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Thungela Operations v Department of Water and Sanitation & Others (Water Tribunal) – 26 April 2023

26 April 2023

The judgment of the Water Tribunal is available here.

  • Coram: T Murombo, S Kvalsvig and U Mbeki
  • Heard: 14-15 Nov 2022; 11-13 Jan 2023; 15-16 Feb 2023.
  • Judgment delivered: 26 April 2023
  • Outcome: The Water Tribunal dismissed the appeal of Thungela Operations against the decision of the Department of Water and Sanitation to refuse it a water use licence.

Summary:

In 2018, Thungela Operations, formerly the thermal coal division of Anglo American, applied for a water use licence (WUL) in respect of a proposed coal mine in the Sedibeng District Municipality on the border of the Gauteng and Mpumalanga provinces. The proposed coal mining site is interspersed with streams, wetlands and lakes and the mining project triggered several water uses that required a WUL. The proposed site is described as a thriving agricultural area in the social and economic impact assessment reports provided by Thungela.

The Department declined to issue the WUL in 2022 and indicated areas (for example backfilling methods) that had not been sufficiently addressed in the WUL application, or not addressed at all (such as geohydrological information relating to the proposed pit area). The Department also indicated that the public was not in support of the proposed mine due to its negative impact on the water resource.

Thungela appealed against the decision of the Department of Water and Sanitation to refuse it a WUL on a number of grounds (see paragraph 11).

The Water Tribunal confirmed its wide appeal powers and that it had jurisdiction to ‘rehear’ the WUL application afresh, stepping into the shoes of the original decision-maker. It confirmed that parties are able to submit new evidence and reports before the Tribunal.

The Tribunal considered geohydrological impacts as described in various reports and testimonies. The Tribunal noted that Thungela “did not factor in future climatic variations and their possible impact on groundwater levels, infiltration, ingress and consequently the mitigation measures required.”

It held:

This is a fatal flaw as even the environmental authorisation paid little regard to the impacts of climate change on the predicted water related impacts and proposed mitigation measures.”

The Tribunal noted that Thungela’s own expert reports recommended further studies which had not been conducted.

The Tribunal also considered geochemical data and information used to design mitigation measures and selection of material for rehabilitation of the open pit area. It raised serious concerns about passive water treatment and the likelihood of acid mine drainage (AMD) as a result of the project, which poses a serious threat to water resources. The Tribunal was also concerned with the limited mitigation measures proposed post-mining when the AMD will decant, holding:

The proposed mitigation measures do not go far enough to mitigate the predicted pollution sustainably and effectively.

The Tribunal then considered the coal mine’s impact on wetlands and sensitive ecosystems which Thungela’s own reports admitted would be severe including the permanent loss of some wetlands and pans.  Proposed mitigation measures were found to be inadequate and not sufficiently substantiated. Thungela’s expert reports recommended further studies examining the potential for offsetting the loss of wetlands and pans. These had not been commissioned and no offsets had been considered.

The issue of an exemption from the prohibition on opencast mining within a certain distance from a watercourse under Regulation GN 704 of 4 June 1999 was considered. Thungela had failed to adequately apply for the required exemption under GN 704.

The Tribunal then went on to consider social and economic impacts of the project. It was unconvinced by Thungela’s arguments relating to mining jobs holding that these pale in comparison to the “longevity and self-sustaining nature of agricultural activities” and contribution to food security in the area. The Tribunal weighed the information before it along with specialist studies, objectors’ concerns and witness testimony and held that the socio-economic impacts of not granting the WUL was negligible relative to the socio-economic impacts of granting the WUL and uprooting the thriving agricultural economy in the area.

The Tribunal considered the question of cumulative impacts from the project which is proposed in a region already burdened with extensive water pollution from other mining activities. Thungela’s own reports raised concerns about the proposed project’s cumulative impacts on wetland ecosystems in the region and recommended further engagement. The Tribunal found that the impacted water resources where already degraded and that further pollution would jeopardise an important water resource in contravention of the principles contained in section 2 of NEMA.

The Tribunal also heard argument regarding mitigation measures, post-mining scenarios, financial provisioning, and uncertainty. It found that Thungela had adequately identified the mine’s impacts, but not mitigation measures and especially long-term measures for instance 35 years beyond mine closure. There was enough uncertainty regarding proposed treatment methods and decant water quality that the Tribunal invoked the precautionary principle seeking to err on the side of caution.

The Tribunal found that Thungela had failed to adequately consider climate change in its mitigation measures (or in the environmental authorisation process for that matter).  The judgment reflects the questions posed regarding the sunset of the coal market economy, stranded assets and consequent economic fallout. It held that the proposed 53 years of coal mining envisaged by Thungela in this project was misaligned with South Africa’s climate change adaptation and mitigation policies.

For the many reasons listed above, the Water Tribunal dismissed the appeal.