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Showdown in court over controversial Mpumalanga mining project

Last minute attempt by state to shift the boundaries of a protected area to allow coal mining project slapped down.

Environmental groups attempting to block a controversial coal mining project on a protected area in Mpumalanga headed to the Pretoria High Court last week. On day one of the hearing, the state got slapped down for its eleventh hour attempt to shift the boundaries of a protected area in an apparent attempt to side-step environmental objections to the Yzermyn coal project near Wakkerstroom in Mpumalanga.

On Friday October 12 the provincial MEC for mining published a notice signalling his intention to exclude the proposed coal mining area from the Mabola Protected Environment. The notice provides for a comment period of 60 days. On this basis the state argued the court hearing should be postponed. Judge Norman Davis wasn’t buying it, awarded punitive costs against the state, and ordered that the hearing go ahead.

Environmental groups challenging the plan to mine on an environmentally sensitive area believe this was an audacious attempt by the state to push through the mining project by governmental edict.

The case was brought by the Centre for Environmental Rights (CER), representing eight environmental groups seeking a judicial review to set aside the permission granted in 2016 allowing coal mining in a protected area given by former mines minister Mosebenzi Zwane and the late environment minister Edna Molewa.

Read: The war between environmentalists and coal miners in Mpumalanga 

The coal mining project has been mired in controversy, and has been the subject of multiple legal and administrative challenges by environmental groups. CER says this is a landmark case intended to establish a precedent for the conduct of mining companies operating in environmentally sensitive areas. It believes that if it loses this case, the door remains wide open for other mining companies to duck their environmental responsibilities and skimp on rehabilitation – something it says is already common practice.

The eight civil society organisations are challenging the decisions by various organs of state to authorise Indian-owned mining company Atha-Africa Ventures’ Yzermyn Colliery to commence mining. Part of the proposed coal mine sits atop a protected area. The CER argues that the damage to water resources from mining this area cannot be undone.

Atha-Africa argues that it secured its mining licence before Mabola was declared a protected area, and is also in possession of the requisite environmental approvals. CER says that’s not true: the protected area declaration was made in January 2014, nearly seven months before Atha’s mining licence was granted. The process was fraught with irregularities. The environmental groups lodged an appeal, after which the mining right was withdrawn and reissued by the minerals minister in April 2015.

Last year CER applied to the Pretoria High Court to freeze mining activity until such time as Atha-Africa had complied with various laws. It was decided that Atha-Africa would give environmental groups three weeks’ notice before mining commenced. One of the main concerns is that the R5.7 million budget allocated for mine rehabilitation is insufficient to remediate the likely damage from mining. Coal mining is notoriously damaging to underground water, resulting in acid drainage and contamination of underground water courses. CER says that by allowing mining in the area, a vital water source for several key areas feeding downstream farms and towns will be seriously impacted.

Atha is in possession of environmental authorisation and a water use licence, but both are contested: there is a judicial review pending against the environmental authorisation and a Water Tribunal appeal hearing continues this week in Pretoria.

In November last year, Mpumalanga environmental MEC Vusi Shongwe rejected an appeal by CER against the environmental impact assessment on the grounds that any potential environmental issues were manageable, and that the country has an ongoing need for thermal coal. The project is expected to create 600 jobs, but no indication is given how many will be local. During the mine construction phase, Atha says most skilled jobs will be filled by Indians.

In an apparent response to the multiple legal challenges against the mining project, this week Shongwe decided to shift the boundaries of the protected area by gazetting a notice to this effect. That could have solved the problem, but for the fact that the provincial government sprung this on the court just a day before the hearing. However, this would not have solved the issue of mining in environmentally sensitive areas, so any attempt by government to shift the boundaries of Mabola would likely have faced legal challenges from any number of objectors.

On the second day of the hearing, Judge Davis instructed Shongwe to file his own version of events on affidavit, rather than rely on an affidavit from the state attorney. Shongwe filed his affidavit, with CER filing a response.

Judgment in the case was reserved.

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The article skirts the issue, of course. Look around you. Try to name something that was not grown in the ground or extracted from the ground. You will have difficulty. Clearly mining plays a huge role in our lives as it supplies the raw materials that make living comfortably in the 21st century possible.

Now as much as I am in favour of free markets, there are cases when these break down, principally when there are externalities involved. This is where regulation is required. For example mining companies must not dump their waste water in the river systems as this would be an externality i.e. where the cost of the mining is borne by society and not the mining company.

Most people don’t understand that when the first sod is turned in a mining operation, this is preceded by a huge amount of expenditure via surveys, EIAs, consultants, drilling, assays, resource estimation, pit planning, permitting etc.

Now when it comes to regulation, this is the government’s responsibility. It is not that of environmental groups. If the state deems that a certain area will never be mined (for whatever reason) then no company will explore there. This is why there is no active exploration in Yellowstone National Park or Central Park NY for that matter.

The fact that this has come to this point is merely an indication of the ANCs inability to govern. The real question we should be asking is how the heck did this company reach this stage of the game? was it bribery and corruption or simply the usual ANC ineptitude. Maybe they were granted permission and a radical environmental group decides to close them down. If there is no skulduggery involved then the government has opened themselves (read taxpayer) to litigation by blocking this mine.

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End of comments.

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