Mining in Sensitive Areas

Author: Julie Stacey - Associate: Centre for Sustainability in Mining and Industry (CSMI) Wits and Managing Member: Envalution cc

( Article Type: Explanation )

Mining licenses have recently been granted in South Africa, or are pending, near areas such as Mapungubwe (a World Heritage Site), the Blyde River Canyon near the Kruger Park, Mtunzini on the Kwazulu-Natal Coast and the Wild Coast in the Eastern Cape. Environmentalists fear for the integrity of these sensitive ecosystems, while mining companies declare that they have met all legal obligations and that their activities are crucial to the socio-economic development of the country. Who is right?

Mining in South Africa
Mining has underpinned the South African economy for over 100 years. According to the Chamber of Mines Annual Report 2009-2010, although past its heyday, mining still contributes 19% of GDP (in 2009), and South Africa is the world’s largest reserve holder of platinum group metals, manganese, chrome, gold and alumina-silicates and is a major reserve holder of vermiculite, vanadium, zirconium minerals, titanium minerals, coal and iron ore. Mining retains 500,000 direct jobs, and the same number of indirect jobs. The positive contribution of the industry to economic growth in the country, human well-being and social development is obvious.
Mining has also had negative social and environmental consequences. Divided largely along racial lines for many years, the industry created single-sex hostels, a migrant labour force, participated in forced removals to gain access to mineral resources, and has had a poor safety, occupational health and human rights history. Safety and occupational health remain critical concerns within the industry, as does the appropriate distribution of rent from mineral exploitation. The latter has been a strong element in creating the call for nationalisation of mining in the country, as well as a drive for the development of local benefi ciation capacity. By 2010, there were over 6,000 derelict and ownerless mines in South Arica, which will require more than R30 billion and 30 years to rehabilitate. Other environmental impacts from mining include extensive acid-mine drainage in the Gauteng and North-West provinces, other forms of water pollution, destruction of habitats and related biodiversity, air and noise pollution, and degradation of landscapes and soil profiles.
The Minerals and Petroleum Resources Development Act (MPRDA), Act 28 of 2002, is the core legal instrument regulating the industry, and aims to promote the sustainable development of the nation’s mineral resources. It has a number of flaws and inconsistencies, and is currently being revised to address these. Other legislation, such as the National Environmental Management Act (NEMA) and the National Water Act are also pertinent to the regulation of mining operations, to which the MPRDA is also subject.

What is Mining?
Mining is essentially the extraction of a natural resource - minerals - from the earth. There are different types of mining including open cast, open pit, alluvial, marine and underground mining. There are many different methods of mining, depending on what mineral is being extracted, the depth at which it is found, the geometry of the ore body, the integrity of the surrounding strata, the technology available and the chemicals needed to extract the mineral. Minerals that are mined include gold, silver, platinum group metals, copper, nickel, zinc, uranium, salt, potash, coal, titanium, granite and other stone products, diamonds and other gem stones. Mining products are used in every imaginable aspect of modern life: steel, aluminium, all construction materials, toothpaste, paper, plastic, electricity, fuel, vehicles, textiles, agriculture and food production, jewellery, medical technology and health products.
Mining is done on the land and in the oceans. The fundamental difference between mining and other industrial activities is that mines cannot choose where they will be located: they must be established at or near the site of the ore body containing the mineral. This introduces the tension between mining and sensitive areas: if a mineral deposit occurs in or near a sensitive area, should it be exploited?

What is a Sensitive Area?
One of the difficulties is the lack of universally accepted definitions of what constitutes a sensitive area. Different words and phrases are used, almost interchangeably at times that imply sensitivity, but may not mean it in the strict ecological sense. Ecological or environmental sensitivity means that one or many components of the habitat or area in question are vulnerable to change, to pollution or to interference of any kind. That vulnerability may be caused by the component in question being unique or limited in number or extent (for example the last remaining members of a species, or the last extent of a particular habitat), or because the system that supports that component is delicately balanced, and thereby susceptible to becoming imbalanced if interfered with in any way. Various criteria have been developed that describe sensitivity, but they may not all be present in every situation: deciding which combination in which circumstances define sensitivity is very difficult. Many words are also used to describe sensitivity: ‘unique’, ‘high value’, ‘endangered’, ‘quality’, ‘critical’, ‘vulnerable’, ‘dynamic’ and ‘stressed’ are just some of the terms. While some, such as endangered, can be quantitatively calculated, others, such as ‘highly valuable’ are emotive and difficult to classify unambiguously. This adds a further layer of complexity to protecting environmentally sensitive areas and resources. If we can’t all agree on what is sensitive, how can it be protected?

The International Perspective
In 1959 the Antarctic Treaty was signed to protect that continent. The Madrid Protocol, signed in 1991, and effective in 1998, bans all mining by Treaty signatories in Antarctica; the protocol is up for review in 2041. Antarctica is known to have reserves of coal, oil and gas, chromium and iron ore: whether or not they are commercially viable is yet to be determined. Antarctica is the only place that is globally protected from mining.
Various countries have also declared “no-go” areas for mining due to their ecological sensitivity, although many of these are under pressure from pro-development sources. These countries include but are not limited to India, Canada, and Australia. In June 2011, the International Union for Conservation of Nature called on the extractive industries and governments that licence their activities to commit to stopping all mining and oil/gas exploration and exploitation activities that could damage World Heritage Sites. One in four World Heritage sites in Africa is threatened by mining activities in or near its boundaries.
In South Africa, the Ministers of Mineral Resources and Environment and Water met in 2010 to discuss the creation of a database of sensitive areas, which will be linked to the new electronic mining license application system. The intention is that with this system, sensitive areas will be identifiable when applications are made, and thus “eliminate the current challenge where rights end up being granted over environmentally sensitive areas” (as reported by miningmx.com). The first task that the ministers tackled was the definition of sensitive areas, and is yet been completed. The Outcome 10 Delivery Agreement requires government to set mining restricted areas by 2015, with stakeholder engagement required by 2013. Currently, habitats included as sensitive areas in South Africa are mountain catchments, Ramsar wetland sites, coastal shores, estuaries and endangered ecosystems.

The Debate
Non-governmental organisations in South Africa are currently calling for an outright ban on all prospecting and mining activities in all sensitive areas (as defined above). The mining industry perspective is that each situation is unique, and should be considered on its merits. Supporters of this perspective cite reasons including the vast differences in mining techniques and methods, as well as the variability of the various sensitive habitats: they argue that a ‘one size fits all’ approach is neither reasonable nor justified as management measures may reduce the impacts to acceptable levels, depending on the specific mining activity as well as the characteristics of the receiving environment. Opponents of this perspective contend that various flaws in the processes associated with mining regulation make this approach too risky. Issues raised include (i) a lack of capacity at government level to adequately review the mining applications or to understand the impacts associated with the activity, (ii) poor stakeholder engagement and a lack of opportunity for sufficient input by interested and affected parties, (iii) a lack of peer review of environmental management plans proposed by mining companies, (iv) insufficient specialist studies carried out prior to the development of the environmental management plan, (v) uncoordinated legal approval processes between the various Departments responsible for mining and environmental issues and (vi) criticisms of the Department of Mineral Resources that the MPRDA is used to overrule other relevant legislation.

In response, the mining industry contends that they follow the legal processes as required, and that flaws in legal processes are not their responsibility. Similarly, they rely on independent environmental consultants to advise them on environmental management requirements. If that advice or the specialist studies are substandard, the argument is that the consulting sector must be held liable for poor quality, not the mining industry.

This tension results from a number of factors:
• South Africa houses some unique habitats that have been defined as being of global significance, including World Heritage sites.
• Over and above this, South Africa straddles a tenuous position of being sufficiently developed to attract large-scale tourism while retaining significant areas of protected natural habitat that act as a tourism draw card. Many natural habitats across the rest of Africa have been profoundly degraded through uncontrolled development activities, drought, and poverty. Development pressure is threatening many protected areas: if communities close to such areas do not benefit from them, the continued existence of the protected area is brought into question.
• The need for development, to substantively reduce poverty, is a primary driver of sustainable development, not only in South Africa, but globally. It is one of the Millennium Development Goals.
• Energy, which together with water is a fundamental driver of development, is obtained mostly from coal in South Africa, with 93% of the country’s electricity derived from coal-fired power stations. Much of the country’s liquid fuels are also derived from coal.

Beyond the protection of biodiversity for its own sake, and as much as technology has advanced, many ecosystem services cannot be compensated for, such as climate regulation. There are people who believe that because of this, any activity that threatens the maintenance of such functionality cannot be permitted.
Complicating the situation is the reality of certain mining operations proceeding without full legal compliance, for example water use licenses. In some cases, the DMR has granted permits to operate even though the permit for water use is outstanding. Cooperative governance requires that the DMR should not grant the license in such cases: the industry perspective is that if the regulatory authority (DMR) has given them permission to proceed, it is not the industry’s responsibility to police the government process.

What Will Break the Deadlock?
There is no ‘back-of-the-cake-box’ recipe for success in this case. Acknowledging, but not discussing the legal revisions that may be required, the following seems to be a logical and fair approach to moving beyond blaming and finger-pointing regarding the issue of mining in sensitive areas:
• Cooperative governance is not a ‘nice to have’: it is a requirement of the Constitution and is enshrined in law. It is poor governance to expect mining houses to obtain a range of different permits from a range of different departments, each of which believes their legislation supersedes other legislation. The regulators must cooperate with each other and only grant permits where all requirements have been fulfilled.
• At the same time, it behooves the industry to not commence operations when they are aware that they do not have all the permits required. Where there are undue delays, as has been the case with Water Use Licenses, available legal recourse must be sought by the industry, including via the Promotion of Administrative Justice Act, 2000.
• No single sector of society can determine in isolation what is a sensitive area. So many factors come into play in the definitions – cultural values, historical perspectives, ecological functionality and integrity, consideration of land use alternatives, the regional and local development plans for the area, potential for offsets and ecological compensation, aesthetic elements, economic opportunities, as well as the short- and longer-term considerations of sustainability. In defining sensitive areas, it is vital that all perspectives get to be heard and thus extensive, deep, meaningful and participatory stakeholder engagement is required around this issue. This is not just consultation, but fully integrated engagement. This cannot be done quickly
• Planning for mining and for the protection of sensitive areas must take into account economic, social and environmental priorities and considerations in an integrated fashion. Before an area is demarcated as protected, its mineral resources should be mapped. Before a mining license is granted, the ecological status of the area must be determined. Only then can a judgement call be made as to the relative importance of all natural resources in the area.
• All sectors of society must act ethically in these considerations. No-one has the right to demand that an area be protected if human lives – especially not their own - are threatened. Equally, no one has the right to demand that short-term economic advancement is superior to maintaining ecosystemic functionality.

The only way to come up with solutions is to talk: for everyone to be heard, all considerations to be integrated in a transparent decision-making process, and negotiated results to be the ultimate outcome. There is no single solution that will please everyone. Everyone must however be involved.