Centre for Environmental Rights – Advancing Environmental Rights in South Africa

Mpumalanga Lakes District Biodiversity Conservation Plan Map of Aquatic Priority Areas. Dark blue is irreplaceable.

In the long and painful battle to protect areas of crucial biodiversity and hydrological importance from the juggernaut of a coal mining industry hungry for new coal seams, the Mpumalanga Lakes District, and Chrissiesmeer in particular, have become key battlegrounds.

By 2011, more than 40% of Mpumalanga was subject to prospecting rights applications, and more than 13% subject to mining rights applications. In 2010, the Mpumalanga Tourism and Parks Agency, in what looks like a last-ditch attempt to try to protect the Mpumalanga Lakes District, made a detailed submission to the Mpumalanga Regional Manager of the Department of Mineral Resources in support of a declaration of this area as prohibited or restricted from mining. In language that must have enraptured the environmentalists at the DMR, the MTPA wrote that “the  exceptionally high biodiversity value of the area that  provide valuable ecosystem services to the people of South Africa. … An objective systematic conservation planning approach was used to identify and quantify the biodiversity and more broadly the environmental significance of the area.  Systematic conservation planning is data driven and is based on a sound scientific approach.  The area is also of critical importance for water resources and aquatic biodiversity and has the highest density of inland lakes within Southern Africa as well as numerous wetlands.”

In simple terms, what is MTPA was saying is that sound science requires us to protect this area in the interest of the health and well-being not only of ourselves, but also for future generations.

For a brief period, it seemed as if the DMR and the Minister of Mineral Resources realised the importance of Chrissiesmeer and Mpumalanga in the DMR’s quest to appear more responsible on environmental matters. In 2010, the Minister announced a moratorium on the granting of new prospecting rights in Mpumalanga. On 4 March 2011, acting under s.49(1) of the 2002 Mineral and Petroleum Resources Development Act, she gazetted her notice of intention, “having regard to the national interest to protect the sensitive environment of areas around Lake Chrissies, commonly known as the Chrissiesmeer Biodiversity Site” to prohibit or restrict the granting of rights under the MPRDA for three years. The notice in the Government Gazette listed 59 farms affected by the notice, and invited comments from stakeholders within 30 days. To complete the declaration under s.49(1), publication of the final declaration in the Gazette was still required.

On 24 May 2012, in her budget speech for the DMR and referring to the moratorium on applications for prospecting rights in Mpumalanga, the Minister told the National Council of Provinces that the extension of the Mpumalanga moratorium has “culminated in 41 Rights that are located in Wakkerstroom and Chrissiesmeer being identified as those belonging to the category of ecologically sensitive areas”. She confirmed that the “department has taken a decision to prohibit mining in these areas”.

On 2 November 2012, in a written response to a Parliamentary Question, the Minister advised Parliament that “any activities that relate to mining or prospecting have been prohibited or restricted in the Chrissiesmeer Biodiversity Site”; that no challenges were being experienced to the prohibition or restriction, and that “the process is complete”. Finally, the Minister advised that “prohibition and restriction were already in place”.

Despite these assurances, we are unable to locate any formal declaration in the Government Gazette of the Chrissiesmeer Biodiversity Site as prohibited or restricted from prospecting or mining under s.49(1) of the MPRDA. On the face of it, it therefore appears that there is in fact no legal protection in place for the Chrissiesmeer Biodiversity Site. If we are wrong on this front, please send us the Gazetted notice, and we will bow out gracefully and with relief.

Unfortunately, the story gets worse from here. In early March 2013, interested and affected parties received notice that DMR in Mpumalanga Regional Office of the Department appears to have accepted an application from Duiker Mining (Pty) Ltd, a subsidiary of Xstrata Coal South Africa, for a mining right over five properties that fall within the Chrissiesmeer Biodiversity Site, for the purpose of establishing what is proposed to be the Harwar Colliery.

This is what the Harwar Colliery will look like:

“The proposed project site covers a predominately greenfields area characterised by agricultural activities and mining towards the east of the Chrissiesmeer Biodiversity Site. The mineral to be mined is bituminous coal located within the Ermelo coal field. The coal seams B and C are proposed to be mined with the use of the open pit (truck and shovel) method. The coal depth for seams B and C are 22 m and 30 m, respectively, below the surface. It is anticipated that a total of 15.1 Million tonnes (Mt) of coal is present in the Harwar area. Currently it is anticipated that Harwar Colliery will have a 28 year Life of Mine (LoM). Access to the sites will be via existing roads, where possible and if necessary, new roads will be constructed. The coal from Harwar will be transported to the Spitzkop Colliery by truck and the coal will be washed at Spitzkop Colliery’s beneficiation facility. After beneficiation of the coal at the Spitzkop Colliery Plant, the products will be loaded onto dedicated trains for transport either to the Richards Bay Coal Terminal for export, or to a regional power station and other domestic consumers. Some areas of the B and C lower seams can be beneficiated to supply export quality coal, while, the C upper seam is of poorer quality and is suited for the domestic power generation market.

The proposed infrastructure associated with the open pit and underground activities on Harwar Colliery include:

• Temporary construction facilities and infrastructure e.g. security access checkpoints, security fencing;
• Temporary handling and storage of general and hazardous waste, on-site change house and ablution facilities with a sewage treatment plant;
• Process and storm water management facilities through the use of pollution control dams;
• Storage and handling of hazardous substances such various hydrocarbons andinput chemicals, raw material stockpiles/ bunkers and explosives; and
• Infrastructure for services including potable water and fire water, compressed air and sewage reticulation, power lines, pipelines, conveyors, roads, telephone lines, communication and lighting masts.”
  (from the BID Document for the proposed colliery)

All of this, proposed for an area of “exceptionally high biodiversity value of the area that  provide valuable ecosystem services to the people of South Africa” and “of critical importance for water resources and aquatic biodiversity“.

The DMR has a legislative problem. The MPRDA’s s.27(3), quite inappropriately in our view, gives the Minister and the DMR no express discretion to refuse to accept an application for mining, as long as the applicant fills in the application form and pays the R500 fee, and no other person holds the right. There may, however, be an argument to be made that such discretion to refuse is implicit if the Chrissiesmeer Biodiversity Site is declared as an area in which mining is prohibited for the foreseeable future.

In the absence of a legally valid and long-term declaration of the Chrissiesmeer Biodiversity Site as an area in which prospecting and mining are prohibited, accepting and processing this mining right application have extreme and unfortunate consequences. These consequences include creating expectations with the rights applicant and within the mining community in general that applications for rights will be entertained within the Chrissiesmeer Biodiversity Site. It also creates an enormous amount of work to be done by already constrained authorities, by landowners, communities and civil society organisations who have to participate in the consultation processes that accompany the processing of this application, and wasted costs by the applicant who may have no prospects of succeeding with its application. It also contradicts the Minister’s stated commitments to protection of the Chrissiesmeer Biodiversity Site, and environmentally sensitive areas in general. Finally, it undermines the Minister’s obligations under the MPRDA to “give effect to section 24 of the Constitution ensure that the nation’s mineral and petroleum resources are developed in an orderly and ecologically sustainable manner while promoting justifiable social and economic development”.

The Centre for Environmental Rights has today written to the Minister urgently to clarify what her intentions are in relation to allowing prospecting and mining to take place within the Chrissiesmeer Biodiversity Site, the protection of which she has already stated to be in the national interest. In particular, we have called on the Minister to exercise her powers under s.49(1) to declare the Site as an area in which prospecting and mining is prohibited for a period of at least 20 years. Such a step would not only demonstrate her stated commitment to protection of the Chrissiesmeer Biodiversity Site, but would also give certainty to the mining industry, other authorities, landowners, communities, and civil society organisations regarding the futility of investment in the site.

If Minister Shabangu does not fulfil her intended declaration of Chrissiesmeer for long enough to change investment horizons, the Xstrata application makes it perfectly clear how this will play out. Their application appears to be based on a conclusion that there is (in their words) a three-year “moratorium” in place at Chrissiesmeer. Xstrata is simply waiting for the Minister to lift that “moratorium” so that the opencast coal mining in this precious area of natural heritage, of critical importance to our hydrological systems, can continue.

CER letter to Minister Shabangu dated 13 March 2013

CER follow-up letter to Minister Shabangu dated 14 May 2013

As at 17 May 2013, no reply has been received from the Ministry.