xolobeni

Wild Coast mining conflict: Xolobeni escalates

  • Posted on: 4 May 2015
  • By: JB

JOHN CLARKE 04 MAY 2015 02:06 (SOUTH AFRICA)

SOURCE: DAILY MAVERICK

Advocate Thuli Madonsela had confidently assured us that so far all of the political crises that have bedevilled South Africa since 1994 were in fact anticipated by the architects of the Constitution, and will be resolved by adherence to it. However, it remains to be seen if such recourse to constitutional provisions can ultimately settle the Wild Coast dune mining conflict, which is back on the boil. Recent events suggest that coastal residents in the Amadiba Tribal Area have already decided for themselves that their property and environmental rights trump mining rights. They have decided that mining is not a “justifiable social and economic development”, and have erected barricades on the access roads to refuse entry to an Australian backed mining company. Not even their chief was allowed in.

 

There is a lovely stream that bubbles and trickles its way down through the Amadiba chieftainship on the Pondoland Wild Coast to feed the Kwanyana River, which flows into a coastal estuary that is lovely beyond any singing of it (with apologies to Alan Paton). The Amadiba call it “Rholobeni” but the subtle pronunciation and spelling was beyond Colonial settlers, so on maps it is rendered “Xolobeni”. The stream has imparted its name to a store and nearby school which overlooks a beautiful panorama of green hills and blue sea with expanses of ochre red dunes in between, along the coast. Do a Google image search on the word “Xolobeni” today and an array of pictures present themselves that do not match up to the stream, store or school, but to protest action against mining. That is because a Perth-based mining entrepreneur, Mark Victor Caruso, chose to name his venture to mine the ochre red dune dunes that can be seen in many of the pictures, the Xolobeni Mineral Sands project. The windswept dunes contain some nine million tons of ilmenite, source of the space-age mineral titanium.

Three weeks ago Environmental Impact Assessment consultants sent by Caruso faced a difficult challenge to consult with residents of the six rural village neighbourhoods community (Luphithini, Mnyameni, Mtolani, Mdatya Mpindweni and Nyavini) about the latest mining rights application that he had lodged (see thereport). The meeting did not last long and the team, led by EIA consultant Pieter Badenhorst, was told not to come back.

Last Wednesday, on 29 April 2015, confident that since they had the authority of the Amadiba chief Lunga Baleni to back them up, Badenhorst returned with a larger team, who travelled in a convoy led by Caruso’s local agent and community ‘fixer’, Zamile Qunya to gather data for the EIA, their difficulty increased. Soon after the convoy had entered the Amadiba Tribal area, word travelled faster than their convoy and by the time they had reached turnoff to Xolobeni, the consultants were confronted by a barricade of logs and brushwood on the road, manned by an ever-growing group of angry residents.

Believing that opposition to the mining proposal had been orchestrated by outsiders and was confined to a small minority of “just one village”, one of the team began to realise that Qunya had greatly exaggerated his influence and that although Chief Lunga Baleni might have had formal powers, he had forsaken his authority and respect. The betrayal of the chief is symbolised by his acceptance of a Toyota Double Cab 4x4, paid for by Caruso’s mining company MRC Ltd., and offset from a loan of R14 million that he had provided to his BEE partner Blue Bantry Investments Pty Ltd., of which Qunya is a founder director.

When more local residents arrived to reinforce the barricade and stiffen the protest, the consultants decided to retreat before things got even nastier.

Even leading members of the Amadiba Crisis Committee, a structure formed in 2007 to oppose the first mining rights application by MRC, were surprised by the militancy shown.

Interventions are now underway to ensure the situation does not escalate into the archetypal scenario that fictional films like Blood Diamond and Avatar portray. Or, worse still, the real scenarios that occurred 55 years ago during the Mpondo Uprising, and three years ago at Marikana.

(Ironically, Blood Diamond was filmed in the Amadiba area in 2006, with the Mzamba estuary dressed up to look like an alluvial diamond mine in Sierra Leone. It is an even greater irony that it was in this in this very area that in 1957 a kindling conflict commenced over land rights and the use and misuse of natural resources.)

Among the Xolobeni Google search images, there is a picture of an old man holding a knobkierie alongside a young woman. The old man is ‘Bhalasheleni’ Mthanjelwa Mpotomela Mthwa, one of the Indunas (traditional councillors) who preside at Imbizos held every Thursday at the Umgungdlovu Komkhulu (Tribal court room). The young woman is Nonhle Mbuthuma, whose story is told in the documentary film The Shore Break, and making a deep impression on international audiences.

Until his recent death Bhalasheleni represented the residents of the Mtolane village neighbourhood. He died on 11 April and his body was laid to rest on 18 April 2015, in the family grave at Mtolane village, overlooking the Xolobeni mineral sands. Had the local residents not stopped the convoy, the Badenhorst and his team would have passed close to his homestead and seen his verdant crop fields and livestock grazing among the coastal dunes.

The historical memory of residents like Nonhle, who will have to make way if Caruso’s mining scheme ever materialises, has been kept alive and fresh for at least five decades by brave and principled elders like Bhalasheleni who survived the Pondo Uprising. It still casts a long shadow on South African history.

Professor William Beinart, a specialist on Mpondo history, reports his interview with a local resident, Leonard Mdingi, telling of the first spark of the uprising:

There was a standoff in Amadiba Location, near Xolobeni store, where Mdingi’s father had been removed. One man was convicted and spent six months in prison.

The people were not consulted on anything now; people were being driven out of the land and they resented that … at one stage the police went down and were attacked by the people there and had to flee. Those were the beginnings of this Congo movement, of this Pondoland revolt, 1957, 58, 59. The dispute was getting hotter and hotter …

In this context, the local educated elite, such as Saul Mabude, a key member of the Bunga and advisor at the great place who lived in Isikelo location in Bizana, came under strong criticism. The attack on his homestead in March 1960 signalled the beginnings of the revolt…

Badenhorst ought to have known this. Four weeks ago I gave him a copy of a book I have written which relates that history, The Promise of Justice. Yet it appears he chose to believe Qunya and Lunga Baleni reassurances, risking the repeat of a violent episode of history.

How might that now be avoided?

It would be prudent for Caruso, Badenhorst and other stakeholders to also read what the Crown Princess of the amaMpondo, Princess Wezizwe Sigcau, said in a recent address to the World Alliance for Religion and Peace, to issue a stern warning to MRC that their investors will lose their money if they fail to respect the environmental rights of the Amadiba.

The role of Traditional Leaders is to become custodians of the Bill of Rights on behalf of rural residents whose land rights are held under communal land tenure especially Section 24 of the Bill of Rights, “The Right to an environment that is not harmful to the health and well-being, and to have the environment protected for the benefit of present and future generations”.

That mandate does not simply arise from the Bill of Rights only. It is a duty that is implicit in our sense of accountability to our ancestors, who are identified within the Earth. The strong attachment to the land which traditional communities have is a source of indigenous knowledge and properly understood, it is a progressive, inclusive cosmology. As the planet is increasingly compromised by a development logic that places life at the service of the economy, Traditional Leaders and customary law works from the inverse assumption. The economy must be at the service of Life.


 

Wild Coast Mining conflict back on the boil

  • Posted on: 14 April 2015
  • By: JB

JOHN CLARKE 13 APR 2015 12:53 (SOUTH AFRICA)

Source: Daily Maverick

While the bronze image of Cecil John Rhodes was being removed last week from the steps of the University of Cape Town, his ghost still hovered ominously over the mineral rich dunes of the Pondoland Wild Coast. For the third time since 2007, the Perth-based mining entrepreneur Mark Caruso is trying to secure mining rights for his venture capital company MRC Ltd, via his South African subsidiary Transworld Energy Mineral Resources (Pty) Ltd. They face formidable opposition organised by the Amadiba Crisis Committee, which came into existence eight years ago when TEM/MRC made their first attempt to obtain mining rights in 2007. This was ultimately defeated after a long and arduous six-year struggle.

MRC/TEM’s second attempt was abandoned after still more resolute opposition from local residents, but the same company announced on 6 March that a fresh application had been lodged with the Department of Mineral Resources.

john-wildcoast-subbedm photoThe Umgungungdlovu Komkhulu (tribal court room) that overlooks the mineral-rich coastal dunes of the Wild Coast was too small to accommodate the large crowd of some 400 angry and offended rural residents who turned up for yet another raucous meeting about mining.

On this occasion, the meeting was scheduled for later than usual (1pm) and the Senior Chief, Lunga Baleni, came along to introduce Mr Badenhorst and his team. Ordinarily the facilitating presence of the chief would have helped to make the requisite cross-cultural connections, but given that Lunga Baleni was widely perceived to have capitulated to being a puppet of MRC/TEM (testified by his arrival in a gleaming new 4x4), his formal power failed to translate into influential authority. He was jeered when he opened the meeting because according to Mpondo customary law, the chief is not supposed to take sides, but facilitate participation and dialogue to build peace. The de facto authority now clearly resided in the leaders of the Amadiba Crisis Committee, which included the well-respected Induna’s(headmen) for the Umgungundlovu tribal substructure.

Besides the antipathy toward the Chief, the mood of the meeting was affected by two other serious process issues.

Firstly, the absence of one of one of their most revered indunas, Bhalasheleni Mtanyelwa Mthwa, who had mysteriously fallen ill overnight. His trademark cheerfulness, wit and wisdom had become a fixture at the Komkhulu for years, nerving the youth against panic and seduction, guiding the elders with insight and wisdom, and uniting everybody with inspirational insights. His homestead is less than a kilometre away from the Komkhulu toward the coast. The red mineral rich dunes start at the bottom of his vegetable garden. From the inception of the mining conflict he has been a stalwart of the struggle. His proximity to the dunes, together with his absolute determination that he will not move, has made him one of the biggest obstacles to the ambitions of the mining company.

Secondly the meeting started only at 13.00. Amadiba Crisis Committee spokesperson Mzamo Dlamini said that at a Traditional Authority meeting two weeks prior, two hundred upset residents who had read the posters advertising the schedule of meetings insisted that their Head Woman, Cynthia Baleni, demand that the meeting should start 10.00 a.m., as is custom. “The reason is the 15km and more walking distances for some participants. This was rejected by Badenhorst, claiming that Chief Lunga Baleni had agreed to the schedule. How can a consultant come and claim he is neutral and start out by insulting the Umgungundlovu Traditional Authority by not starting the process at the Umgungundlovu Komkhulu?”

 

The perceived manipulation of the process meant that the meeting was over before it had really begun. Badenhorst was not able to get past probing questions from members of the Amadiba Crisis Committee, who wanted to know what motives and interests lay behind the new application. Or, to be more precise, the ACC members knew exactly what motives and interests lay behind the application, but wanted it all out in the open. ACC’s questions were actually directed at educating Mr Badenhorst and his team that the Amadiba’s local history mattered much more than mere compliance with a legislative process.

In terms of Mpondo customary law, any decision that proposes to alter any existing rights with respect to communally owned land must commence from the grassroots up. Rhodes’ annexation of Pondoland to the Cape Colony in 1894 never respected that.

First up was Sinegugu Zukulu, to show the consultants that they were dealing with an empowered community whose patience and tolerance toward manipulative mining agents had long expired. Zukulu’s leading role had been crucial to shaping the history of the Amadiba’s hitherto successful, but costly, battle against the foreign mining forces. With a Masters degree in Environmental Management and many years of experience as an educator, Zukulu showed that while formal power can be conferred from above, influential authority had to be earned from below. Sustained by his deep Christian faith, he had earned his authority by sacrificial personal experience, enduring the bitter pain of estranged friendships and ruptured kinship networks, because of the ruthless methods used by the mining company to ‘divide and rule’.

He asked them to make it clear to the people that whereas the previous mining rights application had been narrowed down to only one third of the mining tenement, MRC/TEM were now wanting to secure the rights to mine the entire 22km stretch of coastal dunes all the way from the Mzamba to Mtentu river gorges. “You must tell the people that many more homesteads will be directly affected. The Kwanyana block alone had 38 homesteads. The entire area has more than 200 homesteads that will be directly affected.”

In short, people are living there. And they don’t want to move away and leave their ancestral lands to be plundered.

Next, Nonhle Mbuthuma, who has since 2006 played a leading role in the ACC in organising and empowering the community to assert their constitutional rights, asked Badenhorst to explain exactly who the applicants “Transworld Energy Mineral Resources” were, since there was no one present from the company.

She clearly knew a lot more than did Mr Badenhorst about their history. Accompanied by raucous cheers from the fired-up residents, she explained that the community had already made it quite clear, firstly in 2007 to the head of TEM John Barnes, and then again to his successor Andrew Lashbrooke in 2013, as well as to the Department of Mineral Resources throughout that the overwhelming majority of the residents living in the 200-plus homesteads (and many others besides), had already decided that they did not want their ancestral lands to be mined.

Yes, leave us alone,” someone shouted from the crowd. “We are not interested in the mining. Why do you keep coming back?”

Badenhorst explained that he had been commissioned to restart the EIA process “because the law had since been changed" and he had been sent to offer the community another opportunity to again express their concerns and issues, so as to educate the Department of Mineral Resources afresh as to why they should or shouldn't award mining rights.

"But our minds have not changed," someone shouted from the crowd, just before another angry man, brandishing a knobkierie, made his way out of the crowd toward Badenhorst and his team, intent on hammering the message home.

He was restrained by other residents, and shepherded away to cool off, but since it had become clear that the normal tolerance and goodwill of the community had been long overdrawn, and that further effort to engage with them was pointless, Chief Baleni and Mr Badenhorst decided discretion was the better part of valour, and started packing up.

With the crowd singing "imining ayiphumeleli" (mining will not succeed), they hastened the motorcade along its way. It was guava season and a few ripe guavas and maize cobs were thrown, aimed at Chief Lunga Baleni’s vehicle, as he hastily negotiated a three-point turn to follow Badenhorst and the rest of the TEM/MRC team out of the area.

Badenhorst declined to be interviewed afterwards, saying only that “I have done my job, according to what the law requires.”

Sinegugu Zukulu then rushed to fetch Bhalasheleni from his homestead and turned his bakkie into a makeshift ambulance to drive him and his anxious wife to get urgent medical attention.

While driving back, Zukulu explained to me that the level of militancy displayed by the people of Mgungundlovu was something he had not seen before. “It clearly demonstrated that they have had enough of this. I do not approve of hut burnings, but if the government studied the history of amaMpondo, they would know that it was here that the Mpondo revolt of 1960 started. You don’t take land from amaMpondo.”

But it is not only the law that has changed. When MRC/TEM/Xolco commenced their first mining rights application process in 2006 a tightly-controlled media cordon was enforced by the ring leaders of the pro-mining faction. Before the Amadiba Crisis Committee had been formed to counter the co-option and subversion strategy, Mbuthuma, Zukulu and other brave residents feared for their lives if they were seen speaking to journalists. In the first major expose by SABC’s 50/50 filmed in October 2006, they had to sneak across the Mzamba gorge to be interviewed at the Wild Coast sun resort to avoid attracting the attention of thugs in the employ of the mining company.

The courage that they showed ensured that the media cordon collapsed and the Wild Coast Xolobeni mining saga became the top environmental story of 2007/2008. As the Amadiba ascended up the Snakes and Ladders board to an unprecedented victory, their success was in no small measure due to journalists who provided ‘ladders’ and helped the local residents spot the more poisonous ‘snakes’. They forced the Minister of Mineral Resources to revoke the mining rights without having to go to court. That has never happened before.

Will it happen again?

The media cordon has long gone, and there is no objective reason that it cannot. In June this year, the premiere of a feature-length documentary The Shore Break, which tells the disturbing story of the Amadiba’s bitter struggle, is due for release in South Africa in the next few months. (It has already won an award for Best Feature Length Documentary at the International Environmental Documentary Film Festival in Paris in February.) DM

Postscript: Balashaleni Mtanyelwa Mthwa died at 3pm on Saturday afternoon. Further details and funeral arrangements will be announced in due course.

John Clarke is a social worker and author of the book The Promise of Justice: King Mpondombini Sigcau’s struggle to save the Mpondo from unjust developments. See www.thepromiseofjustice.co.za.

Photo: Local Amadiba residents assemble at Komkhulu. Picture by Mzamo Dlamini.

 

Xolobeni I&AP Registration (again)

  • Posted on: 23 March 2015
  • By: JB

 

In order to ensure that you are identified as an interested and/or affected party (I&AP) please submit your name, contact information, interest in the matter and comments to the EAP before 17:00 on 18 April 2015.

All communication must be directed to the EAP below.

EAP:

PB Professional Services

PO Box 1058

Wellington

7654

Cell: 082 776 3422

Fax: 0866721916

Email: Xolobeni+6009@key360.co.za

Or directly from the website

www.pbpscon.co.za

17 March 2015 DMR Application Ref: EC10025MR

To: Owner and tenant

APPLICATION FOR ENVIRONMENTAL AUTHORISATION, WASTE MANAGEMENT LICENSE, AIR EMISSIONS LICENSE AND INTEGRATED WATER USE LICENCE FOR THE PROPOSED XOLOBENI MINERAL SANDS PROJECT, EASTERN CAPE PROVINCE

INVITATION TO REGISTER AS AN INTERESTED AND AFFECTED PARTY AND TO PROVIDE COMMENT ON THE EIA SCOPING REPORT

Transworld Energy and Minerals Resources (SA) (Pty) Limited (TEM) has applied for mining rights for the Xolobeni Mineral Sands Project in the Xolobeni Region of the Eastern Cape. As part of an application for a Mining Right in terms of the Minerals and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002), and the 2014 NEMA Environmental Impact Assessment Regulations, TEM is seeking Environmental Authorisation, Waste Management License (WML), Air Emissions License (AEL) and Integrated Water Use License (IWULA). A Scoping and Environmental Impact Assessment Process (S&EIA) is being undertaken. The applications for WML, AEL and IWULA will be submitted shortly.

Situated in the Eastern Cape Province; approximately 250 km south west of Durban and approximately 60 km south east of Mbizana and 30 km southwest of Port Edward, the proposed development will involve the mining and processing of various heavy minerals for export. In addition to the mine infrastructure, the proposed mine development will also require supporting infrastructure such as internal roads, power lines, and water abstraction and distribution infrastructure.

Pieter Badenhorst Professional Services has been appointed as the independent environmental practitioner (EAP) responsible for the applications for an Environmental Authorisation, WML, AEL and IWULA.

Your name was received from a previous public participation process. Please note that this does NOT qualify as registering as an I&AP for this application. If you would wish to register as an I&AP for this current project, please submit your name, postal address, email address as well as preferred method of communication and interest in the manner to the EAP. In the future, communications will only be distributed to the registered I&APs.

The Scoping Report for the EIA is available for public review and comment from 18 March 2015 to 18 April 2015. The document is available from the following website: pbpscon.co.za as well as from the following public places:

Public Place and venues

Port Edward Library

East London Library

Mthatha Public Library

Bizana Library

Naledi High School, Xolobeni Tribal Area

Xolobeni Pre-school, Amadiba Area (Also venue for meeting 8:00 to 11:00 on 8 April 2015)

Mgungundlovu sub-tribal authority (Amadiba area); (Also venue for meeting 13:00 to 16:00 on 8 April 2015).

Mthayise Junior Secondary School

Amadiba area: (Also venue for meeting 8:00 to 11:00 on 9 April 2015)

Amadiba Tribal Authority; (Also venue for meeting 13:00 to 16:00 on 9 April 2015)

Bizana Youth Centre (in Bizana Town; (Also venue for meeting 10:00 to 13:00 on 10 April 2015)


 

The following listed activities are included as part of the application:

Reg 983 Listing Notice 1:

9, 10, 11 , 1213, 14, 15, 16, 17, 18, 19, 21, 22, 24, 25, 27, 28, 30, 45, 46, 48, 50, 56

Reg 984 Listing Notice 2:

6, 15, 16,17, 19, 21, 28

Reg 985 Listing Notice 3:

2, 4, 10, 12 18


 

All communication must be directed to the EAP below.

EAP:

PB Professional Services

PO Box 1058

Wellington

7654

Cell: 082 776 3422

Fax: 0866721916

Email: Xolobeni+6009@key360.co.za

Or directly from the website

www.pbpscon.co.za

In order to ensure that you are identified as an interested and/or affected party (I&AP) please submit your name, contact information, interest in the matter and comments to the EAP before 17:00 on 18 April 2015. 

Australia based MRC controls Tormin: Disregards Environmental Protection Regulations

  • Posted on: 24 November 2014
  • By: JB

Australia based MRC controls Tormin:  Disregards Environmental Protection Regulations

Quote: "For locals it was another instance of Tormin's disregard for the environmental protection conditions required by its licence."

Xolobeni and N2 toll road disaster will follow if their application is granted to strip mine the Wild Coast's titanium deposits at  Xolobeni.

Coastal residents fear mining impact

Ann Crotty | 22 November, 2014 20:12

What happens at Tormin is being watched closely not just by people in the area but also by a community thousands of kilometres away on the other side of South Africa. Australian-listed Mineral Commodities (MRC), the muscle behind Tormin, has plans to mine titanium from the sand at Xolobeni, a pristine area south of Port Edward on the Wild Coast of the Eastern Cape.

 

The Department of Mineral Resources confirmed it had received a new application for a prospecting right at Xolobeni and said the application was under adjudication.

On the West Coast, Tormin has ambitions to expand mining for zircon, garnet, rutile and ilmenite - used in ceramics, paint, paper and plastic. But, if the allegations are correct, it could be that, without more effective monitoring, economic benefits will be overwhelmed by damage to the environment, including the roads.

In Vredendal, locals say they are not against mining but their concerns include damage being done to the roads by the trucks that ferry the zircon from Tormin's plant to Cape Town and garnet and ilmenite to Saldanha. "We have a huge problem with the trucks. The roads are not designed for this, but when we mention that, [Gary] Thompson [the Australian GM] says it's not his responsibility, it's the responsibility of the trucking company," said a resident after a public meeting to discuss a proposal to double the size of the plant.

Tormin is required by the National Nuclear Regulator to exercise considerable care when handling and transporting the low-level radioactive material produced from mining the sands. There are indications that these regulations are being contravened. The regulator and the Department of Environmental Affairs did not respond to requests for comment.

On the other side of the country, Nonhle Mbuthuma of the Amadiba Crisis Committee said disturbing reports from the West Coast confirm their determination to prevent MRC from mining the Xolobeni sands.

"Their plans would destroy a stretch of the South African coast that is uniquely beautiful. It could be harnessed to support a valuable ecotourism industry that would provide livelihoods for generations to come."

She explained that the mining activity would destroy surrounding farms and homesteads, and transporting the material to a harbour would cause huge damage.

Xolobeni is regarded as a valuable source of titanium, with production expected to reach 65000 tons a month if MRC is given the go-ahead.

"We fear there could be as many as 60 trucks a day travelling from the mine through an area that has no tarred roads and has lots of children going to and from school, and livestock roaming free. Mining will destroy this area and the lives of everyone in it," said Mbuthuma.

She suspects that the South African National Roads Agency Limited's determination to build the N2 highway so that it passes just a few kilometres from the Xolobeni site reflects a desire to accommodate the miners. At Vredendal, Tormin is providing employment to about 140 people. However, most management jobs are held by Australians and, in a move that has caused consternation among locals, a large number of staff have been brought in from the Eastern Cape.

The prominence of Australians in the top ranks reflects MRC's control of Tormin. That dominance has become more evident since South African Andrew Lashbrooke resigned as CEO of MRC's local operator, MSR, in September. Several other South African managers left after Lashbrooke. Most were replaced by Australians.

Lashbrooke's involvement was tied to the belief that his company, Blastrite, had rights to the garnet that was a by-product of zircon production and is used in sand-blasting. In exchange for these rights, Lashbrooke managed Tormin and undertook to assist MRC in securing the Xolobeni mining rights. To this end, Lashbrooke introduced MRC's executive chairman, Mark Caruso, to the Eastern Cape-based black economic empowerment company Blue Bantry/Xolco.

In July, MRC told its shareholders that it had entered into a three-year garnet offtake agreement with GMA Garnet Group of Australia. People with knowledge of Tormin say Blastrite did not have sufficient capacity to take up all the garnet produced by Tormin. This resulted in stockpiling of the low-grade radioactive material and in some instances in it being dumped back into the sea. For locals it was another instance of Tormin's disregard for the environmental protection conditions required by its licence.

http://www.timeslive.co.za/businesstimes/2014/11/22/coastal-residents-fear-mining-impact

Shabangu in mining furore over Xolobeni rights

  • Posted on: 12 August 2014
  • By: JB

Posted on 11 August 2014. Tags: 

Former Mineral Resources Minister, Susan Shabangu.

Former Mineral Resources Minister, Susan Shabangu.

Australian miner Transworld Energy and Mineral Resources will be granted a licence to mine at South Africa’s West Coast after first having its licence revoked at Xolobeni three years ago.

The company, which is part of ASX-listed Mineral Commodities (MRC), will be granted a licence to mine at the site ‘within days’, reports The Sunday Times.

Shabangu about-turn

In 2011, then Mineral Resources Minister Susan Shabangu told MRC that its mining right at Xolobeni had been revoked, and the self-same Shabangu, now the Minister of Women in the Presidency, announced the decision to allow Transworld to mine at Xolobeni.

Shabangu delivered news of the mining rights granted at Xolobeni when she addressed about 50 ANC councillors in the Alfred Nzo district of the Eastern Cape last week.

She said a new licence would be issued within days and that the people who had previously opposed the planned mine now supported it.

Social transformation

MRC said that the Xolobeni project would be ‘catalyst for social transformation of one of South Africa’s poorest communities’.

An elder in the community, Bhalasheni Mthwa, is quoted by the Sunday Times as saying, the development was welcome, but not if it means that land was destroyed in the process.

In August 2012, a group from the Xolobeni community called the Amadiba Crisis Committee filed an objection to a prospecting rights application by Transworld, which is part of MRC.

World-class asset

MRC said on its website that the area had a capacity to be a ‘world-class ilmenite asset’.

Transworld’s mining right application in 2007 was for the Xolobeni block that comprises 30% of the total area.

The licence was to mine sands containing some 139 million tonnes of titanium-bearing minerals, including ilmenite, zircon, leucoxene, and rutile.

Ilmenite is mined for titanium dioxide, a white powder used as a base pigment for paint, paper and plastics.

http://www.miningne.ws/2014/08/11/shabangu-in-mining-furore-over-xolobeni-rights/

Xolobeni mining update

  • Posted on: 13 August 2012
  • By: JB

Latest news:

On Wednesday, 2012-08-08 the Amadiba Crisis Committee filed an Objection against the prospecting right application made by Transworld Energy and Mineral Resources SA:

http://www.lrc.co.za/images/stories/CaseRelatedDocs/2012%2008%2008%20Objection.pdf

The objection was filed jointly by the ACC and Sun International, which operates the Wild Coast Sun resort adjacent to the proposed mining area.

* TEM is ineligible for a new grant of prospecting rights because their application is redundant: they have already prospected the site, and are therefore merely attempting to hoard the rights. This transparent ploy creates more uncertainty and directly impedes development of the tourism potential in and through the area;

* Prospecting and mining activities cannot take place in the Xolobeni region at all because it is within an already designated Marine Protected Area (MPA). The tiny Pondoland Centre of Endemism (PCE), where the mining is proposed, is the second most florastically abundant region in Southern Africa, and one of only 26 such species rich places on earth;

* Mining the area will lead to unacceptable environmental and social harm. The objection clearly states the inevitable outcome of the limited short-term capital gain operations versus the long-term (infinite) sustainability of eco-tourism: Mining will irreversibly degrade the ecology, sense of place, and appeal of the area.

* The community will be displaced. The unacceptable outcomes of strip-mining include, inter-alia:

1. Forced eviction from their ancestral lands:
2. Loss of access to farmland for both crops and livestock, leading to subsequent loss of income, means of subsistence, and way of life;
3. Decreased viability of subsistence agriculture and fishing due to dust fallout;
4. Risk to irrigation from declining ground water sources;
5. Relocation/destruction of ancestral graves;
6. Destruction of culturally important archaeological sites;
7. Loss of current tourism and potential eco-tourism opportunities in the area, as Kwanyana camp, which is pivotal for accessing trails, will not be able to be used by tourists for lifetime of the mine; and
8. Irreversible damage to residents' sense of place, which is closely associated with unspoiled character and traditional use of the land.

9. Basically, irreversible degradation to the environment for a short term gain of $6 billion.

<b>Please sign our petition at www.causes.com/wildcoast for the Wild Coast to be declared a "no-go" area for mining once and for all.</b>

Awesome SA: Screw Business as Usual

www.awesomesa.co.za South Africa is a country that has lived through one of the most frightening, riveting, and inspiring political revolutions in history. Real radical change faces each one of us every day. How do we deal with the mistrust that has crept in among our people from years of separation and confrontation? Richard Branson in his book – Screw Business As Usual – says: "We've a chance to take a shot at really working together to turn upside down the way we approach the challenges we are facing in the world and to look at them in a brand new, entrepreneurial way. Never has there been a more exciting time for all of us to explore this great next frontier where the boundaries between work and higher purpose are merging into one, where doing good really is good for business." Awesome SA supports an organisation called Sustaining the Wild Coast.

ORDER YOUR TOO GREAT A TOLL WILD COAST 2012 CALENDAR NOW!

Wild Coast Fund Raising CalendarWild Coast Fund Raising Calendar Click here to order! HELP PUT A PERMANENT STOP TO: Mining of the Wild Coast dunes The 'Greenfields' section of the N2 Toll road through Pondoland HOW? Funds raised by your purchase of this calendar go to support residents of Pondoland's Wild Coast, in their ongoing battle to protect and conserve their living landscapes and prevent the shredding of their social fabric by the two massive development schemes.

Xolobeni mining update

  • Posted on: 28 June 2011
  • By: JB
It is well known by now that the minister of minerals & energy revoked the mining license, granted to MRC and their local subsidiary Xolco in 2008, at the beginning of the month. However the door is still ajar and we await the outcome in 3 months time. The applicants have until then to resubmit properly completed environmental impact assessments, a full environmental management plan, and to comply fully with the various requirements of affected government departments. In the interim, MRC's (Mineral Resource Commodities - ASX:MRC) share price seems fairly stable and essentially unchanged, hovering around 8c, Australian. But will they risk the further expenditure?

DMR releases Xolobeni report

JOHANNESBURG (miningweekly.com) – The Department of Mineral Resources (DMR) has released the ‘Holomisa Report’, which advises Mineral Resources Minister Susan Shabangu on the Xolobeni mining right appeal. The mining right was awarded to Transworld Energy and Minerals (TEM) in 2008, for the Kwanyana block of mineral sands on the Wild Coast. Although dated March 2010, the report was only released on January 31. The DMR said that the delay in taking a decision on the report was owing to “administrative processes and pressures within the department”.

Wild Coast plans show preference for mining

Click on the map for full size view (1.5Mb) From: www.iol.co.za February 8, 2011 By Ingi Salgado For some time, the state has withheld two pieces of information with significance for mining along the Wild Coast of the Eastern Cape. Under much pressure, the government has now released both. Both documents are shocking, but taken together, they paint a cynical picture of a potentially concerted effort to engineer an economically viable dispensation for mining on the Wild Coast running parallel to the planned N2 routewith scant regard for communities and environment.

More hearings on Xolobeni mine scheduled for Feb

By: Christy van der Merwe 26th January 2011 JOHANNESBURG (miningweekly.com) – A second task team would be established to hear oral presentations by parties affected by the proposed heavy minerals mine in Xolobeni, which is located on the South African Wild Coast. The hearings would be held at the Department of Mineral Resources’ (DMR’s) Durban regional office from February 16 to February 18. The task team would then make recommendations to Mineral Resources Minister Susan Shabangu, on whether or not to uphold the granting of the licence to mine the Kwanyana block of mineral-rich sands near Xolobeni, or to rescind the licence – as per the appeal from certain community members. Australia-based Mineral Resource Commodities, through its South African subsidiary Transworld Energy & Minerals, was granted a licence to mine for titanium-bearing minerals on a portion of the dunes, in December 2008. The Kwanyana block contains some 139-million tons of heavy titanium-producing minerals, including ilmenite, zircon, leucoxene, and rutile. Of the four blocks making up the Xolobeni project area, the Kwanyana block had the largest measured resource.

Latest developments in the Wild Coast Mining and N2 Toll rd saga

  • Posted on: 15 September 2010
  • By: JB

The Amadiba Crisis Committee (ACC) and Legal Resource Centre (LRC) demands decision from the department “by no later than 28 September 2010”, failing which the matter will be taken to High Court.

Social worker John Clarke has provided the following summary of developments, and opinion.

Xolobeni Mining
We are still waiting for DG of Mineral Resources, Sandile Nogcina, to announce the outcome of the appeal by the Amadiba Crisis Committee.  It has been over two years since the appeal was lodged.

In February this year a special committee was appointed by the DG of Mineral Resources Adv Sandile Nogcina, chaired by ANC MP and President of Contralesa Adv Patekile Holomisa, to consider the appeal and make a recommendation to the Mineral Resources Development Board.   The Special Committee has done its job, but are not at liberty to disclose the recommendation they have made to the Minerals Development Board.

The attorney handling the matter is Sarah Septhon of LRC, instructing Adv Gilbert Marcus SC and Adv Isabel Goodman. They presented the Special Committee with documentation that, besides containing excellent specialist studies to support their legal argument, included sworn affidavits that attested fraudulent behavior of the mining rights applicants in producing long lists of local residents whose signatures had been forged and many of whom were long deceased, all stating they were in “full agreement with the mining project going ahead”.

The ACC were confidently expecting that this deceitful and illegal behavior would have on its own constituted sufficient cause for the Minister to summarily revoke the mining licence.  Whatever ambiguities might exist in the legislation governing mining rights (the Mineral and Petroleum Resources Development Act), there is nothing ambiguous about section 47 which empowers the Minister to cancel rights if the applicant has “submitted any inaccurate, incorrect and misleading information…” 

On instruction from the ACC Sarah has now sent a letter to the Minister demanding a decision in respect of the internal review process “by no later than 28 September 2010”, failing which the matter will be taken to High Court. 

If the mining rights are upheld by the Minister, the ACC’s legal team is very confident that they will win, even if it has to go all the way to the Constitutional Court, because the community contends that the award of the mining rights is blatantly unconstitutional. 

N2 Toll Road
The first N2 Toll Road authorization was set aside in December 2004 by Minister Van Schalkwyk, because of a lack of independence of the EIA consultants.  Rufus Muruma, the executive director of the EIA consultancy Bohlweki and Associates, was found to also be a director of one of the consortium partners, Stewart Scott International, indicating a clear conflict of interests.  It was this fatal flaw which left the Minister with no alternative but set aside the authorization.

A new proposal/application was however permitted, provided the requirement for independence of the EIA consultancy was satisfied.  A different firm, CCA Environmental was duly appointed.  They used much of the previous report, including the Social Impact Assessment report, which they deemed to good enough.  The new scoping report was done in 2006 – 2007, the draft EIA in 2008-2009, and the final EIA published in January 2010.  
Comments and objections were lodged at the draft stage by the community through their lawyers Cullinan and Associates.  Particular concern was expressed about the lack of detailed information about the proposed route, compensation arrangements, moving of graves, location of access roads underpasses etc.  

The Deputy DG of DWEA Joanne Yawitch issued an environmental authorization on 19 April 2010 stipulating various conditions, and inviting objections that the Minister would consider before either endorsing or setting aside the authorization. 

Objections from several stakeholders were submitted notably; 

<li>The local Amadiba community who stand to be most significantly affected by the road, and fear that it will render coastal dune mining inevitable. 

<li>South Coast residents who object to having heavy loaded toll fees that South Coast commuters to Durban will be expected to pay to cross subsidize the construction of the Greenfields section through the Eastern Cape. 

<li>Many members of Sustaining the Wild Coast objected in their individual capacities to the failure to consider alternative alignments, the overall failure to assess the road impacts in relation to the cumulative impacts of other proposed developments, notably the Xolobeni mining venture, and to poor public participation methods.  

<li>Southern African Faith Communities Environment Institute (Bishop Geoff Davies) objected again to the failure to seriously consider alternative alignments, and to the artificiality of an administrative separation of the EIA procedures from the Intent to toll procedure, which will only ensue after the road is approved.  
WESSA and other environmental NGO’s focused on the threat to biodiversity in the Pondoland Centre of Endemism by these developments, in contravention of the Convention of Biological Diversity.
  
Significantly, the local Amadiba Community are convinced that the N2 Toll Road is ‘carrying a calf’, in that it goes hand in glove with the mining, a proposal which they have already categorically rejected.  They again contracted attorney Cormac Cullinan to lodge their objections, which were largely focused on the concerns about a very poor public consultation process.  They maintain the Public Participation process failed to meet even the very basic requirements in terms of customary law, which requires that all land related matters must be openly discussed at open consultation meetings held under the auspices of the Tribal Authority  at the Tribal Court house or Komkulu  (Great Place).   This never happened, even during the first round EIA Public Participation done by Bohlweki.  

In contrast, Cormac did meet with them at the Komkulu, and we arranged to have the proceedings filmed to ensure complete transparency.  A DVD copy was submitted with the objections, together with affidavits from the Queen of the AmaPondo, local residents, and various subject matter specialists arguing that the conclusions and recommendations of the EIA were again fatally flawed, having inter alia failed to take meaningful account of comments and concerns submitted on the scoping report and draft EIA.

Sanral lawyers (Bell Dewar and Hall) are apparently trying desperate to counter the objections, which suggest that the confidence SANRAL once had in the EIA report satisfying the legislative requirements was misplaced. 

The local chief, Lunga Baleni, was approached by one of their consultants asking for him to sign an affidavit stating his retrospective consent – which in itself amounts to a procedural violation. 

The Dept of Environment tried to exclude the video submission stating that “only written submissions will be entertained”.  They backed down when it was pointed out that many of the affected residents were illiterate and would be seriously prejudiced by the restriction.  
 
Two further issues of major controversy have now come into play, which have major implications as to how the above two controversies will be ultimately resolved. 

<b>Succession Dispute on Kingship of AmaMpondo</b>
The incumbent King of the AmaMpondo, Mpondombini Sigcau, has been deemed by the Commission for Traditional Leadership Claims and Disputes not to be the rightful successor to King Mandlonke who died in 1937 without fathering a male heir.  

Legal counsel to the Royal family are flabbergasted by the finding and the next tier AmaPondo Traditional Leadership and other members of the Royal House are currently mobilizing to challenge to the Commission and President Zuma’s endorsement of its findings.

Adv Patrick Mtshualana (SC) instructed by Moray Hathorn of Webber Wentzel Attorneys is representing the Royal Family in the matter. Webber Wentzel attorneys have taken on the case on a pro-bono basis because, according to Moray “a gross injustice to my clients appears to have been done, which cannot go unchallenged”. 
 
Given that the incumbent Royal house have vigorously opposed Government plans to impose macro development projects on the AmaMpondo, - notably the Xolobeni Mining, N2 Toll Road and Umzimvubu Dam scheme, - the working assumption is that the Commission has been manipulated by influential people with corrupt political and commercial agendas to subvert the only governance institutions that has consistently and courageously stood up for the constitutional rights of the rural amaPondo residents. 

<b>Proposed curbs on Media:</b>
Several award winning environmental and business journalists have appealed for support in their struggle to prevent the enacting of proposed Media Tribunal and Protection for Information Bills, advocated by the ANC.    
Both SWC and the incumbent Royal Family have added their voice to the opposition, because over the ten year struggle, journalists have engaged extensively in the ‘Wild Coast’ debate to highlight contradictions, challenge authoritarian assumptions, help to publicize and uncover coercion,  fraud, power mongering, politicking, incompetence, human rights abuses and abuse of power, give a voice to the poor and disenfranchised, and tell the stories and perspectives of those whose lives will be drastically changed by these Macro Development schemes

<b>Assessment and analysis:</b>
With respect to the N2 Wild Coast Toll Road, instead of SANRAL acting as a state owned and democratically accountable referee to ensure the commercial motives of the Private Sector do not dominate over the common good and claimed “national interest”, it assumed the role of ‘scheme developer’ from the Private Sector Wild Coast Consortium after their supposed ‘unsolicited bid’ was found to be fatally flawed because of vested interests.  Assuming scheme developer status on behalf of a private sector consortium seems at complete variance with the terms of reference one would expect from a state owned institution serving as ‘referee’ to ensure both a fair game between competing commercial enterprises, and above all the non exploitation of those whose money and assets would be called upon to sustain the “game”.    Instead, after Bolwheki was ‘red carded’ for foul play, and the WCC faded with embarrassment from the game, Sanral appeared instead as both player and referee.   
Surely the responsible thing to have done after the possible ‘match fixing’ was revealed was to start the whole game over from scratch with a new set of players.   
Those who had objected to the first EIA hoped that things would be more transparent the second time round. 

In fact, as the reality of how rural residents really felt about the N2 Toll road has become more frank, the real interests of SANRAL and their corporate clients became correspondingly opaque.  

Vast sums of money have been spent on the new EIA, and while one can sympathize with those dedicated professionals who have worked hard to give sound analysis, the parameters within which their work has been framed appears rigged to achieve an outcome predetermined by remote, faceless and exploitative political and economic interests:  interests that will neither serve the AmaMpondo people nor conserve the Wild Coast biodiversity, archeological and cultural heritage.  

Likewise with respect to the Xolobeni mining venture, the officials from the  Department of Mineral Resources, supposedly the custodian of mineral wealth held on behalf of all citizens and having a primary constitutional responsibility to promote the interests of historically disadvantaged rural residents whose lives and livelihoods will be irreversibly changed by the mining scheme, continue to act with bias toward the interests of foreign mining entrepreneurs and their blatantly corrupt BEE partners. How the DG of Mineral Resources can continue to entertain the idea of upholding the mining rights beggars belief, because there is incontrovertible evidence that massive fraud has been committed.    

Connecting the above dots, a pattern emerges which ought to alarm all who cherish our constitutional democracy– not only those who cherish the Pondoland Wild Coast.   

There is no doubt in my mind that the proposed Protection of Information Bill is motivated by fears among some very senior government officials and politicians that blatant conflicts of interests stand to be exposed.   

Having engaged with all legitimate stakeholders in the course of my social work intervention on the Wild Coast - from Cabinet ministers to illiterate elderly men like Samson Gampe living sustainable livelihoods from subsistence agriculture -  I believe that both the N2 Toll Road and Xolobeni Mining schemes fall far short of what section 24 of the Bill of Rights states as “justifiable social and economic development”.    

The reticence of state stakeholders to be transparent has left me with no other option but to conclude that the interests which are keeping the mining and toll road schemes alive are much the same as those which fuelled the exploitation and injustice of the colonial and apartheid era’s of our history:  the accumulation of power and wealth from mineral extraction at the expense of vulnerable people and fragile eco-systems. 

Four years ago after the well known human rights attorney Richard Spoor first met with the Amadiba Community he warned that they could expect two well tried and tested strategies used against those who stand in the way of commercially driven corporate entities out to make quick and lucrative profits:  Cooption and/or Subversion.   

The Amadiba Community and Royal House have courageously countered the ‘cooption’ tactics by recourse to what Queen Sigcau calls “civil courage” – standing their ground and insisting on their constitutional rights.  

Things were beginning to look very promising in terms of local people’s concerns being given a hearing.  But the two recent developments – the proposed media curbs and attempt to depose King Mpondombini – leave me personally feeling that if these two long ‘ladders’-  which have been absolutely crucial to our success -  are removed from the board, the Long Walk to Freedom that Nelson Mandela embarked upon seventy years ago will have to start all over again.

In short, while SWC volunteers have gone to extreme lengths to try to achieve resolution to the issues without resort to judicial remedies in court, it seems extremely likely that this is now inevitable.  But if we compare the situation we faced in December 2004, when the first proposal for the N2 Toll Road was set aside, with the situation we face today, we are much more confident that the courts have even more compelling grounds to firstly revoke the mining rights and secondly to refer the N2 Wild Coast toll Road proposal back to SANRAL. 

The feeling on the ground is that, masked behind the Xolobeni mining, N2 Wild Coast Toll road and now traditional leadership challenge, are fundamentally corrupt corporate and political interests.  When challenged, in the absence of a constitutionally defensible case, the only advantage that such interests have is deep pockets to fund litigation by attrition.

<b>Films on You Tube</b>
For those who have access to a fast broadband internet connection we have put films up on YouTube, on a channel called “Icosindaba”, which SWC member John Clarke has set up.  

There is a very interesting interview with local Induna from the Sigidi Village Mr Samson Gampe, filmed as evidence to substantiate the objections of the Amadiba Residents to the N2 Toll Road proposal http://www.youtube.com/watch?v=ZXaE0VgTgps

For the full historical context a three part series called Wild Coast Development, Dreams and Disruptions is also featured, containing footage from 50:50 programs dating as far back as 2003. Seven years of drama has been distilled down to 24 minutes of documentary narrative. 

- Part 1.  Wild Coast Development:  Dreams (5 minutes) http://www.youtube.com/watch?v=BVfsvyMszLA
- Part 2:  Disruptions:  Toll Road or ‘Troll’ Road.  (10 minutes) http://www.youtube.com/watch?v=DalsHKXCTEs
- Part 3.  Disruptions: Avatar Again! (10 minutes)  http://www.youtube.com/watch?v=_TjJelYvwxE

Claire Johnston (of Mango Groove fame) and Jeff Maluleke gave permission for us to use tracks from their album Starehe: An African Day, which they recorded to support environmental initiatives. Cartoonist Andy Mason likewise contributed his professional talent in a cartoon strip.

Revoke mining right

By John GI Clark Stephan Hofstatter’s report on the shenanigans surrounding the Wild Coast mining saga refers (Transkei dead’s nod to dune deal, March 5). So it is at the discretion of the minister whether or not to revoke a mining right, even when there is clear evidence of a fraud having been perpetrated to secure a mining right by the holders thereof. The latest evidence of fraudulently obtained lists of people, many of whom are long deceased, on “certificates” stating their free and informed consent for the Xolobeni Mining venture on the Wild Coast, provides Mineral Resources Minister Susan Shabangu with a more than adequate basis to revoke the mining right immediately.
Information: 

Transkei Dead's Nod to Dune Deal

By Stephan Hofstatter Johannesburg — EVIDENCE of misrepresentation has emerged in papers submitted in an application that led to a decision by the Department of Mineral Resources to allow titanium mining on the environmentally sensitive Wild Coast. If proved, the disclosures could jeopardise plans by Australian company Mineral Commodities (MRC) and its empowerment partner, Xolco, to extract heavy metals worth an estimated R11bn from the coastal dunes of the Transkei.
Information: 

Xolobeni Hearing - Canceled

  • Posted on: 11 February 2010
  • By: JB

By: Christy van der Merwe
10th February 2010

The hearings involving interested parties appealing a decision to grant Transworld Energy Minerals (TEM) a licence to mine heavy minerals from the dunes near Xolobeni on the Wild Coast, scheduled to take place this week, were cancelled.

The committee of four people, which was appointed by the Mining and Minerals Board to oversee the presentations from all parties involved, could not proceed because it had not received the necessary documentation from the Department of Mineral Resources (DMR).

Committee chairperson Pathekile Holomisa told Mining Weekly Online that it had now received the documentation, which it would go through, and would decide in March whether or not hearings into the matter in fact needed to take place.

"Ultimately, our piece would be to advise the Minister, either to proceed with granting the license, or cancel or withdraw it, but that depends on our understanding of the issue. And we shall also decide whether there is a need to invite more oral presentations or not," he explained.

Grahamstown-based Legal Resources Centre (LRC) representative Sarah Sephton said that the cancellation of the hearings was "completely unsatisfactory', as the LRC had made the effort to submit its volumes of documentation on time to the DMR.

She added that the LRC, as well as representatives from the mining company TEM, and the company's black economic-empowerment partner, Xolco, travelled to the KwaZulu-Natal DMR offices for the scheduled hearings "at great cost", only to be told that hearings were not going to take place.

The LRC represented the Amadiba Crisis Committee (ACC), which was appealing the mining right, which the former Minerals and Energy Minister, Buyelwa Sonjica, granted in August 2008.

The LRC stated that one of the grounds for the appeal was that the mining right was granted to the Australia-based mining junior without sufficient and reasonable consultation with the Xolobeni community as an interested and affected party.

On September 28, 2009, the LRC submitted two expert reports to the Minister in support of the appeal to set aside the mining right. One of the reports provided that the heavy minerals mining operations planned by TEM had been discontinued in other jurisdictions, such as Australia and New Zealand.

Resolution on whether or not the licence to mine for titanium-bearing minerals would, in fact, be granted was expected by June 2009, however, little clarity on the matter had emerged.
 
Edited by: Mariaan Webb

http://www.miningweekly.com/article/xolobeni-appeal-hearings-cancelled-2010-02-10

Amadiba Crisis Committee submission to DME

  • Posted on: 5 February 2010
  • By: JB

The Legal Resources Centre's submission to DME on behalf of the ACC and Xolobeni community is rather long-winded and dry; but also interesting, and thoroughly convincing: 

THE DEPARTMENT OF MINERALS AND ENERGY

INTERNAL APPEAL/REVIEW OF THE AWARD OF A MINING RIGHT TO TRANSWORLD 
ENERGY AND MINERAL RESOURCES (SA) (PTY) LTD

Appeal/review instituted by:

THE AMADIBA CRISIS COMMITTEE


Directed to:

MINISTER OF THE DEPARTMENT OF MINERALS AND ENERGY

APPLICANT'S FURTHER GROUNDS OF REVIEW AND REPLY TO SUBMISSIONS FROM TEM AND XOLCO
<!--break-->
_________________________________________________________
INTRODUCTION
On or around 29 July 2008, the Director General purportedly took a decision to grant a mining right to Transworld Energy and Minerals Resources (SA) (Pty) Ltd ("TEM") in the Kwanyana Block of the Xolobeni tenement area ("the decision").

On 2 September 2008, the Amadiba Crisis Committee ("the ACC") lodged a notice of appeal against the decision in terms of section 92(1)(b) of the Mineral and Petroleum Resources Development Act 28 of 2002 ("the MPRDA") alternatively an application to review the decision in terms of section 103(4)(b) of the MPRDA on the grounds that:

First, the decision was taken by an authority not empowered to grant mining rights and was accordingly ultra vires;

Second, the mining right could not be lawfully granted because:

the Xolobeni area is part of a Marine Protected area where commercial prospecting and mining cannot take place at all;

the Xolobeni area lies in a protected area where mining can only take place with the written permission of the Minister and the MEC for 
minerals and energy and the Minister of Environmental Affairs and Tourism. Such written permission was never provided;

the Xolobeni area lies on land that is being used for a public purpose or which is reserved in terms of other law; and/or

no community resolution was passed authorising mining activities on the land.

Third, the public consultation process undertaken on behalf of TEM was fatally flawed because:

there was insufficient notice of public meetings;

the members of the Xolobeni community were not properly consulted;

inaccurate or incomplete information was provided to the community;

not all aspects that required to be addressed with the affected community were raised or addressed;

Xolobeni Empowerment Company (Pty) Ltd ("Xolco") does not represent the community; and/or

the public consultations were a sham and ought to have been disregarded by the Department .

Fourth, the Department failed properly to consult as required by the MPRDA, in that:

it ought to have given the Xolobeni community a hearing before granting the Mining Right; and/or

it did not have due regard to the views of the Department of Environmental Affairs and Tourism.

Fifth, TEM's EIA was deficient in that:

it failed to provide key environmental reports, including baseline reports;

it failed to consider and assess alternative land uses;

cumulative impacts were not assessed; and/or

it failed properly to indicate how concerns raised by the interested and affected parties had been addressed.

Sixth, the Director General did not have sufficient information before him on the environmental impact of the mine to take a decision.

Seventh, the mining will, as a matter of fact, cause unacceptable pollution, environmental degradation and/or damage to the environment.

Eighth, TEM's application may have been deficient in a number of ways.

On any of these grounds, the decision to grant TEM is invalid and ought to be withdrawn. The ACC persists in each of the above grounds, in addition to relying on the supplementary grounds set out below.


EVENTS SINCE THE NOTICE OF APPEAL/ APPLICATION FOR REVIEW WAS FILED

As appears from annexure ACC1, the Department of Minerals and Energy ("the Department") initially indicated that the ACC should lodge an internal appeal to the Minister. The ACC accordingly filed lodged an appeal (and in the alternative, a review) in accordance with regulation 74. It was anticipated that, in terms of that regulation, the Minister 
would:

dispatch copies of its appeal to the Director General to provide written reasons for the decision within 21 days;

dispatch copies to TEM to file submissions on whether the appeal should be granted within 21 days;

allow the ACC an opportunity to respond to the record of decision and TEM's submissions; and

take a decision on the internal appeal within 30 days.

Despite the ACC's requests (contained, for example, in a letter sent the Department on 8 May 2009 and annexed as "B"), the Department has not complied with the above procedure. Instead, on 15 May 2009, the Department delivered a letter to the ACC's legal representatives (dated 20 April 2009) stating that notwithstanding its earlier indication, there was no competent internal appeal and the Minister would only consider amending or withdrawing the decision in terms of section 103(4)(b). A copy of that letter is annexed as "C".

Simultaneously with its letter of 15 May 2009, the Department furnished an incomplete record of decision and TEM's submissions to ACC and called 
on it to furnish its response thereto by 15 July 2009.

On request from the ACC (contained in the letter attached as "D"), the Department furnished further documents and Xolco's submissions (without 
annexures) on 26 June 2009, and called for the ACC's further submissions by 31 July 2009. A copy of that letter is annexed as "E".

As appears from the letter attached as "F", the Department provided the remainder of the record and Xolco's submissions on 3 July. It also 
extended the date for filing these further papers to 17 August 2009.

Subsequently, on 11 August 2009, the ACC requested an extension to file expert reports that establish that the area will be objectively incapable of rehabilitation if the proposed mining proceeds, and that the impact of the mining on the environment will accordingly be significant and permanent. Annexure "G" is a copy of the letter seeking 
an extension to file these expert reports in due course. Subsequently, the ACC also requested an extension to file affidavits in support of these submissions. Such requests were granted by the Department on 14 August 2009, and further documentation will be filed by 28 September 2009.

In the interim, these submissions will address:

The Minister's powers in the review process;

The ACC's supplementary grounds of review, namely:

TEM's application for a mining right was deficient and defective;

TEM failed to establish that mining on Kwanyana block alone is feasible and will take place;

TEM's environmental impact assessment was deficient and defective;

TEM failed to calculate the financial provision that must be made for remediation of environmental damage, and to furnish such financial guarantees;

TEM failed to furnish documentation requested by the Department;

The Department failed to have regard to submissions made by the Department of Enviromental Affairs and Tourism, in breach of the MPRDA and the principles of cooperative government;

The Department failed to refer objections to the Regional Mining Development and Environmental Committee, as required by section 10 of 
the Act; and/or

The Department determined to grant the Mining Right when information that it had requested had not been filed and, in so doing, prejudged the grant of the right.

Reply to TEM's submissions;

Reply to Xolco's submissions:

The ACC's standing to bring these proceedings

Xolco is not representative of the community, nor established for the benefit of the community; and

Xolco's petitions and its allegation that the mining is supported by the community;

Remedy.

THE MINISTER'S POWERS IN THE REVIEW PROCESS
The Minister has indicated that she will consider a review in terms of section 103(4)(b) of the MPRDA, but will not entertain an appeal in terms of section 96(1)(b). This election has important consequences for the manner in which she must approach these proceedings.

Section 103(4)(b) states:
"(4) The Minister, Director-General, Regional Manager or officer may at any time-
. . .
(b) withdraw or amend any decision made by a person exercising a power or performing a duty delegated or assigned in terms of subsection (1), (2) or (3) as the case may be."


Section 103(4)(b) allows for the reconsideration of a decision, rather than an internal appeal. It is trite that the appeal authority in an internal appeal may step into the shoes of the original decision-maker and decide the matter de novo, but that a reviewing authority is confined to considering the record which was before the original 
decision-maker.

If the Minister is correct that there is no internal appeal available because the Director-General took the decision qua the Minister, then it follows that the Minister has taken a decision and can only re-consider it on the basis of the documents that were before the Department at the time the decision was taken; she cannot have regard to new documentation submitted by TEM subsequently.

There is a further reason why the Minister cannot have regard to new documents filed after the grant of the mining right. When a decision-maker takes a licensing decision under the MPRDA, he or she is 
required to consider and balance the competing interests of a number of different persons and groups. To facilitate these interests being taken 
into account, the MPRDA allows for various notice-and-comment procedures. Documents prepared by TEM after the grant of the right have not been the subject of notice-and-comment procedures and ought not be consider by the Minister.

It is also worth noting that, once the Minister takes a decision in terms of section 103(4)(b), she is functus officio in respect of TEM's application for a mining right and cannot take any further decision on that application. If TEM continues to seek a mining right, it will have to submit an entirely fresh application in accordance with all the formalities laid down in the MPRDA. This will be addressed further in the section dealing with remedies.

THE ACC'S SUPPLEMENTARY GROUNDS OF REVIEW
The ACC's notice of appeal/ application for review was prepared without sight of the record of decision because the Department failed and/or refused to furnish such record.

The ACC has now considered the record of decision, and submits that there are several further grounds on which the grant of the Mining Right was unlawful and invalid and ought to be withdrawn by the Minister. The ACC relies on these supplementary grounds as well as the grounds set out in the initial notice of appeal/ application for review.


TEM'S APPLICATION FOR A MINING RIGHT WAS DEFICIENT AND DEFECTIVE

Section 22(1)(b) of the MPRDA read with regulation 10 of the regulations enacted pursuant thereto requires an application for a mining right to 
contain, inter alia:

detailed documentary proof of the applicant's technical ability to mitigate and rehabilitate relevant environmental impacts;

budget and documentary proof of the applicant's financial ability or access thereto, including loan agreements entered into for the purposes of the proposed mining operation, a resolution by the company to provide the necessary finances, or any other mechanism or scheme providing for the necessary finances;

a certified copy or copies of the title deed or deeds in respect of the land to which the mining application relates;

a mining work programme in accordance with regulation 11, which must contain:

the details of the identified mineral deposit concerned including the type of mineral or minerals to be mined, its locality, extent, depth, geological structure, mineral content and mineral distribution;

the details of the market for, and the market's requirements and pricing in respect of, the mineral concerned;

a financing plan which must contain:

the details and costing of the mining technique, mining technology and production rates applicable to the proposed mining operation;

the details and costing of the technological process applicable to the extraction and preparation of the mineral or minerals to comply with market requirements;

the details and costing of the technical skills and expertise and associated labour implications required to conduct the proposed mining operation; and

the details and costing of regulatory requirements in terms of the Act and other applicable law, relevant to the proposed mining operation;

the details regarding other relevant costing, capital expenditure requirements, and expected revenue applicable to the proposed mining 
operation;

a detailed cash flow forecast and valuation, excluding financing of the proposed mining operation, which forecast must clearly indicate how the applicable regulatory costs will be accommodated therein; and

the details regarding the applicant's resources or proposed mechanisms to finance the proposed mining operation, and details regarding the impact of such financing arrangements on the cash flow forecast.

It is appears from the record of decision that TEM'S application did not contain this information.

The requirements of section 22(1)(b) and Regulation 10 are peremptory. 
Where an application does not comply with these prerequisites, the Regional Manager must return the application to the applicant.
Section 22(3) of the MPRDA

Instead, he recorded in his report recommending that the Director General grant the mining right that "the applicant has complied with all the application requirements of section 22(2) and 22(4) and that the 
necessary internal procedures have been complied with."Regional Managers report, p 3, para 4.1


Neither the Regional Manager nor any other official in the Department had a discretion to condone TEM's failure to comply with the application requirements.
Section 22(4) of the MPRDA
Le Roux and Another v Grigg-Spall 1946 AD 244 at 252
SA Co-operative Citrus Exchange Ltd v Director General Trade and Industry and Another 1997 (3) SA 236 (SCA) at 241
Minister of Environmental Affairs and Tourism v Du Toit and Others 
[2003] ZASCA 77; (5 September 2003) at para 31-33

Accordingly, TEM's application was defective and the grant of the right was ultra vires. On this basis alone, the Minister should withdraw the grant of the mining right.

TEM FAILED TO ESTABLISH THAT MINING ON KWANYANA BLOCK ALONE IS FEASIBLE
In terms of section 23(1)(a), the Minister can only grant a mining right if the applicant has established that the mineral can be mined optimally. It is clear from this provision that a mining right should only be granted where the applicant establishes that the mine is feasible and that it will in fact undertake mining operations.

It is clear from the record that TEM did not undertake feasibility studies in respect of mining the Kwanyana Block.

At page 38 of its Social and Labour Plan (submitted in February 2007), the applicant states:
"Because of the substantial cost for the next stage of feasibility work (ie the detailed bankable feasibility study ("BFS")), a mining right approval is essential as security of tenure in order for TEM to commit to the "pre-mining" phase of works as well as to fund the completion of the BFS, EIA and power supply study".


Subsequent to the grant of the mining right in July 2008, TEM addressed a letter to the Director: Mineral Development - Eastern Cape (dated 1 October 2008) where it reiterates that:"In order for Kwanyana block to be considered as a stand alone operation it will be the subject of a feasibility [study] to be carried out as soon as the mining right is formally granted and the licence instrument 
issued.
. . .
it is essential the Mining Right be signed into execution by the end of 2008. This will allow long term security of tenure in order to be able to commit to the next stage of project development, including the completion of the feasibility studies for the Kwanyana as a stand alone operation, the bankable feasibility, finalization of the EIA studies and EMP outcomes . . ."


It is submitted that a feasibility study is a prerequisite for the grant of the mining right, and TEM was not entitled to delay the study until the mining right had been granted. On this further basis, it is submitted that a mandatory prerequisite for the grant of the mining right was not met and the right could not properly be granted. On this 
further basis, the grant of the mining right should be withdrawn.

TEM'S ENVIRONMENTAL IMPACT ASSESSMENT REPORT WAS DECIFIENT AND DEFECTIVE
Section 39(2) of the MPRDA requires every person who has applied for a mining right in terms of section 22(1) to conduct an environmental impact assessment (EIA) and to submit an environmental management plan.

As pointed out in the notice of appeal/ application for review, the EIA submitted by TEM was deficient because, inter alia, certain studies were not undertaken.
Notice of appeal, p 44-51, para 130-135

It now appears from the record that TEM acknowledged that it was required to undertake certain studies prior to submitting its final EIA, but that it did not do so. In a letter sent by TEM to the Director: 
Mineral Development - Eastern Cape on 1 October 2008 (that is, after the grant of the mining right), it stated:

"The DME was approached [by TEM] for an extension to the 22 October submission date [for the EIA/EMP] in order to address a number of issues and undertake the following studies:
An Environmental Resource Economics Study;
Determination of the estuarine reserve (separate from the overall reserve);
A comparison between the benefits of tourism versus the benefits of mining in the area; and
Determination of the dune slack.
Two of the above mentioned studies require significant time and resources in order to be completed to a satisfactory bankable level.
. . .
A provisional Mining Right in respect of the above application was granted by the DME on 29 July 2008 with the official Xolobeni MR instrument to be issued on the 31 October 2008 and the EMP to be signed accordingly. . . . The DME requested that the EIA and EMP be reviewed to reflect the Kwanyana area only.
TEM advised DME that there would be problems with the limited time and specialist consultants not being available and only a review of the existing data and previous specialist reports could be carried out in order to achieve a mostly desktop update for the Kwanyana area.
. . .
TEM has outlined that in order to complete the full EIA for the project the final feasibility must be commissioned so that the design data can be fed back into the EIA for the mitigations necessary for the EMP. As outlined, TEM has advised DME that such feasibility study can only be completed under the security of a mining right."

It is clear from the contents of this letter that:

TEM did not complete an EIA for the relevant portion of land prior to the grant of the mining right; and

certain studies explicitly requested by the Department were not undertaken.

On this further basis, TEM's application was defective and a mining right ought not to have been granted.

In his report recommending the grant of the mining right, the Regional Manager records that:
"Due to the fact that the Environmental Impact Assessment (EIA) has not concluded that the mining in the Mpahlane, Myameni, Sikombe and Mthethu 
will not result in unacceptable pollution and ecological degradation of the environment, it is proposed that the granting of the right be 
considered in respect of the mining of Heavy Minerals on an area of State Land which is situated in the Kwanyana block."

He does not record that no EIA or feasibility studies have been conducted in respect of the Kwanyana block only. With respect, his 
approach is wrong in law.

It is submitted that the mining right could not be granted until a complete EIA had been provided in respect of mining operations in the Kwanyana block only. In the absence of that, a mandatory requirement for the grant of the mining right was not met and the right could not properly be granted.

TEM FAILED TO CALCULATE THE FINANCIAL PROVISION FOR REMEDIATION OF ENVIRONMENTAL DAMAGE, AND/OR TO FURNISH SUCH FINANCIAL GUARANTEES
An applicant for a mining right must make financial provision for the rehabilitation or management of negative environmental impacts caused by 
its mining operations.
Section 41(1) of the MPRDA

Regulation 54 prescribes that the quantum of financial provision must be calculated in accordance with the Department's guideline document and must include a detailed itemization of all actual costs for:

the rehabilitation of the surface of the area, the prevention and management of pollution of the atmosphere, the prevention and management of pollution of water and the soil and the prevention of leakage of water and minerals between subsurface formations and the surface, in the case of premature closing of the mine;
decommissioning and final closure of the operation; and
post-closure management of residual and latent environmental impacts.
In terms of regulation 53, financial provision must be provided by:
making an approved contribution to a trust fund;
providing a financial guarantee from a bank or other financial institution;
making a deposit into an account specified by the Director General; or
any other method determined by the Director General.

It appears from the record that TEM has not calculated the costs for remediation of environmental damage or made financial provision at all.

While financial provision for environmental remediation is a prerequisite for the grant of the EMP (rather than the mining right), 
TEM should by this stage have given some indication that it has applied it mind to the issue of remediation costs, and have indicated that it is 
financially capable of providing such guarantees. In absence of such steps, the mining right ought not to have been granted. On this further basis, the ACC seeks to have the grant of the mining right withdrawn.

TEM FAILED TO FURNISH DOCUMENTATION REQUESTED BY THE DEPARTMENT
On 4 June 2008, the Department addressed a letter to TEM requesting it to provide further documentation to enable the Department to consider its application, including:

a detailed mining plan setting out, inter alia, the mine design with all the proposed infrastructure;

layout of all infrastructure for all mining and other activities incidental to mining;

water reticulation defining inflow and outflow of water quantities in the system;

a rehabilitation plan ;

the shareholders agreement entered into between TEM and Keysha Investments 178 (Pty) Ltd;

the structure and working agreement between Xolco and its member trusts, and the proposed benefits for the community from participating in the project;

The total cost of the measures to manage environmental degradation, calculated and assigned to the categories of concurrent annual cost, immediate closure cost; end of life of mine cost, and post closure cost; and

The total liability generated by mining activities for the duration of the project.

Such documentation does not appear to have been provided at the time that the Regional Manager recommended the grant of the mining right on 
23 June 2008, or by the time the mining right was purportedly granted on 29 July 2008. It is submitted that, on the Department's own assessment, there was insufficient information before it to grant the mining right. 
On this further basis, the mining right should be withdrawn.

THE DEPARTMENT FAILED TO HAVE REGARD TO SUBMISSIONS MADE BY THE 
DEPARTMENT OF ENVIROMENTAL AFFAIRS AND TOURISM
In the notice of appeal/ application for review, the ACC submits that the Department granted the mining right without giving due consideration to the views of and objections raised by DEAT.
Notice of appeal, p 44, para 126-129

This complaint is strengthened by the correspondence between the Department and the DEAT disclosed in the record:

On 28 May 2007, the Department sent the draft scoping report to the DEAT and requested comments by 12 June 2007 (failing which it would be assumed that there were no objections or comments). Such time period is manifestly insufficient to allow the DEAT properly to consider and comment on the scoping report.

On 17 September 2007, the Department sent the amended scoping report to the DEAT for comment by 5 October 2007. Again, the Department stated that if comments were not submitted timeously, it would assume that there were no comments or objections to be raised.

In response, on 21 September 2007, the DEAT wrote to the Department and requested an extension to the time period for submitting comments, on the basis that several sections of the DEAT would need to be consulted internally before comments could be filed.

On 28 September 2007, the Department refused the DEAT's request for an extension for filing comments because it required TEM to submit its EIA and EMP on 22 October 2007 and "to be administratively just the DME must afford the applicant a reasonable time to effect any changes to the EMP". However, on 20 September 2007, TEM had itself requested an extension to file the EIA and EMP (which the Department refused). There could have been no prejudice if the Department had granted an extension 
both to TEM and to DEAT. (As will appear below, TEM's request for an extension was subsequently granted, while DEAT's was not.)

The DEAT repeated its request for an extension for filing comments on the 2 October 2007. No response to this letter is included in the record, and it must be assumed that the Department did not reply.

On 5 October 2007, the DEAT raised various objections to the revised scoping report, including that it was incomplete, omitted important studies and did not sufficiently take into account the authorization required under the National Environmental Management Act 107 of 1998 ("NEMA").

The Department does not appear to have raised the DEAT's concerns with TEM or to have engaged further with the DEAT.

On 24 October 2007, the Department sent the EIA and EMP to DEAT and requested comments by no later than 21 December 2007. This time period was plainly insufficient, both in light of the volume and complexity of the EIA and EMP and in terms of section 40 of the MPRDA, which requires that other departments be given 60 days to comment on an EMP.

On 12 November 2007, the Department wrote again to the DEAT recording that it had granted TEM an extension to 26 November for filing further 
documents. It nevertheless requested comments from the DEAT by 12 December 2007.

On 28 December 2007, the DEAT filed comments objecting to TEM's EIA and EMP on 28 December 2007 on eleven substantive grounds, namely that:

mining would cause irreversible damage to estuaries and wetlands, even with TEM's proposed mitigation measures;
mining would cause permanent loss of biodiversity and the extinction of 
aquatic fauna;
insufficient information was provided on proposed buffer zones around 
rivers and estuaries;
mining may pollute ground water;
mining may negatively affect the adjacent Mkambati Nature Reserve;
the EIA environmental studies were incomplete and relied on outdated sources;
the EIA lacked crucial specialist studies;
the EIA did not meet NEMA requirements and applications for environmental authorisations have not been received;
the EIA provided insufficient details about rehabilitation measures;
the EIA provided insufficient information about the waste storage and treatment plans; and
complete rehabilitation of the visual impact of the area is impossible.

Despite these clear objections to the mining and the call for further investigations, the report from the Regional Manager to the Director General recommending that the mining right be granted records that "No objections were received within the 30 day period." It would appear that 
the Department disregarded the objections raised by DEAT on the basis that they were submitted out of time.

Section 41(1) of the Constitution requires that:
"All spheres of government and all organs of state within each sphere must
. . .
(h) co-operate with one another in mutual trust and good faith by:
(i) fostering friendly relations;
(ii) assisting and supporting one another;
(iii) informing one another of, and consulting one another on, matters of common interest. . ."

[emphasis added]

The principles of cooperative government require that different government departments consult with one another on areas of mutual interest. The Department's failure to consider the comments and 
objections raised by the DEAT was in breach of its constitutional duties.

On this basis, it is submitted that the mining right was granted without relevant considerations being taken into account and should be withdrawn.


THE DEPARTMENT FAILED TO REFER OBJECTIONS TO THE REGIONAL MINING DEVELOPMENT AND ENVIRONMENTAL COMMITTEE
Section 10(2) of the MPRDA requires the Regional Manager to refer any objection to the proposed mining to the Regional Mining Development and 
Environmental Committee, which must consider the objection and advise the Minister on it.

The Department has confirmed that no Regional Mining Development and Environmental Committee ("REMDEC") meeting was held in relation to TEM's application because "no objections were received within the prescribed time period".
See Annexure F, para 4

Objections were clearly raised by interested and affected parties during the consultation process undertaken by TEM. It is clear from the minutes 
of those consultations furnished by the Department as part of the record that it was aware of those objections. Objections were also raised by 
DEAT (as outlined above). In the circumstances, the matter ought to have been referred to REMDEC in terms of section 10.

It is submitted that the failure to refer objections to REMDEC means that appropriate procedures were not followed. On this further basis, the grant of the mining right was invalid and should be withdrawn.


TEM'S ANSWER TO THE ACC'S APPEAL/REVIEW
TEM filed very brief submissions in response to the ACC's appeal/review. The only matters of substance which require to be addressed are:

The allegation that "the ACC represents a small group living outside the Kwanyana Block and . . . being manipulated by anti mining NGO groups from outside the area and the country." This allegation is offensive and is strenuously denied. The ACC represents members of the Xolobeni community who are opposed to mining, particularly those people living in the Xolobeni area.

The allegation that the Xolobeni community was consulted through Ndabazakhe Baleni, the alleged Chief Headman of the Mngungundlovu Tribal Authority, and were largely in support of the mining.

As set out in the notice of appeal/ application for review, it is denied that Ndabazakhe Baleni is the headman of the Mngungundlovu Tribal Authority. The chief for the entire area is Lunga Baleni.
Notice of appeal, p 26, para 67.2-67.3

Regardless of which Baleni is rightfully the headman of the area, he is subject to the authority of the King and Queen of Pondoland. I annex hereto as "H" a letter sent by the King's legal representatives, which confirms that:

the King was not properly consulted about the mining;

the community has not passed a resolution authorising the mining and so the King has not released land for the purposes of mining; and

the majority of the community is opposed to mining and would prefer to develop tourism opportunities.

It is submitted that this evidence is determinative of the matter.

RESPONSE TO XOLCO'S SUBMISSION
Xolco's submissions are that:
The ACC does not have authority to bring these proceedings;

Xolco is owned by five community trusts which operate for the benefit of the community and on its behalf;

The majority of the community supports the proposed mining, as appears from the petitions annexed to Xolco's submissions.

Each of these submissions will be addressed in turn.

The ACC does not have authority to bring these proceedingsXolco submits that the ACC comprises of a small faction of the community, numbering approximately 28 people and accordingly has no 
authority to bring these proceedings.
Xolco submissions, p 2, para 3

This is strenuously denied. The ACC comprises of a large number of community members who oppose mining in the Xolobeni area. However, even assuming that Xolco is correct, the ACC still has authority to bring these proceedings:

Xolco does not deny that ACC members are also members of the community. 
They are accordingly interested and affected persons under the MPRDA, and have standing to bring these proceedings on that basis alone.

In any event, section 32 of NEMA expressly grants wide standing to groups that seek to protect the environment or monitor the use of natural resources. It states:

"Any person or group of persons may seek appropriate relief in respect of any breach . . . of any provision of a specific environmental management Act, or any other statutory provision concerned with the protection of the environment or the use of natural resources -
in that person's or group of person's own interest;
in the interest of, or on behalf of, a person who is, for practical reasons, unable to institute such proceedings;
in the interest of or on behalf of a group or class of persons whose interests are affected;
in the public interest; and
in the interest of protecting the environment."


It has never been suggested that the ACC does not act bona fides in the interest of protecting the environment. Accordingly, it has standing to 
bring these proceedings.


Xolco is owned and operates for the benefit of the community and on its behalf
Xolco submits that:
"the Amadiba people . . . have, for the purposes of the Xholobeni [sic] Minerals Sands Project (the project) established XOLCO which, through 
Keysha Investments 178 (Pty) Ltd (Keysha), is a 26% shareholder in the project. XOLCO is owned by five community trusts."


Xolco does not and cannot represent the community in respect of the mining rights:

It is clear from the shareholders agreement with TEM that Xolco has financed its 26% share in TEM by issuing preference shares to TEM's major shareholders. Accordingly, Xolco's shares will be paid off from profits earned from the mining operations, if they go ahead. Xolco has a direct interest in mining operations taking place.

Xolco has disclosed the Trust Deed for each of the five trusts holding shares in Xolco. It is clear that:

The objective of each trust is to engage in a particular business, and 
to help fund business ventures. None of them is created strictly to perform a public service or serve a public function.
Trust deeds, clause 4.1

There is no obligation to pay any money toward beneficiaries (although the trustees have an unfettered discretion to pay income or capital to 
any beneficiary of their choice, without an obligation to provide reasons for such an award).
Trust deeds, clauses 6.2 and 8

The trust donor is entitled to appoint one trustee in perpetuity. In the case of four of the five trusts, there need only be two trustees and one 
is entitled to take all decisions and authorise all steps if the other is unable to act, for whatever reason. In all but one trust, the founder 
member is Mr Z Qunya.
Trust deeds, clause 7

All of the trusts were created in early 2004, some years before Xolco was created. Yet, none of them is known to the members of ACC and they do not put up an evidence of their work in or for the community's benefit.

It is clear that Xolco and its member trusts are private entities formed for the benefit of their members, and with a direct interest in the proposed mining going ahead. They are not democratically elected organisations and cannot speak or act on behalf of the local community.
See also notice of appeal/ application for review, p 41, para 117


The majority of the community supports the proposed mining

Xolco relies on a set of certificates purportedly signed by members of the Xolobeni community to establish that a majority of the community supports the proposed mining.

It should be noted that certain of the grounds of review relate to statutory barriers to a mining right being granted in Xolobeni at all. 
If these complaints are valid, then the grant of a mining right will be unlawful regardless of whether the majority of the community supports or opposes mining operations.

In any event, those certificates do not constitute reliable and/or admissible evidence:

The certificates are undated and no information is provided as to when they were collected, by whom and under what circumstances. In these circumstances, the certificates cannot be properly assessed or 
considered evidence.

A large number of the names are written in the same handwriting and the signatures are extremely similar to one another and no explanation has been furnished for such anomalies.

Several of the names are duplicated on different certificates.

In addition, at a community meeting held in Xolobeni on 6 August 2009, various members of the community confirmed that:
although their names appear on a certificate, they never signed such document;

several of the names that appear on the certificates are the names of deceased people;

several of the names that appear on the certificates are of people who do not live in the Xolobeni tenement area; and

they continue to be opposed to mining operations in the area. Affidavits in this regard will be filed on or before 28 September 2009.

It is submitted that, in the circumstances, the certificates furnished by Xolco are unreliable and should be disregarded. If anything, the Minister should have regard to the ACC's evidence that the majority of the Xolobeni community oppose the proposed mining operations.


CONCLUSION AND REMEDY

It is submitted that, on the grounds set out in the notice of appeal/ application for review and supplemented in these papers, the mining right was clearly improperly granted to TEM, and ought to be withdrawn.


WHEREFORE the applicant calls on the Minister to withdraw the grant of the mining right to TEM.

Signed at GRAHAMSTOWN on this the 14th day of August 2009.


________________________
SARAH SEPHTON
LEGAL RESOURCES CENTRE
Appellants' attorneys
116 High Street
GRAHAMSTOWN
Sarah Sephton (sarah ~at~ lrc.org.za)
Tel: 046-6229230

Strong public opinion against mining Xolobeni

  • Posted on: 4 February 2010
  • By: JB

2 Recent print articles, which only appeared in the Daily Dispatch Online today, have already been published in the Weekend Post and on other environmental sites; proving conclusively that public perception is strongly against the mining:</i>

The stories have been published at
http://www.weekendpost.co.za/article.aspx?id=527361

http://saweatherobserver.blogspot.com/2010/02/another-environmental-disaster-in.html

and 
http://www.savingwater.co.za/2010/02/04/heavy-minerals-mining-in-environmentally-sensitive-habitat/

and are also reproduced in full below:

<b><a href="http://www.dispatch.co.za/article.aspx?id=377955" target="_blank"Dune mining permit ‘should be withdrawn’</a></b>
<img alt="" src="/files/images/opencast.img_assist_custom-200x142.jpg" style="width: 200px; height: 142px;">
<i>2010/02/04</i>
THE granting of a mining licence to Australian mining group Transworld Energy Minerals (TEM) to mine heavy minerals on the pristine dunes at Xolobeni on the Wild Coast was “clearly improper and ought to be withdrawn”.
...
<!--break-->
This is according to the Legal Resources Centre, acting for the AmaDiba Trust comprising members of the affected communities at Xolobeni.

The appeal documents claim that the Minerals and Energy Department failed to co-operate with other departments as required, blatantly ignored objections to the proposed mining project and failed entirely to implement its own statutory requirements for the issuing of mining licences.

The community is appealing against the Department of Minerals and Energy’s decision to grant TEM the mining licence.

The LRC, on behalf of the trust, will make oral submissions to the Minerals and Mining Development Board sitting in Durban early next week.

The LRC says that the mining right should never have been granted because:

l The Xolobeni area is part of a protected marine area and mining required the written permission of the minister, the provincial MEC and the minister of the Department of Environmental Affairs and Tourism (DEAT). Such written permission was never provided. In fact the department had completely ignored serious objections and concerns raised by the DEAT, including its concern that mining could negatively affect the adjacent Mkambati Nature Reserve.

l The mining will, as a matter of fact, cause unacceptable pollution, environmental degradation and damage to the environment.

l No community resolution was passed authorising mining activities on the land.

l The public consultation process undertaken by TEM was a “sham” and not in line with statutory requirements.

l The environmental impact assessment undertaken by TEM was severely deficient in that it had failed to provide key environmental reports, including baseline reports, had failed to consider and assess alternative land uses, and had not assessed cumulative impacts.

TEM’s application to mine the area had also been fatally flawed. For instance, the group had never provided proof of its technical and financial ability to mitigate and rehabilitate relevant environmental impacts. TEM had even ignored requests from the Minerals and Energy Department itself for required information, including a detailed mining plan setting out the mine design and proposed infrastructure, water reticulation plans to manage environmental degradation and rehabilitation plans. - By ADRIENNE CARLISLE

<b><a href="http://www.dispatch.co.za/article.aspx?id=377956" target="_blank">Area would not recover, says expert</a></b>

<i>2010/02/04</i>
THE proposed heavy minerals mining project at Xolobeni on the Wild Coast was located in one of the “most environmentally sensitive habitats” ever investigated for mining in the country, says soil fertility expert Jan Meyer.

In a report submitted as evidence in the pending appeal against the granting of a mining licence to Australian group Transworld Energy Minerals, Meyer describes the area as the “Pondoland Centre of Endemism”, a “floristic rich” environment with nine regional vegetation units between the Mzamba and Mtentu estuaries.

Meyer points out that in a number of countries, including Australia, heavy mineral mining operations on sand dunes had been closed because of the “severe and permanent” environmental impact.

He said mining authorities generally accepted that they could not restore areas to their pre-mining conditions. “They are unable to reconstruct the complex soil structures and water table level variations and the many plant associations that depend on these factors.”

The processes involved in mining had a high risk of disrupting the natural environment and causing “adverse impacts on biota and habitat”.

The contamination of surrounding wetlands and rivers could also be expected.

Independent environment specialist Simon Bundy says in his report that because of the “catastrophic disturbances” likely to be encountered as a result of the proposed mining of the dunes, the impact would “exceed the ability” of the habitat to recover. — DDR

 

Xolobeni Hearing: 8 - 10 February 2010

LRC to make oral submissions on behalf of the Amadiba Crisis Committee at Xolobeni. On 8, 9 and 10 February 2010, the Minerals and Mining Development Board will receive oral submissions on behalf of interested parties involved in the appeal against the Minister’s decision to grant a mining right to Transworld Energy Minerals (TEM) at Xolobeni in the Eastern Cape. The Board will then make recommendations to the Minister of Minerals and Energy. The LRC will be representing the Amadiba Crisis Committee (ACC) who are appealing the granting of the mining right. One of the grounds for the appeal is that the mining right was granted to TEM without sufficient and reasonable consultation with the Xolobeni community as an interested and affected party. Counsel for the ACC Advocates Gilbert Marcus (SC) and Isabel Goodman will be submitting written heads of argument that will be made available to interested parties.

LRC submits expert evidence against mining in Xolobeni

2 October 2009 LRC submits expert evidence against mining in Xolobeni On 28 September 2009 the Grahamstown office of the Legal Resources Centre (LRC) submitted two expert reports to the Minister of Minerals and Energy on behalf of the AmaDiba Crisis Committee (ACC). The reports were in support of the ACC’s appeal to the Minister to set aside the mining right granted to Transworld Energy Minerals(TEM) at Xolobeni in the Eastern Cape. One of the reports compiled by Jan Meyer, a soil fertility expert, provides that the heavy mineral mining operations planned by TEM have been discontinued in other jurisdictions such as Australia and New Zealand. TEM is a subsidiary of the Australian group Mineral Resources Commodities (MRC). The report states that ‘a significant amount of heavy mineral mining previously took place along the East Coast of Australia, New South Wales. However many of the mining operations in New South Wales have been asked to desist.’

Pages