Legislative Jigsaw Puzzle Undermines Rights of Communities Affected by Mining Pollution

By Gillian Schutte · 27 Jan 2014

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Picture: Discharge of untreated acid mine water in the West Rand courtesy John Wesson/Centre for Environmental Rights.
Picture: Discharge of untreated acid mine water in the West Rand courtesy John Wesson/Centre for Environmental Rights.

Brown issues, in environmental jargon, refer to the environmental impact of pollution on communities living in the ambit of big industry. This is the very issue that has been highlighted by the recent Kagiso Extension 1 community uprising against the Mintails gold mining operation on the West Rand of Gauteng. Mintails, an Australian owned company, has been practicing opencast mining and blasting only 100 meters from people’s homes in Kagiso, which, the community say, has resulted in dust pollution, structural damage to their homes, uranium contaminated water and untenable noise pollution.

The outraged community has been protesting this blasting for weeks, first in the form of petitions and then by taking to the streets in a concerted effort to have their concerns heard.  They are frustrated at the lack of empathy from the Department of Mineral Resources (DMR), who, they say are on the side of the investors. Minister of the DMR, Susan Shabanugu, in a community meeting, told the residents that there were no legal reasons why the mine should be closed down -- a statement that elicited a few days of unrest and protest action in the area. Days later she conceded to the court interdict from Mogale City to temporarily close the mine for further inspections. 

But many of the Kagiso Extension 1 residents say they are not buying this. They perceive Shabangu’s turnaround as a move by government to cover its tracks and sow division within the community.  They say it is mere electioneering and that they want the mine closed completely, not temporarily. It is a struggle that is a long way from resolved and protest leaders say that the legislative jigsaw puzzle they are forced to navigate to bring the mining operation to a halt is a logistical and expensive nightmare.

One would think that this community could report directly to the Department of Environmental Affairs regarding the severe health impacts and environmental damage the mining is wreaking upon their lives and surrounds.

The National Environmental Management Act (NEMA) legislation actually protects people’s environmental rights and there have been a few achievements where communities have successfully shut down factories that have had a negative impact on their health and environment. Over the past few years the Department of Environmental Affairs’ environmental policing arm, known as the Green Scorpions, has become a force to be reckoned with and has been successful in fining industry in the millions when it does not comply with this legislation. The Green Scorpions have also, in some cases, managed to shut down industries that do not comply with regulations set out in NEMA.

But it is communities that live close to mines that have the hardest time seeing environmental justice from the mining sector as, unlike other business sectors, the DMR has always policed the mining sector itself in terms of environmental regulations. 

Historically, mining has always been governed by its own act of parliament. What this means is that mining is the mandate of the DMR. They use the Mineral and Petroleum Resources Development Act (MPRDA) to police environmental transgressions in the mining sector. The Green Scorpions have no jurisdiction in mining areas unless a listed activity in terms of NEMA is triggered.  The Green Scorpions can respond to complaints about dust off-site, but must contact the DMR if enforcement action in a mining area is required.

There are proposed amendments to the MPRDA that will bring mining under the jurisdiction of NEMA. However, the environmental aspects of mining will still be authorised and monitored by the DMR, rather than the Department of Environmental Affairs under NEMA and not under the MPRDA. This means that the DMR will still have its own inspectors that monitor mines, a weakness which organisations such as the Centre for Environmental Rights have argued is calamitous and inadequate in terms of environmental rights for citizens and the environment.

David Van Wyk of mining watchdog organisation, the Benchmarks Foundation, says that this environmental policing of its own sector by mining is just not good enough. “South Africa is responsible for 98% of Africa's air pollution, and 88% of Africa's waste pollution. Most of this emanates from the mining industry. The air pollution footprint of mining is huge and emanates from the massive consumption of coal fired electricity, from smelters and from the air cooling systems the mines use for making it possible for humans to work deep underground. We have found that mines serially exceed air pollution limits set by the Department of Environmental Affairs with no consequences. “

Benchmarks research also shows that World Health Organisation limits on carbon dioxide and sulphur dioxide and dust emissions are far more stringent than those set by the South African authorities. Their research also reveals that it is common for mining companies to circumvent environmental impact assessment requirements and community consultations.

At the same time, problems such as acid mine drainage and the seeping of uranium into water, fall under the jurisdiction of the Department of Water Affairs.  Benchmarks research has found that although mines generally require a Water Use License so that the Department of Water Affairs can police mining operations in terms of the National Water Act for water pollution, mines, in fact, often operate without water licences.

In the end then, communities fighting environmental transgressions have to take up the matter with at least three different government departments. This often frustrates the process and costs time and money. It is also confusing for community members to know which department is responsible for what.

Finally, mining is also subject to planning legislation such as zoning so municipalities can enforce land use regulations in mining areas. The question then becomes, how is this Mintails Mining operation functioning on land that was zoned for housing? How did they get away with this rezoning?

Obokeng Moiloa, a resident and Youth League leader in Kagiso Extension 1, Mogale argues, “It is clear that there has been money passing hands in our local government and municipality. They have granted these licenses to this mine without proper consultation and without public participation. They have flouted all the legislation that is in place to protect communities such as ours. If this is so easy for them to do then it means we have no recourse as South African citizens ever and this is not good enough. People must be fired and this story must be exposed. We are demanding that Mogale Mayor, Calvin Koketso Serane, is removed from his post. If Minister Shabangu allows this mining to continue here then it means she is part of the problem and should also be fired.”

Similarly Van Wyk argues, “We believe that the core function of DMR is to promote mining, therefore it cannot possibly manage the negative environmental and social costs of mining as that would defeat its core objectives. Clearly that should be the responsibility of Environmental Affairs.”

The Kagiso Extension 1 community struggle is a struggle that speaks of a community that has been established for many years in one location, suddenly having its member’s lives ripped asunder because some foreign company has figured it can make billions from resource extraction. It speaks of the utter disregard for people by a government that is more interested in personal profiteering than the negative impact that this business will have on the lives and livelihoods of those living in close proximity to a mine.

Schutte is an award winning independent filmmaker, writer and social justice activist. She is a founding member of Media for Justice and co-producer at Handheld Films.

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Rory Verified user
31 Jan

Who Should Look after the Environment?

Looked at objectively it is absolutely insane for the DMR to be solely responsible for policing the environmental impact of mining operations. It is equivalent to putting the management of a liquor store in the hands of a known alcoholic. This responsibility must be removed from the DMR.

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