Centre for Environmental Rights – Advancing Environmental Rights in South Africa

Tudor Shaft informal settlement, West Rand, Johannesburg. Photo: James Oatway for CER

The Centre for Environmental Rights has submitted a comprehensive set of findings and recommendations to the South African Human Rights Commission in preparation for the National Investigative Hearing on the Socio-Economic Challenges in Mining-Affected Communities in SA, which starts on 13 September 2016 in Johannesburg.

The CER has, since 2010, helped various communities in South Africa to defend their Constitutional right to a healthy environment, with particular emphasis on pollution and mining. Our submission follows our extensive study, Zero Hour:  Poor Governance of Mining and the Violation of Environmental Rights in Mpumalanga, published in May this year.

In addition to representatives from communities in KwaZulu-Natal, Limpopo and Mpumalanga, organisations that will be doing oral submissions include:

• Mining-Affected Communities United in Action (MACUA);
• Mining and Environmental Justice Community Network of South Africa (MEJCON-SA);
• the Legal Resources Centre;
• the Bench Marks Foundation; and
• the Centre for Applied Legal Studies.

Government departments that will present to the hearing include the Departments of Mineral Resources, Environmental Affairs, Water & Sanitation, Performance Management and Evaluation and Cooperative Governance and Traditional Affairs.

The SA Human Rights Commission requested the CER to make submissions on a number of key issues, including in particular the efficacy of the environmental compliance monitoring and enforcement system for mining, and measures to address these challenges.

Other questions the Commission asked CER to address included:

• Environmental Impact Assessments, the design and implementation of Environmental Management Plans, and the extent to which EIAs and EMPs are incorporated into Social and Labour Plans and local government Integrated Development Plans;
• the impact of mining on water resources and water quality, and SA’s threatened ecosystems;
• the extent to which communities are consulted and/or have access to information on environmental management and impacts; and
• measures to ensure that mining activities are conducted in an environmentally sustainable manner.

The head of CER’s Mining Programme, Catherine Horsfield, emphasises that environmental justice is closely interwoven with socio-economic challenges mining imposes on communities. “Mining not only directly impacts on people’s health and wellbeing through toxic dust, noise from blasting and haul trucks, and water shortages and pollution, but those very impacts also impair affected communities’ access to economic development by making them less healthy, by impeding on their cultural heritage, and by limiting livelihood opportunities.”

Key recommendations in CER’s submission include:

1. Removing responsibility for the environmental regulation of mines from the DMR, and allowing mining be governed by environmental authorities – as is the case for all other industries;
2. Giving legal protection to areas in which mining would be too harmful, with priority to strategic water source areas;
3. Committing to licensing decisions that are informed by science; responsive to the views and concerns of environment authorities and affected communities; and take into account the compliance history of mining companies;
4. Enforcing the law through adequate investment in compliance monitoring and enforcement capacity; instituting a comprehensive compliance monitoring and enforcement programme; implementing a proper administrative penalty system; and ensuring transparent reporting of results;
5. Elevating the legal status of communities affected by mining, which includes a call for the reform of the Mineral and Petroleum Resources Development Act to require free prior and informed consent (FPIC) by affected communities to be a prerequisite for mining;
6. Ensuring that communities and other interested and affected parties are given opportunities to participate in in water use licence application processes for mining;
7. Improving the EIA Regulations to provide for longer and more flexible timeframes for conducting EIA studies and public participation, including a climate change risk assessment; providing guidance for designing and implementing remediation measures, such as biodiversity offsets; and the publication of a guideline setting out principles relating to the independence of EAPs and objectivity in EIA reports;
8. Adopting a new, transparent approach to disclosure of information around mining;
9. Improving air quality regulatory regime for the mining industry, i.e. stricter regulation of dust from mining operations;
10. Ensuring participation of communities in close proximity to mining operations in applications for water use licences for mining.

Horsfield concludes: “Many of the statements in our submission are drawn from our May 2016 report Zero Hour. Although that study looks at governance issues around mining in Mpumalanga, most of the problems identified are also relevant to KwaZulu-Natal, Limpopo, Northwest, Northern Cape and Gauteng. Much of the Zero Hour evidence in support of its allegation that the State – and more particularly the DMR and DWS – are facilitating environmental rights violations in Mpumalanga through the poor regulation of mining is applicable to other provinces too, as the DMR and the DWS are national departments.

“Caution about mining expansion, particularly of coal mining, in the face of its devastating impacts on human health and the environment, particularly of strategic water source areas, is frequently dismissed in the name of economic development and employment. However, as at the first quarter of the 2014/2015 financial year, mining contributed only 4.8% to Mpumalanga’s employment, and a great deal less in other provinces.

“We want to see decisive action to facilitate SA’s transition to a cleaner economy – one in which people and the environment are prioritised in the interests of SA’s future prosperity. We welcome the Human Rights Commission’s prioritisation of these issues.”

ENDS