Lots of apparent irregularities around the Elandsfontein phosphate mine?

13 October 2015

Elandsfontein looking west towards the lagoon (Carika van Zyl)

Elandsfontein, looking west towards the lagoon (Carika van Zyl)

The goings-on around the approval of mining rights for the proposed phosphate mine on the South African west coast at Elandsfontein (in the buffer zone of the West Coast National Park no less!), seem a tad murky.  There seem to be a slew of procedural anomalies and some of the specialist work, for a project that could, potentially, have ecological implications that extend into the marine environment, appears somewhat superficial – with concerns raised on review.  Political interference in favour of the mining has been alleged.  Legal opinion shows that the mining company may have been ill-advised in terms of their procedural obligations to seek approval under NEMA.  Anyway, readers need to draw their own conclusions from the following letter prepared by the stalwart conservationist heading up the opposition to the mine, Carika van Zyl.  Last week she circulated this letter with associated documents (published here with her permission):

Good day everybody!

As you would have noticed from the e-mails over the last couple of days, significant pressure was put on the DMR to produce documents around the granting of the mining rights. These documents had to be submitted to the community coalition within 21 days according to Section 74 of the MPRDA, but it has been six months and still they said that the problem lay with the Regional office.

Nevertheless,  yesterday I finally received the documents!  They are rather lengthy, but a good read and I urge you all to read them (links to Document 1 and Document 2).  In the covering letter written by the Regional Manager full compliance is acknowledged and that she supports the mining right.  When you start going through the documents, however, a whole different picture unfolds.  All of the state departments, CapeNature, Department of Environmental Affairs, Department of Water and Sanitation and the  Mining Environmental Management (MEM) directorate, were not in favor of this mining right and highlighted various concerns, which have not been addressed – most notably the Environmental Authorization.  The MEM also highlighted various regulations which have not been adhered to, viz: public participation, required specialist studies and that exporting the second biggest phosphate reserve is not sustainable or strategically wise.  Numerous other issues were highlighted as well, but in conclusion it stated that it could lead to unacceptable degradation and pollution of the local area, the Langebaan Lagoon, water resources and the Critical Biodiversity Area .  The document was signed on the 28 the of November 2014.

What is of concern is the timeline of events regarding the documents requiring comment. Just a quick explanation of terminology: when such an application is initiated, a company first announces it with a Background Information Document (BID) / draft Scoping document. There are two types of processes when it comes to development.  A Scoping process and a Basic Assessment, the type of process being determined by the activity which a developer want to commence with.  The specific activities are listed within the National Environmental Management Act (NEMA).  Activities that are likely to be of a detrimental impact need to go through a Scoping Process and less detrimental impacts via a Basic Assessment.

The very nature of the mining activities within the Elandsfontein area trigger listed activities requiring of a Scoping Process   So the purpose of the initial BID/Draft Scoping Report was to determine the scope of the impact, government departments, specialists and community members are then liaised with to ensure that all possible information to determine impact is considered.  The NEMA has set out principles, which give effect to our constitutional rights i.e. to a clean and healthy environment and to have the environment protected for current and future generations. It  first calls for the impact to be avoided (so if an area is found to be ecologically sensitive, an alternative must be looked at) or, where it cannot be avoided to be minimized (smaller footprint, change road layout etc), and where it cannot be avoided to be mitigated (i.e a piece of land of equal or more ecological value needs to be secured as an protected area).  These steps must be followed within that order.  Legisilation requires equitable access to environmental resources, benefits and services to meet basic human needs and ensure human well-being must be pursued.  The environment is held in public trust for the people, the beneficial use of environmental resources must serve the public interest and the environment must be protected as the people’s common heritage.

When the BID for the Elandsfontein mine was first announced at the end of Dec 2013, offset areas were already mentioned and public meetings were held on the 6th & 8th of January 2014.  Laid-down procedures preclude the release of documents during this time because most government departments are closed for commentary and people are often away. More so with developments in such ecological sensitive areas.  After the Draft Scoping report commentary is received by the various parties and then consolidated to determine the Scope of the impact, a final Scoping report is then handed in to be considered. If the final Scoping Report is accepted the next stage, an Environmental Impact Assessment (EIA) commences. It is important to note that these are two different processes: An EIA follows from a Scoping Report and it cannot be used inter-changeably.  A scoping report consists, in the main, of a desktop study of available science, legislation and local ecological knowledge of the specific area.  An EIA will then take the identified impacts from the information of the Scoping report and build on it by means of site specific new research to determine the probability of impact within the area. Legislation around the protection of an area is also looked at. Some of the research will take place over time to measure all variables over season i.e. doing a botanical study in the flowering time when bulbs are visible or measuring groundwater over the rainy and dry season.  From the collected data statistical models are often constructed to determine impact over time.  These results are then made available for commentary to departments and to all Interested and Affected Parties (IaAP’s).  Normally, if the impact is found to be severe on the environment or threatens heritage areas or rare plant species are found, or ecosystems are negatively altered which gives ecosystem services (clean air, water etc), or it does not comply to sustainable development then, according to legislation it should be turned down or certain changes should be made and again should be released for commentary.

Now in this case, when the Draft Scoping Report was released, it was followed up by a Final Scoping Report in April 2014 and handed in to the DMR on the 10th of June 2014.  The document was found to be unacceptable as it lacked various documentation required by law.  During this stage, we found several non-compliance issues, especially regarding Public Participation and handed an objection to the DMR.  Between the 2nd and 4th June 2014 documents for commentary was released on the Braaf (the Environmental Assessment practitioner, EAP) website.  Commentary had to be handed in within 30 days and there was a Public meeting held in Hopefield on the 11 th of September 2014.  At this meeting where the EAP presented the project and handed out flyers indicating that this was the Scoping section and that an EIA would still follow.  The document was called however an EIA/Environmental Management Plan, which caused quite a bit of confusion.  You will find in the accompanying documentation that the Final Scoping report  (June 2014)  is referred to the EIA and that the documents released in September 2014 are referred to an updated final EIA.  Regardless, the 1500 page document was found to be inconclusive at the Regional Mining Environmental meeting (RMDEC) in October 2014. Without RMDECs approval, the minister cannot given environmental authorization to allow for listed activities to be undertaken.

On the 26th November 2014 the acting Director General Joel Raphela gave power of attorney to the Regional Manager of the DMR, Duduile Kunene to grant mining rights.  The Mining Environmental Management Directorate issued their comments on the 28th of November stating NO GO.

On the 31st of January 2015, mining rights were granted by the mininster to the mining company, EEM. EEM stopped their NEMA application at the Department of Environmental Affairs on the 5th of February 2015.  This means that they had to start the whole process over at the DMR as legislation changed on the 7th of December 2014, making DMR the competent authority to deal with NEMA activities However they did not, they carried on with the old process, although the application was stopped.  This is still a point of confusion.  The listed activities i.e. road building commenced on the 11th of February 2015 without Environmental Authorization, while the EMPR was accepted on the 20th of February 2015.  There was a huge dispute about an EMPR being Environmental Authorization, but to this day, it seems that it is the DMR that are misinterpreting the law (an approved EMPR is NOT Environmental Authorization).  Carrying on with listed activities without EA is a criminal offense, punishable with a R5 million fine or up to ten years of imprisonment.

In March 2015, Heritage Western Cape issued three Stop Work Orders, due to the fact that no Heritage Assesment was conducted on farm 304 and no Heritage Agreement was reached (documents dating back to 2009, regarding this issue has been seen).  The Stop Work Order was ignored and when Heritage WC issued an interdict (based on the fact that the law was not complied to), the Premier (Hellen Zille) requested a meeting between the parties to resolve it outside of court.  No person has that legal power.

Another major cause of concern is that leaching of uranium into the groundwater and other toxic elements from 58 mt of slimes into the groundwater has not been assessed.  Rehabilitation cost of slime dams and overburden and stockpiling has been put at R250 million according to the recommendations.  Yet only R9.8 million has been secured for the entire rehabilitation costs, 15 years from now the value of this amount will be even less.

Total employment wages over 15 years for 300 jobs (218 semi skilled and 82 skilled and management) has been placed at R430 million, weigh this up against the R7 billion net profit, that the directors will be walking away with. Leaving us with a a degraded ecosystem and quite possibly contaminated water.

The land has not been rezoned and no EIA was conducted for the road apart from a paragraph in EMPR that they will build an 18.5 m double carriage tar road over an overgrown 4×4 jeep track to minimize damage.

None of the issues, which were raised in the objection by the various departments, were dealt with before mining rights were allocated and the many pages of possible impact on the aquifer, landscape functioning, biodiversity and Heritage remain unresolved. It is apparent that this application is being pushed through, ignoring various laws and competent authorities recommendation.

I have learned over the last couple of days that due to the Black Frost in July, much of the vegetation in the veld has died back.  Hopefield Sand fynbos is driven by fire and the frost caused a good fuel load for a fire, especially with summer approaching.  The veld had its last major burn in 2000 and it would appear that it is preparing itself for another burn as the cycle is now 15 years.  If large areas should burn and the aquifer is penetrated, larger areas could be affected as recuperation of the veld is dependent on groundwater availability.  Please do the necessary arrangements to prepare for a fire.

Dear community members, I know that this is a difficult battle and it would seem that it would be easier to just look the other way.  After reading the documents again and reading all the impacts and looking at it from a cumulative point, the impact of allowing this mine is too big.  We have a strong case.

Carika van Zyl

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