The Rehabilitation and Closure of Mines: A Failure in the Protection of Human Rights
Introduction
On the 24th of September 2016, the lives of two families were forever changed when two teenage boys, 17-year-old Xolani Mthembu and 14-year-old Sifiso Yende, tragically drowned in an abandoned mine in Wesselton. Subsequently, the Msukaligwa Local Municipality promised to do what they should have done prior to the incident: ensure access to the mine and warning signs to be posted at the site of the abandoned mine. By 2021 neither of these promises had been fulfilled. This event, while not unique, illustrates the poor implementation of the closure and rehabilitation of mines and its horrific impact on the lives of those living around the mining sites. The legislation and law enforcers surrounding mine closure and rehabilitation have failed in the mission placed on them in section 24 of the Constitution: to protect the environment and ensure a safe environment. The reported deaths of people living in South Africa due to this brutal oversight have had little to no impact on changing behaviour, and as such, the law is in desperate need of reform to ensure compliance with existing laws.
The Risks of Abandoned Mines
The risks of living in areas surrounding mines are astronomical; these risks pose a threat to the Constitutional rights of the individuals living in such areas. These risks are not expunged when the mining operations cease. As such, even abandoned mines pose a serious threat to the health and safety of persons. When these mines are not rehabilitated, they have the potential of polluting the surrounding ground and surface water through its acidic content, which is laced with heavy metals. The pollution of water, which is potentially used for irrigation, and the potential risks of death of cattle poses a risk to the livelihoods. Coal mines specifically pose the risk of spontaneous combustion.
Further, accidents, injury and death remain a massive threat where the mines are open pits. These are just some of the risks posed by abandoned mines. They indicate an environment which is harmful and thus contrary to the rights under section 24 of the Constitution.
The Legislative Framework, Rehabilitation, and its Process in South Africa
It is provided for in section 25(a) of the Constitution that everyone has the right to an environment that is not harmful to their health or well-being. Section 24(b) goes further to place a duty on the government to ensure that the environment is protected through reasonable legislation. While legislation has been created, the government has not yet fulfilled its duty to a reasonable degree. Legislation can only fulfil its obligations if it is appropriately enforced. Appropriate enforcement has not been the case in South Africa’s jurisprudence surrounding mining rehabilitation.
In 2007, the Department of Mineral Resources and Energy estimated it would cost R100 billion to rehabilitate the abandoned mines. The estimation is from 15 years ago and would likely be higher if done today due to inflation and the increase in abandoned mines. In 2009, the Auditor General reported a number of 5,906 abandoned mines. In 2021, this number had increased to 6,100. However, more concerningly, of the 2017 mines considered in the estimation from 2007, only 0.7 percent of them had been rehabilitated. This indicates a lack of progress with the closure and rehabilitation of mines and a failure to ensure the protection of the environment and those who rely upon it.
In the context of mining, rehabilitation refers to the process whereby the damage done by mining operations is repaired to make the land safe and stable. The Mineral and Petroleum Resources Development Act 28 of 2002 (“MPRDA”) is the dominant piece of legislation to consider with regard to mining. However, it has somewhat limited use in this context as, in 2015, all environmental-related requirements in the Act were repealed in the amendment to the National Environmental Management Act 107 of 1998 (“NEMA”).
Section 28(1) of NEMA imposes a duty on “every person” who has caused or will cause degradation of the environment to take steps to prevent degradation or pollution from occurring, continuing, or reoccurring and where such pollution or degradation cannot be reasonably avoided for such persons to take steps to minimise or rectify such pollution or degradation. It may be worthwhile to note that while NEMA imposes the duty on “every person”, it specifically refers to persons who own or have the right to use the land. Further, section 28 of NEMA is retrospective only to 1999. The fact that NEMA has limited application is particularly problematic, considering that the mining industry existed long before 1999. Issues are thus created as to who and how mines abandoned before 1999 will be rehabilitated. Their threat has not passed simply because over 20 years or more have passed.
So, while legislation places a duty on companies to ensure they prevent damage to the environment where possible, it is not difficult to see that policy and legislation have failed to provide a regulatory framework which adequately and effectively scaffolds the closure and rehabilitation of mines in South Africa. Rehabilitation rarely seems to occur. This is evidenced by a reported 6000 abandoned mines across South Africa. These issues are furthered by the Department of Mineral Resources (“DMR”) and its poor compliance, enforcement, and monitoring of mining rehabilitation.
Challenges of the Implementation of Legislation
The legislation seems poorly equipped to deal with the challenges to the enforcement of rehabilitation and closure of mines. It seems to be common practice that where a mining operation ceases to remain profitable, such a mine is abandoned, and the company responsible for these mining sites go into liquidation. With a lack of sufficient protected funds to deal with the rehabilitation of mines, it simply does not occur, and the state seems to do little, if anything, to track down those who are responsible or ought to be responsible for rehabilitation. There needs to exist adequate laws that, even in the event of liquidation, hope for rehabilitation will not be lost. In this regard, NEMA and the Financial Provisions Regulations published thereof has made room for mining companies to set aside and secure financing for mine rehabilitation. However, these regulations have proven to be insufficient as there is a history of poor compliance with such laws. One such example is the failure of the DMRE to collect such financial provisions. Thus, these laws need to be strengthened to have the desired effect of securing financing.
The practice of mining companies selling the mining sites to smaller companies when most of the resources have been extracted is another issue resulting in insufficient funds for mine rehabilitation. These smaller companies often do not have the capability or will to fulfil the mining rehabilitation obligations passed down to them when they possess mining rights. If a company is not capable of rehabilitation, then such a sale should not be able to occur. It may be worth noting that the DMR does not include public participation when it authorises such sales, although it likely should be in the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”). Thus, these transactions take place away from the public eye and creates a space whereby such decision can escape public scrutiny and accountability.
Mining companies also can place mines on what is referred to as “care and maintenance” when the mining site encounters difficulties. The term refers to where production halts, but the mine is not closed. This does not necessarily occur on a particular or stipulated timeframe; the result is an indefinite postponement of their obligation to close and rehabilitate the mine in question. While it may be necessary to postpone production occasionally, keeping production unregulated and without a timeframe is problematic as mining rights holders may abuse it to avoid their obligations. Proper regulation of the “care and maintenance” method needs to exist.
Conclusion
Legislation and enforcers of such legislation surrounding the rehabilitation of mines are in drastic need of reform. A continuation of such poor implementation of legislation and a lack of legislation addressing particular issues must be addressed. If it is not, the tragedy of the Wesselton boys is bound to occur again. Without the necessary action, section 24 rights will continue to be infringed. The State must simply put their foot down and hold mining rights holders accountable.
Written by Zöe Almano.