Opinionista Leanne Govindsamy 6 February 2019

When mining trades off with the planet’s future

In a recent article on the rapid decline of natural ecosystems and what that means for continued life on Earth, an explorer for the National Geographic Society said that ‘we know that we are destroying our life support system in an accelerated way for short-term profit’ and that ‘this is like we are at the casino, on the Titanic, and we are trying to make as much money as possible, after hitting the iceberg’. It seems almost incredulous that anyone, in the pursuit of profits, would make such a trade-off with the future of the planet.

Do such individuals care so much about short-term profit making that they have ceased to care about their own children, grandchildren and generations of children to come after them? It seems the answer is yes, and that here and around the world, corporations and their shareholders continue to ignore the very real and imminent crisis which threatens our survival.

Moreover, some companies, particularly in the mining and energy sectors, continue not only to flout the law but to use strong-arm tactics to silence their critics and generate misinformation about the impacts of their operations. These corporations resist change and the move to ensuring the sustainability of ecosystems, often citing jobs and local development as the overriding factor for governments to consider when granting them mining and other rights.

However, as found in a report by ActionAid launched this week at the Alternative Mining Indaba, communities do not perceive mining activities as benefiting them; and from this year’s World Economic Forum meeting in Davos the message was also clear – growth and development are innately connected to the question of whether or not our planet can continue to sustain those economic activities.

The solutions thus far have involved conferences and meetings with government leaders, international institutions and some big corporates, agreeing that there is an urgent need for change while in reality doing very little, very slowly.

In South Africa, it appears that we have been distracted from this crisis, having to face an almost decade long period of absurd disorder, as corruption took hold of our country and our imaginations; while the key departments involved in environmental protection and mining became paralysed by State Capture and its own legislative and regulatory confusion and uncertainty.

There are, however, groups of people around the world who are trying to curb environmental degradation in their own localities – tiny wars being fought in every corner of the globe to protect local species, habitats and ecosystems from destruction and to find ways to improve air and water quality.

Communities have been at the forefront of these battles. The recent High Court judgment which confirmed that communities living on communal land in Xolobeni in the Eastern Cape have a right to say no to mining, is immensely important. Communities can now take decisions to protect the agricultural viability of their land and to ensure that its cultural and social value is preserved.

The company involved, Mineral Resources Commodities (MRC), has been the subject of intense criticism and controversy, with the lowest point in the course of it seeking to operate in the area being the shocking March 2016 assassination of anti-mining activist Sikhosiphi “Bazooka” Rhadebe, amid heightened tension in the area.

It strikes one as quite bizarre that the Australian mining company would insist on mining in the area amid such fierce conflict, yet their conduct is not confined to Xolobeni. Through its South African subsidiary, Mineral Sands Resources (Pty) Ltd (MSR), it also operates Tormin Mine in the town of Lutzville in the Western Cape. At Tormin, MSR has failed to comply with environmental laws and regulations in a Critical Biodiversity Area, meaning it is home to species of plants and animals that are unique to South Africa and the Western Cape region.

The backlash against mining in the area and the impacts which mining has already had – including the alleged collapse of an enormous sandy cliff on the beach – has not deterred MRC’s continued mining in the area, in fact, according to MRC’s 2017 annual report, the Tormin Operation has generated immense profit, exceeding even the company’s own expectations.

One would imagine, given its pending applications to mine at Xolobeni, that MRC would rethink its continued operations at Tormin, especially given that it is operating in a Critical Biodiversity Area. Yet, quite the opposite has occurred. Despite having to pay a R1.25-million fine for violating environmental laws and regulations, it is now applying to expand its footprint in the area by attempting to amend its existing mining right – as opposed to applying for a new prospecting and mining right.

At Tormin, local communities and environmental activists have raised numerous concerns about the legality of MSR’s mineral sands mining operation. In September 2016, environmental authorities obtained and executed a search warrant at Tormin. In response, MSR sued the magistrate who issued the warrant and the environmental authorities involved in the search and seizure operation.

While the Western Cape High Court in its judgment in March 2017 set aside the search warrant on the basis that the environmental authorities had overstepped their jurisdiction, the court confirmed that MSR had expanded its operations without the required environmental authorisation. The court also questioned the lawfulness of other actions by MSR, including whether the mine was responsible for the devastating cliff collapse in the area, but refrained from making findings on these points given the narrow focus of the court case.

The reprehensible conduct of MRC is, however, not limited to these issues. In a stunning display of arrogance, MRC and its subsidiaries have lodged defamation proceedings against various individuals critical of its Tormin operations, and its conduct at Xolobeni: community activists, a social worker, three environmental lawyers, and a journalist working for a local West Coast newspaper. These individuals raised public awareness about the impacts of mining at Tormin and criticised its conduct in respect of regulatory compliance.

In attempting to intimidate and silence these individuals and distract them by tying them up in lengthy trial proceedings, MSR is engaged in what has globally become known as a “SLAPP suit”, or “strategic litigation against public participation”: litigation which is designed to have a “chilling effect” on the rights and ability of people to participate in public debate and protest. SLAPP suits are also aimed at sending a message to all activists that any resistance to the company poses a direct, personal risk.

In the defamation proceedings against two attorneys employed by the Centre for Environmental Rights and a local community activist, MSR and its director, Zamile Qunya, allege that defamatory statements were made during presentations at the University of Cape Town’s Summer School on 25 January 2017.

Attempts to silence any criticism which is in the public interest is a significant threat to the Constitutional right to freedom of expression, a most cherished and valued right in our Bill of Rights, and one that is central to our Constitutional democracy. Freedom of speech, freedom of the media and academic freedom in the pursuit of the protection of environmental rights and the exercise of those rights cannot be justifiably limited except in extraordinary circumstances.

The Centre for Environmental Rights, who employed two of the lawyers who have been sued by an MRC subsidiary, has written to Minister Gwede Mantashe to draw his attention to MRC’s disregard for constitutional rights. One can only hope that, given his roots in the union movement and his understanding of corporate abuse, he would appreciate that companies which show disregard for constitutional rights and environmental laws are not the kind of foreign investors that we seek in order to revive South Africa’s ailing mining sector. DM

Leanne Govindsamy is Attorney and Programme Head: Corporate Accountability & Transparency Centre for Environmental Rights NPC.

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