Diamond-mining operation moves out of Western Cape fishing village – but the fight is far from over

Two weeks ago, Doringbaai locals started noticing Moonstone Diamond Marketing's mining operation packing up, and by Wednesday, 1 March, they were gone, with the beach flattened. (Photo: Suzanne du Plessis)

By Julia Evans

8 Mar 2023

Activists who are taking the Department of Mineral Resources and Energy (DMRE) and the diamond-mining company to court say that while Moonstone Diamond Marketing has left Doringbaai, this means nothing for their legal battle and that they expect the miners to pop up further along the coast soon.

In May 2022, locals of the small fishing community of Doringbaai in the Western Cape, were surprised when mining trucks turned up on the local beach without warning.

After getting Environmental NPC Protect the West Coast (PTWC) involved, they managed to find out that Moonstone Diamond Marketing (Pty) Ltd (previously Trans Hex) – which has an old mining site in Doringbaai from the 1990s – is mining with a renewed mining right based on a 17-year-old environmental management plan (EMPr) last updated in 2005.

Their mining right also includes the stretch of coast north of the village (about 15km) that includes biodiversity hotspots such as the Olifants River Estuary and other critical biodiversity areas.

So in December 2022, PTWC along with the Doringbaai and Olifants River small-scale fishing communities, lodged an urgent application with the Western Cape High Court to interdict Moonstone from mining in this area.

Read in Daily Maverick: Activists haul diamond-mining company to court to avert “moonscape” fate for sensitive West Coast

Then, two weeks ago, locals started noticing the mining operation packing up, and by Wednesday, 1 March, Moonstone was gone.

Peter Owies, who grew up in Doringbaai and is a community leader, said there was no consultation process with the community and that the community has, “the same feeling as when they came in – without a word.

“So the feeling is actually the same, people are asking ‘what happened?’”

Owies said it seemed like “they were in a rush,” and unlike how they left the beach in the 90s, they filled up the holes and the beach is very flat, but not necessarily rehabilitated.

PTWC said in a statement, “Moonstone, we believe, didn’t find what they wanted at the Doringbaai site after they limited access to the beach, destroyed a beautiful trail and defaced a stretch of coastline previously enjoyed by locals and visitors. It is now an obvious eyesore and yet another wound inflicted on the Weskus that is becoming an all-too-common occurrence.

“We have little doubt that they are going to pop up further north because they still have ‘rights’ to mine the land north of Doringbaai, towards the Olifants River estuary, which is the second most important and diverse estuary in the country.”

“We were not particularly surprised to see them move off from that mine and that stretch of coast,” CEO of PTWC Mike Schlebach told Daily Maverick.

“They ultimately, according to their paperwork, have a 30-year permit to mine that area. So they may feel that they don’t have to rehabilitate that area for the next 30 years, which is kind of how they’ve behaved up in the Northern Cape, and in other areas where they get a permit to mine … they don’t find anything, then they leave it. And then they get a renewal on the permit, and it gives them another 30 years or whatever, to leave that mine unrehabilitated.”

Suzannè du Plessis, from the nearby town Strandfontein, which is 8km from the Olifants River mouth, said, “you can see clearly that they have just left beach sand over the red sand. That used to be a beautiful walking route, a cyclists’ route, people used to run that route, which now is just a big sand patch, and it’s very sad,” reflected Du Plessis.

Before mining started there was sand and vegetation (fynbos and vygies) above the high-water mark.

“That is all lost. You can see it blatantly where the red sand stops and the vegetation begins,” said Du Plessis, explaining that, “the red sand shows how they have mined above the high-water mark, otherwise it would be beach sand.”

“We would like to see the rehabilitation there. But none of us really know, because Moonstone isn’t cooperating with anybody.”

On 2 March Daily Maverick sent questions to Trans Hex’s head of legal, Aaron Larkens, asking why Moonstone moved off and what their rehabilitation plan is, but they have not responded.

In August 2021, Moonstone started the first phase of obtaining an environmental authorisation by preparing a draft scoping report for an upgrade of its EMPr which was compiled by Archean Resources (environmental and geology consultants) and submitted to the DMRE.

In the list of potential impacts, the report has “replacing soil, slope stabilisation, landscaping, revegetation and restoration,” under rehabilitation.

Trans Hex Group’s 2005 annual report – which is the year their EMPr was last updated – states that “EMPs are revised continuously to ensure that they are still in line with current mining operations. The revisions are done in consultation with regulatory authorities and other stakeholders and take into account the provisions of the Mineral and Petroleum Resources Development Act of 2002. An environmental implementation system has been developed and provides for regular monitoring of the activities that have potential environmental impacts.”

Additionally, it seems their internal rehabilitation policy at the time was “[total] backfilling of mined-out excavations”, which they seem to have done at Doringbaai, as locals have reported the land is “flattened out” and the holes are filled.

Simon Bundy, who specialises in coastal management and conservation programmes and provided expert evidence in the applicants’ founding affidavit, emphasises that the 2005 EMPr only provides rehabilitation objectives for below the high-water mark, and says, “there is no effective determination of where the high-water mark is within the site, and therefore the location and extent of rehabilitation is not known.”

Du Plessis, a member of Olifants Estuary Management Forum and an active environmentalist since 2002, describes what’s happening on the West Coast now as “a free-for-all”.

“For me, the alarming thing could be south of the [Olifants] river mouth, there’s still about another 11 sites that they could move to, and one of them is very close to the mouth of the estuary, which is our biggest concern,” said Du Plessis. “Because people are just starting to mine ad hoc and not looking at the spatial development framework of where it is to residential areas, tourism areas, and environmental areas of high significance.”

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On 16 February, nearly a month after Daily Maverick sent questions on 20 January, the DMRE, who are responsible for approving applications for prospecting or mining on the West Coast, responded.

Daily Maverick asked how the DMRE’s continual trend of approving mining activities along the biologically significant West Coast would not be at odds with what the South African delegation just agreed to in December last year at the UN Biodiversity Conference (COP15) – where South Africa signed an agreement that is meant to put in place concrete measures that will place 30% of marine and terrestrial ecosystems under protection by 2030.

The DMRE responded, “the DMRE’s consideration of applications is guided by sustainable development factors as provided in section 2 of NEMA [National Environmental Management Act].

“That means the Department must consider a number of issues including protection of sensitive biological features but not in isolation from other factors such as employment and bettering the lives of South Africans.

“The EMPr approved by the Department recognises the impacts to the environment and put forward measures to avoid, mitigate and rehabilitated the disturbance to site. In this way, we can promote socio-economic development and protect the environment.”

Court battle continues

“Legally, it means nothing,” said Schlebach about Moonstone moving off Doringbaai.

“We are taking them to court on the fact that we feel like their renewal of their old permits is invalid. And that still stands.”

PTWC are arguing that Moonstone’s renewed mining right is not up to date with current social and environmental legislation nor up-to-date science-based recommendations and rehabilitation measures, and that the DMRE erroneously renewed Moonstone’s mining rights for extensive stretches of coastline on the West Coast, based on a 17-year-old Environmental Management Plan (EMPr) last updated in 2005 that is “outdated and legally irrelevant”.

Patrick Forbes, the legal head of PTWC, explained to Daily Maverick that as part of the amendments made to the National Environmental Management Act and the Mineral and Petroleum Resources Development Act since the EMPr was last updated, we now have the “one environmental system”, which lists mining as one of the trigger activities for which a company needs an environmental authorisation. PTWC contends that the outdated EMPr cannot stand as an environmental authorisation and the mining right ought never to have been summarily renewed on that basis.

When asked why the DMRE has not upheld current legislation and required Moonstone to apply for an environmental authorisation, they responded:

“Moonstone holds old order rights issued in terms of the Minerals Act, act 50 of 1991, which rights were issued prior coming into effect of the MPRDA [Mineral and Petroleum Resources Development Act] and NEMA. The Old Order Rights were converted following transitional arrangements in the MPRDA and the EMPrs approved in terms of the MPRDA. It is worth mentioning that the Preamble of the MPRDA including in its objectives make reference to the principles of NEMA.

“Thus, the scope of the MPRDA EMPr is equivalent to that of the NEMA EMPr. An Environmental Authorisation is consent required prior to undertaking an activity, Moonstone mining is an existing development, there is nowhere in law and even as matter of common sense that an Environmental Authorisation should be done retrospectively.”

Basically, because Trans Hex met environmental and social standards when their EMPr was first granted in 2005, and the law doesn’t work retrospectively, their right still stands.

PTWC filed their founding affidavit on 15 December 2022 and initially, Moonstone was meant to file answering papers on 25 January 2023.

Now it seems the matter was not allocated on the urgent court roll, and at this stage PTWC legal team could tell Daily Maverick that Moonstone’s answering papers are not filed and the Western Cape High Court Acting Judge President has set a date for the court case for sometime between 6 and 26 April 2023.

Owies said about Moonstone moving out, “I’m kind of relieved, but I hope that with the court case we can discipline these people and try to get a moratorium on most likely future operations and that the community will be informed and know what’s going on.” OBP/DM

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