Case Law Analysis: ATHA-AFRICA COAL MINING IN A PROTECTED AREA
SCA dismisses Atha-Africa's leave to appeal. The case has important consequences for protected areas and applications for coal mining.
Environmental: Mining and Environmental Justice Community Network of South Africa and Others v Minister of Environmental Affairs and Others
The Supreme Court of Appeal (SCA) recently dismissed an appeal launched by Atha-Africa Ventures (Pty) Limited for the conduct of coal mining activities in a declared protected environment.
On the 11thof June 2018, Judge Davis of the Pretoria High Court handed down a judgment setting aside a decision by the Ministers of Environmental Affairs and Mineral Resources in 2016 to grant Atha-Africa written permission to conduct commercial mining in the Mabola Protected Environment in terms of Section 48(1)(b) of the National Environmental Management; Protected Area Act 57 of 2000 (“NEMPAA”).
Furthermore, Judge Davis’ order indicated inter aliathat the respective departments were to comply with Sections 3 and 4 of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) and to take into account the interests of local communities and the environment principles referred to in Section 2 of the National Environmental Management Act 107 of 1998 (“NEMA”).
The Applicants consisted of a broad group of concerned civil society organisations. One of the concerned interest groups involved in the matter includes the Centre for Environmental Rights (“CER”), who indicate that the Mabola Protected Environment is situated outside Wakkerstroom, Mpumalanga, and falls within what has been classified as one of 22 strategic water source areas by the South African National Biodiversity Institute, a government body and the Council for Scientific and Industrial Research.
Strategic water source areas are the 8% of our land that provides more than 50% of South Africa’s fresh water. In a statement, the CER indicates the following:
“The organisations opposing this particular mine do so because the proposed mine would be inside a declared protected area and a strategic water source area; with acid mine drainage estimated to require water treatment until 2097, the mine would threaten water security not only in the local area, but in the region. The damage that this mine would do to water resources cannot be undone.”
In 2016 the respective ministers of the time, being the Mineral Resource Minister, Mosebenzi Zwane, and the late Environmental Affairs Minister, Edna Molewa, permitted the development of a new coal mine inside the Mabola Protected Environment, near Wakkerstroom.
In 2019 the SCA found similarly that there was no prospect for successfully overturning the High Court judgment of Judge Davis and also awarded costs in favour of the coalition of NGOs which had opposed Atha-Africa’s appeal application. Mining Weekly reports that:
“Atha-Africa, which has stated that its Indian holding company spent $40 million on acquiring the initial prospecting right, has never produced evidence of any off-take agreements for the coal in its hopes to mine.
The CER stressed, adding that the ecological sensitivity, hydrological importance and planned legal protection for the area, that includes the proposed mining area, were known by Atha-Africa before its acquisition.”
Further media reports indicate that Atha-Africa intend to seek further leave to appeal from the Constitutional Court.
The import of the respective protected area
The CER indicates that the area is of fundamental environmental relevance of the following reasons:
· Mpumalanga as a province is the source of many of South Africa’s rivers;
· The area is composed of a critically endangered biodiversity including wetlands, pans and grassland;
· The area has been classified as one of 22 strategic water source areas by the South African National Biodiversity Institute. From 2015, South Africa has been experiencing the worst drought in 30 years, with the state of drought disaster declared in 8 of 9 of South Africa’s provinces including Mpumalanga;
· The proposed coal mine of Atha-Africa would have a severe impact on protected grasslands;
· The Mabola Protected Environment is a declared protected area as of January 2014.
Of interest is that the CER further indicates that Mabola Protected Environment is not a South African company but is a subsidiary of the Atha Group, a private company registered in India. The Atha’s BEE partner is the Bashubile Trust with connections to the Zuma family. Hence, the CER concludes that none of the beneficiaries or trustees of the coal mine live in or near Wakkerstroom or even in Mpumalanga.
"The area has been classified as one of 22 strategic water source areas by the South African National Biodiversity Institute. From 2015, South Africa has been experiencing the worst drought in 30 years, with the state of drought disaster declared in 8 of 9 of South Africa’s provinces including Mpumalanga." CER, Centre for Environmental Rights
The inputs raised by the collection of NGOs raises important questions for mining applications in protected environments. The question could be asked whether future coal mines in South Africa country are necessary, as against the Sustainable Development Goals as well as the repeated calls for alternative sources of clean energy. This is further against ongoing reports of climate change, increased risks of disaster and migration due to changed weather patterns.