December 8 2014 was the day that mining won. This was when environmental oversight over mines passed from the environment department to the minerals department.
Government called this the “one environmental system”.
Critics warned that this would give mines carte blanche to mine with little consequence. Proponents argued that mines faced too much red tape and it needed to be cut so mining could expand.
Much of the red tape has been cut, but that has come at the cost of people and the environment. A Mail & Guardian investigation, and a recent ruling in the Cape Town high court, point to a broken oversight system in which mines can now lock trained environmental inspectors out of their premises — even if those inspectors know illegal activities have happened at the mine.
The test case for this has been the Tormin mine and its operations along a beach 400km north of Cape Town. It started off life a decade ago with an application to mine along a 12km stretch of beach. The zircon, ilmenite, garnet, leucoxene and rutile mined there are semi-precious gems. Its owner, the Australian-listed Mineral Sands Resources, wants to use the Tormin blueprint for its controversial mining application along the Eastern Cape’s Wild Coast.
Tormin’s environmental management plan was signed off by the mining department in 2011, and a similar plan was signed off by the environment department in 2012. Construction started in 2013. The plans allowed for two giant machines to dig up a strip of beach, before articulated trucks moved the concentrate to a secondary plant on high ground. The waste from this secondary processing area would then be returned to the beach, with the high tide fixing any damage done.
That system lasted for a year. An inspection by the minerals department in mid-2014 found that the two machines on the beach had moved inland and vegetation had been cleared to make space for them. The inspectors told the mine that it should have amended its environmental management plan before doing this.
Inspectors from the environment department visited the mine again in October 2014. They told the mine, because it had illegally moved the machinery and cleared vegetation, it had to apply for a section 24G rectification. This is a loophole in environmental law that allows groups that have broken the law to admit guilt, to rehabilitate the area and pay up to R5-million in fines.
But on December 8 the “one environmental system” came into operation. One more inspection from the environment department, following a complaint that the mine had collapsed a section of cliff, was allowed in February 2015. Then the gates closed.
Requests for access for further inspections were met with notes stating that the environment department did not have jurisdiction, with Tormin asking for “clarification in terms of your competent authority”.
The mineral department’s inspectors then did their own inspection in May 2015. They concluded that the mine was doing everything within the remit of its permits.
In the high court judgment last month, the court found that this was “patently wrong” because the mine had done illegal work.
Also in May 2015, the minerals department approved an updated mining environmental management plan. As a result of the “one environmental system”, Tormin no longer needed to get approval from the environment department.
In its argument before the court, Tormin said this meant its hitherto illegal work was now legal. The high court disagreed: “There was no plausible case to be made that the approval of the plan in itself legitimised the activities in question retrospectively.”
But the mine was acting legally in the eyes of the only department that mattered — mineral resources. Environmental inspectors, who had done the previous inspections and knew this not to be true, no longer had a say.
According to people who have spoken to the M&G about various investigations into mining, this was the real point of introducing the “one environmental system”.
An official based in Cape Town says simply that “they won”.
“They” is the minerals department: its core mandate is to expand mining and the mines, and which publicly states that compliance with environmental laws is onerous.
Lobbying by the department and mines, according to several people in local and national government, led the top echelons of government to conclude that the environment department was a headache for mining.
Mining offers a short-term economic benefit — and networks of patronage benefit.
Removing the environment department’s oversight over mining was inevitable. President Jacob Zuma, in his 2014 State of the Nation address, said streamlining regulatory and licensing approvals was “a very positive development”.
Civil society groups tried to sound a warning about the consequences of this. In submissions on amendments to the mining legislation that brought in the “one environmental system”, a coalition of citizen and civil society groups said: “The [mining] industry has benefited for decades from an environmental regulations regime that is significantly weaker than that with which all other industrial sectors have to comply.” This new “one environment system”, they said, would only make things worse.
The Cape Town official says their worst fears have come to pass. “You can stand at the gate of a mine knowing that it’s breaking the law, but they will just tell you to go away because you don’t have jurisdiction.” The phrase about worst fears coming to pass is one repeated by many in the mining sector.
The official, and others with knowledge of the situation, say frustration drove the environmental inspectors previously tasked with oversight for the Tormin mine to ask the Vredendal magistrate for a search permit. This was granted in September 2016.
On the cold morning of September 29, 26 officials arrived at the mine to conduct their inspection. They included provincial and national environment inspectors, police officers, dog handlers, town planners and land surveyors. Two officials from the minerals department were also present, but they did not enter the mine.
The findings of that day-long search backed up the charges that Tormin had illegally done things such as clearing more vegetation to expand its inland mining operation.
The mine then went to the high court, asking for the search permit to be set aside.
The high court complied, saying the environment inspectors had not fully disclosed information when applying for their permit. Had they done so, the high court said, they might not have been given a warrant because they no longer had jurisdiction to enter the mine.
But the high court stated: “Based on the fuller information contained in the affidavits before me, the charges cannot be said to lack substance.”
This leaves environmental inspectors with a problem. Tormin broke the law. It should have applied for a section 24G rectification. But the “one environmental system” means the inspectors do not have jurisdiction.
Nationally, this means mines known to be operating illegally are safe from the consequences.
The M&G has reported on similar situations, particularly in Limpopo’s platinum belt and the coalfields of Mpumalanga. With little in the way of budget and few recruits, the mining department’s environmental inspectors, who are now tasked with oversight, have a tiny footprint. The environmental inspectors they have replaced, and who had a decade of training and investment, cannot interfere.
Political and short-term economic considerations have trumped those relating to the environment and citizens.
Stephinah Mudau, head of environment at the Chamber of Mines, says the chamber did not lobby on the one environmental system, but did engage with government “on the challenges its members was confronted with in relation to duplication and fragmentation of environmental licensing”. While the time for a license had been cut down to 300 days, mines still faced having to comply with a “multitude of environmental legislation”.
When it comes to compliance monitoring of mines and their impact on the environment, Mudau says: “Despite the capacity constraints with the minerals department, the chamber is quite confident that with the necessary skills development and capacity building programmes the minerals department would be competent and have the capability to regulate environmental issues in the mining industry.”
The biggest problem for mines, Mudau says, is that the environment department has not finished its job of changing legislation so that things such as environmental impact assessments work inside the one environmental system. This has left a great deal of “ambiguity” which makes it “difficult for the minerals department to implement opaque and conflicting policy proposals”.