Long Awaited Environmental Plan from Trans Hex “remains non-compliant”

The updated EMPr stems from a directive issued by the Department of Petroleum and Mineral Resources (DMPR) and the 2023 interdict proceedings lodged by Protect the West Coast and local fishing communities in the High Court that challenged the renewal of an existing diamond mining right granted for another 30 years, based on an environmental management programme that was two decades old.

The out-of-court-settlement prevented Trans Hex from mining for diamonds in critical biodiversity areas in and around the Olifants River Estuary, as well as other parts of the West Coast. The court, as part of the agreed order, directed Trans Hex to prepare an updated EMPr and to identify specific mitigation measures for beach, shore-based and vessel-based operations, and four site inspections by a team of South African scientists and environmental experts appointed by PTWC. 

Although Trans Hex eventually provided the updated EMPr after a long wait, head of PTWC Legal Patrick Forbes said that what was agreed in the court order and what the updated EMPr contained appeared, in some instances, to be at odds. Critical flaws were noted by the team of scientists, selected for their expertise in mining and mining impacts related to coastal and marine environments, including rehabilitation, as well as the impact on small-scale fisheries. 

According to the PTWC team, Trans Hex had not adequately addressed concerns they had raised with Trans Hex in the public participation process, and the PTWC team felt that the provisions of the agreed order had not been complied with. A “highly concerning” aspect was that the detail contained in the 2002 EMPr relating to rehabilitation appeared not to have been included in the current draft EMPr. 

“We need to make sure that these rehabilitation obligations are not only recorded in the EMPr, as a start, but must also be implemented. The more support and eyes we have on this process the better. The authorities need to know that the communities and citizens of this country are not going to let the status quo continue unchecked,” Forbes said.

MD of PTWC Mike Schlebach pointed out the long uphill struggle by PTWC to get Trans Hex to comply with the 2023 court order after two site visits, various reported transgressions (denied by Trans Hex) by the experts during the visits, and a subsequent communication runaround with the company, partly tied to slow responses from the Department of Mineral and Petroleum Resources (DMPR), that did not instil confidence in the DMPR’s role as mining custodian.

He added that Trans Hex had not adequately applied itself to the oversight programme ordered by the Western Cape High Court in 2023 while also delaying the process that began at the first site visit by the experts in November last year, when the team was restricted from accessing part of the mining area because another company, Mineral Sand Resources (MSR), was mining for heavy mineral sands in an overlapping concession. MSR has since been placed in business rescue – something PTWC will be reporting on shortly.

On the first visit, the PTWC team observed examples of poor rehabilitation, specifically on the coastline in Concessions 13A, 12A and 11A. They noted unrehabilitated old roads cut through the veld used to access previous mining sites; disturbances within the buffer zone from the toe of cliffs and dunes; as well as the slumping of several cliffs and erosion gullies, piles of tailings (leftover material from processing diamondiferous gravels), and other stockpiles of dumped material and old abandoned mining equipment.

On the second visit – in April this year – the team accessed a much larger area. At the Doringbaai site at Hollebaksfontein, they observed the same inadequacies found during their first visit, including inadequate rehabilitation, even though the DMPR had ostensibly inspected the site and, according to Trans Hex, had deemed it satisfactory and complete.

Again, the team could not access part of the mine because it was subcontracted to another mining company. However, and conveniently, according to Schlebach, mining there had ceased due to the poor condition of the road. “How can the extent of rehabilitation be assessed under the court order if these sites cannot even be reached?” he asked.

To complicate the situation, Trans Hex did not comply with the timeframes to submit the upgraded EMPr to the DMPR, whilst they continued to mine in the interim under the EMPr which is 22 years old. This requirement – based on the 2023 court order – is the key reason for the original interdict brought against them by PTWC and the other plaintiffs.

Despite a commitment by Trans Hex to provide the updated EMPr within an estimated six-month period from the November 2023 visit by PTWC, the company failed to meet the deadline, citing various obstacles, and proposed an extension. 

“There have been repeated attempts to get Trans Hex to act on transgressions, and there are always delays,” Schlebach said. “Plainly put, these mining houses have never had to actually deal with any real oversight. Now that PTWC asks searching questions, the answers are not easily forthcoming.”

Forbes was equally frustrated: “When a response was received on the issue of the transgression noted during the site visits, the finger was pointed squarely at MSR as the culprit for the environmental damage, cliff collapses and failure to rehabilitate – and PTWC was referred to MSR’s 300 page EMPr.

“The blame for most of the transgressions noted has been squarely laid at MSR’s door for failing to rehabilitate in the area where they are both mining. It’s all about obfuscation and delay, while mining continues, when one mining company blames the other to avoid responsibility,” Forbes said. “This legacy issue of the lack of rehabilitation points to a chronic failure by the DMPR and its lack of oversight, which feeds a never-ending cycle where mining companies deflect from their own failures by blaming those who mined there before.” 

“This type of obviation of the responsibilities of rehabilitation is systemic, and has resulted in the steady destruction of sensitive environments and community livelihoods, and the race is on for yet more land to prospect and mine,” Forbes said. 

Schlebach pointed to a trend exposed in investigations by the Oxpeckers Center for Investigative Environmental Journalism that big companies often sold mines to smaller companies that struggle to bear the responsibility of the environmental liabilities, including rehabilitation. Funds earmarked for rehabilitation, which should be set aside when these mining rights are granted or transferred, were wholly inadequate, and rarely spent.

Retreaded mining companies were popping up all over the West Coast and the Richtersveld, and on former Trans Hex mines. He said mining was taking place on farms along the Orange River on !Ama community land, and even in the Richtersveld National Park.

“Just ask the !Ama community of the Richtersveld to tell you about the former Trans Hex mining site at Sanddrift, which is a horrendous scar on the landscape, with very little visible sign that rehabilitation has taken place in decades,” Schlebach said. 

Schlebach cited the purchase of six large mines from De Beers by West Coast Resources, who went into business rescue before rehabilitation could take place. 

PTWC paralegal Tashreeq Dollie recounted the attempt made to procure the Social Labour Plans from Trans Hex, as well as other documents about their mining activities near the Olifants River, which should be freely available. 

“We simply received no response from Trans Hex for the documents,” said Dollie, “so we made an application to the DMPR under the Promotion of Access to Information Act (PAIA) of 2002.” 

This Act enforces transparency and accountability in government and other parastatal entities, which have 30 days to respond to requests for documents. The DMPR finally responded two weeks late on 16 September – only after they were chased for a response – to say the application was partially successful. 

Dollie said that repeated calls to the Western Cape branch of the DMPR went unanswered for a month. He and a colleague were forced to drive in person to the office, which is based in Cape Town – a long drive for anyone from further up the West Coast trying to interact with the supposed custodian of legal mining and oversight in their communities. 

After an hour, Dollie and his colleague left after the person responsible failed to show up. The DMPR office eventually emailed a response, but PTWC has still not received the documents. 

Schlebach and Forbes said that in the context of their concerns, alarm bells were ringing about the double application by Trans Hex to mine diamonds off the seafloor in a 321 square km area off the coast between the Olifants River Estuary and Doringbaai. This 80km stretch was also the location for the other application – to prospect for commodities, such as precious metals, gemstones, and various metals, as well as mineral sand deposits of zircon, ilmenite, rutile, magnetite and garnet.

“There are few stakeholders along the West Coast who are confident that Trans Hex will fulfil its obligations,” Schlebach said.

To make your voice heard in objection to future mining applications on the West Coast, sign up to PTWC’s digital public participation platform Ripl at www.ripl.co.za