Centre for Environmental Rights – Advancing Environmental Rights in South Africa

MEDIA RELEASE

COMMENT FROM THE CENTRE FOR ENVIRONMENTAL RIGHTS ON THE WRAYPEX AND BENGWENYAMA CASES

6 December 2010

Wraypex Pty Ltd v Gaylard and three others
North Gauteng High Court
Judgement delivered 6 December 2010 (written judgement not yet available)

The Centre for Environmental Rights welcomes the decision of the North Gauteng High Court to dismiss the damages claim of Wraypex Pty Ltd against four activists (Mervyn Gaylard, Helen Duigan, Lise Essberger and Arthur Barnes) for R170 million for alleged defamation and other damages.

More information about the case is available at http://cer.org.za/?page_id=1398.

This case was widely regarded as a test case for so-called SLAPP suits (strategic litigation against public participation).

The case has been followed closely by environmental activists and organisations across the country, many of whom have been similarly threatened by developers in the past.  Some developers have even used the existence of this case to intimidate interested and affected parties in relation to other developments in other parts of the country.

Although there are developers who respect the regulatory framework within which they operate, there are unfortunately some who resent any objection to their proposed business ventures, and show complete disregard for environmental rights, particularly the right of every person to participate in decisions that affect them and the environment.

The case is a message to all developers to think twice before threatening civil society organisations, communities and activists who are exercising their Constitutional rights to participate in environmental governance.

Bengwenyama Minerals Pty Ltd and others v Genorah Resources Pty Ltd and others
Constitutional Court
Judgement delivered 30 November 2010

The Centre for Environmental Rights similarly welcomes the decision of the Constitutional Court in the case of Bengwenyama Minerals v Genorah Resources.

Issue 1: Lack of consultation

Too familiar a story

The story of inadequate consultation of the community by Genorah Resources in the Bengwenyama case is a story that we hear day after day from communities, civil society organisations and landowners who suddenly discover that prospecting and mining rights have been granted by the Department of Mineral Resources (DMR) without their knowledge.  It seems that inadequate consultation with interested and affected parties in prospecting and mining rights applications has become the rule rather than the exception.

Considering that consultation of landowners and other affected parties are required by the Minerals and Petroleum Resources Development Act, 2002 (MPRDA), this means that:

• applicants for prospecting and mining rights are not taking their legal obligations seriously;
• applicants make false statements to the DMR that they have in fact complied with the MPRDA (as was the case with Genorah Resources, as the court found that they had stated falsely in their application to the DMR that they had received no response from the community); and
• the DMR is making insufficient effort to verify information placed before it by applicants.

We call on the DMR to identify those cases in which false statements have been made by applicants in rights applications, to cancel those rights as is provided for in s.47 of the MPRDA, and to hand those cases to the National Prosecuting Authority for prosecution under s.98(b) of the Act. Such action will send a strong message that the culture of non-compliance that has developed in the mining industry in the past few years will no longer be tolerated.

Bring into effect the MPRDA Amendment Act

However, it should be noted that even the existing provisions in the MPRDA and the MPRDA Regulations are inadequate and probably in contravention of the Constitution and the Promotion of Administrative Justice Act.[1] For example:

• The MPRDA does not even make publication of prospecting rights applications in a local newspaper compulsory. Often the only notice given is a notice put up at the local magistrate’s court. Frequently, landowners, communities and civil society organisations only find out about prospecting rights after such rights have been granted, and are then left to do detective work to try to find out to whom those rights were awarded;
• The time period provided for by the MPRDA for consultation by the applicant in a prospecting right application is 30 days. In practice, companies often take 2 or 3 weeks to notify interested and affected parties, leaving these groups and landowners with days to lodge objections.

We therefore reiterate past calls to the Minister of Mineral Resources to bring into effect the MPRDA Amendment Act[2] signed by the President in 2009, which would make prospecting and mining subject to the comprehensive public consultation requirements in the National Environmental Management Act, 1998 (NEMA).[3]

Issue 2: Environmental non-compliance

The Bengwenyama case opens a can of worms in relation to environmental compliance in prospecting and mining rights applications.

The MPRDA requires that, when making decisions, the DMR must be satisfied that the prospecting or mining will not result in unacceptable pollution, ecological degradation or damage to the environment.[4] However, as Froneman J pointed out in the Constitutional Court judgement, the information that would support such a conclusion is generally contained in the environmental management plan (EMP), which is in practice only considered for approval some time after the rights have been granted (in the Bengwenyama case, it took two months). Thus, when the DMR decides whether or not to grant a right, it often does not have the EMP or, in the case of a mining right, an environmental management programme before it, and often does not approve such a plan or programme at the same time as the prospecting or mining right.

The case therefore questions the DMR’s practice of approving prospecting and mining rights first, and then later considering the proposed environmental mitigation measures.

Again, the MPRDA Amendment Act signed by the President in 2009 would resolve this problem by making it necessary to have an environmental authorisation under NEMA before a mining or prospecting right is granted.

CENTRE FOR ENVIRONMENTAL RIGHTS

[2] Act 49 of 2008

[3] Act 107 of 1998

[4] S.17(1) of the MPRDA