THE FULENI VS IBUTHO COAL MATTER: A LEGAL PERSPECTIVE

The application we are opposing has been made by Ibutho Coal (Pty) Ltd to the Department of Mineral Resources for an open cast coal mine in a rural Zululand community, on the border of the oldest Nature Reserve in Africa, the Hluhluwe-iMfolozi. The proposed mine is to be situated in the Fuleni area and will directly affect at least 7 villages, impact more than 1 600 households and between 12 600 and 16 000 people. Within these communities are areas of subsistence farming, homes, schools, clinics, graveyards, places of worship and areas of cultural significance.

The Fuleni area neighbours the famous Hluhluwe-iMfolozi Park, a premiere tourism destination and sanctuary for the threatened White Rhino. It is also an area rich in tradition and heritage for the Zulu people, where King Shaka lived as a boy with his Mthethwa uncle and grew into the formidable warrior that forged the Zulu nation. As a result, the matter has generated considerable local and international interest.

The Somkhele mine and affected Somkhele villages relocated by the Somkhele mine are adjacent to the Fuleni area. This community is encouraging the people of Fuleni to retain their land and strongly oppose the proposed mine that will cause severe ecological, social and economic damage. It has been a tough two year struggle since 2014 but local support within Fuleni for the anti-mining lobby is growing.

Support for community opposition to Ibutho Coal’s proposed Fuleni open cast mine over the past two years has included:
  • Exchange visits to Somkhele to experience first hand the impacts and devastation caused by an operating coal mine;
  • Filming an exchange visit to share the experience with the broader Fuleni community and other mining affected communities;
  • Flights over the area with the media, decision-makers and key community representatives to gain a birds eye view the vastness of Somkhele mine and its impact on the environment, the nearby pristine iMfolozi Wilderness area, and rural Fuleni homesteads with its tribal land that will be devastated by the proposed Fuleni mine;
  • Monthly coalition meetings and workshops to build solidarity and capacitate activists regarding the required EIA process and the Public Participation Process;
  • Including community representatives in meetings with the authorities;
  • Sponsoring attendance of community representatives at relevant local, provincial, national and continental mining related meetings/conferences;
  • Collaborating with professional actors to produce a docu-drama premiered in Fuleni that explored how a family is torn apart when a proposed mine moves into the village;
  • Facilitating the involvement of community representatives in finalising the Peoples Mining Charter and their attendance at the launch of the Charter in Johannesburg;
  • Organising a community video making workshop;
  • Financing the community organised Isolesizwe Film Festival, held in Fuleni in February 2016, with the theme No to Mining, Yes to Life, that premiered Sphiwe Mazibuko’s film “UnderMining Life: Activists Threatened in SA” together with community-made movies showcasing important traditional ceremonies and celebrations, and sustainable agricultural practices;
  • Conducting dialogues with learned elders to revive traditional farming and seed saving practices as ways to mitigate climate change – traditional crops are invariably more drought resistant and robust than commercially purchased seeds;
  • Supporting women and youth to let their voices be heard in the anti-mining struggle;
  • Providing assistance and support with documenting, photographing and filming important events for sharing and building a growing body of evidence;
  • Organising exchange visits with more experienced anti-mining communities like Xolobeni, who, for ten years have successfully opposed the mining of their titanium rich dunes, and Makhasaneni, near Melmoth, where Rev. Mavuso led the successful struggle against Jindal Africa that recently resulted in the company withdrawing its iron ore mining rights;
  • Assisting the Mfolozi Community Environmental Justice Organisation (MCEJO) a community based organisation (CBO) to develop a constitution, logo, banner and bookkeeping skills;
  • Capacitating the Ubumbano Youth Organisation (UYO) by providing opportunities for exposure in the local media and attending meetings and conferences related to land rights, mining issues,
  • Supporting WoMin in their recent participatory research project into the impacts of the Somkhele mine on water and agriculture, and the impacts this has on women and children. Representatives from Fuleni made an impact when they presented their research at a recent international women’s meeting in Swaziland.

The rich history and heritage of the Fuleni area offers many alternatives to the mining option and will provide sustainable livelihoods for residents, and diverse and interesting work opportunities, which include:

  • Small scale subsistence agriculture and large scale commercial farming projects, eg. Macadamia nuts, which thrive in hot, dry areas;
  • Certain areas are good for Nguni cattle and the rare East Coast fat-tailed sheep, which several farmers in the area still have;
  • Community goat farming project utilising fenced in camps to control and monitor over-grazing;
  • A Cultural World Heritage corridor that links the Zulu royal grounds in the south-eastern part of the iMfolozi Wilderness area and extending to the Valley of the Kings and Ulundi;
  • An annual traditional Zulu cultural fair that showcases Zulu dancing in traditional attire, local food, singing, and telling stories of the area, eg. why Shaka and his mother were sent to live with the Mthethwas, a highly successful kingdom at the time.
  • Making and selling traditional Zulu attire – a full outfit sells for R20 000. The work of a young woman, who is a member of UYO, is sought after and she is keen to teach her skills to other interested youth;
  • Run weekend and overnight school trails in extensive natural areas bordering on the iMfolozi Wilderness area;
  • In conjunction with Correctional Services and Usiko, use these areas as the context for a rehabilitation programme for young Zulu-speaking addicts, disconnected from their roots, their culture and their land.
  • The Umbumbano Youth Organisation has the goal of uniting the youth of Fuleni, the hope and the future leaders of our liberated country, and supporting talented and skilled individuals in fulfilling their dreams through quality education and by going the extra mile to acquire skills and utilize their talents to ensure Fuleni’s sustainable economic development.

Coalitions our Organisations are Associated With

  • Women Affected by Mining United in Action (WAMUA) – a coalition of community women across South Africa. (national network of community people)
  • WoMin – African Women Unite against Destructive Resource Extraction (regional network of non-profits)
  • MECA – Mining Environment and Communities Alliance. (national network of non-profits, communities and law clinics)
  • MEJCON – SA – Mining and Environmental Justice Community Network of South Africa (national network of affected communities)

The Legal Challenge – the Legal Issues and Relevant Legislation

Few cases have sought to explore the relationship between environmental and socio-economic rights, particularly from a legal angle, as much as this one. South African environmental case law overwhelmingly reflects a narrow definition of the environment that is not infused with social justice issues. The Fuleni matter deals with section 24 of the Constitution but also a range of socio-economic rights, including the right of access to food and water, the right to just administrative action, the right to property, in that no one may be deprived of property and property may only be expropriated for a public purpose or in the public interest and subject to adequate compensation, the right to sufficient food and water and social security as well as the right to access to information. This is a case of environmental justice in the true, integrated sense.

Lack of Water and Climate Change

The Organisation for Economic Co-operation and Development’s Secretary General is reported to have stated that: ‘Governments need to be seriously skeptical about whether new coal provides a good deal for their citizens… Coal is not cheap, due to the damage done by significant land disturbance, water contamination, [air] pollution, damage to ecosystems, and dust and noise pollution.’ In China, the cost of the health impact of air pollution – just from energy use – was $1.4-trillion in 2010 (R17-trillion in current prices)”.

It is proven that climate change impacts upon, and will continue to impact on, inter alia:

  • air quality, through the impacts upon weather patterns which will negatively influence criteria pollutants such as PM, SO2, NO2, ozone, carbon, monoxide, benzene and lead:[1]
  • human health, heat stress and increased natural disasters;[2]
  • biodiversity due to, for instance, loss of habitat resulting from increased temperatures and desertification;[3]
  • water resources due to changes in rainfall and evaporation rates, which will consequently impact upon agriculture, forestry and industry due to an increased irrigation and water supply demand;[4]
  • marine fisheries, due to changes in water flows and ocean temperatures;[5]

We are already witnessing these impacts in Fuleni, Somkhele and much of Zululand, Zululand already declared a Disaster Area because of the severe drought that has left communities and villages without a drop of water. Water availability is a severe climate change concern for South Africa. The White Paper confirms that “based on current projections South Africa will exceed the limits of economically viable land-based water resources by 2050. The adequate supply of water for many areas can be sustained only if immediate actions are taken to stave off imminent shortages.”[6]

The Environmental Impact Report (EIR) submitted by Ibutho Coal in its EIA process states[7] that “other indirect impacts may result from the emission of Greenhouse Gases such as methane and carbon dioxide” and yet fails to consider climate change implications as part of the report. This shows a lack of regard for the national climate change response policy and a disregard for the provisions of the Air Quality Act and the National Environmental Management Act (NEMA). It also shows a failure to consider the anticipated and fast-approaching impacts of climate change, in this particular instance, diminishing of water resources, which will, have a significant impact on proposed project, people living within the area, the adjacent Protected Area, downstream users and the iSimangaliso World Heritage Site.

Water is a major constraint with two mines already drawing water from and contaminating the stressed Mfolozi river. It is stated in the EIR that there is no viable water source: “The Mfolozi is a water stressed river, and it is unlikely that the Department of Water Affairs will grant a permit to abstract water directly from the river. From various geotechnical investigations it was shown that there is little likelihood of finding sufficient underground water. A desktop study revealed that the topography of the area did not lend itself to any viable or economic solution of off-channel storage utilising flood water from the Mfolozi River”. The lack of water is such a fundamental issue that any attempts to apply for prospecting or mining licences in these water-stricken areas should be prohibited by law.

Failure to Comply with the Law and Infringement of Human Rights

In terms of the Section 10(1) of the Mineral Petroleum Resources Development Act (MPRDA), within 14 days of accepting an application lodged in terms of section 16, 22 or 27, the Regional Manager must make known that an application for a prospecting right, mining right or mining permit has been received in respect of the land in question and call upon interested and affected persons to submit their comments regarding the application within 30 days from the date of the notice.

In order to grant the mining right the applicant must show, in terms of section 23(1) that:-

  1. the mineral can be mined optimally in accordance with the mining work programme;
  2. the applicant has access to financial resources and has the technical ability to conduct the proposed mining operation optimally;
  3. the financing plan is compatible with the intended mining operation and the duration thereof;
  4. the mining will not result in unacceptable pollution, ecological degradation or damage to the environment;
  5. the applicant has provided financially and otherwise for the prescribed social and labour plan;
  6. the applicant has the ability to comply with the relevant provisions of the Mine Health and Safety Act;
  7. the applicant is not in contravention of any provision of this Act; and
  8. the granting of such right will further the objects referred to in section 100 and the prescribed social and labour plan.

In flagrant disregard for the law, there was no consultation at all in the application and granting of the two consecutive prospecting licenses to Ibutho Coal. The existence of the prospecting right (ref no KZN311PR) granted to Ibutho Coal in or around 2009 and 2012 respectively was only made known when the mining rights application was accepted in January 2014 (Ref No 30/5/1/2/1/10045 MR) and a Draft Scoping Report was made available to the public in March 2014 during the EIA process.

In terms of section 16(4)(b) of the MPRDA, it necessary to notify in writing and consult with the landowner or lawful occupier and any other affected party within 30 days of acceptance of the application for a prospecting right by the Regional Manager.

The landowner in this instance is the Ingonyama Trust Board (ITB) and His Majesty, the Honourable King Goodwill Zwelithini, who is a Trustee of the ITB, holds the land in trust for the “benefit, material welfare and social well-being of the members of the tribes and communities” living on the land. Families living on trust land have inheritable land rights akin to real rights with the Trust having made statements that refers to families as the “true owner” of the land whose association with the land “is permanent and perpetual”. In March 2014, when our clients became aware of the prospecting right, it was apparent that the ITB and the community were unaware that there had been prospecting taking place on their land for over 5 years. Members of the community thought the activity was “the government building roads for us”. No surface lease agreement has been entered into between Ibutho Coal and the ITB.

Two applications for a mining rights authorisation (that we are aware of) were submitted to the Department of Mineral Resources (DMR) in January 2014 and 2015 respectively. Despite repeated requests (both through correspondence and through PAIA) for access to the application and supporting documentation, we have not been given the requested documentation from either Ibutho Coal or DMR. This is a contravention of our rights in terms of the Promotion of Access to Information Act, the Promotion of Administrative Justice Act and the Constitution. For all we know, a further application has been submitted in 2016 that we have not had the benefit of being informed about.

The right to access to information and the right to just administrative action continue to be contravened in the application process. The 16 000 people who will be affected by the mine cannot obtain information asked for, cannot ask questions without being threatened, cannot get the various government departments to take their concerns seriously and have suffered administrative action that is unlawful, unreasonable and procedurally unfair.

Quite obviously section 23(1)(g) is not complied with. It is impossible to comment on whether the other requirements of section 23(1) have been complied with as we have not had the privilege of seeing a copy of the mining rights application. We therefore have no idea to what extent the applicant has the financial or technical capacity to conduct mining, what their BEE structure is and the extent to which it meets the requirements of the mining charter, and how the community is supposed to benefit under the social and labour plan. Failing to provide us with a copy of the mining rights application contravenes section 10.

As a consequence of the Constitutional Court judgment in Bengwenyama Minerals (Pty) Limited v Genorah Resources (Pty) Limited, Minister for Mineral Resources & Others, it is a requirement that the applicant consult with all interested and affected parties. At paragraph 66 of the judgment it was held: “consultation is to provide owners or occupiers with the necessary information on everything that is to be done so that they can make an informed decision in relation to representations to be made…”because “the granting and execution of a prospecting right represents a grave and considerable invasion of the use and enjoyment of the land on which the prospecting is to happen.”

The consultation requirements specified in the judgment are set out in the DMR’s own Guideline for Consultation with Communities and Interested and Affected Parties and include the requirements to inform the landowner:-

  1. in writing;
  2. in sufficient detail of what the prospecting operation will entail on the land;
  3. with a view to reach an agreement in regard to the impact of the proposed operation.

In Alexkor Ltd v The Richtersveld Communitythe Constitutional Court held that an essential element of the community’s rights over the land and resources was their right to consent to the entry of others onto their land and to outsiders use of their resources. The people of the Fuleni community hold informal rights to their land in terms of the Interim Protection of Informal Land Rights Act and consent from all these landowners is required prior to the granting of a mining right.

While it cannot be substituted for the consultation required in terms of the MPRDA, Ibutho Coal has engaged with some Interested & Affected Parties (I&APS) as part of its environmental authorisation process. While the EIR provides no definition of “engagement”, ‘consultation’ is defined as “a two way communication process between the applicant and the community or interested and affected party wherein the former is seeking, listening to, and considering the latter’s response, which allows openness in the decision making process”. This is part of the definition of “participation” but fails to include the important converse:- that being to provide relevant information and adequate responses to questions from the communities/IA&Ps. While there is evidence of select information being sought during the Public Participation Process (PPP), there is little evidence of providing relevant requested information to the communities and I&APs during the PPP as it has been conducted to date. This contributes to the inadequacy of the public participation in this particular instance.

Ibutho Coal has made no effort to identify the customary law owners and lawful occupiers who will be directly affected or displaced by the proposed mining, much less to engage specifically with the owners and/or occupiers regarding the impact of the proposed activity on their lives and the harm that they will inevitably suffer. The community has no information on any aspects of the mining activity including but not limited to:-

  1. identification of the households that will be physically displaced;
  2. proper identification of the mining rights area as compared to the area over which the EIA has been prepared;
  3. identification as to where anticipated roads, powerlines, dams, mining housing and/or the village and other infrastructure will be situated;
  4. identification of, engagement with and consensus reached between all persons to be affected by the proposed activity;
  5. identification of agricultural and grazing areas to be removed and/or affected;
  6. identify how livelihoods will be lost;
  7. information on the proposed area for relocation and how the displaced people will be accommodated;
  8. disclosure on the type of harm that will be suffered as a result of the proposed activities;
  9. details regarding the compensation that will be given for the economic, physical and psychological harm that will be suffered;
  10. information as to how the lost livelihoods (for each of those affected) will be restored;
  11. disclosure on how the social impacts associated with the proposed mining activities will be mitigated or redressed;
  12. identification of schools, clinics and places of worships to be relocated and where they will be relocated to;
  13. identification of graveyards to be relocated and details as to how they will be relocated in a respectful manner unlike the travesty that exists at Somkhele where the majority of bodies exhumed by the mine have been reburied in makeshift, unnamed graves;
  14. the cost/benefit exercise where it can be shown that this is a financially feasible operation that will advance the social and economic welfare of all South Africans having due regard to the cost of relocation and the cost of compensation for socio-economic loss, health impingement, loss of land (including the iMfolozi Wilderness Area), loss of water, loss of food, loss of quality of life, loss of traditional structures, removal and relocation of graves, clinics and schools, loss of livelihood and psychological harm.

The following principles of NEMA[8] outline the basis for a Social Impact Assessment:

  • Environmental management must place people and their needs at the forefront of its concern, and serve their physical, psychological, developmental, cultural and social interests equitably[9].
  • The participation of all interested and affected parties in environmental governance must be promoted, and all people must have the opportunity to develop the understanding, skills and capacity necessary for achieving equitable and effective participation, and participation by vulnerable and disadvantaged persons must be ensured[10].
  • Decisions must take into account the interests, needs and values of all interested and affected parties, and this includes recognising all forms of knowledge, including traditional and ordinary knowledge[11];
  • Community well-being and empowerment must be promoted through environmental education, the raising of environmental awareness, the sharing of knowledge and experience and other appropriate means[12];
  • The social, economic and environmental impacts of activities, including disadvantages and benefits, must be considered, assessed and evaluated, and decisions must be appropriate in light of such consideration and assessment[13];
  • Decisions must be taken in an open and transparent manner, and access to information must be provided in accordance with the law[14];
  • The environment is held in public trust for the people. The beneficial use of environmental resources must serve the public interest and the environment must be protected as the peoples’ common heritage[15]; and
  • The vital role of women and youth in environmental management and development must be recognised and their full participation therein must be promoted[16].

The impression created in the EIR is that the PPP takes into account the International Standards, National Legal and Policy Framework (pp. 13 to 30) relevant legislation, policies, plans etc., and applies best PP practice and principles. However, a review of the EIR reveals a grossly inadequate and seriously flawed PPP for inter aliathe following reasons:

  • Only five (5) community meetings have been held during the Scoping (4) and EIA (1) phases.
  • The number of communities affected by this project, keeps increasing with the current number being given as seven communities, namely Ocilwane, Novunula, Ntuthunga 1, Ntuthunga 2, Fuyeni, eMakhwezini, and Enhlabosini.
  • The total number of people does not take into account the households outside the Mining Rights Area (MRA) along the transportation route from the MRA area to Richards Bay Coal Terminal.
  • Other villages outside of the MRA area that are identified in the EIA application are the villages of Ncutsheni, Gegede and Oshwashweni. It is unclear whether these communities will be affected by the transport route or by the construction of the proposed storage dam.
  • Of the estimated 16 000 people who are likely to be directly affected by the mine, it is unlikely that more than 700 Fuleni residents have attended a Public Participation meeting.
  • There has been little attempt to provide “sufficient, accessible information to allow meaningful contributions” and to make informed decisions about life-changing events. It is worth noting that for the Scoping Phase, all the available materials and information associated with the PPP was in English not Zulu an omission that was noted and challenged by the community. During the EIA phase the information translated into Zulu and available for distribution at PP meetings was so highly technical and complex as to be irrelevant in an informative and capacitating role.
  • Three well-attended meetings had to be terminated early, the underlying reasons being the people attending these meetings were of the view that the applicant has been dishonest in its dealings from the start and are still disrespecting the communities, resulting in mistrust of the applicant and its team.
  • The meeting in Ntuthunga 2 (Siyomomane PS) on 21 September 2015, was attended by about 80 very hostile residents who refused to sign the attendance register but drew up their own. Three issues recorded in the Minutes are pertinent in showing the reasons for the lack of trust and the hostility amongst the Fuleni community members: (i) They are aware corruption has taken place from the very start of the project; (ii) their requests and questions have not been taken seriously enough to be responded to; and (iii) they lack trust in the Environmental Assessment Practitioner and members of her team, including local residents employed as “enumerators” for the household survey, who they feared would alter and misrepresent their answers.

The objects of the MPRDA are to, inter alia:-

  • s2(d):  substantially and meaningfully expand opportunities for historically disadvantaged persons, including women and communities, to enter into and actively participate in the mineral and petroleum industries and to benefit from the exploitation of the nation’s mineral and petroleum resources; and
  • s2(f): promote employment and advance the social and economic welfare of all South Africans; and
  • S2(i): ensure that the holders of the mining and production rights contribute towards the socio-economic development of areas in which they are operating.

There is nothing in the proposed Fuleni project that could satisfy any of the abovementioned requirements. It is safe to say that mining in this rural area will create the hardship and devastation it has in the Somkhele and Marikana precedents. Subsistence or commercial farming would be destroyed, removed or rendered useless, community rituals and practices lost and tracts of available plant life for the cultivation of indigenous plants, destroyed. The relocation of graveyards would mean the disturbance of burial sites thereby causing the disruption of or breaking links to ancestors. It is well understood that in terms of livelihoods and the health of the community, the co-operation of the ancestors is crucial.

The social welfare of the local community already suffers dramatically from the proposed project with all those opposed to the mine, who are unable to find a safe platform to raise their objections, being intimidated, defamed, sidelined and threatened with death. The community is in turmoil – anxious about the possibility of being relocated, having their rural livelihood taken away from them, having their already limited access to water removed and/or polluted, having their health threatened, having their access to communal property removed and having their lifestyles ruined without even the benefit of a proper and thorough informative discussion regarding the project, its implications and the realistic aspects of living anywhere between 500 metres and 2 kilometres from an open-cast coal mine.

The proposed mining activities are likely to have a significant impact on the way of life of 16 000 people. These impacts are likely to include:-

  1. The displacement of approximately over 1 000 people from 7 villages including, their cultivated land and/or communal grazing land;
  2. The loss/pollution/depletion of the fresh water resources on which households and livestock depend;
  3. Loss of food security through removal of land used for subsistence/communal farming;
  4. The loss of access to communal resources such as firewood, wild plants and building materials;
  5. Social impacts associated with the influx of outside employees, job seekers and infrastructure with the likely impact of increased crime and spread of diseases;
  6. The breakdown of traditional and/or cultural norms and practices;
  7. Deprivation of use and occupation rights;
  8. Loss of schools, clinics and places of worship;
  9. Severe impact of health and emotional wellbeing associated with coal dust, incessant noise, stress and pollution related to open cast coal mining.

The Constitution is the supreme law of South Africa – law or conduct inconsistent with it is invalid and the obligations imposed by it must be fulfilled. In regarding the application before it, the Department is obliged to consider the Bill of Rights, specifically the right for everyone to have their dignity respected; the right to an environment that is not harmful to their health or well-being; the right to property, in that no one may be deprived of property and property may only be expropriated for a public purpose or in the public interest and subject to adequate compensation; the right to sufficient food and water and social security. ALL of these rights will be unjustifiably infringed upon if the proposed mining rights authorisation is granted.

In the past year there have been over 15 000 service delivery protests in South Africa – chiefly related to the inability of the government to provide water. By considering a mining rights application in a drought-stricken area where the people have no access to municipal water and rely on the natural water resources of the area, is tantamount to depriving the community of water altogether. Granting mining rights in the iMfolozi catchment will effectively deprive the whole community of their basic, fundamental human right to water. In the event that this mining right is granted, it will be necessary to appeal such a decision and ultimately take the decision on review.

The principles of the National Environmental Management Act are binding on all organs of state. Of relevance to this application, not only must environmental management place people and their needs at the forefront of its concern and serve their physical, psychological, developmental, cultural and social interests equitably but that development must be socially, environmentally and economically sustainable. The proposed project cannot show any of the above and accordingly, should mining rights be granted to over the Fuleni Reserve, such a decision will ultimately be reviewable.

This is a winnable case as we have been building solid evidence for two years that will show that DMR has been failing in its duties in allowing the application to get as far as it has. With no water in the proposed mining area and a Protected Area on the border of the mining rights area we are able to show that tourism, wildlife and the economic benefits thereof will be far more sustainable and in the interests of all South Africans (not just a select few) indefinitely. Mining will be short-lived, economically unviable and will benefit less than 200 people. We will also be able to show that the rights set out in the Bill of Rights will outweigh any justification for mining that Ibutho Coal may put forward. We are able to show that Ibutho Coal has not adequately complied with the legislation and hope to set a precedent in how consultation should take place in these kind of applications in the future to prevent similar circumstances arising in other applications where rights are granted without proper consultation and EIA processes are simply ‘tick-the-boxes’ exercises without any meaningful community engagement.

With our formidable legal team, this case will set an exciting precedent of environmental AND social justice, integrating environmental and socio-economic rights.

Footnotes

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