Criminal charges laid against mining company for breaching environmental laws
Submitted by: Venilla Yoganathan, Wednesday, July 15, 2015
“When you got to the top of the mountain, you would feel a connection. There was so much strength there; you could feel the power,” says Phepsile Maseko.
The mountain Maseko, the national co-ordinator of the Traditional Healers Organisation (THO), is referring to is the Madimatle mountain, about 10kms outside the Thabazimbi town in Limpopo province which, together with its Gatkop cave, has been regarded as sacred by traditional communities for centuries, and has been a site of worship for many pilgrims from around the country and southern Africa.
It is situated in one of the most breathtakingly beautiful regions of the country, surrounded by pristine bush and game farms; a region also rich with iron-ore deposits which gives its soil its characteristic deep red colour.
For centuries the revered sites had been left untouched in its natural magnificence by locals so as to not disturb the ancestors, and out of respect for the natural vegetation. But that changed when a mining company, Aquila Steel, was granted rights to prospect for iron ore in the mountain and the cave in 2007. Several other mining companies have already started activities in the region, literally cutting down the mountains in the process to exploit the riches embedded there.
Aquila Steel, a South African subsidiary of the then-Australian listed mining company Aquila Resources Limited, has so far restricted its prospecting for iron ore to a dip at the back of the Madimatle mountain not visible from the road, but because the company had overstepped the limitations placed on the permit granted to them by the Department of Mineral Resources, the damage to the mountain is severe.
So severe, says Tracey Davies, attorney and head of the Centre for Environmental Rights’ (CER) Corporate Accountability and Transparency Programme, that when you fly over the area the contrast between the red exposed earth where the natural vegetation has been destroyed, and the surrounding lush greenery, is an assault on the eye.
“What you see is kilometres and kilometres of ugly deep red roads gouged out of the mountain. You feel affronted that this magnificent piece of land has been so badly damaged and protected tree species removed,” she says.
As a result, the South African Heritage Resources Agency, which last year approved provisional protection of the Madimatle Mountain and its caves because of its cultural and religious significance, has suspended mining in the area for two years pending an assessment to determine the scale of environmental destruction. The agency has until the end of next year to decide whether the area merits National Heritage status. Aquila Steel has appealed the ruling.
CER is assisting the THO, which has 69,000 members nationally, to legally challenge Aquila Steel and three of its directors for breaching environmental laws. Criminal charges were laid at the local Rooiberg police station on May 28 against the company and directors, South African Johann Louis van Deventer, and Australians Anthony Poli and Martin Nicholas Alciaturi, for breaches of environmental, mining and water laws.
Van Deventer is still a director of Aquila Steel but Poli and Alciaturi have resigned from Aquila Steel, but were directors at the time that the violations occurred. Directors of a company who commit or allow criminal offences under mining and environmental laws can be held personally liable for those offences, together with the company itself, and can face penalties including fines of up to R5 million and ten years’ imprisonment in terms of the National Environmental Management Act (NEMA).
Davies says the company and its directors showed contempt for the law, the pristine region and the local community by flouting the limits placed on its prospecting rights to restrict clearance to a maximum of 1.6-3km of roads and 10 blast sites.
“What in fact happened was that 200 blast sites were drilled and 33 kms of once-pristine land was cleared for roads, and will now have to be rehabilitated,” says Davies.
As well as being in contravention of the conditions of its prospecting rights, these activities were conducted without environmental authorisation – a criminal offence under NEMA, says Davies.
When challenged by a group of local landowners, the THO and other community leaders, the company claimed to have been unaware of the restrictions, and applied for retrospective environmental authorisation. This was granted by the Limpopo government but was appealed. The company was eventually fined R300,000 and with no accompanying order to rehabilitate the destroyed areas. The THO believes that the fine levied is inadequate and inappropriate given the extent of the destruction and violation of the law, and given the fact that the Limpopo government is empowered to levy a fine of up to R5 million.
The company has also applied for full mining rights which, if granted, will give it power to effectively remove the top of the mountain.
The CER and THO are now waiting for the Department of Mineral Resources to appoint an investigator for the case as is the practise in mining environmental criminal cases. Recent legislative changes mean that the Department of Mineral Resources must now implement NEMA in regulating the environmental impacts of mining. These were previously regulated under a separate regime as set out in the Mineral and Petroleum Resources Development Act.
“This will therefore be a big test case for the Department (of Mineral Resources),” says Davies.
The THO chose to pursue criminal charges against both Aquila Steel and its directors because it is an avenue open to communities when authorities fail to abide by their mandates under mining environmental legislation, but was little used.
The THO feels strongly that even prospecting rights should not be granted for areas that are environmentally, culturally and spiritually sensitive because “inappropriate decisions” were being repeatedly made to the detriment of vulnerable communities and the environment.
The THO and others affected by Aquila Steel’s illegal behaviour have been trying unsuccessfully for years to convince authorities to take action against the company. As a last resort, they have been forced to lay criminal charges.
“We hope that by raising awareness of Aquila Steel’s conduct and the failure of the authorities to put a stop to it, or to make any effort to force Aquila Steel to rectify the damage it has caused, we will help to prevent the destruction of more of South Africa’s precious heritage resources.
“Our sacred places are being infiltrated by big corporates and we can’t let that carry on,” says Maseko. She says the mountain has lost its “power” since the destruction because the ancestral spirits have been disturbed. “You can’t just go into a sacred area and do as you want. The noise, the destruction … it has made the area impure.”
Maseko says the THO has found that there is diminishing value for heritage, religion and culture across the country as the interests of big corporates are placed above that of communities.
“We cannot use development as an excuse for the destruction of people’s way of life. If development is disrespectful of people’s culture and religious freedom then development can wait.
“To the advocates of development we say development can’t be more important to people and the places that are important to us.”
Davies says: “For too long, company directors who oversee flagrant violations of mining, environmental and water laws have suffered no consequences whatsoever. There are countless mining-affected communities whose rights are violated by this unlawful behaviour, which is either ignored by our authorities, or dealt with in a woefully inadequate manner. These communities are starting to realise that when the responsible authorities fail them, they have the power to hold mining companies and directors to account.”
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