022
As we observe Earth Day, KwaZulu-Natal is struggling to recover from the torrential rain that fell over 9 to 12 April resulting in the loss of 448 lives (so far) and wide-spread damage to service infrastructure and homes. Due to the extent and impact of the floods, the scale of the emergency and the response required, as well as the damage to infrastructure important to the country’s economy President Cyril Ramaphosa declared a national state of disaster, just two weeks after the two-year-long national state of disaster due to Covid 19 was lifted.
The latest Intergovernmental Panel on Climate Change (IPCC) report, released on 28 February, makes it very clear that increased heatwaves, droughts and floods are already exceeding plants’ and animals’ tolerance thresholds. “These weather extremes are occurring simultaneously, causing cascading impacts that are increasingly difficult to manage and they have exposed millions of people to acute food and water insecurity, especially in Africa.” Whilst we are shocked by the loss of life and damage caused by these recent floods, we have been warned for more than a decade now that climate change will result in more and more extreme weather events occurring. We have witnessed these events in other countries with increasing frequency, including those on our borders, especially Mozambique.
Last week it was South Africa. Hundreds of people have lost their lives, and thousands, their homes. Many are still without electricity and potable water. Businesses have been destroyed, and with them, desperately needed jobs. It will take massive resources and months to rebuild infrastructure and even longer to address housing and service delivery backlogs to avoid similar disasters in the future. The death toll continues to rise. Our President said that “these floods are a tragic reminder of the increasing frequency of extreme weather conditions as a result of climate change.We need to increase our investment in climate adaptation measures to better safeguard communities against the effects of climate change.” It hardly seems necessary to have to look to the IPCC report to know that climate change is a grave and mounting threat to our wellbeing and a healthy planet. Hoesung Lee, Chair of the IPCC said that the “report is a dire warning about the consequences of inaction … Our actions today will shape how people adapt and nature responds to increasing climate risks.”
In anticipation of the climate crisis our government drafted a Climate Change Bill in 2018 which was tabled before the National Assembly on 18 February 2022. Unfortunately, all the while the Minister of Minerals and Energy, Gwede Mantashe, has continued to push his fossil fuel agenda and careen headlong down the coal carriageway, seemingly oblivious to the fact that coal is the single biggest contributor to anthropogenic climate change.
As of now, our climate and environmental justice law clinic, All Rise, is opposing an existing open cast coal mine and its expansion, three open cast coal prospecting applications and appealing the environmental authorisation of an underground coal mine – totalling hundreds of square kilometres in northern KwaZulu-Natal. Yes, in the same province that is under unprecedented amounts of water, drowning in mud and wash-aways. And yes, all being considered and approved by the same government that professes to acknowledge that the climate emergency is upon us and is a signatory to the Paris Agreement.
Not only is the phasing out of fossil fuels necessary if we are going to meet our emission reduction targets for greenhouse gases, but climate change is also about adaptation and resilience. There are people living in these mining areas who are being exploited and made vulnerable to extreme weather events as a result of having had their land and water resources taken from them, as well as their food security, culture and dignity eroded. How are their rights being protected from exploitation and where do they feature in the discussion? What about the other vulnerable rural and urban communities throughout South Africa, including those affected by the recent flooding in eThekwini and surrounding areas?
On 22 April 1970 twenty million Americans gathered in the largest environmental demonstration in history: Earth Day. The environmental activists were inspired by the anti-war and civil rights movements in the United States, including the civil rights efforts of Chicano and Indigenous activists and used the same strategies to spread awareness about conservation and the need for a healthy environment. Arturo Sandoval, a leader in the Chicano civil rights movement was a member of the Earth Day organizing team. He saw it as an extension of his civil rights work and an opportunity to open the discussion of environmental action and conservation to a broader discussion about the impacts of exploitation “not just of the planet, but also of people – and to help people see it was basically one in the same issue.” [Mangan, Arty. “Earth Day, White Privilege and Decolonizing the Mind.”]
Now, 53 years later, it is clear that we still need to have the broader discussions around the impacts of exploitation in the context of the communities who are bearing the brunt of unbridled capitalism and environmental injustice. These are the same people who are bearing the brunt of the climate crisis. To add to their risk, the increased environmental degradation and the resultant social inequality and inability to live off the land means they are being made less climate resilient and increasingly vulnerable.
What is even more important than having the broader discussions is the urgent need for ongoing and increased action. Action to protect the planet and action to protect the people are one in the same. They are inextricably linked. In order to save the planet we have to actively seek the voices of those most marginalised. For the sake of the Earth and for ourselves. So, today, let us remember that Earth Day is about protecting each other, as much as it is about the protecting the environment and the planet.
Recently our client, Nelson Mandela Bay Tourism, became aware of the decision made in the Bunkering Stakeholder Forum Session (“BSFS”) in December 2021 to lift the moratorium on the awarding of bunkering licences in Algoa Bay that has been in place since August 2019.
Bunkering is the process of refuelling vessels by transferring liquid fuel oil to seagoing ships which are positioned alongside each other, either while stationary or underway. With the fuelling of very large vessels such as tankers, the possibility always exists that there could be a catastrophic oil spill such as was the case for MV Treasure in Table Bay. The MV Treasure released 1 139 tonnes of heavy fuel and 56 tonnes of marine diesel into the sea off Robben Island.
Algoa Bay is a marine biodiversity haven, recognised by the declaration of the Addo Elephant National Park Marine Protected Area. St Croix Island previously held the largest African Penguin breeding colony in the world, and Bird Island currently holds the world’s largest Cape Gannet breeding colony, with two-thirds of the global population breeding at this site. These islands form part of a global network of Important Bird and Biodiversity Areas (IBAs) identified for their global significance for bird conservation.
A spill in Algoa Bay has the potential to impact on the Bird and St Croix island groups as well as the entire coastline within and around the Bay. A spill of this magnitude would impact significantly on various ecosystems within the Bay as well as several industries such as tourism, fishing and mariculture.
The ship-to-ship bunkering is taking place at anchorage points 1 and 2 of the Port which are situated adjacent to the Addo Marine Protected Area, Algoa Bay Island Nature Reserve and in line with the ecologically important mouth of the Swartkops River.
While spills of this magnitude (>700 tonnes) are unlikely events, with approximately 7.3 occurring worldwide every year, the possibility does exist that such a spill may occur (WSP 2001). If the spill is not contained it could make landfall on any or all the islands to the detriment of the intertidal organisms and birds on the islands. The floating slick will smother any seabirds, especially penguins that encounter it. It could also smother or foul fish. A large spill could therefore have a profoundly negative impact on the ecology of Algoa Bay at large and in turn have negative downstream socio-economic impacts.[1]
The African Penguin population is declining at an alarming rate due to anthropogenic threats, including oil pollution. St Croix Island, the closest island to STS bunkering activities has suffered a staggering 80% decline of African penguins in the past five years. During this time, vessel numbers have more than doubled in the bay, with bulk carriers having increased more than threefold. Vessel activity has been concentrated in shipping lanes and anchorage areas, where bunkering services are located, that overlap important foraging areas for penguins from St Croix Island. This threat cumulates with others such as oiling and competition with fisheries, and certainly contributes to the rapid and significant decline of penguins at this colony. African Penguins are known to avoid waters with excessive marine noise as was the case for penguins from St Croix Island during seismic survey activities in 2013.
The main concerns with ship-to-ship bunkering include:
Threat of oil spills and pollution from the bunkering operations, specifically to the Addo National Park Marine Protected Area, and the type of oil that is used;
Threat to biodiversity in the bay from the movement of vessels, engine and other noise, spills, fires and eco-system damage;
Poor management of the bunkering operations;
Visual impact on ecotourism and beaches;
Loss of tourism and the effect on the local economy; and
Threat to species on the IUCN Red List such as the African Penguin, Cape Gannets, Cape Cormorants, Indian Ocean Humpback Dolphins, Abalone, Pipefish and Leatherback Turtles.
Minister Creecy acknowledged in a letter dated 15 October 2021 that concern regarding the decrease of African penguins led to the promulgation of the Biodiversity Management Plan for the African Penguin (AP-BMP) and concerns regarding ship-to-ship bunkering and ship-related disturbance to pelagic fish around St Croix Island are part of the ongoing discussions in updating this plan which is still to be published for public comment. The Minister confirms in the same letter that the Department has had numerous engagements with SAMSA and TNPA and as a result of these engagements SAMSA “put on hold all new applications for bunkering until a comprehensive risk assessment has been conducted and relevant concerns have been addressed.”
All Rise wrote to SAMSA and the TNPA advising that an EIA must be undertaken, and that prior to any discussions being had or decisions being taken regarding the lifting of the moratorium the following must also be finalised:
the comprehensive risk assessment mentioned in Minister Creecy’s letter
the updated AP-BMP mentioned in Minister Creecy’s letter.
a Marine Spatial Plan for Algoa Bay
We are pleased to note that as a result of this correspondence and the ongoing efforts of a number of NGOs, the moratorium will remain in place for now.
The matter is ongoing, and developments will be communicated.
***
[1] Minerva Marine Bunkering SHE Risk Assessment 5 July 2020 ref: (CSIR, January 2013 Chapter 8, Marine Ecology, pg. 8-17)
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:
Section 24H of the National Environmental Management Act (NEMA) allows for the establishment of a registration authority to regulate the practice and conduct of environmental assessment practitioners (EAPs). The sector has long identified the need for a formally recognised body to promote the professionalism of environmental consultants by ensuring EAPs meet certain technical standards and conduct themselves in an ethical manner.
In 2016, Regulations were published by the Minister of Environmental Affairs setting out the process for appointing a registration authority and specifying the tasks in relation to an application for environmental authorisation that may only be performed by a registered EAP.
In February 2018, the Environmental Assessment Practitioners Association of South Africa (EAPASA) was appointed as the sole S24H registration authority and all EAPs were required to register with EAPASA by 8 February 2020. In August 2020, the Minister extended this deadline to 8 February 2022.
Recently, the Minister published her intentions to push this deadline to 8 August 2022 and to expand the list of licence applications for which only a registered EAP may undertake the tasks as specified, predominantly in relation to environmental impact assessment (EIA). However, it appears now that the Minister also wants to restrict the preparation of Section 43 appeal submissions by making it mandatory for any person who wants to appeal an environmental authorisation or waste management licence to appoint an EAP to do so. In practice, this would effectively prevent Interested and affected Parties from preparing and submitting their own appeal without an EAP’s involvement and would also exclude I&APs from being able to be legally represented in an appeal.
In the public interest sector, lawyers like ALL RISE work pro bono to assist indigent individuals and communities in appeals, often as a result of them having not been extended the opportunity to participate meaningfully in an EIA process. Should the Minister’s proposed amendment come into law, this assistance to communities would no longer be possible.
ALL RISE has made written representations to the Minister setting out why these proposed amendments to S24H Regulations prohibiting legal representation in an appeal would be unlawful, expressly on the basis that it is contrary to the Promotion of Administrative Justice Act (PAJA). Our Supreme Court of Appeal ruled in Max Hamata v Chairperson, Peninsula Technikon Internal Disciplinary Committee that the flexibility to allow legal representation is “a constitutional imperative”. There cannot be a blanket rule that prohibits legal representation outright as this would impede on the procedural fairness of administrative decisions, especially where they involve complex environmental issues and have the potential for grave consequences.
We have taken the opportunity to submit comments in the interest of upholding our collective right to have the environment protected and look forward to receiving the Minister’s response as do the many other interest groups that submitted their comment criticising this potentially chilling effect on Section 43 appeals.
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