Environmental Affairs clarifies matters around permission granted to Atha-Africa ventures to mine within the Mabola protected environment in Mpumalanga province
23 February 2017
The Department of Environmental Affairs notes recent media reports around the issuing of licenses to Atha-Africa Ventures to conduct coal mining in the Mabola region of Mpumalanga, and in particular, permission granted to mine within a protected environment in terms of Section 48 of the National Environmental Management: Protected Areas Act, 2003.
It has become necessary to clarify the processes that led up to the abovementioned decision taken by the Minister of Environmental Affairs, Dr Edna Molewa, in conjunction with the Minister of Mineral Resources, Mr Mosebenzi Zwane, and to correct misinformation being disseminated in the public space.
This statement addresses a number of allegations made by non-governmental organisations (NGOs) and some media that have regrettably created an impression that the decision was irregular, that due regard was not given to the environmental impacts of the said mining activity, that the decision was taken ‘in secret’, and that the public was not consulted.
South Africa has adopted the United Nations’ 2030 Agenda for Sustainable Development and the Sustainable Development Goals (SDGs). The principle of sustainable development, with its three pillars: social, economic and environmental is the bedrock of the National Development Plan (NDP) and guides all our actions as a Department and as a country.
In this regard, we have built a policy and legislative architecture to ensure that all this country’s natural resources, including mineral resources, are managed in a sustainable manner.
We have a comprehensive and progressive suite of laws that guide our actions in the natural resource governance space, among them the National Environmental Management Act (NEMA), the National Environmental Management: Biodiversity Act (NEMBA) and the National Environmental Management: Protected Areas Act (NEMPAA).
In addition, a number of legislative instruments exist, such as the Environmental Impact Assessments (EIAs) and Strategic Environmental Assessments (SEAs) to guide ways in which a number of activities, including mining, should be conducted in a sustainable manner.
They are complemented by parallel legal instruments that guide activities in the respective natural resource extraction sectors, such as the National Water Act (NWA) and the Mineral and Petroleum Resources Development Act (MPRDA), which fall under the purview of the Department of Water and Sanitation and the Department of Mineral Resources respectively. As such, no decisions on development applications are granted without consideration of the said activity’s long-term impacts on water quality and water security.
The application of these instruments enables us to balance the need for environmental conservation, with economic development.
To address the associated environmental impacts of mining, the Department of Environmental Affairs has also developed a Mining and Biodiversity Guideline, in collaboration with the Department of Mineral Resources, the Chamber of Mines, the South African Mining and Biodiversity Forum and the South African National Biodiversity Institute (SANBI).
This guideline, inter alia, identifies four categories of biodiversity priority areas in terms of their importance and the risk as well as implications for mining therein.
Among these categories is Legally Protected Areas such as nature reserves, national parks, special nature reserves and core areas of biosphere reserve and World Heritage Sites wherein mining is prohibited. However, Mabola is declared as a Protected Environment, which is the only category of Legally Protected Area where mining may be allowed with written permission from the two Ministers under strict conditions, in order to ensure that development takes place in a sustainable manner.
The associated impacts of mining notwithstanding, it is important to clarify that the specific portion of the area where the requisite surface infrastructure of the mine will be located is not part of the Legally Protected Area wherein mining is prohibited.
Moreover, the Atha-Africa application (which is coincidentally not for open-cast mining but for an underground operation with storage offsite) is essentially an application for renewal of mining rights, as the prospecting rights for the area were previously held by BHP Billiton until 2011. The area where the Mabola Protected Environment is located is the subject of numerous mining and prospecting interests, and several licenses have been issued in the past.
The Ministers of Environmental Affairs and Mineral Resources communicated the decision to Atha-Africa Ventures, which explained the reasons for the decision. This letter was signed by the Minister of Environmental Affairs on the 20th of August 2016 and thereafter by the Minister of Mineral Resources on the 21st of November 2016. The respective dates on which the permission letter was signed are not ‘sinister’ as some NGOs have attempted to suggest, but purely a matter of due diligence processes.
The letter furthermore lays out in detail the strict conditions under which the license has been granted and the scope of permission granted. It is therefore false that Atha-Africa Ventures have been given carte blanche to mine in the area, as some NGOs have claimed.
Examples of the Environment-specific Conditions of the Permit
- The permit holder must submit a Plant Rescue and Protection plan (with specific focus on conservation important species from areas to be transformed) to the Department prior to the commencement of any construction activities
- No activities will be allowed to encroach into a water resource without a water use authorization being in place from the DWS and no storm-water generated as a result of the development may be channelled directly to any wetland or watercourse. A storm-water and groundwater management system must be designed.
- All mechanisms for dissipating water energy must be implemented with approval from the DWS
- An alien plant control programme must be implemented from the inception date of the site clearing phase in accordance with relevant legislation.
- The applicant must mitigate and manage acid mine drainage where applicable according to the requirements of the DWS.
- Stringent and appropriate dust suppression measures must be applied
- Storage of construction materials or hazardous substances must be in accordance with relevant legal requirements
- Should any material of cultural or archaeological significance be encountered during construction, operations in the vicinity should be stopped immediately and relevant heritage resources authorities informed.
- An Environmental Management Committee (EMC) must be established
- An suitable wetland specialist must be appointed to carry out a comprehensive baseline audit of the wetlands in the area
It is also incorrect that the applicant has been granted permission to mine ‘with minimal caveats’ as some NGO’s have claimed, as the permit conditions also lay out strict criteria for as well as the submission by the applicant to the Department of quarterly compliance reports on the status of the conditions of the permit and the requirements of the Draft Mabola Environmental Management Plan (EMP).
South African law is clear that there should be remedies in place to mitigate the environmental impacts of the exploitation of natural resources. Mining companies are in addition required to make financial provision by way of rehabilitation trusts or financial guarantees through financial institutions or with insurance policies.
In the case of the Atha-Africa Ventures application, the Department is satisfied that potential impacts have been clearly highlighted and the proposed mitigation of impacts identified and addressed in the Environmental Impact Report.
Transparency and Due Process
In terms of South African law, no permission for mining-related activity may be granted until the applicant has received authorizations from relevant organs of state that have jurisdiction in respect of the activity, including a Water Use License, Mining Right and approved Environmental Management Plan, as well as the Environmental Authorization. Atha-Africa Ventures has received all of the abovementioned permissions.
It has been claimed by NGO’s that the decision to grant permission to Atha-Africa Ventures to mine in the Mabola region did not follow due process, especially with regards to public participation.
This is incorrect. The Mining Right, the Water Use License application and the Environmental Authorisation all have inherent public participation processes spelt out in terms of their respective legislative provisions. Furthermore, before the the proclamation of Mabola as a protected environment was undrertaken, a full public participation process was followed which was led by the Department of Economic Development, Environment and Tourism in Mpumalanga.
It is important to note, however that Section 48 of the National Environmental Management: Protected Areas Act, 2003 (NEMPAA) is not explicit about the requirement of a public participation process. Nor the public notification around such decisions.
Furthermore, as the letter to the applicant notes, NEMPAA does not make provision for an internal appeal process to the Ministers’ decision. As such any aggrieved party may approach a relevant court to review the permission in terms of the Promotion of Access to Administrative Justice Act, 200 (Act No 3 of 2000), as at least one NGO has signalled it intends to do.
All of the above taken into consideration, it is therefore patently false that there is ‘diminishing transparency’ around decisions on the granting of mining licenses.
The mining sector continues to play a key role in the economies of Africa, and it should be acknowledged that the sector has come a long way in pursuing actions that seek to avoid, minimize and mitigate the harmful impacts of mining on sensitive ecosystems, as well as to offset its residual biodiversity impacts.
The Department of Environmental Affairs is working with the DMR, DWS and the South African National Biodiversity Institute (SANBI) to further protect the broader area of the determined water catchment zone. This may in future include the declaration of Chrissiesmeer, Wakkerstroom, and Steenkampsberg as areas where mining is strictly controlled, or restricted in terms of Section 49 of the MPRDA.
The South African Constitution advances the principle that our natural resources may be developed in an orderly and ecologically sustainable manner, whilst promoting justifiable social and economic development.
The Department is satisfied that subject to compliance with the permit conditions issued to Atha-Africa Ventures, the decision to grant permission to mine in the Mabola Protected Environment in terms of Section 48 of NEMPAA will not conflict with the principles of the National Environment Management Act, 1998 (NEMA) and that any potentially detrimental environmental impacts resulting from the mining activity, can be mitigated to acceptable levels.
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