Australian mining company takes govt to court

2017-02-22 05:41
High court. (Duncan Alfreds, News24)

High court. (Duncan Alfreds, News24)

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Cape Town - An Australian mining company operating on the West Coast began its litigation against environmental authorities in the Western Cape High Court on Monday and Tuesday, GroundUp reported.

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. It is on the coast, 400km from Cape Town, near Lutzville.

The national Department of Environmental Affairs (DEA) and the Western Cape Department of Environmental Affairs and Development Planning were in turn criticised for “invading” the mining company’s rights.

They further deliberately suppressed information that should have been included in their joint application to a Vredendal magistrate for a search-and-seizure warrant in September 2016, relating to alleged environmental transgressions.

“To put it colloquially, it was clear that DEA was gunning for the applicant,” Peter Hodes, SC, for MSR, told Judge Owen Rogers.

He argued that the warrant was invalid for several reasons.

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”.
Ron Paschke, for both departments, told the court that the mining company’s application was “an attempt to thwart the implementation of environmental laws”.

MSR violated environmental laws, express instructions to comply with those laws, and its own undertaking to comply with them.

“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.

‘Failing for ages’

Complaints that Tormin’s unauthorised changes to its approved environmental management programme were responsible for the cliff collapse and other alleged environmental transgressions led the departments to conduct the search-and-seizure operation at Tormin.

Criminal charges were then laid.

MSR argues that both departments lack any legal jurisdiction to monitor and enforce compliance at Tormin because of the “One Environmental System” government introduced in December 2014.

This gives the Department of Mineral Resources (DMR) sole environmental authority over prospecting and mining.

Hodes pointed out that MSR had still not been formally charged. He said one of the relevant documents that should have been put before the magistrate was Tormin’s amended environmental management programme which the DMR approved 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. They were however “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”. No evidence had been put before the magistrate about whether mining was responsible for this collapse, Hodes said.

Legal distinction

Paschke said part of MSR’s review application was for a declaratory order to the effect that neither the national nor the Western Cape environment ministers and their departments had authority to perform compliance monitoring and enforcement in terms of the National Environmental Management Act (Nema), 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 argued that there was a legal distinction between an environmental management plan (EMP) approved in terms of the Mineral and Petroleum Resources Development Act – as MSR had obtained for Tormin – and environmental authorisation for “listed activities”. These included 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.

“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.

Read more on:    cape town  |  environment  |  mining

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