Following the recent reports of successful legal outcomes for Earthlife Africa (who challenged Environmental Affairs rejection of its appeal against the approval given to the proposed Thabametsi coal-fired power station in Limpopo. The court ordered that the Minister reconsider the appeal, now taking into account a full climate change impact assessment report), and Richard Spoor Attorneys in Mpumalanga who won an appeal case on behalf of the Mpumalanga Tourism & Parks Agency to stop prospecting in the Barberton Nature Reserve, Bronwyn Howard wrote the following article.
Years ago, a German tourist I met when we were both staying at a game lodge commented on the African sky: “You have such high skies here,” she told me, as we lazed by the pool on a very hot Lowveld afternoon somewhere in relative wilderness near the small towns of Gravelotte and Mica. For at least some city folk, more accustomed to often murky skylines cluttered with buildings, pylons and other urban accoutrements, the idea of a ‘high sky’ may seem a little foreign but those of us in rural areas are intimately familiar with the concept – skies and panoramas that stretch to distant horizons.
There are farms and farmhouses, herds of cattle, flocks of sheep, circling birds of prey, lizards sunning themselves on rocks, butterflies flitting among wildflowers, hills dotted with huts marking local communities (many have tractors and bakkies parked under some sort of rude shelter, not to mention a few horses, donkeys, goats and chickens). Rivers and streams meander across the land, bringing life-giving water to all who encounter them, whether human or animal. One is intimately connected to the seasons in such areas, where the passage of time is marked by differences in temperature and rainfall, the angle of the sun, the appearance of the land, the state of the harvest, and the presence or absence of butterflies, amphibians and migratory birds.
South Africa’s many-splendoured rural areas are more than simply places for people to escape the rat race on weekends or over holiday periods. They are the places that make city life possible – it is here that food is produced, natural cycles are nurtured, and rivers rise. “Cities need the country to survive”.
This is particularly the case for places like Johannesburg, which is one of the biggest cities in the world not situated on a water source (in fact, it lies on a watershed and water tends to drain away). 80% of its water still comes from rivers in KwaZulu-Natal, the Lesotho Highlands Water Scheme notwithstanding. The water reaches the metropolis via another ambitious water transfer system. Despite this, Johannesburg, situated in South Africa’s economic powerhouse province of Gauteng, felt the not inconsiderable effects of a recent drought believed to be one of the most severe ever experienced in the country, when the level of the Vaal Dam fell to below 30% and water had to be pumped from Sterkfontein Dam, which forms part of the transfer system bringing water from KZN. Water restrictions were only recently lifted, although scarcity is likely to become a fact of life. Cape Town, with two consecutive low winter rainfall seasons under its belt, is facing similar constraints. This all serves to illustrate a cold, hard reality – development prospects in South Africa are likely to be constrained by future water availability; the country is fast approaching its ecological limits with 98% of water resources already allocated to users. This has been amply illustrated by the country’s summer rainfall areas experiencing the worst drought in decades, if not since records began, in the 2016/17 summer rainfall season, a scenario which is now being played out in the various Cape provinces of the country too.
Not only are many rural regions important water source areas and food production hubs, they are also tourist draws for locals and visitors, offering a range of attractions from country pubs and quaint hotels to arts and crafts rambles, birding routes and cultural experiences. Of course, the relatively unspoilt natural landscapes in some regions are added attractions in and of themselves, especially when twinned with national parks or game reserves, whether private or public. Some towns, like Clarens in the Free State and Dullstroom or Wakkerstroom in Mpumalanga, have based their local economies on weekend trippers from the cities, as well as overseas visitors. This provides an important income source for rural dwellers, be they business owners or employees. And then there are the allied services, including food, laundry, vehicle and property maintenance, arts and crafts production, activity operators and plenty more.
It all sounds amazingly idyllic but there are challenges. At least some of this stems from the fact that South Africa is particularly mineral-rich with deposits of gold, diamonds, platinum and just about everything in between. Not surprisingly, the country has for over 100 years been reliant on mining as its economic mainstay. In 2009, the industry contributed around 10% of South Africa’s GDP and employed some one million people. This has since reduced significantly due to plummeting global commodity demand. The mining sector has also historically provided numerous jobs, especially to unskilled workers, but as mines increasingly mechanise, the picture has altered considerably.
Many parts of South Africa have also experienced, especially in recent years, the effect of what has come to be known as the ‘resource curse’. Some years ago, Johannesburg began to experience acid mine drainage from century-old mine workings decanting into rivers, one of which provided water to Krugersdorp Game Reserve west of the city. There are increasing concerns about the presence of potentially radioactive uranium in old waste dumps, many of which are now in close proximity to economically disadvantaged communities.
In Mpumalanga, the Olifants River near Witbank is now so badly polluted by acid mine drainage and other mining wastes from the area’s coal mining industry, together with industrial wastes from allied industries such as steel production, that Eskom, South Africa’s power utility, can no longer use it for its power stations in the region. Farmers also told the Benchmarks Foundation about negative impacts on their cattle and crops, as they have few alternatives for irrigation, while poor communities are obliged to use the polluted water, which places their health at risk. One mining company put in a water treatment plant to help relieve pressure on the river but many others have not done anything to improve environmental impacts.
Mining has often been found to create boom and bust economies. Towns and communities flourish economically while mines are open but this quickly collapses once mines close. In addition, mines rarely clean up after closure, despite being legally obliged to do so and having to establish special funds to pay for rehabilitation. As a result, South Africa now has around 6 000 abandoned and/or ownerless mines, which pose a constant pollution risk. As owners often cannot be found, it will fall to government (using income tax revenues) to rehabilitate them. The situation is likely to worsen, according to the web site Climate Home, as large companies sell off to smaller ones, which have limited funds for rehabilitation.
A revised mining law, the Mineral & Petroleum Resources Development Act (MPRDA), passed in 2002, inter alia transferred ownership of all mineral resources to the state, which would act as custodian of such minerals for all South Africans. (Previously, landowners owned the minerals beneath their lands, which they could choose to exploit or not.) The state, however, also now gets a stake in such mines, should they proceed. Unsurprisingly, it was not long before the Department of Mineral Resources (DMR) was handing out prospecting and mining rights post-haste.
More recently, South Africa adopted an environmental regime dubbed the ‘one environmental system’. In terms of mining, what this essentially means is that the DMR now has the final say on the environmental compliance of mining companies with the Department of Environmental Affairs only acting as arbitrator in the event of a dispute. As many have stated on social media and elsewhere, this is a real case of the fox guarding the hen house!
This has effectively compromised large tracts of rural lands, which were previously seats of agriculture and ecotourism, according to organizations such as the Centre for Environmental Rights and the Benchmarks Foundation. Mpumalanga has been particularly badly affected with over 60% of the province’s land area now either under application for prospecting and mining or actually being mined. Rural water supplies have been significantly reduced or polluted (the town of Carolina in Mpumalanga has never fully recovered from an acid mine drainage spill into the town dam in 2012, for example); rural roads never intended to carry heavy vehicle traffic deteriorate under a barrage of ore trucks; and rural livelihoods disappear as once peaceful neighbourhoods and attractive scenery turn into pseudo-industrial wastelands. High potential arable land has been compromised, possibly forever, as has the province’s tourist industry, which draws tourists worldwide to visit the Kruger National Park, and enjoy Mpumalanga’s scenic beauty and attractions.
In addition, the MPRDA now mandates that landowners are obliged to give mining companies unfettered access to their lands, or part thereof, should prospecting and/or mining rights be granted. This means that agricultural land is often taken out of production, resulting in rural livelihoods being compromised, together with reduced employment and security of tenure. In the long-term, this also has implications for South Africa’s food security, already at risk due to increased incidences of drought.
The DMR has also awarded prospecting and mining rights in protected areas, despite this being illegal in terms of both the MPRDA and the National Environmental Management Protected Areas Act (NEMBA) 2004. The first time this happened was in the far northern regions of South Africa, when Coal of Africa Limited, an Australian-based company, was eventually granted rights to mine coal at the Vele Colliery. This despite the mining area including two nature reserves and being in close proximity to the Limpopo River, as well the Mapungubwe National Park and Cultural Landscape. The region contains numerous artefacts harking back to a very old civilization, thought to be a precursor to Great Zimbabwe, who apparently traded with the Phoenicians. Somewhat ironically, items discovered by archaeologists include golden rhino statuettes, smelted from locally mined gold. Despite considerable public opposition and a legal challenge launched by a coalition of conservation and preservation non-profits, universities and the like, the mine continues to proceed.
Another, lesser-known site was also impacted by an application to prospect in the Barberton Nature Reserve in Mpumalanga. In 2008, the Minister of Environmental Affairs began a process to have the reserve declared a UNESCO World Heritage Site; the reserve showcases some of the region’s most unique geology, including rocks estimated to be around 3 600 million years old, representing the oldest and best-preserved sequences of volcanic and sedimentary rocks on Earth. But, just two years before, the DMR granted Barberton Mines a licence to prospect for silver and gold in them thar hills – the Makhonjwa Mountains, to be exact, sparking an eleven year battle.
An article in the Mail & Guardian newspaper recalls that, in a desperate bid to refuse the mining company access, Mpumalanga officials locked reserve gates. The company thereupon went to court, asking that it be ‘guaranteed entry because it had been granted a right to do so’. On that occasion, the mining company won. It also alleged that Barberton Nature Reserve was not a formal protected area, as it had not been proclaimed properly in terms of the relevant provincial legislation. But, more recently, in March 2017, that decision was overturned when the Mpumalanga Tourism & Parks Agency took their case to the appeal court. The court found that the reserve had been properly proclaimed and repealed the prospecting right.
This is good news, as it upholds the provisions of NEMBA and, incidentally, the MPRDA, which also prohibits mining in protected areas. There are other cases pending, such as the issue of an Indian coal mining company, which was granted a licence to mine in the Mabola Wetlands near the town of Wakkerstroom, Mpumalanga, in an area recently proclaimed a Protected Environment. An NGO coalition is planning to go to court to appeal this; in the light of the recent Barberton Mines decision, it is hoped they will succeed.
Also in March 2017, EarthLife Africa took the Department of Environmental Affairs to court, launching the first ever climate change lawsuit in South Africa. This is significant; South Africa is the world’s 13th largest carbon emitter, largely because over 90% of our electricity is generated by coal-fired power stations. The case was brought because the Department did not conduct an environmental impact assessment concerning the likely climate change impacts of building a new power station – Thabametsi, situated in Limpopo Province.
It has been suggested in some quarters that South Africa’s carbon emissions may well increase as more coal-fired power stations, including Kusile and Medupi, are under construction; Medupi is the fourth largest such facility in the Southern Hemisphere. Medupi in particular is already facing a number of challenges. The region of Limpopo Province in which it is situated is already considerably water-scarce and water for the power station will be brought from the Crocodile River catchment via an inter-basin transfer scheme. Sand mining, allegedly done unlawfully, has also negatively impacted the ecological functioning of some important regional rivers.
So what has this got to do with oil and gas exploration and possible production in South Africa? South Africa has never found viable oil and gas resources and is completely reliant on imports. Government-sponsored surveys conducted in the 1960s and 1970s found resources in some places but these were not recoverable using technologies available at that time. It is believed in some quarters at least that the development of an oil and gas industry would occur along similar lines to the mining industry. Given the impacts of mining after just over a century, many of which are escalating today, this does not auger well for a potential oil and gas industry, regardless of the method of extraction, in the opinion of this writer.
If deployed, the overseas experience indicates that fracking uses and pollutes millions of litres of fresh water, which South Africa, the 30th driest country in the world with resources already at their limits, can ill afford. This is perhaps the biggest issue concerning potential fracking in this country. According to international journalistic investigations by Pro Publica and the New York Times in 2012, the chemicals used are often toxic, resulting in human and animal health impacts. In addition, there are concerns locally that rural livelihoods such as farming and tourism, both of which rely on an ecologically productive and scenic natural environment to support them, may be lost.
Finally, if mining is anything to go by, the countryside may very likely be transformed into a space littered with abandoned, polluting wells and industrial-style constructs, unproductive farmland and damaged road infrastructure. This would most probably increase rural-urban migration, a challenge in South Africa, where such migration is placing increasing pressure on urban resources. US studies by researchers at Cornel University also found that fracking is almost always allied to fugitive methane emissions – and methane is a far more potent greenhouse gas than carbon dioxide, although it has a shorter residence time in the atmosphere. Should the same experience occur in South Africa, this is likely to add to South Africa’s emissions burden and make it harder for the country to meet is climate change commitments made at international summits.
Recent media reports indicate that the South African government has given the ‘green light’ to gas extraction, potentially using fracking to access resources, in the Cape Karoo and elsewhere, despite a study commissioned by it (the Strategic Environmental Assessment), released late in 2016, and the Centre for Scientific & Industrial Research (CSIR) finding that the quantity of shale gas that might be present there is uncertain, as well as confirming that the quest for gas could result in high levels of water abstraction and pollution. Both Treasure the Karoo Action Group’s Jonathan Deal and attorney-activist Derek Light indicated in further media reports that this is likely to be ‘misguided and premature’, citing issues around water availability (the Karoo is a semi-arid region), pollution and jobs (Deal told News 24 that the government’s tally of 300 000 to 700 000 jobs being created in the Cape Karoo for oil and gas development was a significant over-estimate, as other studies conducted by the government indicated that only around 3 000 jobs were likely to be created).
Concerned South Africans need to fight this development tooth and nail – the future of our water, our rural areas and, by extension, our cities, may well be at risk. We cannot live without fresh water or food. However, in the light of these two court cases, activists may take heart. In addition, activist organization Treasure the Karoo Action Group, together with civic organization Afriforum, is also working on a court application regarding regulations drafted allegedly to prevent potential negative impacts which, Deal says, ‘were indisputably developed in a void of a national assessment of potential implications of shale gas development in South Africa’.
In short, the light at the end of the tunnel may not necessarily be an on-coming train! It is up to us to ensure that the light does not go out.