Environmental non-compliances reported by affected communities, the media, & NGOs
In response to the dramatic restructuring plans announced by Anglo American on 16 February 2016, in particular plans to sell off its South African coal and iron ore assets,1 the CER sent an open letter to Anglo American CEO Mark Cutifani2 on 29 February 2016. The letter called for transparency and public participation in the transfer of any of the company’s mining rights.
South Africa has seen a trend of larger mining companies selling mines, usually with significant environmental liabilities, to smaller mining companies after most of the reserve has been exhausted. The trend sees these smaller companies going insolvent shortly after the sale – before any of the prescribed rehabilitation of environmental damage has taken place. Transparency and public participation in this process are imperative to ensure that the environmental liabilities of these operations are not in due course added to the burden of the 6000 derelict and ownerless mines already borne by the South African public.
Anglo American responded to the CER’s open letter on 16 March 2016.3 The CER was disappointed by the company’s response, which fails to address substantively any of the concerns raised in the letter. Anglo American avoided making any specific commitments to transparency and consultation around the environmental implications of its restructuring plans, while simultaneously claiming that it has “consistently demonstrated good corporate citizenship”.
In May 2016, a landmark judgment was handed down by the High Court of South Africa (Gauteng Local Division) in the case of Nkala and others v Harmony Gold and Others.4 The matter involved the certification of a class of 500 000 miners who contracted tuberculosis and silicosis during the course of their employment. This certification allows these miners to bring a class action law suit to seek damages from the mining companies at which they are, or have previously been, employed.5
The matter was brought against 32 mining companies, including Anglo American. The applicants allege that the companies have breached a number of their legal and constitutional duties to the miners, including their right to an environment that is not harmful to their health and wellbeing.6
Anglo American is one of six of the respondent mining companies which applied for leave to appeal the judgment. In the High Court leave to appeal was denied in respect of the certification of the applicants as a class. However, leave to appeal in respect of the certification was subsequently granted by the Supreme Court of Appeal in September 2016.7
Full Disclosure 2015
Affected communities mobilised against Anglo American Thermal Coal and Vedanta Zinc International’s plans to build a coal fired power station in the Waterberg region in Limpopo. In late 2013 it was reported that the companies had refused to supply civil society with copies of their applications for waste, water and atmospheric emission licences for the new operation, thereby preventing public participation in the decision making process.8 In early 2014 it was reported that following the DEA’s rejection of its application, Anglo American was reapplying for authorisation.9 In its response to Full Disclosure 2015, Anglo American stated that its memorandum of understanding with Vedanta was terminated in June 2014, and that EIA applications were terminated at scoping phase. Please see http://cer.org.za/full-disclosure/company/anglo-american-plc?correspondence.
In a report by the non-profit Bench Marks Foundation, “Policy Gap 9, South African Coal Mining”, published in 2014, criticism is levelled at Anglo American’s track record in relation to rehabilitation of the damage caused by its mining operations. Attention is drawn to the “Isibonelo wetland offset program”, at the Isibonelo Colliery, which, according to the report, Anglo American sought to abandon after a few years due to non-achievement of goals and apparent problems with reclaiming or re-establishing mined pans at the Mafube Colliery.10
The report also stated that Anglo Coal conducted various public consultation processes in fulfilment of its EIA requirements to obtain a licence for its Largo mine in 2006 and later in 2010 and 2011, but that public meetings undertaken in order to obtain a water use licence only took place in 2011, five years after EIA consultations.11 In Anglo American’s response to Full Disclosure 2015, the company states that after a postponement, a new application for environmental authorisation was lodged in 2010, and that “approval of an integrated water use license was applied for as part of the EIA process in 2012, following required consultation processes in 2011.” The Bench Marks report also dealt more generally with pollution and environmental damage caused by mining in areas including those in which Anglo American operates.12
In 2014 Anglo American subsidiary De Beers Consolidated Mines was cited for its interest in litigation brought by Conservation South Africa (CSA) against the Department of Mineral Resources. CSA had sought access to information from that department, using the Promotion of Access to Information Act, concerning De Beers’ Namaqualand Mines which De Beers was in the process of selling. The information requested included:
- financial provision for environmental rehabilitation at Namaqualand Mines (in response to rumours that the financial provision had been dramatically reduced in the process of finding a purchaser);
- De Beers’ application to the Minister of Mineral Resources for approval of the transfer of the relevant mining rights to a subsidiary of Trans Hex Group Ltd (Trans Hex); and
- environmental and health and safety compliance inspection reports for a specified period.
The Department of Mineral Resources refused to disclose this information. After the launch of a High Court application by CSA to compel the Department to disclose, it did agree to do so. However, once the Department agreed to disclose, De Beers stepped in to oppose CSA’s court proceedings. Rather than complying with the court rules applicable to parties opposing litigation, De Beers dragged its feet to delay progression of the matter. So serious was the delay that CSA was obliged to bring an interlocutory application to compel De Beers to file its answering papers. The court ordered De Beers to file its papers within 5 days, which it then did. The delay was clearly engineered to enable De Beers to finalise the transfer of Namaqualand Mines to Trans Hex (with the reduced financial provision) without public scrutiny: relatively swiftly after that transfer was finalised and De Beers withdrew its opposition to the court proceedings.13
A news article published in May 2015 details community objections to a planned Anglo American mine in Gauteng, said to threaten 20,000 hectares of land and water sources.14
In response to a PAIA request submitted by the CER for records indicating the names of mines and industrial facilities in respect of which notices or directives under the National Water Act have been issued, the Department of Water & Sanitation responded with information which indicated that the Greenside and Kreil Collieries in Mpumalanga were issued with notices in terms of the National Water Act on 19 February 2015 and 30 March 2015 respectively. The Greenside Colliery is wholly owned by Anglo American, and Anglo American has a 73% share ownership in the Kreil Colliery.15
- http://www.angloamerican.com/~/media/Files/A/Anglo-American-PLC-V2/press-release/releases/2016pr/strengthened-balance-sheet-160216.pdf (last accessed on 7 November 2016).
- http://cer.org.za/wp-content/uploads/2016/03/CER-Letter-to-Anglo-American-PLC-29-Feb-2016.pdf (last accessed on 7 November 2016).
- http://cer.org.za/wp-content/uploads/2016/04/Anglo-American-Response-to-CER-Open-Letter-16-March-2016.pdf (last accessed on 7 November 2016).
- http://www.saflii.org/za/cases/ZAGPJHC/2016/97.html (last accessed on 7 November 2016).
- http://mg.co.za/article/2016-05-13-landmark-silicosis-ruling-allows-class-action-against-gold-firms (last accessed on 7 November 2016).
- http://www.saflii.org/za/cases/ZAGPJHC/2016/97.html at para 58-60 (last accessed on 7 November 2016).
- https://www.miningreview.com/news/court-grants-gold-miners-leave-to-appeal-silicosis-judgement/ (last accessed on 7 November 2016).
- http://www.news24.com/Columnists/AndreasSpath/Will-government-stand-up-to-Anglo-20131028 (last accessed on 7 August 2015).
- http://earthlife.org.za/2014/04/press-release-earthlife-africa-jhb-to-protest-at-anglo-americans-agm/ (last accessed on 7 August 2015).
- South African Coal Mining: Corporate Grievance Mechanisms, Community Engagement Concerns and Mining Impacts, Policy Gap 9, The Bench Marks Foundation, at p36, available at http://www.bench-marks.org.za/research/policy_gap_9.pdf
- http://amandla.org.za/sinkholes-starvation-and-suffering-the-legacy-of-coal-mining-in-south-africa-by-david-van-wyk/ (last accessed on 7 August 2015).
- South African Coal Mining: Corporate Grievance Mechanisms, Community Engagement Concerns and Mining Impacts, Policy Gap 9, The Bench Marks Foundation, at p38, available at http://www.bench-marks.org.za/research/policy_gap_9.pdf
- http://cer.org.za/news/media-release-de-beers-uses-delaying-tactics-to-avoid-scrutiny-of-its-sale-of-namaqualand-mines (last accessed on 7 August 2015).
- http://mg.co.za/article/2015-05-07-power-crisis-undermines-future-of-heidelberg-farmers (last accessed on 7 August 2015).
- Anglo American plc Annual Report 2014, at p52, available at: http://www.angloamerican.com/~/media/Files/A/Anglo-American-PLC-V2/report-builder-2014/annual-report/aa-ar14-interactive-final.pdf