South Africa: Mtunzini Conservancy appeals against judgement mining and destruction of eight wetlands

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On 29th January 2013 the Mtunzini Conservancy (MC) made application for leave to appeal against the judgement handed down by Judge R Vahed in the Kwazulu-Natal High Court in Durban on 8th January 2013.

In his judgment Judge Vahed ruled that Tronox required no planning permission in order to commence its mining of the bulk of the Fairbreeze Mine. He found that in the circumstances applicable (which included the commencement of a bulk sampling exercise in 2002) an authorisation under the Minerals Act 50 of 1991 trumped all planning laws applicable then and now. He therefore refused the MC's application to interdict the construction of the mine until planning permission for the whole mine had been granted. In doing so he ordered that the MC pay Tronox's costs.

The Mtunzini Conservancy has taken opinion from Advocate Geoff Budlender, who has criticised the judgment. Of huge concern to the MC is the costs award, which has implications for every other NGO in South Africa. The judgement could also have significant implications for planning in KZN and in South Africa, if previous prospecting and sampling under the old Minerals Act exempts mines from applying for planning permission to start their mines.

The MC (together with at least four other organisations) has lodged an appeal tothe MEC for the Environment against the environmental authorisation granted via the curtailed Basic Assessment process. This appeal should also be decided before mine construction continues so that the rights of interested and affected parties can be fully addressed. There is so much uncertainty and there are so many unresolved issues that can only be addressed by the full Scoping and EIA process that we are appealing to the MEC to call for full Scoping and EIA.

One of the most controversial social issues regarding this mining proposal is the proximity of the mine (only 100 metres) to the nearest house in Mtunzini town, and to the Xaxaza chalet park, which is home to some 80 retirees. Interestingly Tronox is applying for planning permission for the ore body closest to town simply because this authorisation was obtained later under the new MPRDA. But it is one mine, why not then apply for planning permission for the whole mine?

A new development is the re-advertisement for comment on the Integrated Water Use Licence Application by Tronox. If granted, as applied for by Tronox, this would result in the partial or complete destruction of eight wetlands by the 600 hectare, 30 metre high slimes dams which Tronox plans to build.Slimes dams of this size and nature are unacceptable in the modern era, particularly when there are other mining process methods available that do not result in such a destructive waste site.

To date Tronox has not been required by the authorities to evaluate available alternative mining process methods that would dramatically reduce the impact of the mine and make it acceptable.

The complete destruction of three of these wetlands cannot be compensated for so Tronox are proposing two offsets which have not been finalised. The Department of Water Affairs have asked Tronox to readvertise because of the many unanswered questions and issues. These matters have been raised throughout 2012 by the Department of Water Affairs and Exxaro/Tronox have done their best to respond but the I&AP are being asked to respond in 30 days to the revised application that has been in preparation for over a year. The Conservancy will apply for an extension of the comment period on the Water Use Licence.

A recent article by Monbiot has highlighted that offsets are usually poor substitutes for what stands to be destroyed. If the slimes dams can be avoided by using modern less wasteful methods no offsets would be necessary.