15 December 2022
Moonstone mine in Doringbaai. Image by Sacha Specker.
An urgent application to interdict a company from diamond mining near a critically important RAMSAR global bio-diversity hotspot at the mouth of the Olifants River estuary has been lodged in the High Court.
The application today (Subs: Thursday 15 December) for an immediate interdict against Moonstone Diamond Marketing (Pty) Ltd was launched by Protect the West Coast, in conjunction with local fishing communities and two other affected parties representing small-scale fishers.
PTWC alleges that the Department of Mineral Resources and Energy (DMRE) erroneously renewed Moonstone’s mining rights for extensive stretches of coastline on the sensitive West Coast, based on a 17-year-old Environmental Management Plan (EMPr) last updated in 2005 that is outdated and legally irrelevant.
In the founding affidavit, PTWC claims that Moonstone, which is mining 85km of coastline north and south of the Olifants River Mouth, was given permission based on obsolete diamond mining rights granted to Transhex (Pty) Ltd in the 1990s. Transhex, a name synonymous with West Coast mining operations, has since changed its name to Moonstone.
The current renewed mining right, which is a 30-year extension for Moonstone to mine the area, including beaches, stems from an EMPr prepared in 2002 and updated in 2005 before “significant and material changes in the legislative framework governing environmental authorisations for mining” that protect the environment as promulgated in the Constitution of South Africa.
This framework included “coastlines and beaches that are inherently environmentally sensitive and unique, requiring special protection” such as the Olifants River Estuary, which forms part of governmental plans for a protected area under the National Environmental Management: Protected Areas Act (NEMA).
Moonstone, in a strange turn of events, embarked on a scoping process in 2021 as part of an “upgrade” to their outdated 2005 EMPr. This process seems to have been abandoned.
Unknown to the public, and quite suddenly, a deal was struck “behind closed doors”, with no public participation, where Moonstone’s mining rights were summarily renewed for 30 years. According to the affidavit, the DMRE and Moonstone did not conduct any public participation nor consultation for the mining right renewals, and interested and affected parties in the 2021 scoping application were not notified.
Applicants in the affidavit represent small-scale fishers at Doringbaai and the Ebenhaeser and Papendorp fishing communities of the Olifants River Estuary, who depend on fishing and other marine resources in the area that is being mined.
The affidavit contends that there was “no adequate and meaningful consultation with the community members” in the original EMPr in 2002; its upgrade in 2005; the application for environmental authorisation in 2021; nor the recent renewal of the original mining rights.
In the early 2000s, many of these fishers were granted exemptions to fish in the Olifants River estuary. These exemptions continue to this day in anticipation of the communities being granted small scale fishing rights, for which they are still waiting.
During 2022, PTWC and members of the Doringbaai community noted that Moonstone had moved machinery onto the beach at Hollebaksfontein, immediately north of Doringbaai, which was part of the original concession granted to Transhex about 30 years ago. Steps were taken to ascertain whether Moonstone was lawfully entitled to do so, which the papers allege it was not.
CEO of PTWC Mike Schlebach, the main signatory on the affidavit, said that their hand had been forced, and the only recourse was to initiate legal proceedings. PTWC had attempted to engage with the DMRE and Moonstone to establish the basis on which mining activities were being undertaken, without adequate explanation provided, and reliance placed on the renewed mining rights granted without anyone but Moonstone being aware of them.
“This lack of transparency on the part of the DMRE and Moonstone points to a blatant attempt to push through a mining right that fails to take into account the most up-to-date science and modern socio economic considerations related to mining.”
“Moonstone has not been granted an environmental authorisation in terms of NEMA for the listed activities triggered by the mining and activities related to the mining,” the affidavit said.
“The 2005 EMPr is in any event hopelessly outdated and mining under the 2005 EMPr gives rise to a reasonable apprehension of irreparable harm to this sensitive environment.”
The renewals were unlawful, Schlebach alleged in the papers, and he called for an urgent interim interdict to stop Moonstone or any contractors mining on behalf of Moonstone whilst a review of the decision to grant the renewals is decided upon.
He contested that the application was inherently urgent, given the grave risks to the environment in this environmentally sensitive area. A final interdict was also being sought that prohibited mining until an environmental authorisation has been granted under NEMA.
Schlebach said that ill-considered permissions for mining procured under outdated or illegal processes placed vast tracts of coastline at serious risk, which placed severe pressure on communities who subsist off land and marine-based food sources.
In the absence of proper oversight and governance, the job was left to civil society to ensure that mining activities were done lawfully, something that government was legally mandated to do.
He said that applications for prospecting and mining along the West Coast were increasing rapidly, and were spreading south towards Langebaan, not far north of Cape Town. Hundreds of kilometres of near-shore ocean, critically sensitive coastline and sand veld were at risk.
PTWC had launched a crowd funding campaign to assist the PTWC legal team with the resources to tackle the deluge and turn the tide on unscrupulous activity. Schlebach urged the public to support these efforts at www.protectthewestcoast.org
Words by Steve Pike.