Western Cape High Court. Archive photo: Masixole Feni
21 February 2017
A court case in which an Australian mining company operating on the West Coast is litigating against environmental authorities got underway in the Western Cape High Court on Monday and Tuesday.
The mining company, Mineral Sands Resources (Pty) Ltd (MSR)*, was accused of flouting environmental laws and of causing catastrophic environmental damage through its operations to mine mineral sands like zircon, ilmenite, rutile, magnetite and garnet at its Tormin mine, on the coast 400km from Cape Town near Lutzville. (Read a detailed explanation of this court case.)
But the national Department of Environmental Affairs (DEA) and the Western Cape’s Department of Environmental Affairs and Development Planning (DEADP) were in turn slammed for “invading” the mining company’s rights and deliberately suppressing relevant information that should have been included in their joint application to a Vredendal magistrate for a search-and-seizure warrant in September last year relating to alleged environmental transgressions.
“To put it colloquially, it was clear that DEA was gunning for the applicant,” advocate Peter Hodes SC, for MSR, told Judge Owen Rogers. He argued that the warrant was invalid for several reasons, and that an affidavit by a senior DEA official used as part of the application for the warrant was simply “a verbal regurgitation of allegations set out in an anonymous complaint”.
In turn, advocate Ron Paschke, for DEA and DEADP, told the court that the mining company’s application was “an attempt to thwart the implementation of environmental laws”.
“The applicant’s conduct violated environmental laws, it violated express instructions to comply [with those environmental laws], and it violated its own undertaking to do so [to comply]. The applicant’s conduct resulted in substantial degradation of the environment,” Paschke charged.
Part of the dispute centres on a sea cliff directly in front of the Tormin mineral sands mine that disintegrated catastrophically in January 2015. Complaints that Tormin’s unauthorised changes to its approved environmental management programme was responsible for the cliff collapse and other alleged environmental transgressions led the DEA and DEADP to conduct the search-and-seizure operation at Tormin, after which criminal charges were laid.
MSR argues that both the DEA and DEADP currently lack any legal jurisdiction to monitor and enforce compliance at Tormin because of the “One Environmental System” introduced by government in December 2014. This gives the Department of Mineral Resources (DMR) sole environmental authority over prospecting and mining.
Hodes, who pointed out that MSR had still not been formally charged, said one of the relevant documents that should have been put before the magistrate was Tormin’s amended environmental management programme that had been approved by DMR in 2015.
Also, the “diametrically opposed” views of DMR and DEA about environmental authorisation at the mine should “surely” have been brought to the magistrate’s attention in the warrant application but had not been, he added. “[It] was suppressed so as not to create any doubt in the mind of the magistrate”.
The mining company accepted that the sea cliff had collapsed but believed it had been failing “for ages”, and no evidence had been put before the magistrate about whether mining activities were responsible for this collapse, Hodes said.
Paschke noted that part of MSR’s review application was for a declaratory order to the effect that, because of the One Environmental System, neither the national nor the Western Cape environment ministers and their departments now has authority to perform compliance monitoring and enforcement in terms of NEMA (National Environmental Management Act), except for one specific part of this Act. “This seeks to create an exclusion zone where the environmental authorities will not be permitted to monitor compliance with and enforce environmental laws,” he argued.
Paschke also argued that there was a legal distinction between an environmental management programme (EMP) approved in terms of the Mineral and Petroleum Resources Development Act – as MSR had obtained for Tormin – and environmental authorisation for “listed activities”, including some aspects of mining, under NEMA, that Tormin had not been granted. Even after December 2014, when EMPs had started being approved in terms of NEMA under the new system, this did still not equate to a NEMA authorisation, he added: “That is a different species… an EMP by itself authorises nothing.”
Paschke apologised to Judge Rogers for the complicated legal argument: “I’m sorry for the complexity of this. It’s a minefield, a labyrinth.”
The application continues on Wednesday.
* Mineral Sands Resources is a subsidiary of Mineral Commodities Ltd that trades on the Australian Securities Exchange as MRC. MRC is the company that for 13 years attempted to develop a mineral sands mine at Xolobeni on the Pondoland coastline of Transkei, before announcing in July last year it was selling its stake in this highly controversial project to its BEE partner.