Guest Blog: Defend the Elandsfontein Aquifer from illegal strip-mining

02 September 2016

Elandsfontein lies within the lagoon town of Langebaan on the Cape West Coast of South Africa.  The site is of international heritage value, when a 500 000-year-old humanoid scull was found in the early 1950’s.  Further excavations lead to 1000’s of artefacts found and the IUCN recognise it as an “Origin of Man site”.

As further research was conducted over the years, the area was found to be significant value based on the biodiversity found here and that it is situated on top of two aquifers.  These aquifers contribute to the bio-geochemical maintenance of the Langebaan Lagoon as it discharges fresh mineral water into the lagoon and collects in the Juncus krausii marshes along the southern end of the lagoon. These marshlands and eelgrass beds in the lagoon act as sediment traps, and freshwater flooding after rain does not significantly affect the system. A total of 450 bird species have been recorded here.  It is an Important Bird Area, RAMSAR site and a Marine Protected Area.

 

Background

The proposed strip mine lies within:
•    A Critical Biodiversity Area. Critical Biodiversity areas, are sites selected using standardized, globally applicable, threshold- based criteria, driven by the distribution and population of species that require site-level conservation. The criteria address the two key issues for setting site conservation priorities: vulnerability and irreplaceability. (Eken et al, 2004, Key Biodiversity Areas as Site  Conservation Targets, BioScience 54(12):1110-1118). 
•    Zoned Core 1 Area of a UNESCO Man and the Biosphere Reserve. Core 1 Areas are those parts of the rural landscape required to meet biodiversity patterns or ecological processes (i.e. critical biodiversity areas). These include habitats classified as highly irreplaceable, critically endangered, or endangered terrestrial (land), aquatic (rivers, wetlands and estuaries) and marine habitats.
•    Between two sections of the West Coast National Park which is part of the Convention on Biological Diversity signed treaty of the Park Expansion Plan. 
•    Well within the buffer zone of the park (50m between mine and park boundary), which calls for very specific development as outlined in the National Buffer Zone Policy  as to Protect the purpose and values of the national park, which is to be explicitly defined in the management plan submitted in terms of section 39(2) of the Protected Areas Act;  Protect important areas of high value for biodiversity and/or to society where these extend beyond the boundary of the Protected Area
•    Next to a declared Heritage site  
•    A provincially recognised 'climate adaptive corridor'. The mining site is 9km from the Langebaan Lagoon.  
•    Municipality zoned Environmental Management Zone 1 “based on resources that are considered critical in maintaining the quality of life of people living in the study area and the economic activity of the area, as well as protecting assets that represent either natural or cultural heritage for current and future generations.  This is in accordance with the environmental right in the Constitution and the NEMA principles.”
◦    Calls on the municipality to  oppose  mining activities as it will push the system over limits of acceptable change. The Berg River estuary and Langebaan lagoon systems were found to be vulnerable to impacts of groundwater abstraction.
◦     Priority Natural Areas are those parts identified for future park expansion
◦    The EMZ 1 highlights 27 activities that must be avoided (i.e. that should not be considered) in this zone).  It is important to note that ten out of the 27 identified activities which should not be considered for this will have to take place for the mine to become operational. These are:
▪    Mining projects
▪    Industrial / manufacturing projects 
▪    Bulk storage / stockpiling of minerals, ore or coal  
▪    Storage, treatment or  handling  of any dangerous or hazardous substance 
▪    Dams (in stream and off stream) and water transfer schemes 
▪    Waste transfer stations 
▪    Power generation (fossil fuels or nuclear) 
▪    Electricity distribution infrastructure 
▪    Bulk water supply storage infrastructure. 
▪    Bulk Storm water infrastructure 

Strip mining will be done within the primary aquifer on top of a contained aquifer, collectively termed the Elandsfontein aquifer.  Age of the aquifer has been placed at 5-10 million years.  The system used to be a river the proto Berg, which mouthed into the southern section of the Langebaan Lagoon. Due to evolutionary change of sedimentation, the system has moved underground and  both the primary and contained aquifer feeds into the Langebaan Lagoon through paleo-channels.  The lagoon is a declared RAMSAR site and Marine Protected Area and the aquifer maintains critical biochemical processes such as pH and salinity. 
The aquifer has been labelled through Department of Water Affairs and Sanitation as:
•    geologically complex
•    aquifer dependant lagoon
•    highly vulnerable to anthropogenic change
•    highly susceptible to pollutants
•    strict 'non degradation status'
•    “potentially extremely environmentally sensitive”
Strip mining destroys the structure of an aquifer, thus it will no longer be able to function properly.  A total area of 408 hectare will be mined and the total footprint of the mine, including processing plants will be 1500 hectares.  Processing requires vast amounts of water and electricity and for each ton of phosphate produced five tonnes of ore is produced i.e. slimes.  The slimes are going to be pushed back into the strips (this is what the mine calls 'rehabilitation') which will undoubtedly cause further pollution.   The West Coast is a drought stricken area with rainfall of 300mm per annum.  Climate change models indicate that it will become drier with less rainfall.  The interconnected aquifer systems ensures that although surface droughts occur, hydrological droughts does not occur.  Mostly because of the age and resilience of the system, but removing the heart of the aquifer will undoubtedly accelerate climate change impacts.
CapeNature has commented that the vegetation types (Hopefield Sand Fynbos and Saldanha Flats Strandveld) on which mining are to commence are both endangered in terms of section 52 of the National Environmental Management Biodiversity Act (NEMBA), in relation to its original extent.  The vegetation types are also endemic to the West Coast.  These two veld types was wrongly classified as 'vulnerable'  in the List of Threatened Ecosystems published at the end of 2011 under  NEMBA. 

Western Cape Heritage has summarised the Elandsfontein farm area as follows: 
•    High Sphere of significance (International, National, Provincial, Regional, Local and for Specialists groups and community)
•    Importance in the evolution of cultural landscapes and settlement patterns        
•    Importance in exhibiting density, richness or diversity of cultural features illustrating the human occupation and evolution of the nation, Province, region or locality.      
•    Importance for association with events, developments or cultural phases that have had a significant role in the human occupation and evolution of the nation, Province, region or community. 
•    Importance for information contributing to a wider understanding of natural or cultural history by virtue of its use as a research site, teaching 
•    Importance for information contributing to a wider understanding of    the origin of life; the development of plant or animal species, or the biological or cultural development of hominid or human species. 
•    Importance for its potential to yield information contributing to a wider understanding of the history of human occupation of the nation, Province, region or locality
•    Importance for rare, endangered or uncommon structures, landscapes or phenomena
•    Importance in demonstrating the principal characteristics of human activities (including way of life, philosophy, custom, process, land-use, function, design or technique) in the environment of the nation, Province, region or locality. 

The significance of this site is established on the basis of the rarity of occurrences of this age  (nationally and globally), with excellent preservation of faunal remains and stone artefacts on an  ancient land surface (s). 


Irregularities within the process to date: 
This mining application has from the start ignored to follow due process and it is clear that there are various irregularities within this application and it would appear that local government, Independent Environmental Control Agents and the Environmental Practitioner are not ensuring compliance (as requested by National Environmental Management Act).  
The general objectives of integrated environmental management laid down in the NEMA, inter alia, calls for “adequate and appropriate opportunity for public participation in decisions that may affect the environment”. The National Environmental Management Principles include the principle that “The participation of all interested and affected parties in environmental governance must be promoted, and all people must have the opportunity to develop the understanding, skills and capacity necessary to achieving equitable and effective participation, and participation by vulnerable and disadvantaged persons must be ensured”. 
 1.    The Draft Scoping Report/BID was released for public commentary on the 19th of December 2013 and commentary closed on the 8th of January 2014.  Under Section 10 of the MPRDA, interested and affected parties are given 30 days to submit comments.  Firstly Scoping documents cannot be released over this time as  many I&APs  and commenting authorities are not available and secondly it was less than 30 days.
 2.    The hierarchical matrix as described in the Mining and Biodiversity Guidelines and NEMA were not being followed.   Biodiversity offsets was mentioned in the original Scoping Report. It is essential to note that before offsets are considered and determined the mitigation hierarchy must be followed i.e. the first step is to attempt to avoid the impact, then minimise, then mitigate and lastly offset. In a press release from the Cape West Coast Biosphere Reserve, the offset is already praised.  The statutory Western Cape Provincial Spatial Development Plan notes that  biodiversity offsets “cannot be used to justify undesirable development.”   As far as management plans are concerned, the Core Zone of the Biosphere is the off set area where development should take place. This fact was brought under the attention of the consultancy, but was only captured as 'noted to be taken up with the DMR'.  Nowhere in the Scoping Report is any mention of alternatives and a no-go option is not given, this is in direct conflict with the guidelines.  
 3.    The minutes of the meeting of the public participation held in Hopefield on the 6th of January 2013 was fraudulently changed where it was noted that there were no objections from the public.  Video footage filmed at the meeting indicates various objections from the public.   
 4.    The mining is set to take place in Ward 6 of Saldanha Bay Municipality i.e. Langebaan, yet no public participation meeting was held in Ward 6.  There were only two public meetings held on the 6th and 8th of January 2014, Hopefield and Saldanha respectively, both of these towns fall outside of Ward 6.  Two other public participation meetings were announced for May 2014, but none  happened. Langebaan is dependant on the Elandsfontein aquifer in terms of its subsistence fisheries i.e. fish is very susceptible to salinity changes and the lagoon plays a vital role as a nursery area for fish stocks which are already under threat. Businesses, real estate, conservation, tourism, mari-culture within Langebaan creates employment and livelihoods for the people and is once again dependant on the functioning of the lagoon.  It is of critical importance that the Ward where the mining is set to take place are included from the start. As Councillor Andre Kruger stated, he only became aware of the mining activity in late August 2014.
 5.     Comments on the Final Scoping Report was released on the 31st of March 2014 and had to be submitted by the 2nd of June 2014.  No Public Participation meeting was held and written feedback was not received by I&APs. 
 6.    On the 28th of August 2014, an advert appeared in the Weslander announcing the Public Participation of the EIA phase and Mining rights, commentary for the EIA process closed on the 30th of September 2014, which was changed to the 15th of October 2015. Although the Environmental Management Plan also doubled up as the Environmental Impact Assesment, no site specific new research was done.  Information was based on desktop studies and coupled with 1-3 site visits.  
 7.    Documents for comments were uploaded between the 2nd -4th of September 2015 on the Braaf Environmental website. Mining rights were lodged to the Department Mineral Resources on the 15th of September 2014.  I&APs did not have sufficient time to read through the reports and comment for the 15th of September deadline.
 8.    Reports entailed 1000's of pages of reading and understanding. Some of the documents released was misleading.  For instance, the Freshwater Study report was based on a desktop study (with only three site visits)  and sampled the Groene and Sout river which are situated upstream kilometres away from the mining area. Not one wetland or seep was sampled between the mine and the lagoon, downstream.  Yet the statement was made in the Executive Summary that, there will be no impact on the lagoon with no information to support it within the text.  This fact was also highlighted by the independent hydrologist from SANParks, yet received no attention.
 9.    In August 2013 (before the mining application), we sampled the Langefontein wetland within the West Coast National Park and found that the wetland was fed by the Elandsfontein Aquifer.  Regardless of numerous communication regarding this fact it was ignored. Only in October 2014, did the mine allow me to show them the wetlands and seeps which needed to be sampled. Clearly this is very important information which are lacking for decision making.  Executive Summaries of such reports are bound to Department Environmental Affairs EIA Guidelines where it instructs that summaries should make available the exact information to allow I&APS an opportunity to understand the science.
 10.    This type of application requires specialist studies that is of a 'peer reviewed quality', yet the botanical study was done outside the flowering season and this area has a large geophyte component, once again was this done to mislead? 
 11.    At the Public Participation meeting we were repeatedly assured that all our comments would be addressed as a minute taker was there to make sure that everything is captured. I am still waiting for a written reply on my comments and questions, which does not have the term 'noted' next to it. Nobody has received any commentary back. 
 12.    At the Hopefield meeting a slide show was shown where the artificial recharge of the aquifer was shown, where water will be pumped from a South Easterly direction to a North Westerly direction. This slide was taken out at the Langebaan meeting. Why? This is in the opposite direction  as what the Elandsfontein aquifer flows as the Langefontein wetland which gets recharged from the aquifer lies more Easterly from there. There has been a lot of talk from the mine that the Elandsfontein aquifer does not flow into the lagoon. If the mining company cannot even admit to basic natural laws i.e. water flows from the mountain to the sea, in this case the lagoon and are not willing to consult Department of Water Affairs and Sanitation maps which shows just that. What guarantee is there that mining will be done using “best practise and science”.
 13.    Leaflets were handed out at the September meeting stating that we are at the beginning of a four step process, with a Scoping process and EIA process to follow with commentary periods, before the decision making takes place. After the meetings, we as I&APs heard nothing, until the 25th of February 2015, in a letter stating that mining rights has been granted. 
 14.    Most disheartening and telling of the irregularities was the incidence that took place on the 17th of March 2015. Interested and Affected Parties were notified in writing by Braaf Environmental that a meeting will take place to discuss the implementation of the EMPR, as required by law after attaining mining rights.  The letter stated that there will be a public meeting from 18:00 and that the company will be there from14:00 for discussion.   The Mayor of Saldanha Bay Municipality (whom is also the ward councillor) facilitated the meeting and it soon emerged that the meeting was not about the discussion about the implementation of the EMPR, but to employ people, which there was no mention of in the notice sent to I&APs.  When the floor opened for questions and a man asked whether or not an EIA process was followed and the Environmental Practitioner admitted that no EIA was done; the mayor informed the Environmental Practitioner that she does not need to answer any questions, that this is 'his meeting' for 'his people' and that he will not tolerate any such questions as this meeting is for people wanting employment.  The incident was filmed and will be handed over on request. Employment possibilities had to be discussed in another meeting and it is not lawful to piggy back on a legally obliged meeting to discuss something else. Furthermore, there are no Corporate Social Initiative (CSI) in place which has been accepted or released for comment, which is another legally required document.  I personally took part in two CSI meetings  in July which was initiated by SBM.  We were promised that a facilitated workshop will be arranged to properly communicate to the community what the mining will  entail and to give each a chance to come up with ideas.  I received an SMS from the municipality saying we can address these issues at the Public Participation meeting on the 11th of September 2014 during the Hopefield meeting.  When this was brought up at the meeting we were informed by EEM that they carry no knowledge of this and that it was driven by SBM.   In February 2013, I did a skills analysis of the unemployed people within Hopefield, out of the 120 people whom attended, 90 % did not have matric.  When I put the notion on the table that if the municipality is serious about employment then night colleges needs to be established at the current schools for these people.  Nothing has culminated since... 
 15.    Conditional granting of servitude for a right of way, over Farm 304 (which is owned by SBM i.e. citizens), was resolved on the 28th of August 2014 at a Council meeting (R119/8-14).  The granting was done before  the application of mining rights were handed in to the DMR on the 15th of September 2014. One of the conditions to the right was that an EIA study must be successfully concluded. A paragraph within a EMPR describing, how an overgrown jeep track  servitude, which was accessible by 4x4 only, will be utilised as an access road to 'minimize environmental impact', does not constitute as a successful EIA process. Especially for an 18.5m wide, 9km long road where the removal of natural vegetation is a listed activity. The term 'an EMPR' is used here as there are four different Environmental Management Programmes available; with the mine being unable to release the approved exact EMPR. The community has a legal right to see the applicable EMPR. Farm 304 forms part of the WCNP Buffer Zone which has been identified within the  WCNP management plan and accepted and signed off by the Minister of Environmental Affairs and is thus classified as a 'Special Area' subject to an EIA in terms of Section 24 (2) b of NEMA. Thus two of the conditions have already been broken.  Construction of the road was also under way from before the 12th of February 2015, while an EMPR was only signed on the 20th of February 2015 (Dated photos to be delivered on request).  Another contravention of the agreement was that it was not advertised as stated in terms of Section 21 of the Municipal Systems Act.  The mining company did not adhere to the contractually signed Heritage Western Cape's  Assessment Procedures and ignored three 'Stop Works Orders'. When the case was brought before the court to process an interdict, the Premier's office stepped in and forced HWC to settle out of court, the Premier does not have the legal powers to act in terms of NEMA/MPRDA and the MEC had to give instruction to EEM to apply for environmental authorization and adhere to HWC before activity could start again.
 16.    The Centre of Environmental Rights has released a document from Advocate De Villiers (Impact of the One Environmental System on approval of Environmental Management Program and application for Environmental Authorisation) stating in section 46: 
•    46.1 “the approval of an EMPR by the DMR after the mining right application had been granted, and the One Environmental System had commenced, is unlawful because there are no legislative provisions empowering the DMR to act in terms of section 39(4) of the MPRDA which was repealed with effect from 7 June in such circumstances” 
•    46.2 because the EMPR was not approved before the One Environmental system came into force it cannot be “regarded as having been approved in terms of NEMA” 
•    46.3 even if the EMPR could be 'regarded as having been approved in terms of NEMA' that does not mean that an environmental authorisation has been obtained in terms of NEMA. 
The definition of “Environmental Authorisation”, means the authorisation by a competent authority of a listed activity or specified activity in terms of this Act.  EEM also withdrew their application for Environmental Authorisation from DEADP on the 3rd of February 2015. These are just some of the contraventions which has taken place and it is pivotal that the Saldanha Bay Municipality now steps up as a Public Servant to the community and address these issues and enforce the law to ensure stable, sustainable, just and lawful development of the municipal area through administrative justice.

IUCN has Red listed strip mining, groundwater extraction and habitat destruction as one of the major threats to the environment. Strip mining is a highly irreversible detrimental environmentally destructive operation. The sheer volume of material involved in strip mining makes the impact on the environment especially acute. It can severely erode the soil or reduce its fertility, pollute waters or drain underground water reserves, scar or alter the landscape and destroy wildlife.  The dust and particles from mining, stockpiles and lands disturbed by mining are a significant source of air pollution. Even if what are usually euphemistically known as “effective mitigation” measures are applied and the site is restored to a condition said to “approach”or “resemble”its natural state, but not its ecological functioning. The disturbance will cause numerous direct, indirect short- and long term potentially adverse effects on the landscape, these include: 
1.    Topographic modifications:  including the large scale removal of soil, vegetation and overburden to access the ore and create nearby sites for tailings storage, water storage dams and waste disposal. Alterations to the landscape will also be be caused by the construction of access roads and mining infrastructure such as; cranes, hoists, conveyor systems, buildings, electrical substations, workshops, and decontamination facilities, waste water treatment facilities, offices, parking, vehicle storage areas, materials etc.  Further disturbance can be caused through mechanized equipments such as machines used in the construction phase in a previously remote, road less area where human activity had resulted in little alteration of relatively pristine ecosystems. 
2.    Soils:  changes in characteristics through accelerated wind and water erosion, development of nutrient deficiencies or imbalances, compaction, surface crustiness, or desiccation.  Soils can be altered, contaminated or otherwise adversely affected by road building or mining construction to certain depths below the surface such that short term and even mid term recovery following reclamation is problematic. The fairly intense disturbance of the aquifer and its soils could lead to total loss of the aquifers functioning as overburden is just pushed back into the strips. 
3.    Surface and ground water:  Changes in quality, discharge quantities and leaching beyond its natural buffering capabilities in the rest of the aquifer could cause severe impacts on its functioning and flow. Adverse effects on quality and quantity especially with regard to de-watering activities, draw down and techniques used to control dust and other particulates as well as acid mine drainage that infiltrates the groundwater system, especially radio active components such as uranium which was deposited with phosphate.  
4.    Leaching of substances: The nature of leaching can be described as follows;  fresh water that is poured over ground coffee beans leaches far more essence of coffee than if the same water percolated over whole coffee beans since more surface area is exposed to the chemical effect. So it is with mine tailings versus intact igneous rock structures.  ◦ Biodiversity: Alterations to and loss of habitats, vegetation cover, invasion by alien plant species (due to the intact nature of the system it is difficult for invasive plants to out-compete the natural vegetation at present).  The mining will lead to altered plant community species composition, contamination and the destruction of entire food webs. Disturbances of natural and cultural landscapes inevitably result in changes in composition and structure of plant species, disrupt soil strata and stimulate invasion by disturbed-site plant species that in turn can alter composition of local invertebrate and other associated species and habitat.  
5.     Economic costs:  including short-, mid-, and long term costs to the general public of clean-up not paid for by the mining firm which is all too common occurrence i.e. maintenance of roads due to heavy usage. Tax payers money could rather be diverted in building schools, hospitals etc.  rather than roads

We appeal this mining right  based on the following points:
1)    Due to the change in legislation to the One Environmental System, it created confusion and was exploited.  No Environmental Impact Assessment was done, only a Scoping Report and from this an Environmental Management Plan was done, there are currently various different EMPs. If no Environmental Impact Assessment was done, which is based on identifying the probability of impacts and mitigation measures, how can an EMP be drawn up.  The Scoping Reports were all desktop studies based on previous work and no new research which is site specific and publishable within a scientific journal was done.  No best science was done.  Due to the ecological sensititivity of this connected groundwater system, skipping the EIA phase is not only unlawful, but very irresponsible and directly influences our Constitutional Rights. 
2)    High biodiversity importance (Critical Biodiversity Area, Park Expansion Area, climate adaptive corridor. Buffer zone of National Park, endangered with extinction vegetation types)
3)    High heritage importance 
4)    Aquifer importance with regards to
◦    ecosystem services (water)
◦    functioning (recharges and maintain wetlands between the mining area and lagoon and maintains chemical processes of the Langebaan Lagoon) 
◦    age of aquifer (5-10 million years old)
5)    Legislation, policies, mandates, international treaties and guidelines currently in place outlining the area as a high Conservation importance area.
6)    Flawed Public Participation Process
7)    Superficial scientific reports and no site specific research done to determine impacts, giving false information to the community,  no feedback on comments from the community
8)    No Environmental Impact Assessment done on the access road currently being build on an endangered vegetation type which is owned by the Saldanha Bay Municipality.
9)    Although mining rights has been granted, no environmental authorization in terms of NEMA has been done to start removing vegetation.
10)    The long term impacts that strip mining will have on the structure and thus functioning of the Elandsfontein aquifer on the Langebaan Lagoon with regards to leaching of radio active minerals such as uranium and higher amounts of phosphates being released into the system
11)    High risk of contamination of the groundwater system through leaching of tailing dams
12)    Dust pollution caused by overburden – little mitigation for this
13)    Light pollution – no mitigation for this
14)    Impact of traffic on the R45 (intersection is at a very dangerous turn which is covered in mist six months of the year)
15)    Strip mining within the Elandsfontein area cannot be viewed as sustainable development within the  definition as outlined in the Provincial Spatial Development Framework
16)    The land has not been rezoned thus no activities can take place yet. (Letter dated 26 January 2015  from Honourable Minister A Bredell – no formal application in terms of LUPO has been submitted for activities) 
•    Based on this a stop works order needs to to be issued with reference to the case: MACCSAND (Pty) Ltd vs City of Cape Town 2012 (4) SA 181 (CC)

1. Legislation
The granting of mining rights within Elandsfontein is not in line with current legislation, mandates and guidelines surrounding the Elandsfontein area:
1.1. The Constitution of South Africa 
◦    “Everyone has the right to an environment that is not harmful to their health or well-being; and to have the environment protected for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and environmental degradation, promote conservation and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development” Section 24


1.2 The National Environmental Management Act (with reference to the NEMA principles)
Development must be socially, environmentally and economically sustainable (NEMA Act No. 107, 1998 2. (3)
•    NEMA Act No. 107, 1998 2. (4) Sustainable development requires the consideration of all relevant factors including the following
◦    (I) disturbance of ecosystems and loss of biological diversity are avoided, or, where they cannot be altogether avoided, are minimised and remedied;
◦    (ii) pollution and degradation of the environment are avoided, or, where they cannot be altogether avoided, are minimised and remedied;
◦    (iii) disturbance of landscapes and sites that constitute the nation’s cultural heritage is avoided, or, where they cannot be altogether avoided, are minimised and remedied;
◦    (iv) waste is avoided, or, where they cannot be altogether avoided, are minimised and remedied;
◦    (v) the use and exploitation of non-renewable natural resource is responsible and equitable, and takes into account the consequences of the depletion of the resource, or, where they cannot be altogether avoided, are minimised and remedied;
◦    (vi) the development, use and exploitation of renewable resources and their ecosystems of which they are part do not exceed the level beyond which their integrity is jeopardised, or, where they cannot be altogether avoided, are minimised and remedied;
◦    (vii) a risk-averse and cautious approach is applied, which takes into account the limits of current knowledge about the consequences of decisions and actions, or, where they cannot be altogether avoided, are minimised and remedied;
◦    (viii)  negative impacts on the environment and on people's environmental rights be anticipated and prevented, or, where they cannot be altogether avoided, are minimised and remedied;
The NEMA principles apply throughout South Africa to the actions of all organs of state that may significantly affect the environment, and thus to decision making on mining applications.
Within this application and with reference to the above mentioned principles: 
First to avoid impact – no alternative was given, mining within an aquifer and a climate adaptive corridor within a Critical Biodiversity Area, which has 17 Red Data Species on it, on endangered veld types (in terms of section 52 of NEMBA) in a Critically Endangered Ecosystem that feeds critically endangered wetlands and ultimately the Langebaan Lagoon where it maintains critical biochemical processes, within an area, where mining has been identified as undesirable by government, is not avoiding impact, it is making a mockery of our legislative system. This is evident in the fact that no EIA was completed!


1.3 Buffer Zone Policy (Published under Government Notice 106 in Government Gazette 35020. Commencement date: 8 February 2012. 
The purpose of a buffer zone is to:  
◦    Protect the purpose and values of the national park, which is to be explicitly defined in the management plan submitted in terms of section 39(2) of the Protected Areas Act;  
◦    Protect important areas of high value for biodiversity and/or to society where these extend beyond the boundary of the Protected Area; 
◦    National park buffer zones, defined in the park management plans, will be considered special areas in terms of section 24(2)(b) of the National Environmental Management Act, 1998 (Act No. 107 of 1998) (NEMA). All development in the buffer zone requiring an environmental authorisation in terms of the NEMA, will be subject to an environmental impact assessment process at national level. The Department's decision will be informed by the management authority of the potential impact on the national park. In addition, consideration of the cumulative and secondary impacts on biological diversity of development proposals, and the reversibility of proposed actions over time, will be integrated into regional planning processes and environmental impact assessment procedures.
•    To establish buffer zones around each national park, Government will—  
◦    a) Identify buffer zones for all national parks in park management plans; 
◦    b) Establish these buffer zones by publication in the Gazette; 
◦    c) Integrate the buffer zones into municipal spatial development frameworks as special control/natural area where appropriate; and 
◦    d) Where necessary or appropriate, declare the buffer zones or parts thereof as protected environments in terms of the Act.  Buffer zones has been identified and integrated into the municipal spatial development framework.  Clearly there is a governmental mandate process at work here which is the forerunner of a mining application.

1.4 The Western Cape Provincial Spatial Development Framework:
The Guiding Principle of the PSDF is Sustainable Development and “development is only acceptable and in the public interest if it is ecologically justifiable, socially equitable and economically viable, i.e. environmentally sustainable.  This means that the development needs of present generations should be met without the ability of future generations to meet their own needs, being compromised.  Sustainable development encompasses the integration of social, economic and ecological factors into planning, decision-making and implementation so as to ensure that development serves present and future generations.  It is of crucial importance for the long-term survival of Humankind that all development complies with this principle,”
“The three pillars of sustainability, also referred to as the "triple bottom line", are:  
•    Ecological integrity (health of the Planet):  This refers to the continued wholeness and success of the environment in terms of providing for and sustaining life on Earth or in a subset thereof such as a region or town, and concerns both the natural and human-made environment.  Due to the fact that the survival of species, including our own, ultimately depends on the ecology, ecological integrity is then a key factor in the environmental sustainability equation.  In this regard it must be remembered that the Western Cape is home to one of the six floral kingdoms of the world. 
•    Social equity (situation of the People):  Within a secure ecology, society can move towards needs fulfilment for all.  Social equity refers to both material human well-being (the absence of poverty) and spiritual human well-being, i.e. provision of a physical and moral space where the continuity of a complex society and ecology is sought to be maintained and enhanced, and its health attained.  In the South African context the concept of social equity is an extremely important component of society as it emphasises the need to redress the wrongs of the past as a central component of social sustainability. 
•     Economic efficiency (attainment of Prosperity):  If human needs are met, society can seek prosperity through economic efficiency.  This refers to the optimisation of benefit at the lowest cost, i.e. optimal development must be achieved at the lowest possible cost – and moreover, to comply with the sustainability principle, taking all costs now and in future into consideration.   
These three pillars of sustainability can be viewed as providers of the capital necessary for each subsequent pillar to function.  Thus, economic capital is dependent on social capital which is in turn dependent on ecological capital.
It is important to note that the nesting of the circles – economic, social and ecological – illustrates that economic and human capital cannot draw more from society and from the ecology than what the ecology and society can yield sustainably in the long term.”  The PSDF strives to promote sustainable farming and mining practises (i.e. activities that generate positive socio-economic returns, and do not significantly compromise the environment). A prerequisite for sustainable farming and mining is coherent land use planning and environmental management systems that are aligned with provincial strategic objectives. The PSDF maps based on policy shows that:
◦    an priority climate change adaptation corridor
◦    a planned protected area
◦    a catchment area
◦    most vulnerable municipality with regards to climate change
◦    archaeological landscapes of importance
◦    inter regional biodiversity corridor
◦    Core 1 area (Critical Biodiversity Area and Protected Area) - “means a terrestrial, aquatic or marine area of high conservation importance (i.e. is highly irreplaceable), that must be protected from change or restored to its former level of functioning.  Both public and private ownership is permitted in Core Areas.  Privately owned land should be designated either as private nature reserves or under stewardship regulations. There are two types of Core Areas, namely Core 1 areas which have a level of statutory proclamation or designation, and Core 2 areas which have the potential to be brought up to Core Area 1 status.”  

The PSDF primary objectives commit the Province to safeguarding these assets: 
i.    Protect biodiversity and agricultural resources. (Policy R1)
ii.    Minimise the consumption of scarce environmental resources, particularly water, fuel, building materials, electricity and land – in the latter case especially pristine and other rural land, which is the Western Cape’s ‘goldmine-above-the-ground’. (Policy R2, R3, R4 and R5)
iii.    Conserve and strengthen the sense of place of important natural, cultural and productive landscapes, artefacts and buildings. (Policy R5, Policy S1)
Other policies which should be looked at in terms of this application to identify conflict with current land use is:
•    Policy E2: Diversify and strengthen the rural economy with special emphasis on development outside the urban edge.
•    Policy S1: Protect, manage and enhance the Provinces sense of place, heritage and cultural landscape.

1.5    Western Cape Biodiversity Bill (WCBA)
The WCBA was initiated to act as an umbrella legislation for all the environmental legislation within the Western Cape.  Chapters 4, 6 and 9 has relevance here. 

1.6    National Environmental Biodiversity Act (NEMBA) Government Gazette No. 26436
Section 5 of the Act gives effect to to ratified international agreements affecting biodiversity to which South Africa is a party, and which bind the Republic (Convention of Biological Diversity)
Section 8 (1) describes that  In the  event of any conflict between a section of this Act and- (a) other national legislation in force immediately prior to the date of commencement of this Act, the section of this Act prevails if the conflict specifically concerns the  management of biodiversity or indigenous biological resources.  It further states that the Constitution prevails.
Chapter 3 calls for Biodiversity planning and monitoring through biodiversity frameworks and this has given rise to the Buffer zone policy, Bioregional plans and Environmental Zones.  All these plans has been developed and incorporated by national, provincial and local governmental organizations. The applicable mandates all indicate that mining is an undesirable activity within the Elandsfontein area.

2.    MANDATES

2.1 The West Coast Biodiversity Sectoral Plan 2014  (BSP)

Each municipality are required to have a bioregional plan, The Biodiversity Sector Plan is the forerunner to any future bioregional plans in terms of Chapter 3 of the NEMBA. It still needs to undergo further legal, administrative and public consultation procedures in order to qualify as a formally published bioregional plan, but all bioregional plans will be based on the Biodiversity Sectoral Plan.    Bioregional plans feeds into the Environmental Sector planning as required by the NEMBA (10 of 2004). This means that multi-sectoral planning procedures which consider all available sector plans (biodiversity, agricultural, mining, economic, social etc.) in order to make informed decisions and promote sustainable development. IDPs and SDFs are examples of multi-sectoral planning tools. 
This Biodiversity Sector Plan is intended to be the biodiversity informant for these various multi-sectoral planning and decision-making procedures as it represents current and detailed spatial information, which is adequate to execute informed decision-making as required by the National Environment Management Act (NEMA) (Act No. 107 of 1998). Furthermore, the Biodiversity Sector Plan serves as the framework for the compilation of a bioregional plan1 and in terms of Chapter 3 of the National Environmental Management: Biodiversity Act (NEMBA) (Act No. 10 of 2004).
The BSP urges decision makers to protect CBAs and that the destruction of these are not sustainable. “If sustainable development is to be achieved, no CBA or part thereof should be impacted or disturbed in any way. Any disturbance or conversion of habitat within a CBA means either 1) the irretrievable loss of an important ecological feature or part or whole of a corridor or 2) more land will be required in order to meet the same threshold.”  Although CBA Maps do not grant or take away existing land-use rights. They are intended to inform proposed land-use changes in order to achieve sustainable development. 
The BSP must be utilised by decision makers and the ecological information described within the document surrounding this specific area must be weighted up against the mining rights, to ascertain if this is viable sustainable, responsible, development.


2.2 The Saldanha Bay Municipality Spatial Development Framework
An SDF is the spatial depiction of an Integrated Development Plan (IDP).  Such a plan and framework must ensure sustainability (Section 26 of the Municipal Systems Act (Act No. 32 of 2000). The SDF identifies Elandsfontein as a Priority Natural Area stating that “Ploughing of natural veld, development beyond existing transformation footprints, urban expansion, intensification of land use (through golf estates etc.) should be opposed within this area. Dam construction, loss of riparian vegetation and excessive aquifer exploitation should be opposed.”
◦    Identifies the area as a Catchment Area
◦    Calls on the municipality to  oppose  mining activities within these areas
The parameters for the drafting and approval of a spatial development framework (SDF), are determined/informed by the following legislation:  
•    The Constitution, 1996 (Act 108 of 1996); 
•    The Municipal Systems Act, 2000 (Act 32 of 2000) – the “Systems Act”; 
•    Western Cape Planning and Development Act, 1999 (Act 7 of 1999) – the “PDA; 
•    Land Use Management Bill; 
•    Land Use Planning Ordinance, 1985 (no. 15 of 1985) – “LUPO” 
•    National Environmental Management Act (Act 107 of 1998) – “NEMA” 
•    Environmental Conservation Act, 1989 (Act 73 of 1989) 
•    National Forests Act, 1998 (Act 84 of 1998); 
•    National Water Act, 1998 (Act 36 of 1998); 
•    Mountain Catchment Areas Act, 1970 (Act 63 of 1983); 
•    Conservation of Agricultural Resources Act, 1983 (Act 43 of 1983) 

2.3 The Draft Environmental Management Framework
Identifies the Elandsfontein area as falling into an Environmental Management Zone 1
◦    This Environmental Management Zone 1 Area is based on resources that are considered critical in maintaining the quality of life of people living in the study area and the economic activity of the area, as well as protecting assets that represent either natural or cultural heritage for current and future generations.  This is in accordance with the environmental right in the Constitution and the NEMA principles.
◦    Calls on the municipality to  oppose  mining activities as it will push the system over limits of acceptable change.
Relevant policies, guidelines and environmental quality thresholds which informed the identification of EMZ 1 are:
◦    The DWAF Water Quality Guidelines 
◦     SANParks management codes 
◦     Western Cape Provincial Spatial Development Framework: Rural Land Use Planning and Management Guidelines.  May 2009 
◦     National Policy for Sustainable Coastal Development in SA. 
◦    Biodiversity Sector Plan for the Saldanha Bay, Bergrivier, Cederberg and Matzikama areas.  SANBI 2010 
◦    NFEPA: Management Guidelines for wetland and river FEPAs [Implementation Manual for FEPAs (Driver et al 2011) 
◦    The DWAF Minimum Requirements relating to waste management (4 volumes) of 1998 
◦     The DEA&DP Guidelines for involving specialists in the EIA process. 
◦     CapeNature stewardship guidelines 
◦     Berg River Draft Estuary Management Plan

3.    MANAGEMENT PLANS

3.1 West Coast National Park Management Plan 
The West Coast National Park Management Plan was signed into affect by the Minister of Environmental Affairs stating; “This management plan is hereby internally accepted and authorised as required for managing the West Coast National Park in terms of Sections 39 and 41 of the National Environmental Management: Protected Areas Act (Act 57 of 2003).” 

With regards to mining the management plan states that:
•    “Mining applications in the buffer zone are treated in terms of the buffer zone policy by both SANParks and the CWCBR.”  The Buffer zone policy (Published under Government Notice 106 in Government Gazette 35020. Commencement date: 8 February 2012), indicates that the Elandsfontein aquifer is a catchment area that should be protected.  It highlights mining as an undesirable activity within the buffer zone of the National Park and calls on “all three spheres of government to  collaborate to ensure control in favour of the national park.”  With special emphasis on Goals 1 -7 from the buffer zone policy with regards to the management of the Buffer Zone in light off a mining application.  
The management plan recognizes Elandsfontein as a:
•    Priority Natural Area 
•    Catchment area 
•    One of the management objectives of the document is to ensure the persistence of the Elandsfontein aquifer and the ecological services it provide. 


3.2 UNESCO Cape West Coast Biosphere Reserve Spatial Framework (CWCBR)

Elandsfontein falls within a Core 1 Area of the international UNESCO Cape West Coast Biosphere Reserve as identified within their Spatial Framework.   Core Areas were spatially delineated based on Protected Areas and Critical Biodiversity Areas as indicated in the Biodiversity Sector Plan.  Key Biodiversity Areas or Critical Biodiversity areas, are sites selected using standardized, globally applicable, threshold- based criteria, driven by the distribution and population of species that require site-level conservation. The criteria address the two key issues for setting site conservation priorities: vulnerability and irreplaceability. (Eken et al, 2004, Key Biodiversity Areas as Site Conservation Targets, BioScience 54(12):1110-1118).  The CWCBR SF states that “Core 1 Areas are those parts of the rural landscape required to meet biodiversity patterns or ecological processes (i.e. critical biodiversity areas). These include habitats classified as highly irreplaceable, critically endangered, or endangered terrestrial (land), aquatic (rivers, wetlands and estuaries) and marine habitats.   These also include areas currently not yet exhibiting high levels of biodiversity loss, but which should be protected and restored in order to ensure biodiversity pattern and ecological process targets/thresholds can be met in the most efficient way possible.  These also include essential biological corridors vital to sustain their functionality.”
A $150 000 grant was given to the Cape West Coast Biosphere (CWCBR) to develop a Spatial Framework through the Critical Ecosystem Partnership Fund (CEPF) through Conservation International.  The  CWCBR has in turn reported to the CEPF that their Spatial Framework has been incorporated into the municipality's Spatial Development Framework and IDP and that it makes up the decision making tool for development for five years i.e. till 2016. 

The West Coast District Biodiversity Sectoral Plan indicates that the loss of biodiversity through disturbance or development has impacts on ecosystem functioning, thereby reducing the delivery of ecosystem services.  For example, the loss of this natural vegetation can also impact on nearby agricultural crops as it results in a reduction in habitat for insect pollinators, thereby leading to smaller harvests with fewer jobs and greater poverty. The farmers in this area shares a connective natural veld from the R45 to the Langebaan Lagoon.  In this area; bee, game, flowers and small scale subsistence grain and livestock farmers utilise this area for their livelihoods, many of which are dependant on the Elandsfontein aquifer.  The geologically complex groundwater and aquifer system  maintains the biodiversity and wetlands in this area and the people and the land is interdependent on its functioning if you look at it from an ecosystem approach . If the physical structure and thus functioning are impacted, it will cause a ripple effect on the land around it. The MBG (MBG) adopts the ‘ecosystem approach’, recommended by the Convention on Biological Diversity (CBD), that  looks at people and their socio-economic environment as an integral part of the broader ecosystem of living and non-living components.  This approach helps to assess the interdependencies between people and nature, and thus to identify impacts and risks, thereby facilitating good decision making.  What work has been done by the mine, to understand the interdependencies of the community and the environment of this area? 


3.    Guidelines
3.1    Mining and Biodiversity Guidelines
The Guideline offers six principles that should be applied towards good decision making when addressing biodiversity issues and impacts in a mining context:
1.    Apply the law 
2.    Use the best available biodiversity information
3.    Engage stakeholders thoroughly
4.    Use best practice environmental impact assessment (EIA) to identify, assess and evaluate impacts on biodiversity
5.    Apply the mitigation hierarchy in planning any mining-related activities and to develop robust environmental management programmes (EMP) 
6.    Ensure effective implementation of the EMP, including adaptive management.
Broadly stated  these six principles has not been taken into consideration, no EIA has taken place apart from the Scoping report and documents released, the community has not been engaged thoroughly, especially in light of the severe ecological sensitivity of the area and the process has been un-transparent.  The BMG also highlights the area as a Critical Biodiversity Area – with highest risk of mining to the environment. Although the document does not have any legal standing, it is a guideline document which according to South Africa’s Fifth National Report to the Convention on Biological Diversity (March 2014) are being implemented.
4. International Treaties
4.1    Convention on Biological Diversity
South Africa is a signed partner to the Convention on Biological Diversity where we (SA) have undertaken to place 12 % of our land mass under full protection, currently we have 7 % declared.  Elandsfontein makes up part of the Park Expansion Plan (Figure 3) as signed under the Convention on Biological Diversity.  NEMA Chapter 6 (25) (26) 

Summary of Mandates applicable to Land Use of Elandsfontein.

Conclusion:
This mining application has failed to comply with legislations and although they claim that they (the mining company) follow the letter of the law, they are not, or even the spirit of the law.  Areas such as  Elandsfontein are text book examples of intact wilderness areas which should be conserved for future generations.  These areas forms part of an intricate ecological infrastructure  and are pivotal in ensuring freshwater to both natural and human areas.  It forms part of one of the last areas which are still representative of lowland fynbos, where fynbos is the smallest floral kingdom in the world which have evolved over 96 million years. Most of the West Coasts natural vegetation have been destroyed through agriculture.  It is this generations responsibility to ensure that a functioning Earth is handed over to the next generation.  This mining application does not adhere to the Sustainability Principle which National Policy underpins in various legislations, mandates, International Treaties, Policies, Spatial Development Frameworks and Management Plans which filters through from National Level to a Local government level.  

 

This blog was prepared by the West Coast Environmental Protection Association who have engaged Cullinan & Associates to represent them in their legal action against the Department of Mineral Resources and Elandsfontein Exploration & Mining




22 September 2017

Environmental Assessment Practitioners: Reform and regulation at last?

A tension exists between the legal requirement for an EAP to be independent from the person making the application (the Applicant) and yet being dependent on Applicants for work in compiling environmental assessment reports.

07 July 2017

The N2 Wild Coast Toll Road: Is this what we call 'development'?

"They bring the N2 and tell us this is development. Why must development come from the top and not from us?” – Baliwe Dlamini, Resident

Contact Us