Mines Operating Without Requisite Water Use Licences: Acting with Impunity Exacerbating Environmental Degradation
On the 14th of February 2012, Lawyers for Human Rights and the Centre for Environmental Rights, on behalf of 18 organisations linked to the Mining, Environment and Community Alliance, wrote to Mrs Edna Molewa, Minister of Water and Environmental Affairs where the Minister was urged to address the operation of mines without requisite water use licences acting with impunity exacerbating environmental degradation.
In the letter, the Alliance called upon the Minster to exercise her powers to stop these mines from continuing to use water illegally. To this end, the Alliance called upon the Minster to:
1. Provide a regularly updated and accurate list of the status of mines presently operating with or without Water Use Licences, and the status of all pending applications in the public interest published on the DWA’s website;
2. Provide a detailed account of the steps the DWA is taking to expediently process outstanding water use licence applications for the mining industry and provide an undertaking that such licences will only be awarded to mines who meet the requisite lawful requirements to ensure water quality management and instil confidence in the regulatory system;
3. Provide a detailed account of the steps that are being taken to ensure diligent monitoring and compliance with issued water use licences; and
4. Provide an undertaking to take all necessary steps to ensure that mines operating without water use licences, or who are not compliant with such licenses, are sanctioned in line with the National Water Act. Criminal investigations into mines without water use licences should be instituted and companies ordered to cease all further water use until licenced.
The Mining, Environment and Community Alliance
For the past two years, there has been ongoing engagement between civil society, community organisations, academic institutions and law clinics increasingly concerned about the impacts of mining on the environment and on the communities that rely on those natural resources. This coalition has now evolved into a Mining, Environment and Community Alliance that works together to implement a civil society legal strategy to promote environmental compliance, transparency and accountability in mining.
1. The focus of the Alliance’s concern is not to oppose mining. Rather, the Alliance seeks to ensure the detrimental impacts of mining are adequately assessed and mitigated within reasonable timeframes and before prospecting and mining are commenced – followed by predictable compliance monitoring of requirements set, and strong enforcement action in instances of non-compliance.
2. The Alliance shares the view that this is the only way to ensure responsible environmental practices at mines, in the interests of workers, communities and the country and in accordance with section 24 of the Constitutional right to an environment that is not harmful to their health or well-being and to have the environment protected for the benefit of future generations.
3. The Alliance further echoes the concerns of the sentiments stated in the Preamble to the National Water Act 36 of 1998, that the ultimate aim of water resource management is to achieve the sustainable use of water for the benefit of all users; and recognising that the protection of the quality of water resources is necessary to ensure sustainability of the nation’s water resources in the interests of all users.
Ongoing operation of mines without requisite Water Use Licences acting with the impunity exacerbating environmental degradation
It is to this end that the Alliance is deeply concerned that there are a significant number of mines that are still operating without the requisite Water Use Licence required by law:
1. In June 2009, the Minister stated in Parliament that there were 104 such cases across the country;
2. In August 2010, the Department of Water Affairs (DWA) told Parliament that there were only three criminal cases pending against mining companies;
3. In the December 2011 list from the Parliamentary question and answer session, the Minister stated that the DWA knows of 84 mines that still operate without water use licences. Of these only two mines listed had made no application for a water use licence, though these two mines are not listed with the Department of Mineral Resources (DMR);
4. As for the remaining companies, all have applied for licences, three mines’ licences were withdrawn of which two are also not listed with the DMR;
5. 47 mines’ applications are being processed (as of 28 October 2011);
6. Another 27 mines also applied but they have been asked for additional information to supplement their licence applications (as of 28 October 2011).
The Alliance is deeply concerned that there are a number of mining companies that have been awarded licences, despite having commenced water use activities without a licence – without any apparent penalty, sanction, or compensation required. Without a water use licence, not only is there no way to ensure that a mine practices good water use and waste management, there is also no assurance of proper rehabilitation once a mine ceases to operate.
It is, in addition, a criminal offence to operate a mine without a Water Use Licence. It is apparent that there is at presently little action being taken to stop mines who simply proceed to use water without the requisite licence. While this remains the case, there is no incentive for mines to operate within the framework of the Constitution and the National Water Act.
The Alliance is in addition deeply concerned that the statistics cited above do not accurately reflect the full scale of the present situation. The critical lack of compliance monitoring and investigation by the Department of Water Affairs and the woefully inadequate number of compliance inspectors means a significant number of mines may be operating without licences and without the Department has any knowledge of their operations..
The Alliance accordingly called on the Minister to exercise her powers to stop these mines from continuing to use water illegally. The Alliance is committed to challenging failure by the Minster to do so.
Contacts:
Dina Townsend (083 444 8607 or dtownsend [at] cer [dot] org [dot] za), Centre for Environmental Rights www.cer.org.za
Emma Algotsson (082 822 8415 emmaa [at] mweb [dot] co [dot] za), Lawyers for Human Rights www.lhr.org.za
Organisations that signed the letter: Lawyers for Human Rights, Centre for Environmental Rights, Open Democracy Advice Centre, The South African History Archive, Earthlife Johannesburg, Endangered Wildlife Trust, Federation for a Sustainable Environment, Carin Bosman, Executive Director Sustainable Solutions, Wildlife and Environment Society of South Africa, Conservation South Africa, Socio Economic Rights Institute of South Africa, Bench Marks Foundation, Hondeklip Empowerment & Livelihood Projects, Greater Delmas Civic Movement, Southpansberg Agricultural Union, The Mupo Foundation, World Wide Fund for Nature – South Africa and Wildlife and Environment Society of SA: Western Cape Region.