Mine closure and rehabilitation – shifting from dereliction to accountability

By Felix Donkor

The extraction of economically valuable minerals from the earth has been a human activity since pre‑historic times.  Contemporary mining activities involve prospecting, assessing the profitability of a proposed mine, mineral extraction, and ultimately land restoration after the closure of the mine. However, the narrative of restoring previously mined land to a natural or economically viable state is fraught with dire consequences and often enough, devastation. This conflicts with the Sustainable Development Goal of building resilient communities, and debilitates the capacity of communities living near or around the mine to adapt to climate change related impacts.

Moreover, many of South Africa’s dilapidated mines are in close proximity to agricultural lands, which worsens the environmental and social devastation associated with mining and complicates health problems. This has triggered a strong emergence of activists in mining affected communities who endeavour to secure the best interests of their communities.

The safe closure and rehabilitation of South Africa’s circa 6,000 derelict mines is estimated to cost about ZAR 60 billion in total. There is currently no government levy that compels mining companies to treat toxic water. Moreover, there is significant regulatory failure resulting from lacklustre enforcement of mining laws.

These were some of the urgent issues that motivated the Centre for Environmental Rights (CER) to organise a seminar in early May to bring together stakeholders from various sectors to discuss solutions to some of the pressing issues on the mining landscape. The issues raised and discussed at the seminar include:

  • failure of officialdom in enforcing historic liability of mining companies and directors;
  • appropriate measures that can be used to avoid disasters in recently closed mines (such as the notorious Blyvooruitzicht Mine) or mines that are about to close as a result of the prevailing economic climate;
  • how novel laws under the National Environmental Management Act (NEMA) can adequately address financial provision for rehabilitation and closure of existing and new minerals; and
  • how the legislature can promote greater accountability from mining companies and directors.

Speakers at the seminar included:

  • Professor Tracy Humby, Associate Professor, School of Law, University of Witwatersrand;
  • Caroline Digby, Adjunct Professor and Director of the Centre for Sustainability in Mining and Industry; and
  • Dee Fischer, Chief Director: Integrated Environmental Management, Department of Environmental Affairs.

Images below: A gold mine in the Free State leaves behind a lake of poisoned water and hills of toxic sludge. In many small towns that were established to service the mines, communities are left with this type of legacy.

Image source: Rehana Dada
June2016-08-GoldminingThe donkey

Digby argued that the challenges with mine closure are not unique to South Africa, as countries such as Democratic Republic of Congo, Australia, Peru and the United States have all introduced new legislation to address mine closure issues.  She said that South Africa is ahead of most countries in incorporating socio-economic impacts associated with mine closure. Humby added that with the establishment of a single environmental system, South Africa has a regulatory scheme for mine environmental planning and closure that is set by the environmental unit rather than the mining authorities.

On business rescue and insolvency proceedings, it was noted, with reference to Blyvooruitzicht, that there are problems related to denial of closure because of loopholes created through the transfer of mining rights and regulations for company closure that fall under the Companies Act of 1973.  There was a suggestion that closure issues should be resolved before business rescue proceedings or applications for closure are initiated. This also calls for adequate notice to regulatory authorities and conscientisation of business rescue and liquidation practitioners.

On transparency, the Department of Environmental Affairs was commended for new measures that would make environmental authorisations and environmental compliance audits available on company websites for public scrutiny. This can help to nurture trust and better relationships between government, business, and civil society around mining. However, some participants highlighted the deep distrust and hostility directed from mining affected communities towards mining companies. Some activists, alluding to recent murders of anti-mining activists, such as on the Pondoland Wild Coast, highlighted the dangerous conditions under which anti-mining community activists operate.  Consequently, the need to ensure that mining companies adhere to regulations, such as care and maintenance to limit grievances, cannot be overemphasised.

One participant pointed out that although there are new provisions for making care and maintenance a listed activity, intended to close loopholes, these provisions may equally create opportunity for further confusion and conflict of interest because there is no clarity on whether they apply to the company, mining operation, or shaft.  In addition, the scope of care and maintenance is not defined. This is closely tied to the need to safeguard environmental health by balancing short term economic demands with long term socio-ecological concerns, in consonance with the 2014 regulations that require mines to be planned with the end in mind. Consequently, this necessitates that applications for prospecting, exploration, extraction, and primary processing of a mineral or petroleum resource or activities directly related, include a closure plan and comply with regulations.

However, this integrated forward planning for mine closure is not enough as in some cases it is simply not wise to mine at all due to incalculable ecological, social and cultural damage, which makes the long term price of mining too great and closure too complex. One example is the 2012 granting of coal mining rights in an area within the Steenkampsberg Wet Grasslands which are described in the Mpumalanga Protected Area Expansion Strategy (MPAES) as “of exceptional biodiversity value” and “truly exceptional and irreplaceable”, based on a multitude of planning and sensitivity processes aimed at ensuring sustainable development.

Image below: Economically viable surface coal deposits are almost always in wetlands. The impact on biodiversity and ecosystem functioning is significant.
Image source: Rehana Dada

June2016-14-BiodiversityMpumalanga

In such cases, no matter how many assurances are given about mining being a temporary land use, it is not worth allowing mining in the first place.  There is hence a need for greater societal consensus and legal protection against mining in sensitive, threatened and vulnerable ecosystems and areas of significant cultural heritage.

Humby said that the absence of robust regulatory tools that specify more clearly where mining can and cannot take place is a violation of NEMA (24), which addresses the “management and control of residue stockpiles and residue deposits from prospecting, mining, exploration or production operations’’.  This topic of closure versus post-mining rehabilitation was the final discussion point at the forum.

Participants delved into this  urgent and vital section of the standard NEMA requirements, which stipulates that as far as is reasonably practicable, companies must rehabilitate the environment affected by the prospecting or mining operations to its natural or predetermined state, or to a land use that conforms to the generally accepted principle of sustainable development. Although most participants agreed with the essence of this requirement, they called for more stringent practical measures to make this a norm.

Mining is a key contributor to the South African economy, as well as an engine for regional development. Nevertheless, the negative effects of mining on vulnerable communities, including reducing their capacity to adapt to the impacts of climate change, makes the case for increased accountability urgent if our country is to achieve improved communal wellbeing and sustainable development.

*CER is a non-profit environmental rights law clinic that helps communities to defend their Constitutional right to a healthy environment.