Minister's decision to authorise coal mining in Mabola Protected Environment; North West game donation; with the Deputy Minister

Meeting report

The Chairperson welcomed the Department of Environmental Affairs (DEA) delegation with the Deputy Minister, Ms Barbara Thomson.

Minister’s decision to authorise coal mining in Mabola Protected Environment

Mr Shonisani Munzhedzi, Deputy Director-General: Biodiversity and Conservation, DEA led the presentation  which outlined the dynamics between managing mining activities and biodiversity; the legislative context that governs mining development in protected areas; the efforts made by DEA to balance conservation and development within the legal and administrative parameters, and the situation with Mabola.  

The Mabola Protected Environment was located in the magisterial district of Pixley ka Seme and covered an area of 8360 hectares. It was a stewardship site aimed at expanding the formal network of protected areas within the province through mainstreaming of biodiversity conservation into other sectors in order to support conservation and the sustainable use of resources. 

Biodiversity stewardship was particularly effective in multiple use landscapes where biodiversity priority areas are embedded in a matrix of other land uses such as agriculture, mining, and tourism.

Mabola has been designated as a Protected Environment, which was the only category of Legally Protected Area where mining may be allowed with written permission from the two Ministers under strict conditions in order to ensure that development took place in a sustainable manner. A mining licence for an underground operation (as opposed to open-cast mining) with storage off-site was essentially an application for renewal of mining rights, as the prospecting rights for the area were previously held by BHP Billiton, until 2011.

The area where the Mabola Protected Environment was located was the subject of numerous prospecting and mining interests, with several licenses having been issued in the past. The specific portion of the area where the requisite surface infrastructure of the mine will be located was not part of the Legally Protected Area wherein mining was prohibited.

An application for a mining right was officially granted in terms of Section 23(1) of the Mineral and Petroleum Resources Development Act (MPRDA) on 14 April 2015. The mining rights came into effect on 28 June 2016, i.e. when the Environmental Management Programme (EMP) was approved by the Regional Manager. In terms of Section 25(2) of the MPRDA, mining activities must commence with one year of the effective date. The mining right was granted subject to securing the necessary authorisations, such as the water use license, environmental authorisation and compliance with relevant legislation.

The mining company conducted prospecting activities for a targeted area of 2 500 hectares out of the approved 8 360 hectares. The proposed mining activities would potentially impact an area of 184.91 hectares of the Yzermyn farm. However, the Final Environmental Impact Assessment Report (FEIR) indicated that the development footprint of the surface infrastructure will only impact on 22.4 hectares of the 184.91 hectares.

An application for a Water Use Licence in terms of the National Water Act of 1998 was lodged with the Department of Water and Sanitation (DWS). The license was issued with conditions on 7 July 2016.

The Mpumalanga Provincial Department of Economic Development, Environment and Tourism (DEDET) issued the Environmental Authorisation (EA) in terms of the National Environmental Management Act (NEMA) and the 2010 Environmental Impact Assessment Regulations on 7 June 2016.

DEA took into consideration a number of specialist studies, including a socio-economic impact study as well as a Social and Labour Plan, which was part of the mining right. The public consultation process was undertaken as part of the EA. The Minister considered all the above processes and authorisations in processing the National Environmental Management: Biodiversity Area and Protected Areas Act (NEMPAA) Section 48 decision. 

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The Chairperson thanked the DEA for the presentation. He referred to Sections 48 and 49 of the MPRDA, and asked what the conditions were that allowed the Ministers to authorise mining in protected areas, and in the case of Mabola specifically.

Mr Abader replied that sub-section 4 of Section 48 was particularly relevant. There was a comprehensive assessment process which included, among other aspects, water usage. Ministers can attach certain conditions to each of every aspect or condition, so all conditions have to be taken into account. If they are insufficient, the Minister can apply more conditions if necessary.

The Chairperson said that his understanding was that Section 48 was to prohibit mining in all the protected areas; so, by the time Section 48 came into effect, other mining activities may already have been taking place, but surely the process must be followed before the next sub-section applies in terms of conducting mining activities.

Mr Z Makhubele (ANC) said that the issue that needed to be fully understood was the nature of the so-called protected environment. How are the communities around the mining areas taken into consideration? With new mining activity, people arrive and then settle, as opposed to the other way around, so who looks after these people, and how? The second matter he raised was the nature of a “fatal flaw”, referred to on page 12 of the presentation document, and at what stage was a fatal flaw constituted? If some processes or tools are still only in the process of being developed or finalised, why should the Department agree to or legitimise mining activity in a protected environment? This was in contradiction to the view that South Africa needs to expand its conservation efforts.

Mr T Hadebe (ANC) asked why mining activities would be approved, especially where there was a source of fresh water. Mining activities also used up water and agricultural activities also competed for water. Furthermore, in the context of South Africa signing the Paris Agreement of 2016, where we committed ourselves to keeping our mining activities underground, how are we going to meet our targets if we continued activities that will increase our emissions?

Mr R Purdon (DA) asked if a minister can override a provincial decision after an Environmental Impact Assessment has been conducted and concluded. He queried who would ultimately be responsible for the cost of biodiversity offsets, and also who the specific company was that has applied for these mining rights.

The Chairperson noted that, according to press reports, it was claimed that the MEC for Environmental Affairs in Mpumalanga did not approve this application when it was first submitted because it was an environmentally sensitive area. Subsequently, after the MEC was removed, it received approval from the new MEC. He asked for clarity on this. He also asked what, if any, the rational premise was for declaring an area as protected and then to go ahead and allow disruptive mining activity to proceed.

Mr Makhubele asked how the DEA planned to monitor mining activity if it is underground.

The Deputy Minister said that these were all valid questions, but whatever has already been approved was done within the law. The law was always complied with. Also, this matter did not just concern DEA but also the DWS and the Department of Mineral Resources (DMR), so their views also have to be taken into account. The province’s management was also part of the whole exercise, as well as the community.

The Chairperson asked the delegation to provide a definition of a “protected environment”.

 Mr Munzhedzi explained that the definition included special nature reserves, national parks, provincial parks, wilderness areas, world heritage sites, marine protected areas, protected forest areas and mountain catchment areas. Other categories can also be added to the definition, for example biosphere reserves, where the area’s core was a nature reserve but other land uses are also permissible as long as they are managed in an environmentally sustainable manner. There are also some privately-owned nature reserves, managed at local government level, so agreements are entered into where the area is kept as a protected environment but the land use did not change. Mabola was in this category – there was a 30-year arrangement in place. Provinces have committed to targets about the progress made in concluding stewardship sites.

Mr Abader said that they always sought a balance between the factors in a particular area, for example, water resources, mining, tourism, conservation, and these all have to be contextualised in terms of the integrated planning process. Furthermore, when authorisations are granted, there is also an appeal process whereby a subsequent judicial process can be called into effect and used to challenge the initial approval. The Minister cannot override a provincial decision, because the national department and the provincial department have concurrent jurisdiction, so the MEC and the Minister are almost on the same level in terms of power.

In connection with Environmental Impact Assessments, these are never blanket authorisations, although in some instances in certain types of development, corridors are identified for certain types of activities or developments. DEA did not know who submitted the original applications because they go directly to DMR.  

The Chairperson commented that he would expect that due diligence was being followed: the DEA should surely be aware of the names of the applicants for the mining rights in Mabola. He asked that the DEA provide the name of the mining company.

Mr Abader replied that it was a company called Atha Africa Ventures, but it was not known if it was a South African company or not. DEA’s mandate was to assess environmental impacts and not the company or business applying for mining rights.

The Deputy Minister said that she felt that the Committee seemed to have another agenda behind all these questions and asked if the Members knew something that the DEA did not.

The Chairperson replied that this was not an appropriate form of engagement, because it was the Committee’s duty to ask questions and get clear answers to achieve proper understanding. The Committee had no hidden agenda.  

Mr Makhubele said that he was getting the impression that DEA was hiding something. While it was not expected that the delegation will have all the answers to all the questions immediately at hand, but this is a matter of national interest. These questions are being raised because there was already interest around Mabola, and it is not a trivial issue but one of serious significance to the country.

Mr Abader said that usually conditions are attached that will protect, for instance, the water resources. As far as the Paris Agreement was concerned, many different kinds of energy sources have to be considered. There was no getting away from using coal and other fossil fuels. The biodiversity off-set was usually paid by the applicants concerned.  DEA tried to negotiate the best deal possible so, for instance, they would ask for a 1:2 or 1:3 type scenarios, which meant they would ask for three times the land parcel value in order to increase the estate. Initially an application was submitted to DEA, but anything related to energy was dealt with at national level. In this instance there was an application to install a power line, which was rejected on the basis of insufficient information. The application was later resubmitted but with no mention of the power line, so provincial authorisation was granted.

Mr Munzhedzi said that there are more and more areas that needed to be protected, and there was an annual increase relative to the funds received by DEA to purchase or procure. On top of that, applications are still subject to Section 49, and some areas are under the joint jurisdiction of partners such as SANParks.

The Chairperson asked whether, if activities are being allowed in protected environments, all other protected environments are also at risk. Why was Mabola unique, and what kind of a precedent will be set?

Ms Skumsa Mancotywa, Chief Director: Protected Areas Systems Management, DEA, replied that allowing mining in this particular environment did not necessarily reduce the biodiversity footprint, because prospecting rights had been issued as far back as 2006. The MEC had to institute a process of consultation and public hearings. As an environment authority, the advice was that it could be set aside as well as being protected at the same time. A compromise has also been reached, in terms of whether open-cast mining or underground mining is better. Conditions have been imposed relating to the biodiversity aspect of the activity, and a very strict monitoring regime will be put in place. DEA believed that the conditions are so strict that any deviation will be picked up very early on and dealt with immediately. There was pressure to balance development with biodiversity.

The Chairperson asked if there are any other protected environments where mining activity has been allowed to take place, or if Mabola will be the first one. If Mabola is the first, what happens if mineral deposits are found in the Kruger National Park, for example? The other big concern is that this area was also a catchment area for fresh water.

Ms Thea Carroll, Chief Director: Biodiversity Planning and Management, DEA, responded on the nature of “fatal flaws” and said a flaw can relate to the financial viability of the project, or technical development, or ecological impact. The Environmental Assessment practitioner has to go through all these factors. If the flaw was deemed fatal, then another site has to be considered, or else the plan has to be changed. This is a well established practice. DEA as a whole was satisfied that there was no fatal flaw with the Mabola project.

Mr Abader replied that the issues relating to water resources and water usage have specific conditions attached: an environment committee as well as a wetlands specialist are required to conduct and present a report four times a year. For instance, no stormwater drainage was to be diverted to any natural water course. DWS also deals with these issues, not just the DEA.

Mr Hadebe said that would be useful to get a report from the South African National Biodiversity Institute (SANBI), as well as to see why the previous MEC did not approve the original application.

Mr Purdon made the observation that the vague answer about the company whose application for mining rights had been approved triggered suspicions. Who are the directors of Atha Africa, and were other applications received for mining rights in that area or only one?

Mr Abader replied that an earlier application had been received, sometime in 2011.

Ms Mancotywa added that, on the balance on probabilities, if we look at how legislation is crafted and who approves what, it is not likely that the former MEC could have made a decision. Her mandate was the establishment of the protected environment, and the EIA was still at the national level, so mining would not have been part of her mandate. The responsibility would have been with the two Ministers. By the time the former MEC left, the EIA was still with the DEA, and it was suspected that the reports might not be true. When she responded to public enquiries, she stated that her intention was not to exclude mining.

The Chairperson requested that the DEA submit a follow-up report from SANBI on the impact of mining activity in Mabola to the Committee, and also any other report that may have been produced regarding the impact on the water catchment area. Once these reports have been concluded, the Committee can assess the situation with all the facts and hopefully finalise the discussion. The main concern was that a precedent would be created, and it is hoped that the DEA can allay this concern. He also noted that the DEA was involved in an increasing number of litigation processes so it is vital that the Mabola project only proceed when the Committee has satisfied itself that everything is in order.

The Deputy Minister said that no discrepancies have been picked up in terms of the application of law. She agreed that Section 48 was vague on the issue of the public participation process, and that that created a problem because all these issues could have been addressed earlier on in the process. Nowhere has it been seen that any conditions were relaxed and, on the issue of alleviating fears, DEA banked on the fact that all the protected areas are categorised.

The Chairperson thanked the DEA delegation for the presentation.

 

North West Department of Rural Environment and Agricultural Development (READ) on the game donation to the Southern African Rare Game Breeders Association (SARGBA)

The Chairperson welcomed the scientists. He pointed out that the Committee had met in 2016 with the MEC and sent a list of questions; the MEC and his team answered the questions, and then further questions were sent in January and February 2017. The Committee felt it could only finalise its report when it had engaged directly with the scientists for further clarity. He apologised for the lack of background information for the scientists and the Committee – usually a list of questions are sent in advance, but this did not happen this time. He acknowledges that this was unprofessional, and was unable to say why this procedure was not followed.

The Chairperson said that the Committee wanted clarity on the issue of the wildlife that was relocated at SARGBA’s request, so that there was understanding of the scientific basis for the transaction and the transfer. What was taken into account when this decision was made? Was any wildlife population compromised? How were the animals transported? What was the scientists’ involvement in the matter of the female buffalos being removed and the male buffalos being left behind?

Mr H Nel, Manager: Ecological Services, North West Parks Board, said that their role was as an implementation agency located within the North West Department of Mining and Agricultural Development.  They fall under the jurisdiction of the provincial department. In November 2014, the SANParks group made a request to the national department for 210 buffalo, 210 antelope, and 210 sables. Mr Nel went to the meeting where this request was made to the board and the department, and was also present at a site visit on 3 March 2015. He was, along with other officials from the government department, at an annual general meeting (AGM) at the end of April 2015 in Botswana, where the Acting Manager was approached for a quota of animals to be donated to the project. The CEO at the time made a revised proposal: that they receive 20 sable, 50 buffalo and 10 nyalas. The National Parks Board could not make up the original numbers, but that it was feasible for them to supply a reduced number of animals. They were asked to add 50 rhinos and 50 wildebeest. In June 2015, the NPB met with the regional managers of the parks, and with the MEC on 17 June 2015; she proposed figures of 130 buffalo, 50 sable, 50 white rhino and 15 nyalas. Based on that request, Mr Nel wrote a memo to suggest that, in order to meet this quota, the animals should rather be sourced from areas where they have been under pressure: such as areas that are under threat of poaching, or where the animal populations have been performing marginally. This was accepted, and it was suggested that 20 buffalo and 5 sables are sourced from the Pilansberg, 10 white rhino from Mafikeng, 20 white rhino and 51 sables from Botsalano. They ended up sourcing from the Pilansberg, Mafikeng, Momane and Madikwe areas.

By 3 July 2015, the capturing of the animals started. From the onset it was evident from the point of view of breeding quality, that the targets would not be met. The best reproductive stock was taken, but also some good quality bulls and they were left with inferior males. SARBGA selected the animals and transported them. Their purpose was to establish a breeding project, so the very young and the very old animals were left behind. Eventually, only 32 sables were removed and the numbers were not sufficient.

A problem with the buffalos from Madikwe was that they had been affected with bovine tuberculosis and the whole area was under quarantine. At the time it was thought to be a relatively small infection and it was believed that a lot of the animals could still be salvaged. There were over 1 000 buffalo there and it was necessary to do prevalence testing in order to understand the disease in the population. To capture them and run a sequence of tests over 5 to 6 months would have cost about R40 million rand. SARGBA offered to run the tests on behalf of the government on the understanding that some of the other animals could also be made available.

The buffalos were caught and tested, and the prevalence of bovine tuberculosis was much higher than had been expected. There are 60 animals left in the testing project, and one more test still has to be run. It is then up to the Department of Agriculture to decide whether the animals will be released into the breeding project or not.

Mr W Boshoff, Deputy Director: Biodiversity Scientific Support, READ, said that the role of READ was to be a legislative body, where the staff handled all the application of plans and/or permits. All applications are subjected to a scientific recommendation or evaluation, which are then countersigned by him (Mr Boshoff), and then they are sent to the Department’s Permit Committee, after which the local office will issue the permit and management plans.  When it came to buffalo and white rhino, a comprehensive risk management plan was required. The application would have to be accompanied by an ecological management plan for assessment, as well as the business plan.

The Chairperson asked how many other groups or agencies submitted applications for animals to be donated and why SARGBA was allocated so many animals.

Mr D Buijs, Scientist: READ, replied that when the SARGBA application was received and processed, there was no scientific input from the department because the scientific staff had been suspended.  

Mr Nel added that he was outlining the general process of application and approval. The NORTH WEST Parks Board is also able to make recommendation, before any permits got issued. The NORTH WEST Parks Board was only involved from 28 July 2015 in this matter when the application for the donation of wildlife from SARGBA was received. It was passed on to Mr Buijs for scientific recommendation.

Mr Buijs told the Committee that the application consisted of a financial management plan, and not a biological management plan. He turned down the plan, with the exception of the nyala. The application did not comply with requirements. We also required a risk assessment by an independent source to assess the impact of the removal of certain animals from a specific gene pool. A risk assessment was also required for the white rhino, because there was already an impact from poaching, so this was compounding the already existing problems with reproduction. Checking on security measures was also part of the process. Another important concern was the financial projections provided – a 60% projection growth for the white rhinos for one year was completely unachievable. It was impossible over a five-year period, let alone one, and the same applied to sable and buffalo.  These concerns were submitted to the director who said that we should not be concerned about the founder population, and that our recommendations were only required on the receiving end of the project.

Mr Boshoff added that there was much debate about these documents and on 6 August 2015 Mr Buijs made a further recommendation about the white rhino, where it was stressed that a management plan and a full risk assessment would be required before the application could receive further consideration.  On 11 August 2015 a management plan was received.

Mr Buijs said that a management plan was then submitted for the buffalo, on behalf of another farm which was also part of the SARGBA group. The applicant was a J.J. du Toit and the farm was called Ibiso. This also did not comply with ecological requirements and was deemed invalid.

On 29 September 2015 SARGBA did follow the Parks Board guidelines and appointed an independent ecologist and then submitted a management plan, which was approved on 30 Sept 2015. It was for 31 buffalo, although the number was reduced to 21, but the permit was issued. SARGBA then addressed the issue of a quarantine facility for Madikwe which was also approved.

Mr Purdon queried whether it was the SANParks Board or the North West Parks Board that was involved. He was also curious as to why the Parks Board would be prepared to deplete their stock of good breeding animals.  He asked if any of the scientists present were involved in drafting an earlier version of the game donation policy, referred to by Mr Jonathan Denga, Director: Environment, NORTH WEST Parks Board, and whether the information he had supplied the Committee with was in fact correct. In the meeting on 24 January 2016, the report presented by Mr Denga referred to buffalo and sable poaching. What evidence is there of this poaching, and what were the security issues that he had also mentioned? He further questioned the relevance of one of the reasons given for relocation of certain animals, which were the nitrogen levels in the feed. What is READ’s claim that it hopes to leverage on the success of this game donation based on?

Mr Hadebe asked that, if the North West Province had originally said that no rhinos were donated to SARGBA, why did rhinos subsequently become part of the request. Did the management plans that were submitted in September 2015 include security measures to protect the animals? And what, if any, scientific studies were done about where the animals were going to be relocated?

Ms J Edwards (DA) asked if it was normal practice to exclude inferior animals from a selection for a breeding project. She also asked if the buffalos that were still due to undergo one last test would also then go to SARGBA if they turned out to be free of bovine tuberculosis.

Mr Makhubele asked on what basis the quotas were adjusted. When SARGBA wanted the scientists to assist them in terms of drawing up management plans, did that indicate that SARGBA itself did not have the capacity to manage to do what was required? Other than SARGBA, do the scientists assist other people or groups in this regard? Was this what the suspension referred to by Mr Buijs was related to?  

The Chairperson asked for clarity on the donation policies. Does the older one have an approval date?

Mr Nel replied that some high-value animals had definitely been lost through poaching, and some animals were not performing as expected. Tests to check on the quality of the food showed that the nitrogen levels for over five months a year were insufficient to enable feeding mothers to lactate properly. Some females were consequently lost, and a lot of calves died. The ‘old’ game donation policy was drawn up by Mr Nel himself sometime in 2012 or 2013, and submitted to the Conservation Sub-Committee. The later one was developed in 2015, and consisted of an update of the previous one with the addition of added provisions relating to expanding the conservation mandate.  

The scientists do a game count every year, throughout the parks, according to a specific methodology so that annual comparisons can be made and this affected how they drive the animal population estimates. The habitat analysis was conducted by Mr Nel, who in June 2015 had some reservations about the suitability of the habitats for some of the animals. He made a more recent visit where he was able to monitor the veld condition, and was able to report that some veld rehabilitation has occurred. The combined area of the five farms in the area is 2 000 hectares and the concern was expressed that the land area may be insufficient to take all the animals. Supplementary feeding would also be required. The quality of the habitat was vitally important in a breeding project.

A monitoring plan has been developed for the entire project, from annual components to quarterly and immediate components. The Department did have capacity to respond to requests for donations from within South Africa as well as from nearby countries like Botswana and Malawi. In the case of another country, they would receive a request via the country’s Head of the Department of Conservation, after which a comprehensive project proposal is requested and expert management input. The project would only be taken further when all requirements have been met and a delegation sent to the country to assess the project’s viability.

Buffalo poaching definitely happens. In Bolacala there is also constant snaring, and sable antelope and buffalo and other animals have been lost because of this.  The security requirements around the capture and relocation of animals are expensive, plus it is also complex to move animals from one area to another because some of them are very territorial. The type of success referred to by SARGBA was that the breeding project can deliver on its objectives, and thus capitalise on them, at the end of the day. The white rhinos which have been committed to the breeding project are still in their original habitat. Risk assessment plans are required before the permits can be approved.

Requests for donations form part of the policy process. After the annual game count and the establishment of population estimates, the Games Removal and Introduction Committee visited very park and discusses the population levels of all animals in each one. We consider where there is too much stock, how to improving the sex ratio, income generation, and also take into account community or transformation projects. That was the basis on which the following year’s quota was decided. Recommendations are made about animals being moved, or sold, and which animals can be donated to other agencies. The committee’s minutes are sent to the Chief Conservation Officer as part of our recommendations, and eventually to the Board for final approval. We select stock to be moved based on the type of project and it was normal practice to target reproductive females, youngish females and good strong males for a breeding project. When we do a general capture, we did not want any bias so we make no specific selections. SARGBA has no claim on any of the buffalo that may end up testing negative for bovine tuberculosis in Madikwe and it will be up to the Department of Agriculture to make the decision whether to relocate them or not. The initial request from SARGBA did not include rhino. We were unable to provide the large numbers of other animals that were requested, so it was not enough to set up the breeding project. The rhinos were a suggestion from our side, not from the MEC.

Mr Nel responded and said the older game donation policy was never officially approved. The new one was approved in May 2016. This was an intervention from the provincial heads to try and fast-track the animal translocation. The quotas were determined based on the requirements for the project and the extent to which we could meet them. To date, no buffalo or rhinos have been moved out of the Pilansberg. It was never the case that the North West Parks Board was more concerned about the stock for the SARGBA breeding project than its own stock; the specific animals were proposed because they were marginal, as opposed to a growing or more feasible population.

Mr Boshoff added that when it came to assisting with other similar applications, they have conducted ecological assessments on about 15 community farms in the last twelve months and then made proposals or recommendations that the community would need to act on before making an official application.

Mr Buijs replied that the security planning will only apply when the rhino needed to be relocated. No security plan for buffalo was required.  The official reason given for the suspensions was that he and other staff had stolen a fridge, but was in reality connected to permits relating to elephants.

The Chairperson asked if any animals from the North West had been part of the recent auction at Mebala in March 2017.

Mr Nel replied that some of the animals on auction were from the Parks Board, some were privately owned and some were from community reserves. Just over 1 000 were auctioned.  The animals from the Parks Board were supposed to have been removed in 2016 after a game count and a removals quota. The Board and the MEC approved the auctioning of these animals in June 2016, because it was in line with the removals quota for that year and 10% of the income from the auction went to the Game Transformation Fund.

The Chairperson concluded by saying that the Committee is of the opinion that the process was not handled in line with the principles of good governance. The most appropriate way of managing the relocation of animals would be to make it an open process with proper evaluation, as opposed to an unsolicited bid or request.

The meeting was adjourned.