GET AND CAWA’S SUBMISSION TO THE PORTFOLIO COMMITTEE FOR ENVIRONMENTAL AFFAIRS (PCEA) HLUHLUWE, KZN – 29 AUGUST 2014

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The Global Environmental Trust (GET) is a Non-Profit and Public Benefit Organisation, based in KZN, concerned about ensuring healthy and sustainable environments for present and future generations. Our focus has been on the Somkhele communities on the eastern boundary of the Hluhluwe-iMfolozi Park (HiP) where, since 2007, social and economic disruption by the Somkhele open cast coal mine continues to negatively affect people’s homesteads, livelihoods, health, rural economy, livestock and agriculture. More recently, in May 2014, GET and the Community & Wilderness Alliance (CAWA) an affiliation of 56 national and international organisations and interest groups, have raised serious concerns opposing the application for the proposed Fuleni coal mine. The mining lease area is a mere 40 metres from the south-eastern boundary of the famous iMfolozi Wilderness Area.

At the PCEA public hearings in Hluhluwe, on 29 August 2014, we are represented by Ms Sheila Berry, clinical/wilderness psychologist and community facilitator, who coordinates GET’s Subcommittee Opposing Mining Expansion (SOME).

Other members of GET/CAWA team accompanying Ms Berry are:

  • Mr Roger Porter, environmental specialist for GET SOME. Mr Porter worked in formal nature conservation for almost 40 years for Ezemvelo KZN Wildlife and its predecessor. In his capacity as Head of Conservation Planning, he made several submissions to the KZN Environment Portfolio Committee;

  • Mr Gednezar Dladla, a respected elder from the Somkhele community; and

  • Mr Phila Nzimande, an elected representative and spokesperson for Ocilwane village’s committee opposing the Fuleni mine.

While GET appreciates this opportunity to make a submission for consideration to the PCEA, we have found the tight time constraints of the notification period too limited to provide sufficient time to engage with all the CAWA organisations to get their input and comments. Consequently we have had to rely mainly on our own experience, knowledge and insights.

In terms of the PCEA’s objectives, the three key aspects GET will address are:

  • Sustainability for current and future generations and combatting poverty;

  • Climate change and GHGs from fossil fuel emissions and compliance with the United Nations Framework Convention on Climate Change (UNFCCC) agreements, in particular, calling for a halt to opening up new coal mines as sources of additional fossil fuel sources;

  • Rhino poaching and innovative approaches to deal with this threat and with Climate Change.

Before presenting our comments below, we would like to state our concerns that national and provincial government departments must uphold and strictly enforce its own environmental legislation intended to foster the well-being of its people, while protecting bio-diversity and preventing pollution, including reducing GHG emissions. Compliance with and the strict enforcement of our own laws is an essential first step for SA’s credibility in being able and willing to comply with international protocols. If not seen to do so, it makes a mockery of our engagement in discussions to develop an internationally legally-binding climate change agreement at COP20 in Lima and COP21 in Paris in 2015. We call on SA to set an example for all other developing countries by taking responsibility for its own citizens by placing paramount importance on the protection and health of our environment through ensuring compliance with regulations and conditions of authorization by developers and industry.

GET and CAWA wish to raise the following seven points:

  1. Environmental damage arising from coalmines in rural areas in Zululand and consequences fora sustainable future

Over the past 6 years, through GET’s engagement with the Somkhele communities we have identified extreme social and environmental damage directly associated with the Somkhele mine, as well as the strong link between coal mining in rural areas and increasing poverty, compromised health, and unsustainable livelihoods in the affected sub-region. We are also aware of how these communities have been kept largely uninformed about the legal processes the mine is required to follow and the adverse implications of industrial mining development. They have found themselves helpless victims of consultation processes intent on ticking the boxes of community participation and responsibility in order to get approval for the next mining application. The mine has also been associated with major social disruptions and social ills, including prostitution, illicit drug and alcohol dealing and abuse, criminality, gun-running, increased car hi-jackings, etc. Increasing numbers of strangers and associated levels of wildlife crime on the boundary of this protected area poses a high risk to rare species, such as rhino, by poachers.

Inevitably, the magnitude of these injustices and inequities has led to a growing awareness amongst these communities that they are becoming increasingly impoverished since the mine moved them off their land and broke promises of fair compensation, the provision of comparable living conditions, jobs, respect for their ancestors, etc. There are rumblings around HiP, a hotbed of violence not many years ago, that do not bode well for the area.

A second Marikana would be a tragedy South Africa (SA) cannot afford. Ultimately, it is up to the government to level the playing field by strictly enforcing and amending SA’s current environmental laws and policies.

The government also needs to ensure that mining companies and funders implement global best mining practice guidelines on corporate responsibility that take into account and shows concern for the quality of life of people on the ground, especially those directly affected by mining, who bear the real costs of these operations.

  1. Environmental damage to Protected Areas arising from adjacent coal mines

Natural areas rich in biodiversity are recognised as vital carbon sinks that assimilate and fix GHGs. PAs are the most valuable carbon sinks we have, worth trillions of Rand for the valuable functions they perform and the ecosystem services they provide including clean water, air, biodiversity, etc, offering recreational opportunities and spiritual renewal for millions of local and foreign tourists every year. These values have yet to be fully appreciated by government so that inappropriate developments and activities e.g. industrial mining, are prohibited within their buffer zones.

Damage, which may be irreparable to protected areas, arises from acid-mine drainage, fall-out of toxic dust, pollution of surface and ground water. Nature-based tourism is also adversely affected by noise including blasting, light pollution and dust. Importantly, Africa’s first designated Wilderness Area and a sacred place for the Zulu people since the time of King Shaka would be severely affected by the proposed Ibutho Coal Mine. The impacts of frequent high intensity vibrations arising from blasting are unknown for sensitive species, such as elephant and rhino. The precautionary principle would therefore need to be applied.

For these reasons and those outlined in para. 1., GET and CAWA are strongly opposing Ibutho Coal’s proposal for the Fuleni open cast coal mine.

  1. Concerns about government’s capacity, ability and commitment to apply SA laws

GET’s recent involvement with the Rio Tinto owned, Zululand Anthracite Colliery (ZAC) on the western boundary of HIP, leaves us with no confidence in the DAEA’s capacity to monitor coal mines and enforce compliance with regulations and mining license conditions. Regular compliance inspections are essential in preventing or avoiding negative impacts on critical ecosystems, ecosystem services essential for the poor, and vitally important natural resources, particularly water, soil and air.

For example, in June 2014, GCS Environmental Consultants reported that, over an eight year period, ZAC had repeatedly undertaken unlawful activities and broken laws intended to protect the environment and prevent pollution. The meagre administrative fine of R497 000 that ZAC paid before the damage of these illegal activities had been investigated and a phoned through request from DAEA for rectification shocked people in SA and abroad, and resulted in an appeal being lodged by the Centre for Environmental Rights (CER). These penalties send the clear message to other mining companies that non-compliance with environmental legislation is easier, quicker and cheaper than compliance with the required laws. This, in addition to DAEA’s inefficiency in picking up on ZAC’s non-compliance, a mine on the western boundary of HiP with the potential to permanently destroy sensitive areas high in biodiversity that are of national and international value and importance, raises serious questions, concerns and doubts about the capability of the DAEA to exercise its duties and responsibilities.

Such gross negligence of duties and responsibilities, and Departmental inefficiencies, which reach the international media, surely give the perception that SA is paying mere lip-service to the UNFCCC and the Sustainable Development Goals (SDGs). One would hope that SA would be honest and can be trusted by the international community when it comes to global environmental matters of such grave consequence. Only government can rectify environmental abuses and disregard of the laws of this kind.

GET and CAWA endorse and support The Bench Mark Foundation call on government to:

  • place a moratorium on all current licence negotiations so as to investigate, by means of a commission of inquiry, legal and regulatory compliance in the negotiation processes and to weed out possible corruption, as well as to ensure that mining companies comply with national and international laws, regulations and codes;

  • apply government mining, water and environmental laws and regulations strictly for mining companies with mining licences at a particular mining site, and ensure compliance across the entire life of the mine;

  • take the threat to water and food security posed by coal mining seriously. The loss of top soil in particular is of grave concern, and noting that South Africa is one of the most water scarce countries in the world, the destruction of surface and groundwater systems through mining needs to be halted forthwith and reversed where possible.

  • heavily fine violations of government law sand regulations where mining houses act in defiance of such national laws and regulations, as well as in defiance of international treaties, guidelines and codes of conduct when such mining companies disregard basic and meaningful communication with local communities across the life of mine. Where there is serial noncompliance, licences should be withdrawn;

  • replace voluntary principles with statutory and legally binding regulations and obligations as far as mine impacts are concerned. It is clear thatvoluntary principles have minimal impact. (Policy Gap 9 SOUTH AFRICAN COAL MINING: Corporate Grievance Mechanisms, Community Engagement Concerns and Mining Impacts September 2014. pp. xvi-xvii)

  1. Climate Change in SA and open cast coal mining

Despite the fact that coal mining and the burning of fossil fuels are the main sources of air pollution and GHGs in this country, SA has opted to continue with coal-fired power stations as our preferred source of energy. The Pietermaritzburg-based NGO, GroundWork, a strong member of CAWA, is working in Mpumalanga, particularly the Nkangala District including Witbank (eMalahleni) and Middelburg (Steve Tshwete) and reports significantly high levels of air pollution and other serious impacts of people’s health and well-being. Most young children suffer from one or other respiratory disease and the pollution of rivers and groundwater in the area is cause for growing concern. As yet, the costs of these impacts are not being borne by the power stations or the coal-mining companies.

GET agrees with the Bench Marks Foundation that“the ill health caused by air pollution on the part of mining energy corporations violates the right to clean air as enshrined in the Constitution, section 24 of the Bill of Rights. In addition, various studies have confirmed that the dependence on coal for black empowerment and our energy needs ignores the devastation to human health coal causes. The combustion of coal in various international studies confirms that it affects the pulmonary development, increases the risks of cancers, stroke and heart attacks as well as chronic lower respiratory diseases. The widespread occurrence of such diseases is not a natural event and must be stopped, and the polluters must pay for making people sick. This is in line with the ‘Polluter Pay Principle’. Furthermore, the department of health must do an indepth health investigation and hold the perpetrators to account. Communities must have recourse to justice.”(op. cit. p. xvi).

Furthermore, GET and CAWA support the Bench Marks Foundation’s recommendation that the Department of Environmental Affairs and the Department of Health cumulatively hold coalmining corporations accountable for air pollution, emissions and dust particulate impacts on communities in the coal mining areas of South Africa.

SA continues to use low grade coal to fuel our power stations, which is a major contributor to the high GHG emissions and impacts on people’s health as described above. Instead we export our cleaner high energy coal thus emptying the country’s coal reserves for short term gains and profits of mining companies – no consideration being given to present and future energy needs. High quality energy sources should preferably be used on-shore in order to significantly reduce the country’s GHG emissions, reduce air and water pollution and its impacts on human health. Also, this will reduce the frequency of maintenance (often resulting in load-shedding) of coal-fired power stations.

The sale of electricity to big industry at substantially low prices is not affordable to the country and has significant adverse repercussions such as load-shedding and higher GHG emissions. All these contracts must be re-negotiated, and if necessary cancelled. We hold the view that it is not big industry that needs government incentives such as subsidies on electricity, but rather that of small and medium size industry and manufacturing.

  1. Flawed Environmental Management System

GET views the current environmental management system, which houses decision-making powers relating to the promotion of mining as well as adoption of Environmental Management Plans within the Department of Mineral Resources (DMR), as one of the main contributors to the growing environmental problems in this country e.g. escalating GHG emissions. DMR are therefore both player and referee!

It makes no sense for the SA government to be entering into discussions to sign internationally binding agreements to reduce our reliance on fossil fuels while the Department of Mineral Resources is being given the authority, through the Minerals and Petroleum Resources Development Act (MPRDA) Amendment Bill, to fast-track the authorisation of the most polluting sector in this country. Many view this Bill as unconstitutional and it is likely to be challenged in the Constitutional Court.

Political interference within Environmental Affairs and Department of Mineral Resources, favouring big business at local and national level, has been such as to compromise our natural and social environments.

If the SA government, through the PFEA, is serious and committed about reducing the burning of fossil fuels in SA and consequently our GHG emissions, then instead of making it easier to obtain a coal mining licence, rigorous environmental, social and economic conditions need to be put in place to ensure that our environmental laws, our Constitution and our Bill of Rights are adhered to. To do this Environmental Authorizations/EMPs for all mining in SA must be sole responsibility of DEA, without exception and not the DMR.

It has been our experience that I&APs in the private sector are at a considerable disadvantage in providing comment on development applications to both the applicant and to the authorities when participating in the EIA process. They are constrained by lack of financial resources and have to resort to fund-raising and undertaking professional work pro bono. This against the powerful, well financed and resourced applicant that is able to pay consultants for ‘sweetheart’ reports in favour of their application for development. Given the capacity of DAEA and that applicants are in a position to employ legal counsel to get their way, they invariably receive a positive Record of Decision that ultimately results in damage and adverse impacts on both the social and natural environments. The environmental authorization field is far from fair especially for those I&APs that have real concerns and bear the environmental costs at the end of the day!

  1. GET and CAWA recommend:

  • The establishment of an independent Environmental Protection Agency (possibly in line with the principles of the Public Protector’s office) to undertake the duties and responsibilities for all environmental authorizations for listed activities under NEMA in SA, including mining and prospecting authorizations. The current EIA process, where the applicant pays the Environmental Assessment Practitioner (EAP) to employ “independent specialists”, opens itself to abuse and the production of “sweetheart” reports that inevitably support the application, regardless of the extent of the environmental impacts. In light of our recommendation for an EPA, government policy needs to address this disingenuous matter urgently, without any further delay, as government’s environmental policies are considered to be seriously deficient in this regard.

  • The establishment of a fund paid for by the mining industry to enable communities affected by or about to be affected by mining, to have access to experts and to legal resources. This fund should also provide funds for cash strapped NGOs, like GET, GroundWork, etc. working tirelessly to ensure environmental and social justice.

  1. Rhino protection

Minister Edna Molewa, of Water and Environmental Affairs, announced that at the next Convention on Trade in Endangered Species (CITES) meeting, in 2016, in Cape Town, the SA government will table a proposal to allow SA to undertake international trade in White Rhino horn obtained from natural mortalities. The CEO of Ezemvelo KZN Wildlife (EKZNW), Dr Bandile Mkhize, has long been an advocate for lifting the ban on rhino horn trade as an important instrument in the fight against the illegal rhino horn market and a way of contributing additional much-needed funding of increased law enforcement measures for the conservation and the protection of the national herd of rhino in SA. Given the absence of an economic instrument in the fight for the protection of the species against rampant poaching, organized and orchestrated by international syndicates, the importance of such an additional and complementary mechanism is gaining support. However, several key points need to be addressed:

  • Who exactly will SA trade with?

If the ban is lifted, then both SA and the selected Far East countries will have to change their laws to allow for the export and importation of rhino horn from SA. This amendment to legislation takes time, time that we do not have, given the on-going slaughter of rhino. Consequently, it is imperative for the SA government immediately to open up bilateral negotiations with far eastern countries to allow for future trade by ensuring all the checks and balances are in place that would prevent illegal horn from entering the market and close loopholes to prevent abuse of the system.

  • What control mechanisms are being put in place to ensure legal horns are traded?

Of critical importance is the establishment of a central Rhino Horn data base (e.g. at Onderstepoort Veterinary Institution) that will store all relevant information on every White Rhino horn offered for trade. Each horn must be micro-chipped and the data of its origin, cause of death, and ownership logged. The horn also needs to be analysed for DNA and its isotopes, and these data entered on the data base.

  • To what extent will neighbouring communities benefit from the trade?

In instances like the situation at HiP, communities have lodged successful land claims. As such they are land owners of parts of a protected area and so have rights and certain benefits for that land. GET and CAWA would argue therefore that benefits from the sale/auction of rhino and possible future rhino horn sales should also extend to neighbouring communities. Importantly communities, in particular those adjacent to PAs, should be in a position to support these places. It is our contention that until the full benefits derived from our protected areas are valued by government and equitably shared with neighbouring communities, we will continue to have situations arise where coal Until neighbouring communities and politicians become fully aware of the real value of our Pas – areas high in biodiversity and rich with wildlife that provide free ecosystem services in addition to their ecotourism value – our irreplaceable parks will remain under the constant threat of coal mining companies that come in and try to buy the neighbouring communities through false promises. Given the purpose of these public hearings, it is a sad irony that this should be the case.

Thank you for giving GET and CAWA the opportunity to present our submission.

29 August 2014

Contact details of contributors present at the Hluhluwe public hearings:

Sheila Berry sheila.bee@gmail.com 0822957328

Roger Porter roger.n.porter@gmail.com 0829084888

Phila Nzimande philaa.ndimande@gmail.com 0745783004

Mr Gednezar Dladla 0766123345

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