Centre for Environmental Rights – Advancing Environmental Rights in South Africa

2016 has been one of the most eventful years in the Centre’s history. In this review, we reflect on our achievements and challenges over the past twelve months, consider some of the key events that shaped our work, and look ahead to what we expect in 2017.

Victory: Improved voluntary disclosure of environmental information

After a longstanding campaign by the CER and other civil society organisations for automatic, online public access to environmental licences and compliance data, both the Departments of Environmental Affairs (DEA) and Water & Sanitation (DWS) announced in 2016 that they would make all licences available to the public automatically and without the need for requests in terms of the Promotion of Access to Information Act (PAIA). In the case of the DWS, this includes compliance and audit reports. In September, we asked the Department of Mineral Resources to follow suit, but to date they have not done so. In 2017 we will continue to work towards automatic, online public access to all environmental, water and mining licences, and to reports and data to demonstrate compliance with those licences.

More good news: Improvements in corporate disclosure, and King IV adopts our proposals on environmental compliance reporting

In November, we launched our 2016 version of Full Disclosure: The Truth about Corporate Environmental Compliance in South Africa, adding 10 new listed companies with significant environmental impacts to our 2015 assessment, and providing updated information on the 20 companies reported on last year. Although 4 of the 10 new companies failed to adequately disclose findings of serious environmental violations in their annual reports (Glencore, South32, Kumba Iron Ore and Coal of Africa Limited), we also saw another 6 companies assessed in Full Disclosure 2015 improve reporting and disclosure on environmental compliance in their annual reports (AECI, DRDGOLD, Impala Platinum, PPC, Sappi and Sasol).

Moreover, CER proposals on requirements for more detailed environmental compliance reporting were adopted in the King IV Report on Corporate Governance^TM. This means that when government inspectors find violations of environmental laws, companies will no longer be able to hide this from their shareholders.

#LifeAfterCoal/Impilo Ngaphandle Kwamalahle takes off, and climate change heads for the courts

The Life After Coal/Impilo Ngaphandle Kwamalahle campaign – a joint campaign by Earthlife Africa JHB, groundWork, and the CER – took off in 2016, in the midst of an intensifying debate around long-term energy plans for South Africa.

In September, we were one of 30 civil society organisations that wrote to the Ministers of Public Enterprises, Energy, Environmental Affairs, and Health to express alarm at Eskom’s misinformation campaign against renewable energy, and the state-owned entity’s refusal to sign power purchase agreements arising from the Department of Energy’s Renewable Energy Independent Power Producer Procurement programme (REIPPP). We also challenged Eskom’s failure to disclose records on steps taken to reduce its toxic air pollution and to comply with minimum emission standards, and its plans for decommissioning its oldest, most polluting plants. The battle to hold Eskom accountable for the pollution caused by its coal power plants will continue in 2017.

In November, together with Greenpeace Africa, we published a set of minimum requirements for SA’s Integrated Resource Plan for electricity in preparation for the Department of Energy’s publication of the long-awaited draft Integrated Energy Plan (IEP) and draft Integrated Resource Plan for Electricity (IRP) Assumptions and Base Case Reports.

2016 saw the Minister of Environmental Affairs for the first time requiring a climate change impact assessment for a coal power plant, following Earthlife Africa JHB’s appeal against the grant of an environmental authorisation for the proposed Thabametsi coal power plant in Limpopo. Earthlife, represented by CER, has since instituted proceedings in the High Court to set aside the Minister’s decision to refuse its appeal, on the basis that she could not lawfully have granted the authorisation without such a climate change impact assessment. This case will likely be heard in the first quarter of 2017. In December, we also asked why four of South Africa’s big banks are financing the new Thabametsi coal power plant that risks becoming a stranded asset because of climate commitments.

Earthlife Africa JHB, groundWork and the South Durban Community Environmental Alliance (SDCEA), represented by the CER, are challenging authorisations for other new coal power plants in KwaZulu-Natal, Mpumalanga and the Waterberg. The Minister of Environmental Affairs dismissed groundWork‘s appeal against the licensing of the KiPower power plant, and SDCEA and groundWork’s appeal against the authorisation of the Colenso power plant. However, in the case of Colenso, the Minister set aside the environmental authorisation and referred it back to the DEA for reconsideration due to “deficiencies and inaccuracies”.

Progress with protecting important off-shore areas, but mining stands ready to engulf strategic water source areas – and even national parks

An encouraging development for the promotion of conservation was the Minister of Environmental Affairs’ publication of draft notices and regulations to declare a network of Marine Protected Areas (MPAs) in SA. The network proposes 22 new MPAs, spanning approximately 70 000 square kilometres. The target set for seabed protection in Operation Phakisa was 5%, and the CER will work tirelessly to ensure that this target is met. The Safeguard our Seabed Coalition, of which the Centre is a member, also ramped up efforts in pursuit of a moratorium on marine phosphate mining.

Unfortunately, the pressure from mining on our terrestrial protected areas continues unabated. The proposed coal mine inside the declared Mabola Protected Environment, a strategic water source area in the Mpumalanga grasslands, is one example. By September 2016, despite the application brought in the Pretoria High Court by eight NGOs and community organisations to set aside the mining right granted to Atha Africa Ventures Pty Ltd for this mine outside Wakkerstroom, both the Mpumalanga environment department and DWS had issued licences for this mine. Since then, we have launched appeals against the environmental authorisation, the environmental management programme and the water use licence. Our clients have good prospects of success. Because of the enormous importance of this area for water security, and the poor precedent that allowing such a mine would set for all protected areas, we hold instructions to take the defence of this area to the Constitutional Court, if necessary. However, this case highlights the enormous resources required from civil society to challenge poor and inappropriate government decisions that threaten the integrity of our protected areas.

Even more worryingly, and as we already warned in July 2015, mining is coming to more protected areas near you. This year, the DMR approved a phosphate mine on the border of the West Coast National Park. With the phosphate deposit stretching into the park, it now appears that plans are afoot to deproclaim portions of the West Coast National Park. The proposed Elandsfontein mine poses a serious risk to an important aquifer in this already dry part of the country, and impacts on the aquifer may in turn affect the Langebaan Lagoon – a declared Ramsar site and a water body used extensively by many small scale fishers, kite surfers and nature lovers. (For more information and to support the struggle of the West Coast Environmental Protection Association against this mine, visit the Defend Elandsfontein Aquifer campaign on GivenGain.)

Spotlight on human rights violations caused by poor environmental governance in Mpumalanga

In May, we launched our seminal report Zero Hour: Poor Governance of Mining and the Violation of Environmental Rights in Mpumalanga. Zero Hour shows that government’s failure to ensure that mining companies comply with the law is causing unprecedented environmental degradation and chronic health problems in Mpumalanga.

In September, our attorneys made submissions to the SA Human Rights Commission’s national hearings on socio-economic challenges in mining-affected communities – a watershed event at which mining companies, national and local government departments and communities were called to give evidence to the Commission. One of the communities that gave evidence at the hearing was the Arbor community near Delmas, Mpumalanga, whose lives have been devastated by the mining of coal immediately adjacent to their homes. Our attorneys are working with this mining affected community to improve their health and well-being.

Our work with activists in the Highveld to hold authorities and polluters accountable in this air pollution hotspot continued in 2016. Despite the 2007 declaration of the Highveld Priority Area under the National Environmental Management: Air Quality Act (AQA), air quality shows little sign of improvement. Monitoring stations have not always provided reliable data, and local authorities have little or none of the required capacity to compel reduced emissions by polluters. Activists were also disappointed with the Draft Strategy to Address Air Pollution in Dense Low Income Settlements finally published for comment this year, and frustrated with inadequate regard for communities in relation to plans to amend the Dust Control Regulations under AQA. Expect the struggle for clean air on the Highveld to intensify in 2017.

Coal mining at Arbor, Mpumalanga. Photo: James Oatway for CER

In July, together with the Centre for Applied Legal Studies (CALS) and Lawyers for Human Rights, we convened the Mining and Environmental Justice Conference aimed at greater environmental compliance, accountability and transparency in the mining industry. Violations of environmental rights, environmental justice, and environmental laws were among the focus areas of the conference, which brought together activists, researchers and lawyers from across the country.

October saw us join six other organisations (groundWork, the Vaal Environmental Justice Alliance, the South Durban Community Environmental Alliance, the Highveld Environmental Justice Network, CALS and Earthjustice) to make our first submission to the UN Human Rights Council for its Universal Periodic Review of SA. Entitled The threats to human rights from mining and coal-fired power production in South Africa, we noted, among others, that poorly-regulated mining and coal-fired power generation are responsible for air and water pollution, destruction of arable land, and biodiversity loss, violating the human rights of many communities, including their rights to life, health, water, food, culture and a healthy environment. We will only see the outcome of this review in 2017.

Clampdown on protest, and attacks on activists

In February, our attorneys secured the withdrawal of charges against three community activists from Moroke village in Limpopo. Eric Makola, Tebogo Sekgobela and William Moela were arrested in August 2015 after a gathering to discuss grievances against Chromex Mining Company. We argued that there was no reasonable prospect of a conviction. The prosecutor agreed and withdrew the charges.

In March, the sector was rocked by the cold-blooded assassination of Sikhosiphi “Bazooka” Rhadebe, an anti-mining activist from Xolobeni and chairperson of the Amadiba Crisis Committee. Despite collective condemnation and letters written to Ministers and the SAPS, no-one has yet been arrested for this murder, and tensions at Xolobeni have not abated. Amongst the many pertinent issues that arise from the Xolobeni struggle, including crucial litigation underway (undertaken by the Legal Resources Centre and Richard Spoor Inc for the Umgungundlovu Traditional Authority and the Amadiba Crisis Committee), we have also seen attempts to use litigation to silence activists. Australian mining company MRC has initiated legal action against three people for statements they allegedly made in the media attributing the violence in Xolobeni to the company. The Centre condemns any attempts to use strategic lawsuits against public participation, or SLAPP suits, and will defend the rights of activists to speak out.

Closing, and thank you

From 19 December 2016, our hardworking attorneys are taking a well-deserved break to recuperate and spend time with their families. A huge thank you to our funders and partners for your support in 2016. We wish you a happy and peaceful holiday season and look forward to resuming our work for environmental justice next year. We re-open on Wednesday 11 January 2017.