Centre for Environmental Rights – Advancing Environmental Rights in South Africa

The judgment of the High Court, Gauteng Division, Pretoria can be found here.

Neutral citation: Eloff Landgoed (Pty) Ltd v Minister of Forestry, Fisheries and the Environment and Others (21525/2020) [2023] ZAGPPHC 434 (19 June 2023)

Case number: 7746/18

Coram: Wilson J

Date delivered: 19 June 2023

Outcome:

• The decision of the Mpumalanga Regional Manger in the Department of Mineral Resources and Energy (DMRE) to grant environmental authorisation for a proposed open-cast coal mine is reviewed and set aside;
• The decision of the Environment Minister to dismiss the applicant’s appeal against the decision of the DMRE to grant environmental authorisation for the proposed mine is reviewed and set aside; and
• The mining company’s application for environmental authorisation is referred back to the Mpumalanga Regional Manager in the DMRE for reconsideration consistent with this judgment.

Summary

The applicant, Eloff Landgoed, operates an extensive commercial farm. It applied to court to review and set aside a decision to grant an environmental authorisation (EA) to the respondent (Eloff Mining) to operate an open-cast coal mine on land adjacent to part of its farm. The applicant had appealed the granting of the EA but was unsuccessful.

The applicant raised seven grounds of review, mainly relating to the fundamental irrationality of the decisions to grant the EA and dismiss the appeal.

The central issue in this case was whether the Regional Manager’s decision to authorise the development of the coal mine, and the Minister’s decision to approve it on appeal, constituted a lawful and rational assessment of the likely impact of Eloff Mining’s proposed activities.

Wilson J set out the legislative framework pertaining to the environmental impact assessment regime under NEMA and its Regulations and in particular the requirements for an environment impact assessment report (EIAR). He noted that one critical purpose of the EIA process is to “determine the nature, significance, consequence, extent, duration and probability” of particular environmental impacts occurring, together with the “degree to which these impacts can be reversed”, whether they “may cause irreplaceable loss of resources” or “can be avoided, managed or mitigated” – quoting from the NEMA EIA regulations.  He also highlighted that an EIAR must include a description of the impacts and risks identified in the EIA.

Turning to the duty of environmental authorities, the judge described their role as integrating environmental, social and economic interests into their decision-making and to make decisions informed by these considerations within the context of the risk-averse and cautious approach.

Judge Wilson detailed the EIA process in the matter focusing on the content of the preliminary EIAR and the information on which it was based including subsidiary economic and social impact reports. The economic report stated that there was no economic justification available to underpin the authorisation of the mine. This was because the mine itself “appears to be economically unfeasible” and its development would result in the permanent loss of “highly productive agricultural land.”

The social impact report stated that the mine cannot be justified, and that environmental authorisation was not recommended. It concluded that the mine will have an unacceptable and irreversible impact on agricultural productivity (and accordingly food security) both on the mined land and in the surrounding area. It stated further that the mined land will never return to the levels of agricultural production that it is presently capable of sustaining. Furthermore, the local community is hostile to the project; the local authority has not yet granted the necessary rezoning permissions to enable the mine to go ahead; and the cost in the loss of agricultural jobs will not be offset by the benefit of increased mining jobs, whether during the life of the mine itself, or after its activities permanently reduce the agricultural productivity of the land.

Based on these reports, Eloff Mining’s environmental assessment practitioner concluded that the mine should not be authorised.

Eloff Mining then engaged with the practitioner suggesting various conditions to be complied with in order for the practitioner’s recommendation in the EIAR to be changed. Such conditions included an agronomic assessment and skills survey be conducted, employment opportunities, adult basic education and training and other development programmes be offered, a trust be established and that conditions relating to water and air pollution be imposed.

The practitioner revised their recommendation stating that the mine “could be considered for environmental authorisation” if these conditions were adhered to. The EIAR was submitted to the DMRE’s regional manager and the EA granted subject to the conditions suggested in the report.

The court was critical of the conditions describing some as meaningless. It also criticised the DMRE’s failure to appreciate how the conditions did nothing to actually ameliorate the devastating agricultural impacts posed by the mine since all that was required by the conditions were further agronomic assessments to be conducted.  The judge held that “it would make no sense if mine construction could go ahead while a better appreciation of the mine’s impact on agriculture in the surrounding area is assessed further.”

On appeal, the Minister similarly failed to address these shortcomings.

In light of these challenges, the court considered the rationality and lawfulness of the decisions to issue the environmental authorisation and to dismiss the appeal. Judge Wilson held:

Taking all this into account, I am unable to conclude that either the Regional Manager or the Minister “considered, assessed and evaluated” the “social, economic and environmental impacts” of authorising the development of the mine. Nor can I conclude that either of their decisions was “appropriate” in light of such a consideration and assessment. It follows that their decisions did not accord with section 2 (4) (i) of NEMA.

The court went on to describe the problem with attaching conditions to environmental authorisations which require further assessments to be conducted. Such a condition means the impact of the proposed activity has not been sufficiently captured in the EIAR (because more assessment is required). This in turn means that the decision makers could not have adequately considered a social, economical or environmental impact when making their decision to authorise an activity since more assessment needs to be done. Such conditions fall foul of NEMA’s precautionary and risk-averse principles.

The court found the Regional Manager and Minister’s decisions to be irrational because one of the principal conditions attached to the environmental authorisation (that an agronomic assessment be conducted) could not serve the purpose ascribed to it (to reduce the mine’s impact on agriculture). This meant that the authorities’ decisions were not rationally connected to the information before them.

The court went on to consider other grounds of review raised by the applicant. It also discussed the differences between appeals and judicial reviews and questions for elected arms of the state and political office-bearers to decide. Judge Wilson also noted the tension between South Africa’s need to ensure a secure supply of coal for its coal-fired power stations, as part of a broader effort to address the ongoing power crisis, and the need to ensure the productivity of land that is critical to our capacity to grow the food necessary to feed our population.