Mine Closure and Rehabilitation: Centre for Environmental Rights briefing

Meeting report

Opening Remarks by Chairperson

The Chairperson felt it pertinent to raise some matters of concern before the agenda for the day began — he expressed concern regarding the disappearance of six learners in the Flagstaff area in the Eastern Cape. All concerned needed to help to find these girls, although he was unsure of what to do. He was also very concerned about the continued loss of life on mines - a way had to be found to address this problem and he hoped that the Minister, of Mineral Resources, had a plan to stop the killing of people on the mines. Additionally, the country was entering a difficult phase - investment was needed to stimulate and grow the economy, however the Minister of Finances Medium Term Budget, later today, would indicate a shortfall of around R50 billion which would further impact the economy negatively.

Adv H Schmidt (DA) said that the Department of Mineral Resources (DMR) released monthly statistics on mine fatalities and suggested the Committee use this information to help formulate its own plans on how to combat the loss of life on mines.

The Chairperson responded that the loss of human life had to be addressed but he was unsure that this information could be used to help the Committee.

Presentation on Mine Closure and Rehabilitation

Prof Tracy Humby, Wits University, School of Law, briefed the Committee on the Centre for Environmental Rights (CER) report on mine closure and rehabilitation. She was also a Board Member of the CER.

There were five important aspects related to poorly-managed mine closures and rehabilitation in SA, namely:

1. Significant detrimental impact on SAs soil, water and air that directly affected the countrys poorest citizens
2. Increased state liability for mine closures
3. End-of-life closure processes were not working
4. Numerous institutional failings in both public and private sector that contributed to the problem
5. Addressing the mine closure problem required a whole-of-government approach, led by mineral authorities and oversight bodies.

Mine closure was defined as the process of transforming an active mine into a safe and stable landform that was non-polluting but still providing various economic support activities to new land users. However, the current experience in SA was that mine closure was associated with trauma - e.g. job losses, pollution, zama zamas and acid mine drainage.

Mine closure occurred at the end of the mining process — the process started with exploration, followed by development, mine operations and finally mine closure. Mine closure included three key steps, namely, decommissioning and rehabilitation, relinquishment (issuing of a mine closure certificate) followed by the management of residual and latent risks.

Although actual mine closure occurred at end of the mining cycle, the process to manage the closure effectively, had to start early in the life of the mine - for example, at the early exploration and development phase, there had to be an Integrated Closure Plan and some form of Financial Provision had to be set aside for mine closure. During the operational life of the mine there had to be regular, annual progressive rehabilitation, rather than only at the end of the mines useful life. This process had to be adaptable to the change of operators (e.g. sale, business rescue, insolvency).

Prof Humby said poorly regulated mine closure was a significant problem that was detrimentally affecting SAs poorest citizens and he productive capacity of soil, water and air.  

With the impact on SA citizens, Prof Humby cited some reports that gave, in her view. An excellent overview on the impact of poorly managed mine closures on SA citizens, and the country a whole, — these included the Harvard Law School International Human Rights Clinic, The Cost of Gold, Environmental, Health and Human Rights Consequences of Gold Mining in South Africas West and Central Rand, Lawyers for Human Rights, Blyvooruitzicht Mine Village: the human toll of state and corporate abdication of responsibility in South Africa and Bench Marks, Principles for Global Corporate Responsibility.

With the increase in state liability, there were a number of costly state-funded programmes to address the failure of previous mine owners, e.g. cost of Acid Mine Drainage (AMD) remediation, rehabilitation of derelict and ownerless mines, Carolina water crisis, resources to manage zama-zamas and increased security risks at abandoned mines.

Looking at the end-of-life closure processes not functioning, only a very small number of closure certificates have so far been granted by DMR. In addition, mining companies were not applying for closer certificates, e.g. between 2011 and 2016, there were no closure certificates issued in either Gauteng or Mpumalanga (both premier mining areas). A data-driven investigation showed that about R60 billion was available for mine rehabilitation, however the funds remained unused, because mines were not legally closed (i.e. no closure certificate).

Prof Humby pointed out institutional failings in both the public and private sector was a key problem area. Examples of failure included:

• The single point closure certification process was not working (e.g. Aurora, Blyvooruitzicht Mines). The closure process was not orderly and/or systematic, majority of mines were closed prematurely or suddenly for variety of reasons
• Care and maintenance: it was not clear how many SA mines were on “care and maintenance” as opposed to being closed (i.e. closure certificate issued). In addition, care and maintenance of mines were not being regulated properly by the various state institutions involved (DMR, Department of Trade and Industry, Department of Justice and Correctional Services)
• Inadequate financial provision for rehabilitation compromised effective mine closure e.g. Golfviews business rescue plan showed assets of only R5 million (trust fund) vs. liabilities of R622 million and only R29 million set aside for environmental rehabilitation costs
• Lack of adequate closure planning and enforcement - poorly conducted operational monitoring of water quality, soil, dust, soil quality etc. DMRs responsibility under One Environmental System was not functioning effectively, e.g. cliff collapse of Tormin mine, where the Department of Environmental Affairs (DEA) had to be called in to assist
• Lack of transparency: companies and, until recently, government were fighting to keep financial provisions for mine closure a secret. There was general apathy in this sector to use the Open Data Portal to enable better monitoring of mine closure and other related information on mining.

In terms of the whole-of-government approach to mine closure, dealing with the mine closure problem required involvement of all government authorities responsible for mineral extraction, including oversight bodies, i.e. although DMR should lead the process there had to be direct involvement by other government entities like this Committee and other government departments, namely, DEA, Department of Water and Sanitation (DWS), DTI, Department of Labour (DoL), Department of Justice and Correctional Services and Department of Performance, Monitoring and Evaluation (DPME).

There was an important question that had to be addressed on this issue, namely, “what were the short, medium and long term priorities for addressing SAs mine closure problem” - to answer this question properly, required all role-players to resolve the following important issues:

• Leadership on the care and maintenance of mines threatened by closure
• DMR had to assume accountability to implement the new Financial Provisions (FP) and Environmental Impact Assessment (EIA) regulations that govern mine closure
• Inquiry into the policy debate on the use of existing FP funds
• The establishment of a DMR/DTI and DEA working group to agree on ways to integrate company law and mine closure/environmental laws
• DMR performance on mine closure required closer monitoring by DPME

Discussion

Mr J Lorimer (DA) wanted to know what was meant by land restoration after mining, as it was impossible to restore the land to its original state. He wanted to know if economic usefulness was not a better option.

Prof Humby responded that mining was a transformative land use practice, i.e. the land was transformed and could not be restored back to its original state.

Adv Schmidt wanted clarity on how continuous rehabilitation would function under current law and if it was correct to assume that funds for mine rehabilitation were only available once the mine was closed. In a recent oversight Committee visit to Australia, the Committee was impressed by co-operation between government and mining companies on a wide number of issues - this was not the case here in SA. One of the positive spin-offs of this co-operation was establishment of a joint rehabilitation fund - could this work in SA? The Committee visited the Tormin mine and was under the impress that it was a joint responsibility between DMR and DEA.

Prof Humby replied that continuous rehabilitation had to be conducted on an annual basis and had to be set out when mining rights were issued. If necessary, laws would have to be amended to ensure it was implemented properly. Funds for mine rehabilitation were not available for use by government but private mining companies had access to it. On government-mining company co-operation, this was dependent on the willingness of the organisations to co-operate, even within mining companies there was some lack of co-operation, however co-operation was far better than conflict. The rehabilitation fund could work here if there was co-operation.

Ms Catherine Horsfield, CER Mining Head, added that with the Tormin case this was a matter of jurisdiction and it was clear it was DMR and DEA that had accountability on the matter.  

Nkosi Z Mandela (ANC) appreciated the presentation. It was not possible to restore mining land to its former state - perhaps a better option was to restore the land in such a manner that it was economically viable for communities living on it. He cited the example of beach sand mining in the Richards Bay area, which the Committee visited — in this case the mine had restored the area with a commercially viable indigenous forest that benefited the local community. He was particularly concerned about ownerless and derelict mines that used to be mined by “powerhouses of today” sitting on huge profits but did not rehabilitate the mines during their tenure — could such “powerhouses” still be held accountable?

Prof Humby replied that, according to scientists, it was impossible to get mined areas back to its original natural state. This would be exacerbated by the commodity was being mined - e.g. gold and coal mining land areas would be very difficult to restore. She agreed that previous mine owners had to held accountable for current ownerless and derelict mines. It was a travesty of justice not to hold those, who mined there previously, accountable.

The Chairperson commented that some mines removed the topsoil prior to mining and returned the topsoil once mining was completed as part of rehabilitation processes.  He wanted to know how the National Environmental Management Act (NEMA) could be applied as post-1994 there was no prior legislation that ensured environmental liability for mines - the law could not be applied retrospectively. He wanted to know what the solution was to ensure all parties acted within the law and responsibly on this matter to ensure proper rehabilitation took place and was aligned with laws of the country. Was there a case for a co-operative rather than a litigious approach?

Professor Humby responded that even if removed topsoil was replaced carefully, the mining process, which by its nature was destructive, would have disturbed the geology and flora, so it was not possible to restore the disturbed area to its natural state. Perhaps a better option was to restore the land to a useful economic state for use by the people. In addition to the physical destruction of land etc. by mining, there was also a devastating social effect on people that was often unappreciated. She agreed that co-operation was better than litigation. Prior to 1994 there were some laws (although not as comprehensive as today) that protected the environment, e.g. in 1937 there was a successful prosecution on AMD.

Mr Lorimer wanted to know if there was a single successful mine closure example locally.

Prof Humby, to her knowledge, did not know of any. She indicated that even globally less than 3% of mine closures were successful.

Mr Lorimer wanted to know how partial mine closure worked, if there was any information on the current situation at Blyvooruitzicht mine and if he was correct to say that mines could only access rehabilitation funds once they were closed (i.e. closure certificate issued)

Prof Humby replied that partial closure occurred when certain sections of a mine were closed off (no mining) so that a reduced area was being mined. This also reduced the liability of the mine. On the query on Blyvooruitzicht mine, in her view, the best resource for information was Ms Mariette Liefferink. On funds for mine closure, she was not sure on when funds were accessible and would have to check the law on this especially if it was during decommissioning, closure or both.

Adv Schmidt wanted more information on the Open Data Portal system that should improve transparency and openness. He allow wanted to know if environmental liability fell away when a mine was under business rescue.    

Prof Humby said that current company culture did not allow for openness and accessibly of data and information. The Open Data Portal would go a long way to facilitate this. She mentioned Mr Zaid Abubaker as a resource in case anyone wanted more information on this matter. When business rescue was in progress, a key issue was to protect minority shareholders. Environmental liability could be accommodated but the problem was that the law on winding up a company in business rescue was generic and had to be adapted to be more mining specific. 

Mr I Pikinini (ANC) thanked the CER for the presentation and said the information would be valuable to the Committee going forward. The Open Data Portal was a good idea to share information. Something like a companys Social and Labour Plans was important and would be beneficial to stakeholders if it was shared on the Open Data Portal.

The Chairperson said DMR was asked to provide information on this matter to the Committee and the presentation received today would help the Committee develop a better understanding when it discussed the issue. Based on this briefing, it was clear that the closure and rehabilitation process was not working and a collective effort was needed from all concerned to address the problem. The Committee would also engage other Committees, such as Environmental Affairs and Water and Sanitation, on the issue.

Adv Schmidt said that often information and research from institutions like universities were very useful to the Committee - not just on this matter but also other matters that the Committee had to deal with from time to time.

Prof Humby remarked that she would be delighted to provide information to the Committee. She currently had numerous research students at PhD level conducting research on aspects such as AMD and financial provisions on mine closure - this research could be made available to the Committee.

The Chairperson said the point of contact for this, in the Committee, was Dr Martin Nicol, the Committee Researcher. 

The Chairperson thanked CER for the engagement and indicated that the Committee may have to engage the Centre again.

Draft Committee Minutes dated 11 October 2017

The draft Committee Minutes dated 11 October 2017 were adopted without amendments.

Draft Committee Minutes dated18 October 2017

The draft Committee minutes dated 18 October 2017 were adopted with minor amendments.

Matters Arising from Committee Minutes dated 18 October 2017

The Chairperson informed the Committee that another engagement date had been requested with the Minister Zwane to discuss allegations of State Capture — hopefully this would be on 1 November 2017. The Chairperson asked a representative from the Parliamentary Legal Unit to attend to provide guidance and assistance to Members when engaging the Minister.   He was hopeful that the Committee could conclude its engagement on the matter and finalise its report to the National Assembly on it, after the engagement took place. He asked Members if it was feasible to conclude the discussion with the Minister by 11h00 if the meeting started at 09h00 — this would allow two hours of engagement with the Minister and then a further two hours (i.e. up to13h00) to debate and discuss the matter within the Committee. The Committee had to be mindful that there was very little time left for meetings and that all had to work together to ensure the matter was concluded in this final term. He also asked Members to be respectful and dignified when engaging on matters in meetings especially on difficult and contentious ones - the process had to be fair to all concerned. 

Nkosi Mandela asked for Members to be protected regardless of which party they represented - he cited some disrespectful phrases used in the previous meeting like  “mad”, “this old man” and “this boy” and requested that the Chairperson provide the necessary protection. He also wanted to know if there were any further questions for the Minister on matters related to mineral resources, as he felt that perhaps the Committee had exhausted all questions to him.

Mr Schmidt indicated that he had more questions for the Minister. He agreed with Nkosi Mandela on disrespectful engagements but felt it was sometimes better to let the issue “go to bed”.  

The Chairperson said this was merely an investigation on the request of the House Chairperson - there was no formal enquiry on the allegations of State Capture. The Committee was engaging the Executive/Department and will then compile its report which may or may not result in an inquiry.

The meeting was adjourned.