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Communities celebrate as Court sets aside Shell’s exploration right off the Wild Coast of South Africa

This judgement is momentous in it’s recognition that consultation is not something that can be done as a box ticking exercise in an EIA process, but requires “a genuine, substantive, two way process…”. We hope that it will pave the way for proper community consultation in future, particularly when it comes to mining and exploration.

See official press release below:

Press release: Communities celebrate as Court sets aside Shell’s exploration right off the Wild Coast of South Africa

For immediate release: 01 September 2022

Makhanda, South Africa: Today, the High Court in Makhanda ruled that Shell’s exploration right to conduct seismic surveys on the Wild Coast of South Africa was granted unlawfully and therefore set it aside. 

This judgment, written by Judge President Mbenenge, is a monumental victory for the planet, won by Wild Coast communities.  

The court case was brought by Sustaining the Wild Coast NPC, Wild Coast communities, Wild Coast small-scale fishers and All Rise Attorneys for Climate and Environmental Justice, represented by the Legal Resources Centre (LRC) and Richard Spoor Attorneys. 

Natural Justice and Greenpeace Africa applied to join the court case, and were represented by environmental law firm, Cullinans and Associates.   

The case sought to review the decision by the Department of Mineral Resources and Energy to grant an exploration right to Shell and Impact Africa, allowing them to conduct seismic surveys off the Wild Coast of South Africa, in pursuit of oil and gas. The seismic surveys would involve a ship towing high-volume airguns which would blast low-frequency sounds at the seabed in regular intervals in order to map the seabed for oil and gas. 

The applicants argued that the right should not have been granted on various grounds:

  • That the exploration right was granted unlawfully since there was no consultation with affected communities and that the companies’ consultations with traditional leaders was insufficient. 
  • In awarding the exploration right, the decision-makers failed to consider the potential harm to the fishers’ livelihoods, the impact on their cultural and spiritual rights and the contribution of oil and gas exploitation to climate change. 
  • In awarding the exploration right, the decision-makers failed to consider the Integrated Coastal Management Act and its requirement to consider the interests of the entire community – including fishers and also ocean life. 

Findings of the Makhanda High Court:

The court found in favour of the applicants on all the grounds of review. 

On the issue of public participation, the court found that it was incorrect for consultations to only be conducted with kings, monarchs and other traditional leaders and that such an approach “finds no space in a constitutional democracy” (para 92) and further, that “a chief does not denote a community.” (para 93). “There is no law, and none was pointed to, authorising traditional authorities to represent their communities in consultations.” (para 92)

The judge went further to find that “…meaningful consultations consist not in the ticking of a checklist, but in engaging in a genuine, bona fide substantive two-way process aimed at achieving, as far as possible, consensus…” (para 95).

On the issue of harms to the environment, the court found that due to the apparent dispute between expert evidence on the harms of seismic testing to marine life, a precautionary approach should have been adopted by the decision-maker. This applies particularly when there is uncertainty and requires risk-aversion and caution to be taken.

Further, the judge acknowledged the key role of the ocean in the livelihoods and spiritual and cultural life of coastal communities. “The applicant communities contend that they bear duties and obligations relating to the sea and other common resources like our land and forests; it is incumbent on them to protect the natural resources, including the ocean, for present and future generations; the ocean is the sacred site where their ancestors live and so have a duty to ensure that their ancestors are not unnecessarily disturbed and that they are content.” 

There is no evidence, said Mbenenge JP, that the decision-makers took the potential harm to these religious and ancestral beliefs and practices into account. That rendered the decision unlawful.

In relation to climate change as well as the issues of the right to food, the judge found that, had the Minister taken these issues into account, he may have found that the project was “neither needed nor desirable” (para 125).

The court found that the Integrated Coastal Management Act needed to be considered in the decision-making process, which “introduces an integrated approach to management and in this instance, the decision-maker did quite the opposite and dealt with the application as an energy-sector specific issue.” (para 130). The court found that the Minister was duty-bound to consider the ICMA and this in itself, means that the exploration right must be reviewed. 

The court also found that the applicants did not have to lodge an internal appeal as required by the Promotion of Administrative Justice Act (PAJA), as the commencement of the seismic survey at the time of launching the application was imminent. Furthermore, the Minister of Mineral Resources and Energy, Gwede Mantashe, who had previously referred to any opposition to oil and gas developments as “colonialism and aparthied of a special type”, could not be said to have considered the internal appeal with an open mind and therefore the applicants’ perception of bias was warranted. 

Additionally, the court found that the Minister could have simply abided by the decision of the court in relation to part A (the interdict which was granted by Judge Bloem in December 2021) but instead decided to pin his colours to Shell’s mast by refusing to review the exploration rights awarded to them and opposing the interdict in part A. 

Notably, the judge stated that Shell’s Environmental Management Programme (EMPr) contained statements promising jobs and increased government revenue. However, these claims were not supported by evidence in the EMPr. In paragraph 135 of the judgment, the court found that there was no explanation as to how jobs would be created, “or how the seismic survey will improve the socio-economic circumstances in which most South Africans live”. This was particularly important as Shell argued that the applicant communities, who are poverty-stricken, would benefit economically from their oil and gas exploits. 

On the joinder, the applicants, Natural Justice and Greenpeace Africa, were successful. 

The respondents may now apply for leave to appeal the judgment to the Supreme Court of Appeal.

Quotes from the applicants 

“Winning this means we are all moving towards an understanding that we need to find sustainable livelihoods; we need to move away from fossil fuels. This is for the good of everyone. Allowing Shell and the government to continue exploring for oil and gas and other fossil fuels would be detrimental to everybody’s lives and to the life of the planet. Winning means a sustainable life on this planet. A victory for the planet. Victory for future generations. It is not about us. We are in this fight for the good of the planet and the good of future generations. 

The fight of coastal communities versus Shell is a struggle for environmental justice, for the protection of rural livelihoods, for sustainable development and for the life of the planet. Shell and the government are fighting for profit in the face of climate change that is putting the future of humanity at risk.”  

  • Sinegugu Zukulu, Sustaining the Wild Coast 

“This victory is not just a victory for Wild Coast communities and making our voices heard. This is a victory against capitalist extraction and destruction of our future. This victory is not just about protecting the ocean upon which rural coastal communities depend. This is about protecting the planet and the whole of humanity.”  

  • – Nonhle Mbuthuma, Amadiba Crisis Committee 

“As Wild Coast people, we live off the land and the ocean. Government tells us that oil and gas will bring job opportunities but we know very well that this will destroy our livelihoods. The ocean is our best defender against climate change, shielding us from its worst impacts. By helping the ocean we help ourselves. Ocean action is climate action.” 

  • Siyabonga Ndovela,  Wild Coast resident 

“These brave community members scored a very significant victory on behalf of rural people across the country who are dispossessed daily of their land and resources by the persistent practice of the State and companies who ignore them and speak only to their traditional leaders. There is no law that authorises chiefs and monarchs to do that and, in any event, the Court went on, there is no space in a constitutional democracy for such a top-down approach.” 

  • Wilmien Wicomb, Attorney, Legal Resources Centre

“Greenpeace Africa celebrates this decision to protect the Wild Coast from Shell’s destruction. It is proof that the world is moving into an era of social and environmental justice, where the voices of people are put before the profits of toxic fossil fuel companies. 

There is still much work to be done to undo the destructive colonial legacy of extractivism in Africa, but this decision gives South Africans renewed hope that people’s lives and precious ecosystems are valuable and worthy of protection from climate criminals. The future is renewable!”

  • Melita Steele, Interim Programme Director, Greenpeace Africa 

“The victory in the Shell case is truly a victory for the people and planet. It sets an important precedent during this climate emergency. The court was clear that communities need to be properly consulted and that environmental impact assessments are critical. The cultural and spiritual connection to the land and ocean featured strongly in the judgment. This victory provides hope and momentum as people stand up across the planet. There are 148 oil and gas projects in the pipeline in Africa. This victory will ensure the tide turns.” 

  • Pooven Moodley, Director, Natural Justice 

“The court’s decision today is a victory for all of us. This case was a case for all communities across the country. The proliferation of oil and gas exploration applications across South Africa’s shoreline does not bode well for our future, as the climate crisis requires us to stop all new fossil fuel projects. 

This court victory shows that the fossil fuel companies are required to follow the law, include all affected people in public participation processes and consider all the harms to the environment. We are especially pleased by the Judge’s findings on meaningful public participation, that a monarch cannot represent communities in consultations about developments which affect their rights. With so many communities vulnerable to having their land and livelihoods impacted by fossil fuel developments, it is crucial that they are properly consulted. This judgment strengthens our law. 

We want to acknowledge and thank our community representatives who have traveled the whole of yesterday to make it to the Makhanda court today – as they know how important this judgment will be for their communities – and for all of us.

The success of this case is based on the collaboration of many civil society organisations across South Africa and the world” 

  • Melissa Groenink-Groves, Programme Manager, Natural Justice 

ENDS

For media inquiries

Notes for editors

Judgment can be found here:https://naturaljustice.org/wp-content/uploads/2022/09/Judgment-on-Sustaining-Wild-Coast-v-Minister-of-Mineral-Resources-Energy-Others.pdf 
Voice recordings of quotes from the applicants can be found here.

August Newsletter: The Start Of Women’s Month Brings Good News!

Kirsten Youens was awarded third place in the category of outstanding human rights activist, social justice activist, and pro bono woman lawyer at the Woza Africa Awards recently.

WOZA AWARDS are annually presented to women lawyers in Africa in recognition of their outstanding dedication, achievements and contribution to the profession, whether it be services, legal education, human rights or the pro bono sector. 

More good news is the rallying of the social justice sector in support of ALL RISE against spurious attacks made against us by the respondents in the Tendele review case. In an extraordinary show of public solidarity, 38 civil society organisations supported a call on the National Union of Mineworkers, Mpukunyoni Traditional Authority, Mpukunyoni Community Mining Forum, and the Association of Mineworkers and Construction Union and their representative attorney, Dennis Sibuyi, to:

– Respect the 4 May Pretoria High Court 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 ALL RISE to act without fear of harassment, intimidation and defamation.

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”.

All Rise is genuinely humbled by the support and thanks every single organisation that signed this letter. An attack on one is an attack on all. 

In more sombre news, the applications for coal mining or prospecting around the Hluhluwe-iMfolozi Park are increasing. These include:

  • Prospecting activities proposed by Imvukuzane in the Fuleni Reserve.
  • The current and future mining operations of ZAC located northwest and west of Imvukuzane’s proposed prospecting area, and which fall in the five traditional authority areas of Zungu, Matheni, Mlaba, Mandlakazi and Ximba; the iMfolozi catchment; and on the northern and western boundaries of the Hluhluwe-iMfolozi Park. 
  • The current and future Somkhele mining operations of Tendele Coal Mining (Pty) Ltd in the Mpukunyoni Traditional Authority area and the iMfolozi and other catchments; and on the eastern boundary of the Hluhluwe-iMfolozi Park, and immediately north of the Imvukuzane prospecting area. 
  • The other current prospecting applications by Yengo Resources (Pty) Ltd) in the Ximba Traditional Authority area on the southwestern boundaries of the Hluhluwe-iMfolozi Park; by Tendele Coal Mining (Pty) Ltd in the Mpukunyoni Traditional authority on the eastern boundaries of the Hluhluwe-iMfolozi Park and by Raycom Resources Pty Ltd, southwest of the Imvukuzane prosecting area and the Hluhluwe-iMfolozi Park. 
  • The previous prospecting activities already conducted by ZAC in the same area that Yengo is now proposing to prospect; by Ibutho Legacy (Pty) Ltd in the same prospecting area that Imvukuzane is now proposing to prospect; and by Tendele in the same area for which it is again applying for a prospecting right.
  • The mining rights held by Mbila Resources (Pty) Ltd for the Msebe Opencast Anthracite Mine and Mbila Underground Mine both east of Nongoma, also in the Zululand District Municipal area. 

The communities who live in these areas are our clients as members of the community organisation we represent, MCEJO. Currently, we are working with the Fuleni community, representing them and other organisations in opposing the prospecting application over their land. 

We continue to represent the Somkhele MCEJO community in many aspects. As Tendele has begun a new Scoping and EIA process (as per the requirements of the May judgment) in the three villages it plans to mine, one of our key focus areas is assisting our community and NPO clients in participating in this process. There is also an appeal against the granting of Tendele’s water use licence waiting for a hearing with the Water Tribunal. 

Yet another unfortunate decision by government on 8 July 2022 was the rejection of several appeals to the Environmental Authorisation allowing for the clearing of 8000 hectares of indigenous bush for the Musina-Makhado Special Economic Zone ‘mega city’ project in Limpopo. The rejection of the appeals, collated by a loose coalition of social movements and interested and affected parties, including those involved with activist research and support for people in Limpopo, has been met with the coalition’s profound disillusionment as to the agency’s endorsement of the flawed EIA process. All Rise submitted an appeal in collaboration with CALS that detailed the flaws of the EIA process and the project as a whole. We are now discussing collaborating with the coalition to take this decision on review. 

Ending on a good note, All Rise continues to provide workshops to communities on the EIA regulations and how to meaningfully participate in the EIA processes. In the next month or two, we are also rolling out some workshops on climate justice and look forward to sharing that with you.

During Women’s Month, we will introduce you to each member of our amazing all-women board of directors, so keep an eye on our social media platforms.

We wish you a happy August!

Kirsten, Janice and Lihle

**As a non-profit clinic, we need funding to do our work. If you would like to support us, we would be very grateful! Head to this link to donate: https://allrise.org.za/donations/ 

Kirsten Youens awarded third place at WOZA Awards

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.”

OPEN LETTER: CIVIL SOCIETY ORGANISATIONS CALL ON ATTORNEY, DENNIS SIBUYI AND HIS CLIENTS TO RESPECT THE CONSTITUTIONAL RIGHTS OF COMMUNITY MEMBERS

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)

We are South Africans

Link to the letter:
https://lnkd.in/d_MPqk2B

Coal mining onslaught threatens the Hluhluwe-iMfolozi Park on an unprecedented level

Map of all Mining operations in the vicinity of the Hluhluwe-iMfolozi Park

By Kirsten Youens

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.

This article was published in the Daily Maverick on 30 June 2022.

Community Rights Vindicated against Unscrupulous Department of Minerals and Energy and “Egregious” Mining Company

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:

  1. The Scoping/EIA was unlawful. Prior to the Minister making a decision on the Appeal, a valid Scoping/EIA must be conducted.
  2. 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.
  3. 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.

References to paragraphs in judgment:

  1.  [para 14]
  2.  [para 37]
  3.  [para 51]
  4.  [para51]
  5.  [para 56] 
  6.  [para 66]
  7.  [para 67]
  8.  [para 70]
  9. [para 84.3]

Let Earth Day Be About Ending Exploitation – Of People and The Planet

Kirsten Youens and Janice Tooley

By Kirsten Youens and Janice Tooley

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.

Moratorium on awarding more licences for Ship-to-Ship Bunkering in Algoa Bay to remain in place

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:

  1. 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;
  2. Threat to biodiversity in the bay from the movement of vessels, engine and other noise,  spills, fires and eco-system damage;
  3. Poor management of the bunkering operations;
  4. Visual impact on ecotourism and beaches;
  5. Loss of tourism and the effect on the local economy; and
  6. 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)

News:

https://herald.pressreader.com/article/281569474242572

Radio Life & Style: Interview with Kirsten Youens

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.