Environment one, mining nil — partial settlement victory on contentious West Coast’s Olifants River plan

The “no-go” areas marked in red that Trans Hex and its contractors are prohibited from mining around the Olifants River Estuary, as per the agreement. (Image: Trans Hex)

By Julia Evans

1 Sep 2023

Diamond mining giant Trans Hex has been prohibited from mining along selected areas near the Olifants River estuary and is now required to update its decades-old management plan, following an out-of-court settlement agreement reached with Protect the West Coast.

Eight months after filing an urgent interdict with the Western Cape High Court, Environmental NPC Protect the West Coast (PTWC) has secured an out-of-court agreement with Trans Hex Operations, one of South Africa’s largest diamond-mining entities. It prohibits them from mining around the Olifants River estuary – a biodiversity hotspot – with the company agreeing to update their environmental management plan.

This saga began in May 2022, after locals from the small fishing community of Doringbaai in the Western Cape were surprised to find mining trucks on their beach without warning.

After getting PTWC involved, they discovered that Moonstone Diamond Marketing (Pty) Ltd (now called Trans Hex) – which has an old mining site in Doringbaai from the 1990s – was mining with a renewed mining right based on a decades-old environmental management plan (EMPr) last approved in 2003.

This outdated mining right also included a stretch of coast north of the village (about 15km) that incorporated biodiversity hotspots such as the Olifants River estuary and other critically sensitive 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 the area.

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

Hasty out-of-court agreement

This week – right before the matter was set to be heard in court – an out-of-court agreement was reached, and a last-minute order of the court was granted in the Western Cape High Court on Tuesday 29 August.

As per the agreement, Trans Hex and its contractors are prohibited from mining around the Olifants River estuary, including the shoreline and beach, and offshore to a distance of 500m from the high tide mark.

Read more in Daily Maverick: Olifants River set to become a new home of mining — to the detriment of residents and the environment as a whole

This 2.8km no-go area is 300m of coast north and 2.5km of coast south of the estuary. The other no-go areas are for land-based mining: 11km of coastline from the Olifants River to Strandfontein; 1.8km of beach between De Toring and Skuit Bay, and at Duiwegat, which is about 200m of coastline.

The “no-go” areas marked in red indicate where Trans Hex and its contractors are prohibited from mining around the Olifants River estuary, as per the agreement. (Map image: Trans Hex)

Professor Merle Sowman from the Department of Environmental and Geographical Sciences at the University of Cape Town, who is on the Advisory Board of PTWC, noted that the areas in this map “do not include the entire area that a group of experts consider to be necessary to ensure proper protection of the Olifants estuary mouth area”.

Patrick Forbes, legal head of PTWC, explained to Daily Maverick that Trans Hex has 10 mining rights that fall into three concessions, spanning approximately 85km of coastline, and they can still continue to mine outside of the no-go areas.

“The order taken, however, is not determinative of the legal position on whether mining ought to continue when you have renewed mining rights based on a 20-year-old EMPr,” explained Forbes. “The order is an agreement reached between the parties on the further conduct in respect of mining for this area and the upgrade to the EMPr that must now be done.”

Environmental victory

A significant victory for PTWC is that Trans Hex has agreed to update their 20-year-old EMPr, and submit it to the DMRE within a period of six months. And to specifically include public participation as part of that process, and certain specialist studies.

In its founding affidavit, which PWTC filed on 15 December 2022 with the Doringbaai and Olifants River Small Scale Fishing Communities, PTWC’s legal team argue that the Department of Mineral Resources and Energy (DMRE) – responsible for granting mining applications in South Africa – was incorrect to renew Moonstone’s mining rights, which are based on a decades-old EMPr from 2002 that granted them permission to mine for an additional 30 years.

PTWC argued 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.

Trans Hex is currently in the process of updating and amending their EMPr for diamond mining, and they have undertaken to submit this to the DMRE within six months.

Forbes said that since the EMPr was updated in 2003, that “significantly more scientific research has been done, better rehabilitation methods have been developed, more up-to-date and detailed mapping of the West Coast is available, and there has been an avalanche of new mining and prospecting applications that have been given authority and authorisation to prospect or mine up there or are under consideration”. As one example, Mineral Sands Resources and Trans Hex have overlapping mining rights covering the very same beaches.

Trans Hex is also ordered to separately identify the impacts and mitigation measures required in respect of beach-, shore-based and vessel-based mining in all its operations.

Trans Hex response

Trans Hex do not view this agreement as a loss, with its CEO Marco Wentzel stating in a letter to shareholders: “This case law authority is also supportive of Trans Hex’s position that it was entitled to continue mining whilst it undertook a process of updating its EMPr to account for the most recent amendments to NEMA, which is reflected in the settlement agreement that was made an order of court.”

He added, “In terms of the Applicants application and the settlement thereof, from the settlement reached it is quite clear that the application did not achieve its principle aims as the mining operations are continuing and the mining rights remain in good standing.”

The court order states that pending the approval by the DMRE of the application, all Trans Hex mining will be undertaken in terms of the existing approved EMPrs (from 2003), but will confine their beach mining to outside of the no-go areas agreed upon.

Wentzel said that despite what has been implied, Trans Hex operations have not been extremely destructive, as “Trans Hex has been undertaking mining operations in the De Punt area for more than 30 years, which have been confined to the area below the high-water mark. The disturbances that remain above the high-water mark were left by other mining companies and fall well outside Trans Hex’s mining areas”.

He said, “It should further be noted that Trans Hex already, since 2005, undertook and honoured the undertaking not to mine in certain ‘conservation areas’ constituting approximately 14km of coastline, which were now formalised in the court order.”

Where’s the community involvement?

As part of updating their EMPr, Trans Hex must consult communities as part of its public participation, consider cumulative impacts, and undertake specialist studies that address the interests of small-scale fisheries.

Forbes previously explained that “an application for environmental authorisation under the one environmental system requires, at the very least, public participation, something which was entirely avoided with the current renewal, issued behind closed doors for another 30 years”.

Peter Owies, who grew up in Doringbaai, and is a community leader, said there was no consultation process with the community. He said when the mining operation moved off the beach in February that the community had “the same feeling as when they came in – without a word”.

Owies said that initially opinion was split in his community, when trucks turned up on their beaches in May 2022 — battling extreme levels of unemployment, many people in Doringbaai hoped the mining operation would provide jobs.

The small-scale fisheries industry — the main economic activity in a town of 2,500 people — and kelp-drying projects were affected during the mining operation (May 2022 to February 2023), since the mining prevented access to the beach and the water, while it had an impact on the area’s ecology too.

Martinus Fredericks, the leader of the Nama (originally spelt !Aman or Amaqua) people of South Africa (clans that lived in this area for hundreds of years, and part of the indigenous Khoikhoi), told Daily Maverick that “very few of the indigenous people are being incorporated into the mining activities, because those mining companies normally come with their own people”.

“The people of the area don’t really benefit from any of the mining activities… [the only impact is] their coastal resources are now further diminished and destroyed.”

Wentzel said in his statement to shareholders that “we should not ignore the positive impact that the De Punt operation has had on the local community, not only through contributing substantially towards community upliftment and the social and labour projects, which form part of conducting a mining operation in South Africa, but the so-called indirect impact. The De Punt operation contributes millions towards the local community, through employment and the payment of contractors, for an area where financial opportunities are hard to come by”.

And added that “as part of its commitment to the Matzikama Municipality, Trans Hex also assisted in preparing the area [Doringbaai] so that the municipality could establish an abalone factory on this site”.

Cumulative impact

Sowman said “the DMRE had not taken into account the cumulative effects of all the developments (past, present and future planned), nor the new knowledge we have about climate change, impacts of mining on beach and marine environments, as well as coastal communities dependent on the sea for their livelihoods, in their decision to renew this mining right”.

“While this outcome is certainly a victory,” said PTWC CEO Mike Schlebach, “it is just one small battle won in the ongoing war against inadequately regulated mining in the region. There is still much work to be done and the fight against unlawful mining on the West Coast is far from over. But this victory has shown us what is possible in our mission to Protect The West Coast on behalf of its communities, and voiceless natural spaces, flora and fauna.”

Wentzel said that they “implore individuals to not only consider the environmental value of an area and their right to an environment (which is not absolute), but to take a balanced view, as part of a larger community, where locals benefit from economic activity and experience a better life – something they may never have the chance to enjoy without mining activity in the area.” DM

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