LIMPOPO COAL COMPANY (PTY) LTD REPLYING SUBMISSION TO
THE MINING RIGHT APPEAL PREPARED IN TERMS OF REGULATION 74(7)
OF THE MINERALS AND PETROLEUM RESOURCES DEVELOPMENT ACT, 2002
IN RESPECT OF THE APPEALS BROUGHT BY:
ENDANGERED WILDLIFE TRUST
PEACE PARKS FOUNDATION
First Appellant
Second Appellant
THE ASSOCIATION OF SOUTHERN AFRICAN PROFESSIONAL ARCHAEOLOGISTS
Third Appellant
THE MAPUNGUBWE ACTION GROUP
Fourth Appellant
BIRDLIFE SOUTH AFRICA
Fifth Appellant
BREGJE DAWSON / KNOLL INVESTMENTS
Sixth Appellant
JM & PD GRAY
Seventh Appellant
DGR TRUST
Eight Appellant
MOPANE BUSH LODGE
Ninth Appellant
PETER FITT / NORTHERN TULI GAME RESERVE
Tenth Appellant
WILLIAM GILFILLAN
MASHATU NATURE RESERVE
Eleventh Appellant
Twelfth Appellant
TOURISM WORKING GROUP,
GREATER MAPUNGUBWE TRANSFRONTIER
CONSERVATION AREA
DJ WESTCOTT / JW TAYLOR TRUST
Thirteenth Appellant
Fourteenth Appellant
Page 2
GA-MACHETE ECONOMIC DEVELOPMENT
CORPORATION SOUTHERN CROSS
EXPERIENCES (PTY) LTD JOINT VENTURE
Fifteenth Appellant
THE SOUTH AFRICAN ARCHAEOLOGICAL SOCIETY
Sixteenth Appellant
JEREMY FITT / NORTHERN TULI GAME RESERVE
Seventeenth Appellant
WILDERNESS FOUNDATION OF SOUTH AFRICA
WORLD WILDLIFE FOUNDATION OF SOUTH AFRICA
Eighteenth Appellant
Nineteenth Appellant
(Collectively referred to as the “Appellants”)
REPLYING SUBMISSION
I.
INTRODUCTION
1.
This is the replying submission of Limpopo Coal Company (Pty) Ltd (“Limpopo Coal” or
the “Company”) of Coal House, Pine Wood Office Park, 33 Riley Road, Woodmead to
the appeals brought by the above named Appellants to the grant a mining right to it for
coal in terms of section 22 of Minerals and Petroleum Resources Development Act 28 of
2002 (the “MPRDA”) on 19 March 2010, over Portion 3, 4, 5, 6, 14 and the Remainder of
the Farm Overvlakte 125 MS; the Farm Bergen op Zoom 124 MS; the Farm Semple 155
MS; and the Farm Voorspoed 836 MS (the “mining area”).
2.
Limpopo Coal was provided the appeal submissions in respect of these appeals on 15
June 2010 by the Department of Mineral Resources (the “DMR”). This was a significant
period after they was served on the DMR. While this replying submission was due within
21 days of the date of receipt of the appeal submissions, in an email, dated 23 June
2010, the DMR agreed that the Company’s response could be submitted on 30 July
2010.
Page 3
II.
PRELIMINARY MATTERS COMMON TO ALL APPEALS
3.
It is immediately apparent that the appeals have all been prepared using an identical
template, which in certain cases has not been fully completed.
4.
As such, there are certain matters common to all the appeals which we deal with at the
outset.
5.
Most of the issues raised in the Appeals have been raised previously by the Appellants;
were responded to by the Company; and were before the decision maker
5.1
Most of the Appellants were participants in the public participation process,
undertaken in terms of the MPRDA for the purpose of the mining right
application.
5.1.1
The Ga-Machete Economic Development Corporation Southern Cross
Experiences (Pty) Ltd Joint Venture; Bregje Dawson/Knoll Investments
Ltd; DGR Trust; JM and PD Gray; William Gilfillan; Mopane Bush Lodge;
Endangered Wildlife Trust (“EWT”), Association of South African
Professional Archaeologists (“ASAPA”), World Wide Fund for Nature
South Africa (“WWF”), Birdlife South Africa (“Birdlife”), Peace Parks
Foundation (“PPF”) and the South African Archaeological Society were all
participants in the Interested and Affected Parties (“I&AP”) process,
conducted by the Company for the purpose of preparing the
Environmental Impact Assessment (“EIA”) / Environmental Management
Programme (“EMP”) during the mining right application. The members of
Mapungubwe Action Group (“MAG”) were also participants in this
process, as was Northern Tuli Game Reserve from which two Mr Fitt’s
have now appealed. These parties furnished detailed comments on the
EMP during that process, evident from Annexure “P2” of the EMP, being
the Issues and Responses Register (“the Response List”, attached
marked “LC1”).
5.1.2
No indication has been given by the Tourism Working Group, Greater
Mapungubwe Transfrontier Conservation Area; DJ Westcott/JW Taylor
Trust; Wilderness Foundation of Southern Africa (“WFSA”); and Mashatu
Nature Reserve why they have chosen now to join an appeal brought by
Page 4
participants in the initial I&AP process. They make no effort to distinguish
themselves from the majority of the Appellants who were all involved in
that process; nor to indicate why there are involved in the Appeal but
were not involved in the I&AP process.
They have put their appeal
submissions on an identical template with the I&AP participants and, as
such, have shown themselves to have a common cause with those
Appellants. Accordingly, we do not believe there can be any basis to
distinguish between the Appellants.
5.2
In accordance with the objects of the relevant legislation, the I&AP process was
extensive, rigorous and the views of affected parties were canvassed and given
on a number of occasions. Unfortunately, the Appellants appear to have used
the opportunity of these appeals simply to restate that which they previously
submitted, without considering and referring to the comprehensive and detailed
responses contained in the EMP.
5.3
Alternatively, as set out further below, some Appellants while opting out of the
I&AP process prior to this point, or choosing to limit their submissions previously,
have now introduced new material and allegations for the first time on appeal.
This is highly prejudicial to the Company, who has engaged in the statutory
process constructively and in good faith. It is also prejudicial to the decisionmaker, who is required to deal with new material for the first time on appeal.
5.4
The I&AP process is set out in detail below.
5.5
I&AP Process
July 2008 onwards
5.5.1
A data base of I&APs was compiled. The date base included authorities,
landowners and other I&AP that had been registered. It was continually
updated as new I&AP were identified throughout the project (see
Annexure N1 of the EMP).
5.5.2
A background information document (“BID”) for the project was compiled.
The BIDs and a Response Form were distributed via mail, per hand, fax
or email to all I&APs from July 2008; and also continuously to all newly
Page 5
registered I&APs. The BID provided background to the proposed project;
highlighted the legal requirements and EIA process to be followed. A
Response Form was attached, inviting I&APs to provide any comments
regarding the proposed activities, to identify any further I&APs who
should be consulted, and to register on the I&AP data base (see
Annexure “N2” of the EMP for a copy of the BID);
Friday 22 August – Thursday 28 August 2008
5.5.3
Advertisements for the EIA process appeared in two regional
newspapers.
Notices were also places on site; at intersections and
buildings commonly used by the local community on 15 August 2008 for
the duration of the process (full details are provided on pages 4 -5 in
Annex-N of the EMP).
31 July 2008 to January 2009
5.5.4
Meetings were held with the Authorities, directly affected landowners,
neighbours, land claimants; King Mphephu, the recognised authority of
Venda; and other key stakeholders. The main purpose of these meetings
was to raise any issues and concerns regarding the project.
A
background to the EIA process and findings were provided at these
meetings. These meetings are set out below.
5.5.4.1
Vhembe District and Musina Local Municipality
A meeting was held with these Authorities on 31 July 2008 to
present the project; and gather the issues and recommendations
on the project, as well as the Social and Labour Plan (“SLP”).
(The minutes of the meeting are included as Annexure “N5” of the
EMP).
5.5.4.2
5.5.4.2.1
National and Provincial Government
A meeting was held with the Authorities on 26 September
2008. (The list of authorities that attended this meeting
and the issues that were discussed, as well as the minutes
Page 6
of the meeting, are provided in pages 5 – 6 of Annex-N of
the EMP and Annexure “N4A” respectively).
5.5.4.2.2
A subsequent meeting was held with the then Department
of Environmental Affairs and Tourism (“DEAT”); Limpopo
Economic
Development,
Environment
and
Tourism
(“LEDET”), South African Heritage Resources Agency
(“SAHRA)”, South African National Parks (“SANParks”),
the Transfrontier Conservation Area (“TFCA”) Coordinator
and the PPF on 23 January 2009. (The minutes of the
meeting are included as Annexure “N8” of the EMP).
5.5.4.3
5.5.4.3.1
Landowners meeting
The landowners of affected farms in an approximately
10km radius of the Vele Colliery (set out in page 7 of
Annex-N of the EMP) were consulted on an ongoing basis
throughout the project. In particular, they were consulted
on 19 September 2008 and 20 November 2008.
(The
minutes of the meeting are included as Annexure N6 of the
EMP).
5.5.4.3.2
Key interviews and focus group discussions were also held
all direct neighbours, as well as I&APs in Zimbabwe.
5.5.4.4
5.5.4.4.1
Land Claimants meeting
In this period a meeting with the Tshivula Community, who
are land claimants of certain properties over the mining
area was held on 29 March 2009, once the Land Claims
Commissioner had provided the necessary information
regarding the claimants. (A copy of the minutes of the
meeting is included as Annexure “N7” to the EMP. The
minutes of the meeting reflect that it was held on 29August
2009. This is incorrect; the meeting was held on 29 March
2009, as is evident from the attendances register).
Page 7
5.5.4.4.2
As indicated in the minutes, the Company undertook to
send a formal invitation to the Tshivulu Tribe to attend the
Open Day. This invitation was duly sent to the Tshivulu
Tribe and several representatives attended the Open Day.
5.5.4.5
Meetings with King Mphephu
5.5.4.5.1
During the course of the public participation process the
Company consulted with King Mphephu, the recognised
authority of Venda.
5.5.4.5.2
In these meetings between the Company and King
Mphephu issues pertaining to land claims and the
traditional communities were discussed.
27 November 2008
5.5.5
The DMR accepted the mining right application.
15 December 2008 to 15 January 2009
5.5.6
Comments to the Scoping Report were invited from all registered I&APs.
Copies of the documents were made available at the Musina Municipality
Offices; Jacana Environmental CC (“Jacana”); and Vhembe District
Municipality.
5.5.7
The Scoping Report was also distributed to all registered I&APs through
email, delivering and post.
5.5.8
A comment period of 30 days was set from 15 December 2008 to 15
January 2008. Due to the holiday season, the period was extended by an
additional 30 days to 16 February 2009. (The comments submitted by
I&APs to the Scoping Report are included in the EMP as Annexure
“N13”).
Page 8
August 2008 – 15 April 2009: Specialist studies
5.5.9
The Company instructed numerous specialists to conduct investigations
on the impacts of the mining operations; compile specialist reports and
include proposed measures to mitigate any impact. A table is attached as
Annexure “LC2”, setting out the specialists’ qualifications and experience
in their respective fields.
16 April 2009
5.5.10
A public open day was held at Dongola Ranch. All registered I&APs were
invited to the day. Due to the wide scale media attention, more I&APs
attended than registered and others were added to the data bases.
5.5.11
Posters and handout documents provided a summary of the findings of
specialist reports and mitigation commitments made by the Company. (A
copy of the handout is included as Annexure “N11” in the EMP).
5.5.12
The open days allowed for a question and answer session. (Specific
details of this session are included as Annexure “N12” in the EMP).
18 May 2009 to 27 July 2010
5.5.13
The registered I&APs were first notified of the availability of the Draft
EIA/EMP on 18 May 2010, this was done over a few days due to the size
of the I&AP list. The EMP was made available for review at the following
locations:
5.5.13.1
Musina Library (hard copy for review on site);
5.5.13.2
Musina Local Municipality (hard copy for review on site);
5.5.13.3
Jacana, 7 Landdros Mare Street, Polokwane (hard copy for review
on site, as well as electronic copies of the report);
5.5.13.4
Naledi Development (Pty) Ltd, 142 Blyde Avenue, Sinoville (hard
copy for review on site, as well as electronic copies of the Report);
Page 9
and
5.5.13.5
download from www.coalofafrica.com/thuli website (from Friday 22
May 2009).
5.5.14
A second notification was done on 1 July 2009, indicating the availability
of EMP on the Coal of Africa website.
5.5.15
The draft EIA/EMP included the specialist reports set out below.
5.5.16
I&AP were provided a period of over 60 days to comment of the Draft
EIA/EMP on or before 26 July 2009. (26 July fell on a Sunday, so the
Company allowed comments to be submitted until Monday 27 July 2009).
3 August 2009
5.5.17
The DMR provided written comments, inclusive of a number of comments
from other state departments and I&APs to the Draft EIA/EMP.
20 August 2009
5.5.18
The Company responded in writing to the comments to the EIA/EMP
raised by the DMR, the I&APs and the independent reviewer of EWT
(being the Response List, attached as Annexure “LC1” hereto).
13 October 2009
5.5.19
Additional comments were received by the Company from the DMR on 13
October 2009. The Company submitted responses to the DMR regarding
these comments on 16 October 2009.
A copy of the Company’s
response is attached as Annexure “LC3”. These issues included:
5.5.19.1
whether Phase 2 Heritage Impact Assessments (“HIA”) had been
conducted.
The Company confirmed that the EMP and the
specialists’ reports were forwarded to SAHRA, with a request to
proceed with Phase 2 HIAs.
However, SAHRA rejected the
request and advised that it would only consider this once the
Page 10
mining right had been granted.
(The letter from SAHRA is
attached to the Company’s response);
5.5.19.2
details on the mitigation measures included in the EMP.
The
Company referred the DMR to the section of the EMP containing
these measures; and repeated the mitigation measures in its
response;
5.5.19.3
the total area that would be disturbed. It was confirmed that the
area was 8, 663 hectares and the properties included in the
application were confirmed;
5.5.19.4
information on any threatened graves. The Company confirmed
that two graves had been identified, however they would not be
impacted on by the mining or infrastructure development;
5.5.19.5
financial provision.
It was conveyed that the guarantee
documentation was being prepared and would be delivered once it
had been issued;
5.5.19.6
public participation records. The Company confirmed that these
records had been included as Annex-N in the EMP.
These
records were again attached to the Company’s response;
5.5.19.7
rehabilitation plan. Reference was made to the Soil Study and a
summary of the rehabilitation plan was included in the Company’s
response;
5.5.19.8
distances of the farms from Mapungubwe National Park (“MNP”).
These were provided in the Company’s response; and
5.5.19.9
water use licences: the Company provided proof of submission of
the integrated water use licence application (“IWULA”).
5.6
Subsequent to this, the Company submitted a final response on 11 November
2010 to the DMR. The covering letter is attached as Annexure “LC4”. This
included the comments previously sent to the DMR; proof of submissions of the
Page 11
Water Use Licence application and proof of acknowledgement of submission of
the Notice of Intent for the bulk diesel facility and mine access road.
5.7
The large majority of the comments raised during the course of the I&AP process
have been repeated in these Mining Rights Appeals. For the most part, these
relate to alleged deficiencies in the EMP and the environmental impacts of
mining.
5.8
In respect of those comments previously made, as is clear from the Response
List in Annexure “LC1”, (containing the responses to the I&AP comments), there
was no reason why the issues raised by the reviewer needed to be dealt with in
the EMP.
5.9
Accordingly, these comments already made and responded to do not provide any
grounds for setting aside the Mining Right.
6.
6.1
Irrelevant appeal grounds in respect of the EMP raised
As you will be aware, a number of the Appellants in this matter have also
Appealed against the decision to approve the EIA/EMP. 1
6.2
A large majority of the Appellants in this matter raise appeal grounds that centre
on the EMP and the adequacy of the EMP.
For example the following
contentions are made, which are responded to in the relevant section:
6.2.1
the mitigation measures in respect of groundwater and surface water
impacts are either lacking or inadequate; (See the EWT Appeal
Submission, paragraph 9.3.3.1.3 which is answered in paragraphs 22.2
and 23.6 below).
6.2.2
no determination was made with regard to the contribution of the Limpopo
River to the primary alluvial aquifer; or from the aquifer to the base flow of
the
Limpopo
River; (See
EWT
Appeal
Submission,
paragraph
9.3.3.2.1(iv) which is answered in paragraph 23.3.2 below.)
1
In particular, the following common Appellants have appealed the EMP: the EWT, PPF, WFSA, MAG,
WWF, Birdlife SA (“the EMP Appellants”). University of Pretoria is the only Appellant in the EMP Appeal
matter that does not appear to have lodged an appeal in respect of the mining right for the Vele Colliery.
Page 12
6.2.3
the process of acid mine drainage (“AMD”) has not been quantified; (See
EWT Appeal Submission, paragraph 9.3.3.2.2 which is answered in
paragraph 23.5 below).
6.2.4
the proposed measures to deal with AMD will lead to further
contamination and degradation of the primary aquifer; (See EWT Appeal
Submission, paragraph 9.3.3.2.2(iii) which is answered in paragraph 23.5
below).
6.2.5
the proposed mitigation measures for the potential impacts to
groundwater do not reflect Best Practice; (See EWT Appeal Submission,
paragraph 9.3.3.2.2(vii) which is answered in paragraph 23.8.3 below.)
6.2.6
I&APs in Zimbabwe were not consulted with during the public
participation
process; (See
EWT
Appeal
Submission,
paragraph
9.3.3.2.4(ii) which is answered in paragraph 23.11 below).
6.2.7
the Heritage Impact Assessment (“HIA”) is insufficient and in fact, a full
HIA was not undertaken (See ASAPA Appeal Submission, paragraph
9.3.6.1 which is answered in paragraph 26.1.2 to 26.1.16 below).
6.2.8
the discussion in the HIA on the archaeological resources of the ShasheLimpopo confluence area focuses almost exclusively on the Iron Age
sequence, making only passing mention of the Stone Age archaeological
sequence; and hunter-gatherer and herder art occurring in the
region; (See ASAPA Appeal Submission, paragraph 9.3.2.3.1 which is
answered in paragraphs 26.7.4 to 26.7.8.3 below.)
6.2.9
there is no evidence that a study has been done on the impact of air
pollution and dust on the area; and the impact drawn to the attention of
stakeholders, or consideration being given to representatives of the
stakeholders in the case of fauna and flora; (See Bregje Dawson Appeal
Submission, paragraph 9.3.2 which is answered in paragraph 43.1
below.)
6.2.10
there is no evidence that a study has been done on the impact of
disturbance to the water regime in the area; and the impact drawn to the
Page 13
attention of stakeholders, or consideration being given to representatives
of the stakeholders in the case of fauna and flora; (See Bregje Dawson
Appeal Submission, paragraph 9.3.5 which is answered in paragraph
43.4 below.)
6.2.11
there is no evidence that a study has been done on the impact of acidity
in the area; and the impact drawn to the attention of stakeholders, or
consideration being given to representatives of the stakeholders in the
case of fauna and flora; (See Bregje Dawson Appeal Submission,
paragraph 9.3.6 which is answered in paragraph 43.5 below.)
6.2.12
there is no evidence that a study has been done on the impact on the
land; and the impact drawn to the attention of stakeholders, or
consideration being given to representatives of the stakeholders in the
case of fauna and flora;
(See Bregje Dawson Appeal Submission,
paragraph 9.3.7 which is answered in paragraph 43.6 below.)
6.2.13
there is no evidence that a study has been done on noise and vibrations
of mining on the area; and the impact drawn to the attention of
stakeholders, or consideration being given to representatives of the
stakeholders in the case of fauna and flora; (See Bregje Dawson Appeal
Submission, paragraph 9.3.8 which is answered in paragraph 43.7
below.)
6.3
These issues are discussed responded to in the individual Appeals lodged.
6.4
The Company instructed several specialists to conduct investigations on the
impacts of the mining operations; compile specialist reports and include
proposed measures to mitigate any impact. The specialists appointed are set out
below. The extent of certain of their investigations is also detailed below, to give
examples of the in-depth studies that were undertaken. Furthermore, Annexure
“LC2” sets out the specialists’ qualifications and experience in their respective
fields.
6.4.1
Description of the Environment: Soil Survey, Land Capability, Land Use
and Sensitive Landscapes of the Vele Colliery Project, March 2009 and
compiled by BB. McLeroth (the “Soil Study”) (Annex-B to the EMP);
Page 14
6.4.1.1
For the purpose of compiling this report, a soil survey was
conducted as part of the development of the EMP. To this end, a
150m grid survey and two reconnaissance surveys were
conducted, the total area of the study area being 8461, 92 ha.
This exercise was conducted in order to quantify the soils, erosion
hazard and slope, agricultural potential, land capability, wetland
classification, present land use, sensitive landscapes, and give a
detailed description of the proposed project.
6.4.1.2
The survey was carried out in three phases from 17 to 31 July, 21
August to 20 September, and 7 to 31 October 2008.
6.4.1.3
Detailed soil, land use and land capability maps were compiled
(inclusive of detailed wetland delineation). The information was
consolidated in the Soil Utilisation Map, which is indicative of the
potential rehabilitation scenarios available for the mine.
6.4.2
Biodiversity Impact Assessment of the Planned Vele Colliery, dated April
2009 and compiled by G.P Nel and E.J Nel of Dubel Integrated
Environmental Services (the “Biodiversity Study”) (Annex-C to the EMP);
6.4.2.1
For the purposes of compiling the report, the specialists identified
issues that may arise as a result of Vele Colliery, in consultation
with the other specialists and I&APs. A desktop baseline study
and extensive literature study was undertaken. Broad geological
and soil occurrences (land types) and characteristics were
identified; and mapping and evaluation of vegetation and habitats
on aerial photographs was undertaken.
6.4.2.2
Site visits were undertaken by the specialists from August 2008 to
January 2009, to gather and review existing information on
geology, soils, fauna and flora that can be expected and do occur
in the study area. Potential impacts were identified for each issue
and assessed. Where the potential impacts were perceived as
having a high risk or significance, alternatives; and preventative
and mitigation measures were considered.
Page 15
6.4.2.3
Specialist studies and surveys were commissioned to identify:
flora species, vegetation communities, fauna and red data species
and their potential habitats; evaluate the sensitivity of each plant
community and red data species habitat; map vegetation
communities and red data species/habitats; and indentify
medicinal, invasive and exotic plants that may occur.
6.4.2.4
Other specialist studies conducted as part of the EIA were also
consulted and incorporated into this report. 2
6.4.2.5
Additional recent work done within the area was also consulted
and incorporated into the report (page 19, Limpopo Valley Herb
Project, R van der Walt; and unpublished report, Van Rooyen
2008).
6.4.3
Surface Water Assessment for the Proposed Vele Colliery, dated April
2009 and compiled by WSM Leshika Consulting (Pty) Ltd (“Leshika”)
(Annex-D to the EMP) (“the Surface Water Study”):
6.4.3.1
The methodology utilised for the surface water assessment is
largely prescribed by legal requirements, as elaborated in best
practise guidelines. These requirements are set out on page 4 of
the assessment.
6.4.3.2
Based on these requirements, the specialist compiled an
estimation of the flood peaks along the affected drainage lines and
determined the associated flood widths. She conducted a survey
to obtain data at 1 metre contour intervals. With the survey data
she modelled the river flow, using specialised software to
determine the flood widths. 3
6.4.3.3
By overlapping the proposed Vele Colliery on the site map, the
specialist determined the layout and conceptual design of
adequate storm water management
2
3
Page 6 of the Biodiversity Study
Page 4 of the Surface Water Study
Page 16
6.4.4
Environmental Impact Assessment of Groundwater, dated April 2009 and
compiled by WSM Leshika Consulting (Pty) Ltd (Annex-E to the EMP)
(the “Groundwater Study”);
6.4.4.1
For the purpose of compiling the specialist report, the information
was acquired in two phases. During the scoping phase a desk top
study and a hydrocensus was undertaken, which evaluated the
existing groundwater environment in terms of occurrence, use and
quality. The ground proofing phase consisted of drilling, pumping
tests, water quality sampling and drill core sampling for acid base
accounting. The results of these two phases, in conjunction with
the geological information generated by CoAL’s Geological
Department, provided input data for the development of a
numerical
groundwater
model,
whereby
groundwater
flow
variations with time as a consequence of mining could be
quantified.
6.4.4.2
Packer testing was also conducted to determine the in situ
permeability of the different hydrogeological models. Water level
information was furthermore collected to determine the present
status of the piezometric surface; and water samples were
collected for macro-chemical analysis to establish the base line
water chemistry. Representative samples of diamond drilling core
were analysed for sulphide content for use in the AMD impact
determination. 4
6.4.5
Air Quality Impact Assessment Report for the Proposed Limpopo Coal
Mining Operation; dated 7 May 2009 and compiled by Bohlweki SSI
Environmental (Annex-F to the EMP) (“the Air Quality Study”).
6.4.5.1
For the purposes of the compilation of the Air Quality Study, South
African ambient air quality standards were used as a base for
comparison.
Reference was however made to international
guidelines to ensure complete compliance.
4
Page 1 of the Groundwater Study
Page 17
6.4.5.2
The specialist undertook dispersion modelling within the mining
area and its surrounds. The dispersion modelling was conducted
using the US – EPA approved Industrial Source Complex Model,
version 3.
This model is used extensively to assess pollution
concentrations and depositions from a wide variety of sources
associated with an industrial source complex.
6.4.5.3
The data incorporated into the report when utilizing this model
included information on the source and sensitive receptors in the
area (such as distances to nature reserves); meteorological
parameters (such as wind velocity and direction, ambient
temperature, mixing height and atmospheric stability class); and
terrain data. 5
6.4.6
Noise Impact Assessment of the Planned Vele Colliery, dated May 2009
and compiled by Jongens Keet Associates (Annex-G to the EMP) (“the
Noise Study”),
6.4.6.1
The study area for the Noise Study was that within the area of
influence of the Vele Colliery (being longitude 29027’00”E to
29047’00 “E and latitude 2205’00”S to 22018’00”S).
6.4.6.2
For the purposes of the compilation of the report, the specialist
compiled with the requirements of Code of Practise SANS 10328:
2003: Methods for Noise Impact. The level of investigation was
the equivalent of an EIA.
A comprehensive assessment of all
noise impact descriptors (standards) was undertaken. The noise
impact criteria specifically taken into account were those as
specified in the South African National Standard SANS 10103:
2008: The Measurement and Rating of Environmental Noise with
respect
to
Land
Use,
Health,
Annoyance,
and
Speech
Communications, as well as those in the National Noise Control
Regulations.
6.4.6.3
5
The investigations comprised of a determination of the existing
Pages 5 – 7 of the Air Quality Study
Page 18
situation (prior to the development of the mine); an evaluation of
the situation during the construction phase and the operational
phase; an assessment of the change in noise climate and
impacts; and identification of mitigation measures.
6.4.7
Heritage Impact Assessment Report, Proposed Vele Colliery, dated April
2009 and compiled by Frans Roodt from R&R Cultural Resource
Consultants (Annex- H to the EMP) (the Heritage Study”);
6.4.7.1
For the purposes of the Heritage Study, various sources were
utilised for the baseline information. These included unpublished
reports
by
Archaeological
Resource
Management
of
the
Archaeological Department of the University of Witwatersrand, the
Mapungubwe Cultural Landscape World Heritage Nomination
Dossier,
academic
dissertation,
aerial
photographs
and
topocadastral maps.
6.4.7.2
A thorough pedestrian field survey of the mining area was also
undertaken by the specialist for detailed site information. 6
6.4.7.3
Additional sites identified and information gathered during the
detail soil survey was also incorporated in the assessment.
6.4.7.4
All possible archaeological, cultural and historic remains within the
proposed development areas were identified (as far as practicably
possible) and a significance rating applied.
6.4.8
Palaeontology Study, dated March 2009 and compiled by Dr. JF Durand
(Annex-I to the EMP) (the “Palaeontology Study”);
6.4.8.1
The specialist performed a detailed desktop study, followed by a
site visit.
6.4.8.2
The purpose of the desk top study was to detail the probability of
finding fossils in the study area and how, if indeed there are
6
Pages 5 – 6 of the Heritage Study
Page 19
fossils, the mining activities will impact on the fossils and fossil
sites.
6.4.8.3
A surface survey of the rocky outcrops was done on the Farms
Overvlakte 125 MS and Newmark 121 MS in Musina District on 79 April 2009.
6.4.9
Visual Impact Assessment for the Proposed Vele Colliery, dated 14 April
2009 and compiled by MetroGIS (Pty) Ltd (Annex-J to the EMP) (“the
Visual Study”).
For the purposes of the compilation of the report, the specialist conducted
several site visits to the mining area. The report was also based on
various sources of information, such as the Scoping Report, comments
from registered I&APs, the outcomes of project meetings and
discussions; GIS data; maps and photographs. 7
6.4.10
Impact Evaluation of Blasting for the Vele Colliery Project dated March
2009 and compiled by A J Rourke (Annex-K to the EMP) (“the Blasting
Study”).
6.4.10.1
For the purpose of the Blasting Study, the specialist considered
other specialists’ reports on the geology, groundwater and
predominant winds in the area surrounding the Vele Colliery. He
also conducted a site visit to the mining area and surrounding
vicinity.
6.4.10.2
The impact assessment was based on international standards on
limits for vibration, air blast and fly rock, as outlined in Appendices
1 and 2 of the Blasting Study. 8
6.4.11
Socio-Economic Impact Assessment of the Vele Colliery, dated May 2009
and compiled by Naledi Development (Annex-L to the EMP) (the “SEA
Study”).
7
8
Page ii of the Visual Study
Page 4 of the Blasting Study
Page 20
6.4.11.1
For the purpose of this SEA, the following processes were
investigated: demographic; economic; geographic; institutional
and legal; emancipatory and empowerment; socio-cultural; and
biophysical.
6.4.11.2
The Social Baseline Study made use of existing data, as a starting
point.
Further, the information in this report was acquired via
interviews
with
key
stakeholders;
participant
observation;
published reports (including Integrated Development Plans, Local
Economic
Development
Strategy,
Spatial
Development
Framework); statistical data obtained from Statistics South Africa;
and information obtained from social impact assessment literature
(set out in section 9 of the SEA Study).
6.4.11.3
Results from the public participation process also informed the
study.
This enabled local information to be obtained from
community members.
6.4.12
Macro Impact Assessment, dated 29 April 2009 and compiled by Naledi
Conningarth Economists (the “MEA Study”) (Annex M to the EMP).
6.4.12.1
A Social Accounting Matrix (“SAM”) for South Africa was used as
the basis for the general economic equilibrium analysis of the
impacts of construction and operation of the coal mining project. In
addition, SAM for the Limpopo Province was used to determine
the magnitude of the regional impacts that may be experienced by
the province as a result of construction and operation of the Vele
Colliery.
6.4.12.2
In order to obtain the highest measure of accuracy and realism
possible, suitable disaggregation was performed on the SAM to
ensure that all sectors that are impacted in a significant manner by
the project were taken into account.
6.4.12.3
The analysis took into account the direct, indirect, as well as the
induced effects of the opencast and underground mining project.
The economic and socio-economic impacts were calculated for
both the construction phase of the project, as well as the
Page 21
operational phase.
6.4.12.4
In addition, the nature and magnitude of the impact of government
revenue generated from the Vele Colliery. was measured.
6.5
The decision to approve the EMP should not be confused with the decision to
approve the mining right.
6.6
It is not competent in this appeal to raise an appeal ground that is related to the
alleged inadequacy of the EMP. The inadequacy of the EMP on its own is not a
valid basis for challenging the mining right.
7.
Irrelevant grounds of appeal that are unrelated to section 23(1)(d) of the MPRDA are
raised
7.1
In raising the alleged impacts of the Vele Colliery, the Appellants standard form
Appeal template relies on section 23(1)(d) of the MPRDA, with each of the
Appellants setting out grounds why they believe that the Vele Colliery will result
in
“unacceptable
pollution,
ecological
degradation
or
damage
to
the
environment”.
7.2
In the template this is the lead-in to all of the individual comments made by each
Appellant. Many of the comments however made by the Appellants do not fall
within the scope of this section. Rather, the Appellants have simply used the
pretext of an appeal under section 23(1)(d) to restate all of their objections to the
granting of the mining right, as well as to introduce a number of new objections.
This is an improper use of the appeal process. It has resulted in substantial
duplication and repetition in the appeals that have been lodged against the
granting of the mining right and the appeals against the approval of the EMP.
7.3
In any event, the appeals fail to engage with the facts and responses that have
been forthcoming in the I&AP process prior to the appeal stage. For the most
part, the issues raised by the individual Appellants in this standard form part of
the
template
are
premised
on
the
following
errors,
omissions
and
misunderstandings:
7.3.1
they fail to properly take into account the existing land uses within the
area. Most conspicuously, they completely discount the existing intensive
Page 22
agriculture taking place in the immediate vicinity of the Vele Colliery and
existing mining activities in the area;
7.3.2
they fail to take account of other relevant facts, such as for example, the
actual area of the TFCA as presently proposed; and the actual distance of
mining operations to MNP, discussed in paragraphs 19.1 and 19.2 below.
7.4
No evidence of pollution for which a mitigation plan has not been made is
alleged; no evidence of ecological degradation that does not follow automatically
from a mining approval is shown; and no unacceptable damage to the
environment is contended. This is discussed in the response to each appeal.
7.5
The following highlights the issues raised which have nothing whatsoever to do
with evidence of unacceptable pollution, ecological degradation or damage to the
environment, which have been stated to be relevant to this appeal ground:
7.5.1
potential loss of World Heritage Status due to mining adjacent to
Mapungubwe National Park (“MNP”) (See MAG Appeal Submission,
paragraph 8.3.4(a) – (e), page 8 - 9 which is answered in paragraph 19.4
below);
7.5.2
impact of mining activities on land use wishes of the MAG members (See
MAG Appeal Submission, paragraph 8.3.5, page 9 -10, which is
answered in paragraph 19.5 below);
7.5.3
failure to compare Vele Colliery’s limited economic benefit with economic
losses due to the impacts on food production and eco-tourism ( See EWT
Appeal Submission, paragraph 9.3.3.2.4(i), page 13 which is answered in
paragraph 23.10 below.);
7.5.4
I&APs in Zimbabwe were not consulted with during the public
participation
process (See
EWT
Appeal
Submission,
paragraph
9.3.3.2.4(ii) which is answered in paragraph 23.11 below)
7.5.5
failure to take into account the impact of mining activities on the
Transfrontier Conservation Area (the “TFCA”)
(See PPF Appeal
Submission, paragraph 9.3.1, page 6-7 which is answered in paragraph
Page 23
29.1 below.) and
7.5.6
failure to consider international agreements. (See Jeremy Fitt/Northern
Tuli Game Reserve, paragraph 9.3.5, page 6 – 8 which is answered in
paragraph 67.4 below.)
8.
8.1
New opposition grounds on appeal
As set out above, the extensive statutory I&AP process followed allowed all
parties more than sufficient opportunity to make their comments; or to request
additional time should this have been needed. In general, during the 60 day
period to comment on the Draft EIA / EMP none of the I&AP respondents
expressed the view that they had further comments which they wished to make.
8.2
In addition, the South African Institute for Environmental Assessment (“SAIEA”)
was commissioned by a number of I&APs, who are also Appellants, to undertake
an extensive EMP review. SAIEA also had 60 days to undertake the review.
This document is attached to the EWT’s Appeal. At no time did the reviewer
indicate that she had insufficient time or opportunity to conduct investigations
which may have been deemed necessary to review the EMP. In presenting the
SAIEA review, the reviewer does not indicate that she was placed under time
pressure or that the review should be considered as a preliminary review.
8.3
Notwithstanding this, the Appellants now for the first time on appeal seek to
introduce new material and comments, which were not proffered at the
appropriate stage when the I&AP process was underway.
The Appellants
appear to believe that they should have an unlimited number of opportunities to
provide further reasons why a mining right should not have been granted to the
Company. They have treated this appeal process effectively as an opportunity to
initiate objections for the first time. This undermines the statutory process and is
prejudicial both to the Company, which participated in good faith and diligently in
the I&AP process in formulating the EMP, as well as to the decision-makers
concerned.
8.4
At no time have any of the Appellants given an indication of what actions of the
Company prevented them from timeously submitting their reviews in the I&AP
process they participated in. They also give no indication of why the comments
Page 24
they present now for the first time on appeal were unavailable to them at the time
they provided their comments and review of the EMP and participated in the
I&AP process conducted.
Those Appellants who failed to participate in the
process to this point but have now lodged appeals proffer no explanation as to
why they did not initially participate, particularly given the fact that this process
was well and properly advertised.
8.5
There has been nothing in the Company’s conduct in the course of compiling the
EMP or in the I&AP process to explain the failure by these Appellants to
participate previously or to introduce comments and criticism prior to the appeal
stage, nor is any allegation to that effect. It is common cause that the Company
has engaged constructively and properly in the I&AP process. Accordingly, we
submit, there is no reason why the Appellants should be afforded an opportunity
to introduce new material and criticisms for the first time on appeal.
8.6
It patently unfair to the Company, as well as the decision-makers, for the
Appellants to raise, post the mining right being granted, further criticisms of
mining in general and the EMP, that they had every opportunity to comment on
before the decision to approve was taken.
8.7
Given the opportunities that the majority of the Appellants had and took
advantage of prior to the approval of the mining right, the Company submits that
the further reasons for appeal set out in these Appeals cannot provide a basis for
arguing that the decision to approve the mining right was wrongly taken.
9.
9.1
Contradictions between the EMP Appeal and the Mining Rights Appeal
It is also the case that certain criticisms of the EMP made in the SAIEA review
have been contradicted by what is stated by the EMP Appeal brought by the
EMP Appellants. For example:
9.1.1
The SEA Study: a section of the EMP Appeal is dedicated to a detailed
(unjustified) criticism of the SEA Study. In the SAIEA Review this report
and the accompanying MEA Study were praised.
(See comment 5.4
where it is stated that the SEA Study is “good”. In comment 5.6 the MEA
Study was also stated to be “comprehensive”).
Page 25
9.1.2
Palaeontology: Ten pages of criticisms of the Palaeontological Study are
included in the EMP appeal. In the SAIEA review this was stated to be
adequate. (5.3.10).
9.1.3
Biodiversity: In the SAIEA Review it was stated that the Biodiversity Study
was good, as it looked beyond lists of flora species and addressed
ecosystem functioning (see comment 5.3.10 in Annexure “LC1”).
However in paragraph 19.3 of the EMP Appeal the Appellants criticise the
Biodiversity Study, stating that the list is not a comprehensive list of flora
species in the study area and does not constitute adequate baseline
information on which to investigate, assess and evaluate impacts on flora
species.
9.1.4
Air Quality: In paragraph 35 of the EMP Appeal the Appellants contend
that no substantive reasoning or explanation is given in the EMP as to
why no significant adverse impact is anticipated on sensitive receptors.
In the SAIEA Review it was found that the description of impacts is
adequate. (See comment 5.3.8 in Annexure “LC1”)
9.2
It is extremely difficult for the Company to understand and respond to this type of
contradictory criticism which appears to be founded in ideological opposition,
rather than reasoned analysis. By way of further example, many of the appeals
are internally or mutually contradictory. This is highlighted in more detail below,
For example, the EWT appeal criticises the award of the mining right on grounds
that it will compromise existing agricultural and farming activities generally in the
area. A number of the other appeals (such as that of the PPF) are founded on
the proposition that the mining area is hoped to be included in a future
transfrontier park.
10.
10.1
Amplification of the grounds of appeal (paragraph 3 of the appeal template)
All of the appeals state that the Appellant reserves its rights to amplify the
grounds of appeal when it has been provided with certain documents.
10.2
This is not a competent request in terms of the Mineral and Petroleum Resources
Page 26
Development Regulations (the “MPRDA Regulations”). 9
10.3
The request for written reasons pursuant to section 6(6) of the MPRDA is a
misunderstanding of the intent of this section. In the course of the appeal the
Appellants are in any event provided with the record of decision.
10.4
Limpopo Coal reserves the right to respond to any amplified submission once
received.
10.5
In addition, if the DMR is minded to allow this request, then we ask that this
replying submission not be provided to the Appellants until after they have
received the documentation requested; have provided any amplified submission
and the Company has been afforded the opportunity to submit a consolidated
replying submission to both the initial and amplified appeal submissions.
11.
Request that the Minister exercise their power to suspend the grant of the mining right
(Paragraph 6)
11.1
All of the Appellants make the same request in this paragraph of their appeal,
namely that because of the “serious nature of the appeal which goes to the heart
of the decision to grant the mining right” the Minister is requested to suspend the
grant of the right.
11.2
It is our contention that the appeals made do not stand any prospects of success.
We deal with the substance of each individual appeal below and, as is set out in
those sections, the bases upon which the appeals brought should be rejected.
11.3
Limpopo Coal has already mobilised to site and any action at this stage to stop
this mobilisation process would cause significant financial and other hardship to
Limpopo Coal. In such circumstances, there is no basis to prejudice the valid,
lawful and existing rights of Limpopo Coal by suspending the mining right. To do
so would unduly disadvantage Limpopo Coal.
11.4
Furthermore, in the course of the next six months the activities to be undertaken
on site are to be undertaken within a limited area, in the eastern most area of the
mining area. Most of the comments focus on the effect of mining close to MNP,
9
Published under Government Notice R527 in Government Gazette 26275 of 23 April 2004
Page 27
which is approximately 15 to 20km from the existing activities.
11.5
Limpopo Coal has mobilised to site
11.5.1
Limpopo Coal applied for a mining right for coal on 4 November 2008.
11.5.2
At the time of submitting the application for a mining right, Limpopo Coal
anticipated that the right would be granted by October/November 2009
and began putting in place the contracts necessary to start mining on this
date. (See as an example the Memorandum of Understanding (“MOU”)
with MCC Contracts (Pty) Ltd (“MCC”), dated 21 September 2009 and
attached as Annexure “LC5”, whereby Limpopo Coal contracted the
opencast mining works at Vele Colliery to MCC. In this MOU the parties
anticipated that mining would commence in October 2009).
11.5.3
Mobilising the resources necessary to start an operation of this nature is a
huge undertaking, which inter alia requires personnel to be found and
committed to the project; equipment to be mobilized; and a Wash Plant to
be designed and readied for erection. Planning of these activities started
once the application was made, so that the mining operations could
commence as soon as possible after the mining right was granted. This
was necessary to ensure the costs which Limpopo Coal and its parent
company, Coal of Africa Ltd (“CoAL”) have incurred in getting the project
up and running could start to be recouped as quickly as possible.
11.5.4
A number of activities and contractors have been mobilized to and around
the mining area.
These include, amongst others, a contractor to
undertake the physical activities related to mining coal (which is MCC);
ELB Engineering (Pty) Ltd (“ELB”) to undertake the erection and
commissioning of the Wash Plant and related facilities; contractors to
build roads in the mining area; contractors to ensure accommodation
needs for the various short and long term employees; and contractors to
transport workers to and from the mining area.
11.5.5
The Mining Contractor, Wash Plant Contractor and other services
contractors have mobilised to site and have 201 and 656 personnel on
site respectively.
Page 28
Mining Contractor
11.5.5.1
MCC is contracted to carry out the opencast mining works at Vele
Colliery.
MCC will construct and establish the works for the
opencast mining operations. Once the necessary works are in
place, MCC will thereafter conduct the opencast mining operations
to extract the agreed tonnage of coal specified in the Programme
of Works.
11.5.5.2
As stated above, the mining operations are scheduled to focus on
the East Pit for the next fifteen years.
11.5.5.3
The mining which will take place within the first year is indicated in
the grey wedge segment on a map, attached as Annexure “LC6”.
Mining will start at the most northerly point for the 12 months
(shown in light green) and move southwards for the first 12
months.
11.5.5.4
The mining activities are anticipated to disturb 87.5 hectares in the
first twelve months, as follows:
11.5.5.4.1
Opencast Pit:
11.5.5.4.2
Haul Road:
13.4 hectares;
11.5.5.4.3
MCC Area:
11.8 hectares;
11.5.5.4.4
Plant Area:
16.9 hectares;
11.5.5.4.5
New road:
11.5.5.4.6
TOTAL AREA:
11.5.5.5
39 hectares;
6.4 hectares
87.2 hectares
Site establishment and mobilisation has been undertaken. This
involved obtaining
the specialized equipment
and people
necessary to start mining activities onto site and installed in place.
In total, MCC will have 201 personnel on site.
11.5.5.6
MCC is in the process of establishing the box-cut required to start
mining. 880,000 Bank Cubic Metres has been removed from the
box-cut as at end of June 2010. It is anticipated that MCC will
Page 29
commence extracting coal in early August 2010
Wash Plant contractor
11.5.5.7
ELB was contracted for the design, fabrication, installation and
commissioning of the initial Wash Plant, that will be utilized in the
mining area. ELB is responsible for the complete execution of the
works associated with design, construction and commissioning of
the Wash Plant.
11.5.5.8
As stated above, ELB was mobilized to the site after the approval
of the EMP. The earthworks and civil works required for the Wash
Plant Works were finalised between April to June 2010, as well as
the electrical hardware. The Wash Plant will be commissioned in
mid August 2010.
11.5.5.9
384 employees were mobilized to site to construct the Wash
Plant.
11.5.5.10
Once the Wash plant is commissioned, it will be operated by a
team from Minopex (Pty) Ltd (“Minopex”), who has been
contracted by the Company.
The team will consist of 52
employees (it currently consists of 14 of Minopex’s employees and
will increase to 28 subsequent to commissioning of the Wash
Plant).
11.5.5.11
LCC’s other contractors include, amongst others, contractors to:
build a bypass road in Musina and access road in the mining right
area; build and operate staff housing; transport workers to and
from
the mining
area;
infrastructure
contractors;
security;
accommodation, and related services. There are approximately
272 people currently performing these services. The access road
is presently being constructed in the mining area, as well as haul
roads within the East Pit.
11.5.5.12
In total there are presently approximately 857 people mobilised to
site or to activities associated with the Vele Colliery:
Page 30
11.6
Losses to Limpopo Coal or CoAL if the Minister suspends the mining right
11.6.1
To date the costs incurred are in the region of R853 million.
11.6.2
It has been approximately four to five months from the commencement of
mining activities before Limpopo Coal is able to generate revenue from its
mining operations.
During this time Limpopo Coal has incurred a
significant amount of capital and operational expenditure.
11.6.3
The funding for this project has been acquired through a combination of
equity funding raised through rights issues by CoAL and loan funding,
mostly in the form of shareholder loans from CoAL to Limpopo Coal.
Interest on these loans is charged at prime plus 2.
Any delay in
recouping these costs will impact on the share price of CoAL and reduce
its potential to raise the capital required for the ongoing funding of the
capital expenses related to the Company’s operations.
11.6.4
Limpopo Coal received notice of the grant of the mining right on 2
February 2010. A copy of the letter of grant is attached as Annexure
“LC7”. The grant letter indicated that the right would be executed on 24
February 2010. On the grounds of the information contained in the letter
of grant, Limpopo Coal and its contractors based their planning schedules
and commencement agreements on 24 February 2010 as a starting date.
As such, Limpopo Coal became liable to standing time from February
2010.
11.6.5
If the Minister suspends the operation of the Mining Right, pending the
determination of the appeal brought by the Appellants in terms of the
MPRDA it is likely to stop activities on the mining area for six to twelve
months. A delay of this magnitude in exercising its mining right would
cause Limpopo Coal and CoAL to suffer potentially devastating losses,
these are summarised approximately as follows:
11.6.5.1
MCC contract:
Up to R76,6 million
11.6.5.2
Minopex contract
Up to R3,7 million
Page 31
11.6.5.3
ELB contract: (up to the full EPCM price of R240 million)
11.6.5.4
Raubex contract: (up to the full value of the contract R22.6
million)
Plus standing time
11.6.5.5
Transmus contract: (up to the full value of the contract R4.8
million)
Plus standing time
11.6.5.6
Envilox contract: (up to the full value of the contract R3 million)
Plus standing time
11.6.5.7
Loss in revenue: for 12 months or R46 million for the initial ramp
up and steady state production for 3 months
R 850 million (12 months steady state)
TOTAL: APPROXIMATELY 280.87 million for a 6 month period
taking the operation into steady state
11.6.5.8
Reduction in Net present value:
Approximately R100 million
11.6.5.9
Leading to a reduction in share price which would impact on the
shareholders:
Possibly 4.56% reduction in value: (74 percent decrease in
the share price or R354, 965,792 reduction in market
capitalization)
12.
12.1
Date of knowledge of the grant of the mining right
It is disputed that those Appellants who are represented by the Centre for
Applied Legal Studies (“CALS”), or who have been obtaining information, from
them were first aware of the grant of the mining right on 9 March 2010.
12.2
Despite knowing through the media from 2 February 2010 that the mining right
Page 32
had been granted, CALS representing certain of the Appellants wrote, only on
Friday 26 February 2010, to Limpopo Coal requesting confirmation of the grant of
the right. This confirmation was given to CALS on 5 March 2010.
12.3
The Appellants cannot simply choose to rely on a later date for “fixing” their
knowledge of the grant of the right. They knew the right was granted on 2
February 2010.
They waited a month to request confirmation of this from
Limpopo Coal and received this confirmation in the course of the following week.
13.
13.1
Delay should impact on the relief granted to the Appellants
The Appellants assert that they are entitled to the maximum time allowed in the
MPRDA for lodging their appeal and should be entitled to condonation beyond
this. The Company contends that in the circumstance the Appellants’ failure to
pursue this matter urgently impacts in the relief to which they are entitled.
13.2
The Appellants seek, through this appeal, to set aside the decision to approve
the mining right for the Vele Colliery. Immediately following the approval of the
mining right and EMP, the Company commenced mining preparation on the Vele
Colliery site.
13.3
The Appellants threatened repeatedly to pursue an interdict to stop the
Company’s operations on the site. In addition, while they requested the Minister
to suspend the approval of the EMP pending this appeal and threatened to take
further legal steps if this was not suspended they have taken no steps to pursue
this suspension.
13.4
On 24 February 2010 the Centre for Applied Legal Studies acting on behalf of the
Appellants wrote to the Company. In the letter the Appellants recorded that
should the mining right have been granted and the EMP approved, they intended
instituting judicial review proceedings or pursuing other statutory remedies
regarding these decisions on various grounds inter alia that there were
fundamental flaws in the EMP. The Company was requested to provide an
undertaking that it would not commence with activities under its mining
right. (Letter attached marked “LC8”).
13.5
On 1 March 2010, Bowman Gilfillan Attorneys, acting on behalf of the Company,
Page 33
acknowledged receipt of this letter and on 5 March 2010, having taken
instructions from the Company, responded to CALS letter. In this response it
was explicitly stated that the Company is not in a position to give the undertaking
the Appellants required from it. The reasons for this was that the Company had
incurred costs of approximately R570 million to date in its preparation, planning
and design for the Vele Colliery (including project acquisition costs, exploration
costs, capital expenditure, surface rights acquisition and operating costs). It was
conveyed in the letter that as soon as the mining right was granted, CoAL began
mobilising to begin operations at the Vele Colliery; the process is continuing; and
CoAL expected to start operations in the course of April 2010.
The letter
emphasised that it was necessary for CoAL to commence operations as soon as
possible to satisfy investor expectation and honour the contractual obligations it
has made. (Letter attached marked “LC9”).
13.6
In this letter it was recorded that the EMP was compiled and the required
application processes were undertaken in accordance with all relevant laws and,
in particular, the MPRDA. It was however stated that the Company remains
willing to discuss all reasonable measures which the Appellants would like to
suggest, in addition to those described in the EMP, to mitigate any impact which
the Vele Colliery may have on the environment and surrounding communities. It
was suggested that the parties meet to constructively discuss such measures.
CALS was invited to contact Bowman Gilfillan Attorneys to make arrangements
for the proposed discussions.
13.7
No response was received from CALS regarding the proposed meeting.
13.8
Almost a week later, on 11 March 2010, CALS replied to this letter. It noted that
the mining right had been granted to the Company and that the DMR had
advised that the EMP had not yet been approved.
The letter recorded that, as
the EMP had not yet been approved the Company’s mining right was not yet
effective and mining operations that commenced prior to the approval of the EMP
were illegal.
An undertaking was required that the Company would not
commence mining operations prior to the approval of the EMP. Various
documents were also requested from the Company, including a copy of the final
EMP, the Mining Work Programme (“MWP”), and a written record of the decision
to grant the mining right. A response was required by 15 March 2010. (Letter
attached marked “LC10”).
Page 34
13.9
On 16 March 2010 Bowman Gilfillan responded to this letter. The letter stated
that the Appellants’ concerns that the Company would commence operations
before its EMP was approved were unfounded.
It was reiterated that the
Company intended commencing mining operations within the course of April,
being the time period for which it anticipated approval of the EMP.
13.10
In this letter the Company again offered to discuss all reasonable measures
which the Appellants would like to suggest, in addition to those in the EMP, to
mitigate any impact which the Vele Colliery would have on the environment and
communities.
The Company confirmed that it was happy to provide the
Appellants with a copy of the EMP, which deals with the manner in which all
mining activities covered in the MWP will impact on the environment and the
mitigation of such impacts.
13.11
It was again proposed that CALS contact Bowman Gilfillan to arrange a meeting
and that the final EMP be provided to the Appellants at the first meeting. (Letter
attached marked “LC11”).
13.12
On 24 March 2010, CALS addressed a further letter to Bowman Gilfillan. It noted
that the Appellants had formally requested the Minister or Director General of
Mineral Resources, in terms of section 96(2) of the MPRDA, to suspend the
mining right, pending the outcome of an administrative appeal(s) which had been
submitted by the Appellants.
13.13
As the appeals had been submitted, it was stated in the letter that the Appellants
were of the view that it would “not be appropriate” for them to meet with the
Company.
13.14
The letter noted that the Appellants were aware that the EMP had been
approved.
Again it was required that the Company provide an urgent
undertaking that it would not commence with “any action on the land” in
execution of the mining right, pending the outcome of the appeal(s).
13.15
It was stated that should the Company refuse to provide such an undertaking by
25 March 2010, the Appellants would have no alternative but to proceed with an
urgent interdict, prohibiting the Company from acting on its mining right until such
Page 35
time as the appeals against the grant of the mining right and the approval of the
EMP, and any judicial review that may arise out of such appeal process, have
been made. (Letter attached marked “LC12”).
13.16
Bowman Gilfillan responded on the same date. In the letter it was noted that the
Appellants’ request for an undertaking was based on one or more appeal that
they had apparently made to the DMR. It was therefore requested that CALS
provide a copy of each of the appeals made by the Appellants, to enable it to
take instructions from the Company on the Appellants’ latest request for an
undertaking.
13.17
Despite the alleged urgency of the Appellants’ request for an undertaking, no
response was received to the letter. Bowman Gilfillan therefore sent a further
letter on the morning of 26 March 2010 (attached as “LC13”), referring to the
letter of 24 March 2010 and requesting acknowledgement of receipt of this letter.
Copies of the Appellants’ appeal(s) were also again requested and arrangements
for the service of the urgent papers that had been threatened were included in
the letter.
13.18
A further undertaking request was requested by the Appellants in a letter from
CALS on 20 May 2010, on the basis that the Company was allegedly undertaking
unlawful activities. The Appellants demanded various undertakings from the
Company, failing which the Appellants would proceed the appropriate
action, including approaching a court for the appropriate relief. (A copy of
this letter is attached, marked “LC14”).
13.19
It is apparent from the above exchanges that the Appellants have been aware
since 2 February 2010 that the Company had been granted a mining right,
almost three months before lodging the appeal.
13.20
Since lodging the appeal, they have taken no steps to pursue the suspension of
the EMP or mining right, despite threatening this. In the interim, the Company
has, as it is required by the MPRDA, commenced with its mining preparation
work. At the time of filing this Appeal Response the Company has been on site
for four months since 19 March 2010 when the EMP was approved.
13.21
In the circumstances, setting aside the mining right will have a detrimental impact
Page 36
on the Company and also potentially on the environment. Operations on site are
presently being conducted in accordance with the EMP; environmental
monitoring, protection and rehabilitation is undertaken pursuant to this EMP.
13.22
As set out above, a number of activities and contractors have been mobilized to
and around the mining area. Implementation of the Social and Labour Plan
(“SLP”) has started. Approximately 850 people are presently employed on site.
13.23
There is no basis to prejudice the Company, which on all accounts has properly
and responsibly followed the necessary authorisation processes, for inaction on
the part of the Appellants.
13.24
The Company has sought throughout this process to engage in a constructive
manner with those, including the Appellants, who oppose the granting of this
mining right. It still contends that such constructive engagement is the only way
that the issues raised by the Appellants will be resolved.
14.
Paragraph 8.1.1 of the appeal template – consultation with I&APs
An extensive consultative process, as set out in paragraph 5.3 above, was undertaken
with I&APs.
15.
15.1
Paragraph 8.1.2 of the appeal template – the EMP had not been finalised
As is apparent from the above, an extensive process of engagement with the
DMR was followed in respect of the EMP. This process culminated in November
2009.
15.2
As such, the EMP was finalized by the time the mining right was granted on 2
February 2010.
15.3
As is common practice within the DMR, the EMP was formally approved on 19
March 2010, the same day as the mining right was executed with the DMR.
16.
16.1
Paragraph 8.1.3 – significant objections had been raised which had not been addressed
This comment contradicts the one made in 8.1.1 of the appeal template. On the
Page 37
one hand it is contended I&APs were not consulted, on the other that I&AP
comments are alleged not to have been taken into account.
16.2
In respect of those comments previously made, as is clear from the Response
List in Annexure “LC1”, there was no reason why the issues raised by I&APs
needed to be dealt with in the EMP. But in any event, the decision maker had all
of these detailed comments and the Company’s response to all the comments at
the time the decision to approve the EMP was made.
16.3
Accordingly, these comments already made and responded to do not provide any
grounds for setting aside the mining right approval.
17.
17.1
Other general comments
The Appellants conspicuously in their comments and appeals entirely omit the
fact that there is existing mining activity closer to the National Park than the Vele
Colliery and that the area is under extensive, and in may cases environmentally
destructive, agricultural practices.
17.2
These are truly inexplicable omissions. Moreover, there is extensive criticism
leveled against the Company for failure to consult communities on the other side
of the international border in Botswana and Zimbabwe. Apart from the fact that
this criticism (which is dealt with substantively below) is factually incorrect, the
claim that the mine will interfere with aspirational cross-border conservation
initiatives is undermined by the existence on a colliery on the Zimbabwe side,
directly opposite the Vele Colliery. These issues are address in the appropriate
places in detail below.
III.
THE MAPUNGUBWE ACTION GROUP APPEAL SUBMISSION
18.
General comments on the Appeal
18.1
18.1.1
I&APs in the Public Participation Process
This organization was formed specifically to oppose the grant of a mining
right to the Vele Colliery. Many of members of this organization, including
Page 38
its Chairperson Mr. Nick Hiltermann, Mr. Paul Hatty and the
representatives of the Machete community were I&APs in the public
participation process described in paragraph 5.2 above.
18.1.2
Not all of these I&APs provided comments in the public participation
process. For those that did provide comments, these were all responded
to by the Company in the Response List (Annexure “LC1”).
18.1.3
Accordingly, these comments already made and responded to do not
provide any grounds for setting aside the EMP approval.
18.1.4
There are also a number of new comments made by this Appellant. As
set out above, the I&AP process followed allowed all parties more than
sufficient time to make their comments. In general, none of the I&APs
that responded conveyed that they had additional comments which they
wished to make.
18.1.5
Nevertheless, this Appellant appears to believe that it should have an
unlimited number of opportunities to provide further reasons why a mining
right should not have been granted to the Company.
18.1.6
At no time has this Appellant suggested actions on the part of the
Company which may have prevented it from timeously submitting its
reviews in the I&AP process.
There were no such actions by the
Company; it complied with the requirements for public participation
conscientiously and properly in the authorisation process.
18.1.7
This Appellant also gives no indication why the comments it presents now
were unavailable at the time comments and review of the EMP were
provided.
We submit that this Appellant should not be permitted to
introduce new material in the course of this appeal process but to confine
itself to material which already forms part of the record.
18.2
18.2.1
MAG is also an Appellant in the EMP Appeal
MAG has also appealed against the decision to approve the EIA/EMP.
Page 39
18.2.2
As discussed below, a large majority of issues in this appeal raise
grounds that centre on the EMP and the adequacy of the EMP.
18.2.3
It is reiterated that the decision to approve the EMP should not be
confused with the decision to approve the mining right. These issues
should accordingly be ignored for the purposes of this appeal.
18.3
Irrelevant grounds of appeal
While we do not believe that there is any evidence of “unacceptable pollution,
ecological degradation and environmental damage” following from the grant of
the mining right, certain of these appeal submissions are completely unrelated to
this ground and accordingly should be ignored for the purposes of this appeal.
19.
Specific responses to the appeal submissions made by the Appellant
19.1
Re 8.3.1: Damage to Sense of Place of Mapungubwe National Park and
World Heritage Site
19.1.1
19.1.1.1
EMP has dealt with sense of place
Detailed modeling of the potential air/dust, noise and visual
impacts of the Vele Colliery has been done.
19.1.1.2
The following specialists reports that were annexed to the EMP
are relevant to this assessment:
19.1.1.2.1
the Visual Study;
19.1.1.2.2
the Noise Study
19.1.1.2.3
the Blasting Study; and
19.1.1.2.4
the Air Study.
19.1.1.3
In addition, the following sections of the EMP which summarises
the specialists’ reports in respect of the potential visual, noise and
Page 40
dust impacts are relevant:
19.1.1.3.1
visual impacts:
pages 89 – 90; 126 – 129; 131; and
136 – 137;
19.1.1.3.2
noise impacts:
pages 76 – 77; 119 – 120; 123 –
126; 130 – 131; and 135; and
19.1.1.3.3
air quality impacts
pages 74; 89 – 90; 115 – 118; 121;
130; and 133.
19.1.1.4
These indicate that in general MNP, located 7km from the most
western boundary of the West Pit and 15km from the Wash Plant,
will not be impacted by the operations of the Vele Colliery.
19.1.1.5
To the extent that there will be an impact, mitigation measures
have been committed to in the EMP.
Reference is made to
Annexure “LC15” for a summary of the impact assessment and
the mitigation measures proposed.
19.1.2
Other potential developments
The Company cannot comment on the possibility of other unrelated
developments and its application must be considered on its own merits.
19.1.3
19.1.3.1
Existing impact on rural character of the area
Mining and intensive agricultural activities has already been
undertaken in the area. Conspicuously, as described above, there
is not a single reference in this Appeal to the existing mining
operations in the area, which are substantially closer to the World
Heritage Site and the MNP.
19.1.3.2
Many of the I&APs noted in their comments the existing impact of
the Venetia Mine on the sense of place within the area.
19.1.3.3
The following developments in even closer proximity to MNP,
Page 41
have already impacted on the sense of place and must be
factored in when assessing this comment:
19.1.3.3.1
Venetia Mine, which is one of the world’s largest opencast
diamond mines, is situated approximately 5.8km south of
the park boundary and is highly visible from MNP. Notably
in this regard, as you will be aware from the relevant EIA,
Vele Colliery will mostly not be visible in this manner as a
result of the topography of the area;
19.1.3.3.2
Tuli Colliery is situated on the Zimbabwean side of the
Limpopo River, directly opposite the proposed Vele
Colliery;
19.1.3.3.3
mining was being undertaken within the MNP itself at the
time of the UNESCO World Heritage Site application and
is referred to in the recommendation by the Committee as
follows (see pages 56 - 57 and 96 of the application. The
entire application is voluminous and only the relevant
pages are attached as Annexure “LC16”):
“A small portion of the farm Riedel in the eastern part
of the Park has been kept on in the hope that it will
yield profitable mining operations. This site is in the
ancient river course of the Limpopo River.
All
indications are that it is worked out and unlikely to
have an impact on the Mapungubwe Cultural
Landscape.”
19.1.3.3.4
In addition to mining activity, there are presently intensive
agricultural and related activities located in the Limpopo
Valley, which are also visible from MNP. Much of the area
covered by the Vele Colliery has previously been under
intensive agricultural use, overgrazed and stripped of
vegetation through this process.
Page 42
19.2
19.2.1
Re 8.3.2: The Greater Mapungubwe TFCA
While we do not believe that there is any evidence of “unacceptable
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
completely unrelated to this ground and accordingly should be ignored for
the purposes of this appeal.
19.2.2
On 23 January 2009 in a meeting with, amongst others, the DEAT,
SANParks and PPF, representatives of Limpopo Coal were provided with
a Memorandum of Understanding between South Africa, Botswana and
Zimbabwe in respect of the Limpopo/Shase Transfrontier Conservation
Area. The map attached to the MOU does not include the area of the
Vele Colliery (attached marked “LC17”).
19.2.3
The name of this Transfrontier Conservation Area was changed to the
Greater Mapungubwe Transfrontier Conservation Area in mid 2009.
19.2.4
In April 2009 Limpopo Coal was provided with a plan for a proposed
extension of the Limpopo-Shashe/Greater Mapungubwe Transfrontier
Conservation Area. This plan has not been approved through any official
channel.
None of the mandatory consultative processes have been
undertaken in respect of such a plan. This plan showed a desire on the
part of the author to further extend the Limpopo-Shashe/Greater
Mapungubwe Transfrontier Conservation Area, across privately owned
land and to include the area of the Vele Colliery.
19.2.5
Even establishing the initial TFCA area itself is still very much a work in
progress. The PPF presents this as though it were already in place,
which is highly misleading. This is clearly merely a further aspiration to
extend the TFCA in a direction which was never envisaged by the various
governments. See the information regarding this downloaded from the
SANParks, PPF, and DEAT’s websites in May 2009 when the EMP
process was being finalized (attached marked “LC18”). The focus from
the South African government’s websites appears to have been on the
“core” area of MNP itself.
Page 43
19.2.6
The map for the expanded TFCA area notably only has PPF’s logo on it
(attached marked “LC19”).
PPF is an NGO.
It has no authority in
respect of declaration or development of new national parks or protected
areas. Instead, the PPF seeks to use the occasion of this appeal
apparently to pursue its agenda of further extending a TFCA in a manner
that was never initially envisaged.
This, it is submitted, distorts the
existing and real conservation initiatives in the area which the Company is
wholly supportive of.
19.2.7
The Company has not been consulted as a private land owner regarding
a proposed further expansion of the TFCA. This is further indicative of
the lack of substance to this proposed idea. Moreover, the appeal makes
no mention of the obvious effect of a proposal to further expand the TFCA
in a new direction on the existing coal mining operations on the
Zimbabwean side. This was presumably one of the reasons why this
area was not initially included in the initial TFCA, which extended in the
opposite direction.
19.2.8
The Company has put forward its belief, based on the EIA it has
undertaken, that its activities can co-exist with other land uses in the area.
It has frequently expressed its willingness to engage regarding this. The
Company is extremely mindful and supportive of the existing national park
and further meaningful conservation initiatives. It is the Company’s belief,
which formed the basis of its application, that the successful balance
between conservation measures and much-needed development are at
the heart of the legislative and policy framework under which the mining
right has been granted.
19.3
19.3.1
Re 8.3.3: Mapungubwe Cultural Landscape
While we do not believe that there is any evidence of “unacceptable
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
completely unrelated to this ground and accordingly should be ignored for
the purposes of this appeal.
19.3.2
A HIA, which meets the criteria set by SAHRA, has been carried out
Page 44
(Annex-H of the EMP). .
19.3.3
As such, it is specifically disputed that a “full” HIA has not been carried
out.
19.4
19.4.1
Re 8.3.4: Potential Loss of World Heritage Status
While we do not believe that there is any evidence of “unacceptable
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
completely unrelated to this ground and accordingly should be ignored for
the purposes of this appeal.
19.4.2
The Vele Colliery will be located approximately 7 kilometres from the
most easterly point of MNP (attached, please see map marked “LC20”).
19.4.3
As described above, and in the EMP, the area surrounding MNP is
already characterised by mining activity – notably the Venetia Mine is
located 5.8km from the southern border of MNP, which is visible from
MNP, and the Tuli Colliery which is directly opposite the Vele Colliery in
Zimbabwe.
The 2006 Management Plan for MNP acknowledges the
mineral wealth within the broader area around MNP; and the need to
interface the conservation uses within MNP with the mining activities in
the broader area.
19.4.4
In addition to mining activity, there is presently agricultural and related
activity located in the Limpopo Valley, which is also visible from MNP.
19.4.5
In the circumstances, any threat to withdraw World Heritage Site status
for MNP could not be the result of the Vele Colliery, which is located
further away from MNP than the existing mining operations.
19.5
19.5.1
Re 8.3.5: The Land Use wishes of MAG members
While we do not believe that there is any evidence of “unacceptable
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
Page 45
completely unrelated to this ground and accordingly should be ignored for
the purposes of this appeal.
19.5.2
This section focuses mostly on the desires of the Machete Community.
Representatives of this community were participants in the I&AP process
and did not raise the issues which have subsequently been raised.
19.5.3
The Land Claims Commissioner does not recognize any claim by the
Machetes to the farms on which the Vele Colliery is situated.
The
recognized Land Claimants over some of these farms are the Tshivula
Community, who were also participants in the I&AP process and are
largely supportive of the Colliery. (We note that in the separate appeal
made by the Ga-Machete Economic Development Corporation makes no
mention of this alleged land claim, see paragraph 40 below.)
19.5.4
The Company was aware that the Machete Community had claims over
56 farms adjoining the mining area.
The Machete Community was
therefore registered as an I&AP in the public participation process and
consulted with during this process.
19.5.5
It has also more recently become aware that the Machete Community
claims that it in fact lodged 103 land claims in the area, including over the
mining area.
The Land Claims Commissioner however advised the
Company that it only has record of 56 land claims by the Machete
Community and no claims were submitted by the Machete Community
over the mining area.
In a letter of 20 October 2009, attorneys
representing the Machete Community required that the Company
suspend all activities associated with the applications for authorisations to
carry on mining activities pending application to the Land Claims.
19.5.6
The Company did not agree to this unreasonable request, which had no
legal grounds. It is unlikely that the Machete Community will in fact be
successful in its land claim over the mining area.
The Land Claims
Commissioner has no record of such claims and the period for lodgement
of claims in terms of the Restitution of Land Claims Act 22 of 1994 has
expired, being 31 December 1998. Secondly, even on the assumption
that the Machete Community is successful in having its land claims over
Page 46
the mining area registered, they would have been in exactly the same
position during the public participation process.
The Company was
obliged to consult with all I&APs during its mining rights application,
regardless of whether they were surface rights holders, land right
claimants or neighbours to the mining area. The Machete Community
was consulted with and had every opportunity to provide its views during
the application.
These were considered and responded to by the
Company.
19.5.7
Correspondence from the Vhangona National Cultural Movement is
included but not specifically dealt with in the Appeal. The Correspondent
appears to be under a mistaken apprehension regarding the location of
the Vele Colliery in relation to MNP.
19.5.8
With respect to the other land users in the area and their land use wishes
expressed in this document, the Company can only point out again that
part of the land over which the Vele Colliery will be constructed is
presently used for intensive agriculture; there are existing mining uses in
the area; and the mineral wealth of the area is acknowledged by the MNP
and by the Development Planning documentation for the province.
10
In
this regard we attach a spatial development review that was done by
Pieterse du Toit & Associates (attached marked “LC21”).
19.5.9
The employment benefits of mining have been shown to far out strip
those of tourism and the needs and wishes of all within the community
must be balanced. We attach a summary of the Vele Colliery project and
the positive impact anticipated from the project (Annexure “LC22”). The
following employment will be created, calculated on a national scale:
19.5.9.1
Construction phase – during the 3-year construction period,
contractor labour levels will peak at approximately 2,500
employees. A large percentage of employees will be targeted to
be drawn during this period from the local area.
The macro-
economic model in the EIA found that the indirect employment
opportunities would amount to 12, 926.
Limpopo Employment, Growth & Development Plan 2009 – 2014; Limpopo Province Spatial
Development Framework; and Musina Spatial Development Framework Plan (June 2005)
10
Page 47
19.5.9.2
Operational phase – The proposed new development will employ
approximately 826 permanent employees with varying skills,
implying an impact on the direct livelihood (direct workers and
dependents) of approximately 1, 495 people. Indirect employment
opportunities amount to 28, 255 during the operational phase.
19.6
19.6.1
Re 8.3.6: Loss of Tourism and Agriculture based jobs
While we do not believe that there is any evidence of “unacceptable
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
completely unrelated to this ground and accordingly should be ignored for
the purposes of this appeal.
19.6.2
The impact of mining on neighbouring farmers will be continuously
monitored and mitigation measures are in place to ensure no adverse
impacts occur.
19.6.3
The mine has not been “evasive”. The SEA Study and SLP includes
details of the jobs to be created and the local skills development
programmes to be undertaken.
19.6.4
The Company maintains that its use can coexist with other existing uses
in the area.
19.7
19.7.1
Re 8.3.7: Substantive issues raised by NGO’s and independent experts
While we do not believe that there is any evidence of “unacceptable
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
completely unrelated to this ground and accordingly should be ignored for
the purposes of this appeal.
19.7.2
All issues raised in the I&AP process were comprehensively answered in
the Response List. (See Annexure “LC1”).
Page 48
19.7.3
All issues raised and the Company’s responses were before the decision
maker.
19.8
Re 8.3.8 International impacts and international legal obligations
19.8.1
There are existing mines in Zimbabwe that fall within the TFCA.
19.8.2
All potential pollution impacts have been assessed in the course of
preparing the EIA/EMP and mitigation measures have been committed to
in respect of these.
19.8.3
A number of Botswanan and Zimbabwean I&APs were registered in the
process. In particular, Geoff Norris from the Northern Tuli Game Reserve
acknowledges in his attached letter this registration.
He participated
extensively and submitted a number of comments in the process.
In
addition, Northern Tuli Land Owners Association, Nottingham Estates and
Sentinal Ranch were all I&APs in the process
19.8.4
No impact could be discerned in the EIA/EMP on Mozambique, which is
situated 189.63 kilometers away, nor is there a plausible basis to suggest
such an impact.
19.9
19.9.1
Re 8.3.9 Further issues of concern
The issues addressed in this section have all been addressed in the
EMP.
Impacts on Water Resources
19.9.2
As set out in the Response List, (Annexure “LC1”), 11 Eskom has advised
that no dam is being built. The potential impact on water resources was
extensively assessed in the Surface Water Study (Annex-D of the EMP)
and no impact is anticipated on the Limpopo River and surrounds.
19.9.3
11
There will be no mining on the banks of the Limpopo River or in the 1:100
Page 99 of the Response List
Page 49
years floodline.
19.9.4
12
Leshika was appointed to provide response to the water related issues
raised by the Appellant (the “Leshika Response”). A copy of this report is
attached as Annexure “LC23”.
Leshika furnished the following
responses in respect of MAG’s contention that the Vele Colliery will result
in water usage/ supply stress; and that downstream pollution will result:
19.9.4.1
mining will result in less stress on the Limpopo River, as water
demands will be reduced by the reduction of irrigation.
Saline
irrigation return flows will also be reduced. Saline return flows
have already impacted the riverine vegetation; and
19.9.4.2
comparisons with Witbank are not valid since the acid-base
relationship of the coal and overburden is not the same, nor are
climatic conditions.
Witbank is an area of water surplus.
In
contrast, the Vele Colliery is in area of water deficit with no natural
base flow generation.
Impacts on Air Quality
19.9.5
The contention that dust modeling was not conducted on the West Pit is
incorrect. As indicated in the Air Study, the ISC-ST3 model was used for
the dispersion modelling.
Source data was obtained for the site and
included in the model for use in this assessment.
All processes and
sources were provided for this project; and included in model runs to
determine the potential impacts from the site (this included the
information provided for the West Pit).
19.9.6
The Air Study Specialist concluded that the fact that the impacts from the
West Pit do not reflect on the isopleths plots is an indication that there are
other sources which are responsible for more significant impacts. These
impacts from other sources override the impacts expected to result due to
the West Pit operations.
Attached is a supplementary report from
Bohlweki SSI, confirming this (attached marked “LC24”).
12
Page 121 and Figure 1.3.3 of the EIA/EMP .
Page 50
Biodiversity
19.9.7
An integrated approach to biodiversity was taken in the EMP, as is best
practice, since issues overlap and there are many interdependencies. 13
19.9.8
All fauna, flora and avifauna were assessed comprehensively.
No
cheetah or wild dogs are expected to be present on the farms on which
mining will be undertaken, only within the region or on the surrounding
properties. 14
19.9.9
Water uses will be less than the existing agricultural allocation.
15
One of
the biodiversity offset programmes the Company has committed to
pursue will be to restore riverine forest where this has been damaged by
misuse in the past.
16
Permits will be obtained for all protected tree
relocations, as part of the Rescue and Relocation Plan. 17
19.9.10
The Company’s experts believe it may be possible to restore Mopane.
The Biodiversity Study (Annex-C of the EMP) addresses the difficulties of
vegetation restoration in arid areas (see page 67). As stated above, page
69 of the Biodiversity Study refers to the research on vegetation
restoration in arid areas, and specifically in the Limpopo River Valley by
the Northwest University. The research reflects that mine rehabilitation in
Mopani veld in the Limpopo River Valley can be done successfully.
19.9.11
The Company will only recruit from a central location in Musina.
No
workers will be accommodated on site. 18
20.
20.1
This appeal should be dismissed
For the reasons set out above, this Appellant has not set out grounds for the
mining right to be set aside.
Pages 48 – 57 of the EMP and page 2 of the Response List.
See Table 2.1.1.8 on page 56 of the EIA/EMP
15 Pages 61 – 62 and 133 of the EIA/EMP
16 Page 5 of the EIA/EMP
17 Pages 113 – 144; Table 2.2.9 on page 141 and Table 2.6(a) and (b) on pages 157 – 160; and Table
2.6(f) on page 164 of the EIA/EMP
18 Page 28 of the EIA/EMP
13
14
Page 51
20.2
IV.
The appeal should accordingly be dismissed.
THE ENDANGERED WILDLIFE TRUST APPEAL SUBMISSION
PARAGRAPHS 5 AND 8
21.
21.1
21.1.1
General comments on this Appeal
I&AP in the Public Participation Process
This organization was a registered I&AP in the public participation
process.
21.1.2
As stated above, it conducted an independent review of the EMP on
behalf of other I&APs. The Reviewer’s comments were all responded to
by the Company in the Response List (Annexure “LC1”).
21.1.3
Accordingly, these comments already made and responded to do not
provide any grounds for setting aside the EMP approval.
21.2
21.2.1
Additional grounds of appeal not mentioned in I&AP response
There are also a number of new comments made by this Appellant. In
particular, the EWT now seeks to put forward a completely new specialist
review of how water issues are dealt with in the EMP. The brief desk top
review by Carin Bosman of Sustainable Solutions is attached to EWT’s
appeal as Annexure “B”.
21.2.2
This new water review is submitted despite the fact that the EWT
commissioned, on behalf of itself and other I&APs, the SAIEA review of
the EMP. Water issues are addressed in detail in the SAIEA review and
nowhere does SAIEA mention that they lack water expertise or that they
will need additional time to undertake a water review.
21.2.3
As set out above, the I&AP process followed allowed all parties more than
sufficient time to make their comments and perform such reviews as were
Page 52
required.
The five page desktop review could hardly have required
significant time to perform. Sustainable Solutions mentions at the end
this review that it had very limited time to perform the review (which is
dated 14 March 2010) so it was obviously not asked to undertake it during
the I&AP process. Rather, this was obviously commissioned following
recognition by the EWT that the SAIEA review, which was included in the
I&AP process, did not deal adequately with water issues.
21.2.4
EWT did not at any stage convey that it had additional comments which it
wished to make in respect of water issues or that it did not stand by the
water comments made by SAIEA.
21.2.5
Nevertheless, the EWT appears to believe that it should have an
unlimited number of opportunities to provide further reasons why a mining
right should not have been granted to the Company.
21.2.6
At no time has this Appellant given an indication that any actions of the
Company prevented it from timeously submitting its reviews in the I&AP
process, nor could there be any such suggestion as the Company
properly and diligently followed the authorisation process as described
above. It also gives no indication why the comments it presents now
were unavailable at the time comments and review of the EMP were
provided.
21.2.7
The Company submits that this Appellant should not be given the
opportunity to include these new criticisms now.
21.2.8
Notwithstanding this, the Company responds to the new material below
within the context of the appeal process.
21.3
EWT is also an Appellant in the EMP Appeal
21.3.1
EWT has also appealed against the decision to approve the EIA/EMP.
21.3.2
As discussed below, a large majority of issues in this appeal raise
grounds that centre on the EMP and the adequacy of the EMP.
Page 53
21.3.3
It is reiterated that the decision to approve the EMP should not be
confused with the decision to approve the mining right and these issues
should be ignored for the purposes of this appeal.
21.4
21.4.1
Contradictions between the EMP and Mining Right Appeal
As is set out above, the SAIEA review which is attached to the EWT
Appeal is contradicted, without any explanation, by the EWT in the EMP
Appeal. This review is also seemingly abandoned in the EMP Appeal and
is hardly referred to at all.
21.4.2
It is submitted that because of this the SAIEA Review should be ignored
entirely for the purposes of this appeal.
21.5
Irrelevant grounds of appeal
No evidence is raised in EWT’s appeal of pollution for which a mitigation plan has
not been made; no evidence of ecological degradation that does not follow
automatically from a mining approval is shown and no unacceptable damage to
the environment is alleged. This is discussed in the response to EWT’s grounds
of appeal below.
22.
22.1
22.1.1
Summary of main appeal submissions
Re 9.3.3.1.1 and 9.3.3.1.2: Summary finding of CBSS Review
The Appellant makes a generalised statement that the potential impacts
on quality and quantity of surface and groundwater resources have not
been adequately identified and some impacts have not been identified at
all. It is contended that not all potential receptors of these impacts have
been identified.
22.1.2
The Company’s responses in to the Appellant’s specific allegations are
discussed below.
22.1.3
It is reiterated that the Company instructed specialist in both groundwater
and surface water, to thoroughly assess the impacts and potential
Page 54
receptors of these impacts; and compile an extensive report. These are
attached as Annex-D and Annex E to the EMP.
22.2
22.2.1
Re 9.3.3.2.3: Summary finding of CBSS Review
The Appellant makes a generalised statement that the mitigation
measures in respect of groundwater and surface water impacts are either
lacking or inadequate.
22.2.2
The Company’s responses in to the Appellant’s specific allegations are
discussed below.
22.2.3
The Company has compiled a detailed EMP, which includes the
mitigation measures proposed by the surface water and groundwater
specialists to mitigate any potential impacts they identified.
This is
included in pages 156 – 166 of the EMP.
23.
Specific responses to the appeal submissions made by the Appellant
WATER QUANTITY, SUPPLY AND FOOD SECURITY
23.1
23.1.1
Re 9.3.3.2.1: Groundwater availability
While we do not believe that there is any evidence of “unacceptable
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
completely unrelated to this ground and accordingly should be ignored for
the purposes of this appeal.
23.1.2
It is completely incorrect that the water quantity required by Vele Colliery
will lead to severe damage and loss to irrigation farmers on both sides of
the river, due to loss of available groundwater; and dewatering of the
primary aquifer at a rate of more than 50 million cubic metres per annum.
23.1.3
Firstly, dewatering the primary aquifer is not physically possible due to its
high permeability and hydraulic connection with the Limpopo. This is
therefore a completely baseless allegation.
Page 55
23.1.4
In addition, the demand for groundwater at Vele Colliery during full
production is approximately 4, 200 cubic meters/day, which amounts to
1.533 million cubic metres per annum and not 50 million cubic metres per
annum as stated. The current use from the aquifers is estimated to be in
the order of 51.874 million cubic metres per annum.
23.1.5
Vele Colliery’s demand is thus in the order of 3% of current use.
23.1.6
The maximum mine water use will be 4, 200 cubic metres per day
(average 3, 500 cubic metres per day) and not 5, 000 cubic metres per
day as stated. Further, the basic calculation made to convert this daily
use to annual use is incorrect. The annual use is only 1. 278 million cubic
metres (3, 500 X 365 = 1, 277, 500 cubic metres) which translates to only
116 ha (1, 278 000 / 11, 000 cubic metres per ha = 116 ha) currently
under irrigation (at 11 000 cubic metres per hectare per annum) not 6,000
hectares as alleged.
23.1.7
In fact, the current irrigation areas within the Overvlakte and Weipe
aquifers do not even amount to 6, 000 hectares (refer to Table 4.3.9.1,
page 37 of the Groundwater Study (Annex-E of the EMP).
Portion
23.1.8
of Registered Water Use (million m3/a)
Overvlakte
River
Boreholes
Total
Storage (m3)
5
1.1
3.0262
4.12
24,500
3
1.1
1.9
3
-
4
1.1
0.23
1.33
74,000
TOTAL
3.3
5.1526
8.45
98,500
The existing water rights have been transferred to Harrisia Investment
Holdings (Pty) Ltd.
23.1.9
The water use requirements are for the mine and associated processing.
This includes requirements for potable use and irrigation of rehabilitated
areas. The difference between the registered water use and actual usage
on Portions 3, 4 and 5 of the Farm Overvlakte 125 MS amounts to 3, 08
million cubic metres per annum; being double what the mine requires.
Page 56
23.1.10
The mining activities will therefore not impact on the current agricultural
activities; which leads to a positive scenario of co-existence between the
two land uses. The Department of Agriculture Forestry and Fisheries
(“DAFF”) has confirmed that it is satisfied that, in the ordinary course,
agriculture will not be adversely affected by the mining activities. (See
attached letter “LC25”).
23.1.11
This extreme exaggeration demonstrates a real lack of understanding of
the EMP and specialist studies and is a patently unfounded allegation.
23.2
Re 9.3.3.2 (i) No assessment of hydrology or geohydrology on Zimbabwe
The irrigation on the Zimbabwean side was taken into account (refer to Table
4.3.9.1, page 37 of the Groundwater Study, Annex-E of the EMP).
23.3
23.3.1
Re 9.3.3.2 (ii) to 9.3.3.2(vi): Recharge of primary aquifer
Recharge rates have been modelled both with modflow and via
calculation of transmission losses to sustain the irrigation. Low recharge
rates are substantiated by the calibrated model. River losses are high to
the primary aquifer, largely due to irrigation abstraction. The opencast
mining does not overlap with current abstraction from the primary
irrigation; hence it will not be dewatered.
23.3.2
As stated above, dewatering the primary aquifer is not physically possible
due to its high permeability and hydraulic connection with the Limpopo
River. It is repeated that this is a completely baseless allegation and
there can be no grounds for alleging that the dewatering of the primary
aquifer will have a severe effect on landowners on the South African side
of the Limpopo River who utilise the aquifer for irrigation.
23.3.3
Figures were confirmed by a water balance (Refer to paragraphs 5.1, 5.2
and 5.3 of the Groundwater Study (Annex-E of the EMP).
The
Appellant’s contention that no determination was made with regard to the
contribution from the Limpopo River to the aquifer; or from the aquifer to
the base flow of the Limpopo River is incorrect.
River losses to the
Page 57
primary aquifer were calculated via modflow and calibrated. There is very
little baseflow from the secondary aquifer, due to low recharge and
evapotranspiration by riverine vegetation, hence the river is dry for
extended periods. This is indicative of lack of baseflow and low recharge.
Under natural conditions, baseflow is almost non-existent and river losses
are low.
Due to high irrigation demands, river losses have become
extensive.
23.3.4
The Appellant has not based its conclusions in paragraph 9.3.3.2 v(i) on
accurate information.
It is therefore in no position to assess the
likelihood, duration and magnitude of this impact.
23.3.5
On the grounds of the Company’s specialist report and thorough
investigations (see the Groundwater Study (Annex-E of the EMP)) this
issue clearly will not result in “unacceptable pollution, ecological
degradation and environmental damage” and accordingly should be
ignored for the purposes of this appeal.
23.3.6
A recent study by Leshika on the sustainability of the Overvlakte aquifer
has shown that the sustainable yield of the aquifer is sufficient to meet the
mining and citrus irrigation needs at a high level of assurance, with water
available at a lower level of assurance for the cash crops. Reference is
made to the Groundwater Study. 19
23.3.7
The impact on food security is that only 116 hectares of arable land will
be lost. This is presently used for commercial cash crops and, as such,
has little impact on food security in the real sense.
The allegation
regarding the impact of the Vele Colliery on food security is therefore
again a clear exaggeration by the Appellant.
WATER QUALITY
23.4
Re 9.3.3.2 (i): Evaluation of impact on Zimbabwe
The potential impact on the shared water resource, in terms of both quality and
quantity, has been quantified in detail, taking full consideration of the potential
19
Page 46 of the Groundwater Study (Annex-E of the EIA/EMP).
Page 58
impact on the irrigation farmers in Zimbabwe.
In fact, Tuli Colliery, a
Zimbabwean coal mine is situated directly opposite Vele Colliery. This fact is
inexplicably repeatedly ignored by this, and other, Appellants.
23.5
23.5.1
Re 9.3.3.2 (ii) – (iii): AMD
The EMP indeed did not quantify the potential for pollution through AMD
as high. This was based on the extensive specialist studies conducted on
this potential impact.
23.5.2
The potential for acid rock drainage was quantified through acid-base
accounting. The waste rock as a whole is not acid generating and the
small volume of slurry which has high pyrite content will be buried below
the water table, preventing acid generation. Waste rock will be buried in
the pits INSIDE the Karoo rocks and hence are not in the primary aquifer.
23.5.3
Reference is made to paragraph 2.2.6.2 of the EMP (page 122):
“Acid-base accounting results show that the coal samples (and
thus the discard / middlings) are likely acid generating, as are the
carbonaceous mudstones.
The upper 20m of overburden is
strongly neutralising. The acid generating material is expected to
be a maximum of 10-20% of the total tonnage disposed of in the
pit. In addition, this material will be placed in the bottom of the pit,
where they will be submerged; hence the acid-generating potential
of the material will be restricted. The neutralizing potential of the
waste rock will be available, regardless of its presence above or
below the water table. For this reason, the specialist concluded
that the waste rock is unlikely to generate acid leachate.”
23.5.4
This conclusion is based on the acid-generation potential analysis
performed by the groundwater specialist (paragraph 5.5.2 of the
Groundwater Study, Annex-E of the EMP).
23.5.5
It must also further be noted that the primary alluvial aquifer does not
have exceptional good water quality as claimed, but in fact has poor
Page 59
water quality due to salinisation from irrigation return flows.
20
Attached
as Annexure “LC26” is Leshika’s water monitoring report for the Vele
Colliery, dated February 2010.
The report concludes that the
groundwater of the area is poor, with all boreholes falling in the Class 4
range (being water quality that has dangerous levels of contaminants).
23.5.6
The Appellant’s allegation that this impact is “downplayed”; and that the
overburden and waste rock will cause pollution of the primary aquifer due
to AMD clearly has no foundation. As the waste rock will be buried in the
pits inside the Karoo rocks and not in the primary aquifer, the Appellant’s
contention that this will lead to further contamination and degradation of
the primary aquifer also has no basis.
23.5.7
Based on the Company’s specialist report and thorough investigations
(see the Groundwater Study), this impact clearly will not result in
“unacceptable pollution, ecological degradation and environmental
damage” and accordingly should be ignored for the purposes of this
appeal.
23.6
23.6.1
Re 9.3.3.2 (iv): Mitigation measures for dirty water dams
Dirty water dams will not be built on the primary aquifer for the simple
reason that they would not hold water and also as they would be within
the 1:100 year floodline. Again, this demonstrates that there would be no
way of contaminating the primary aquifer should AMD occur.
23.6.2
Based on the Company’s specialist report and thorough investigations
(see the Groundwater Study), this impact clearly will not result in
“unacceptable pollution, ecological degradation and environmental
damage” and accordingly should be ignored for the purposes of this
appeal.
23.7
23.7.1
Re 9.3.3.2 (v): Capacity of dirty water dams
A detailed water balance during and beyond the operational phase has
been provided in both the Surface Study and Groundwater Study (Annex-
20
Page 32 of the Groundwater Study, Annex-E of the EMP
Page 60
D and Annex-E of the EMP respectively); and is inclusive of the
“leachate”.
23.7.2
The calculations show that the mine area has a negative water balance,
thus no dams to manage dirty water (or leachate) are required. (See the
graph on page 31 of the Surface Study (Annex-D of the EMP)). There is
therefore no basis to establish, as required by the Appellant, the
“proposed capacities of the proposed impoundments” to assess whether
they are adequate.
23.7.3
Based on the Company’s specialist report and thorough investigations
(see the Groundwater Study and Surface water Study), this impact clearly
will not result in “unacceptable pollution, ecological degradation and
environmental damage” and accordingly should be ignored for the
purposes of this appeal.
23.8
23.8.1
Re 9.3.3.2 (vi) and 9.3.3.2 (vii): Treatment of water and AMD
There are dirty water dams which have been designed to cater for the
1:50 year storm event, thus to capture the runoff from the “dirty” or
process areas
23.8.2
As stated in paragraph 1.3.4.3 of the EMP, “a closed system is being
designed whereby all water is recycled for use in the process”. No dirty
water will be discharged into any stream or river during the operational
phase and thus no treatment is required. The EMP further states that
potential decant (post-closure) must be contained and one of the
following measures implemented: 1) treat to an acceptable level before
released into the environment, 2) store and evaporate and 3) use for
irrigation of crops and rehabilitated areas.
These options must be
evaluated during the life of mine and included as part of the mine closure
plan. 21
23.8.3
It is reiterated that all dirty water will be recycled for reuse within the
process. To state that the proposed mitigation measures do not reflect
Best Practice, as outlined in the Best Practice Guideline for Water
21
Page 129 of the EIA / EMP
Page 61
Management at Mines, 2008 (which is not a legal requirement) or section
22 of the NWA is insupportable.
23.8.4
Based on the Company’s specialist report and thorough investigations
(see the Groundwater Study and Surface water Study), this impact clearly
will not result in “unacceptable pollution, ecological degradation and
environmental damage” and accordingly should be ignored for the
purposes of this appeal.
SOCIO CULTURAL USE OF WATER
23.9
23.9.1
Re 9.3.3.2.3
There are absolutely no grounds for this contention raised by the
Appellant.
23.9.2
The Vele Colliery will not abstract more water from the Limpopo River
than was abstracted previously.
Furthermore, as a closed system is
being designed, whereby all water is recycled for use in the process, the
operations will not impact on the water quality of the Limpopo River.
23.9.3
Based on the Company’s specialist report and thorough investigations
(see the Surface water Study), this impact clearly will not result in
“unacceptable pollution, ecological degradation and environmental
damage” and accordingly should be ignored for the purposes of this
appeal.
GENERAL OBSERVATIONS
23.10
23.10.1
Re 9.3.3.2.4(i): Economic Benefits
While we do not believe that there is any evidence of “unacceptable
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
completely unrelated to this ground and accordingly should be ignored for
the purposes of this appeal.
Page 62
23.10.2
The Appellant has no basis to contend that the Vele Colliery will have
“limited economic benefit”.
23.10.3
The MEA Study was compiled by specialists in macro-economics, which
concluded that economic benefits will accrue to the Limpopo Province
from the Vele Colliery. It is also repeated that the following employment
opportunities will arise from the operations:
23.10.3.1
Construction phase – during the 3-year construction period,
contractor labour levels will peak at approximately 2,500
employees.
The majority of employees will be targeted to be
drawn during this period from the local area.
The macro-
economic model in the EIA found that the indirect employment
opportunities would amount to 12, 926.
23.10.3.2
Operational phase – The proposed new development will employ
approximately 826 permanent employees, resulting in an impact
on the direct livelihood (direct workers and dependents) of
approximately 1, 495 people. Indirect employment opportunities
amount to 28, 255 during the operational phase.
23.10.4
LCC has also begun with implementation of its SLP, which is part of its
Mining Right.
This provides for the upliftment of its labour force and
community members in the Musina Local Municipal and Vhembe District
Municipal Area. In terms of the MPRDA, LCC is obliged to comply with
the provisions of the SLP. In particular, discussions have already started
with the Musina Municipality regarding two important Local Economic
Development projects being the lime project (community project in or
close to Musina); and the water infrastructure project (assistance with the
upgrading of the water supply and sewage infrastructure in Musina).
23.10.5
As stated above, the Development Planning documentation for the
province also supports economic growth through mining. 22
Limpopo Employment, Growth & Development Plan 2009 – 2014; Limpopo Province Spatial
Development Framework; and Musina Spatial Development Framework Plan (June 2005)
22
Page 63
23.11
23.11.1
Re 9.3.3.2.4(ii): Consultations with I&AP in Zimbabwe
While we do not believe that there is any evidence of “unacceptable
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
completely unrelated to this ground and accordingly should be ignored for
the purposes of this appeal.
23.11.2
It is incorrect that I&APs in Zimbabwe were not consulted with or that the
EMP does not address impacts as a result of the mining in Zimbabwe. In
particular:
23.11.2.1
stakeholders from both Botswana and Zimbabwe registered as
IAPs and attended the Open Day, where the project was
presented. Issues and concerns were recorded on a register and
supplied to specialists to incorporate into their specialist studies;
23.11.2.2
all specialist reports identified impacts well beyond the mining
right application boundary and also identified sensitive receptors,
if the predicted impact models showed an impact beyond these
boundaries; 23 and
23.11.2.3
the irrigation on the Zimbabwean side was taken into account. 24
RESPONSES TO SUSTAINABLE SOLUTIONS REPORT
23.12
We set out below the comments in the Leshika Response to the water related
issues raised by Sustainable Solutions (which is attached to EWT’s appeal as
Annexure “B”), which supports and amplifies the Company’s responses set out
above. Some of these comments have already been made above but for the
sake of completeness we repeat them in this section.
23.13
This short desk top report is wrong in almost every respect, including in the basic
calculations and the understanding of the information contained in the specialists’
report. The Ground and Surface Water Studies undertaken for the EMP were
23
Refer to Figure 2.1.1.12 (p77), Figure 2.1.1.15 (page 90 of the EMP), as well as the specialist reports
included as annexures to the EMP
24 Refer to Table 4.3.9.1, page 37 of Annex-E
Page 64
comprehensive undertakings by recognised specialists. We submit that for these
reasons alone the report Sustainable Solutions Report should be ignored
entirely.
23.14
23.14.1
Re 9.3.3.2 (i): Groundwater availability
There are no plans to dewater the “primary” alluvial aquifer.
Existing
irrigation from the alluvial aquifer will be reduced due to the withdrawal
from use of land presently under irrigation. The reduction in irrigation is
greater than mine water use; hence there will be a net reduction in water
use. Dewatering of the poor quality Karoo aquifer is envisaged. The
aquifer is not currently used for irrigation due to the high salt content of
the water. This low quality water obtained during the dewatering process
will be used for mine process water.
23.14.2
The maximum mine water use will be 4, 200 cubic metres per day
(average 3, 500 cubic metres per day) and not 5, 000 cubic metres per
day as stated.
23.14.3
The basic calculation made to convert this daily use to annual use is
incorrect, the annual use is only 1.278 million cubic metres (3, 500
multiplied by 365 = 1, 277, 500 cubic metres), which translates to only
116 hectares (1,278, 000 / 11, 000 cubic metres per hectare = 116
hectares) currently under irrigation (at 11, 000 cubic metres per hectare
per annum) not 6, 000 hectares as alleged.
23.14.4
This is a significant error in the report.
23.14.5
The impact of mining has been quantified on both sides of the river. The
Limpopo River was considered a constant head boundary thus no
impacts will occur across this boundary.
23.14.6
25
It is not correct to say that recharge rates have not been modelled; they
have been modelled with both modflow and via calculation of
transmission losses to sustain the irrigation.
25
See section 1.4 of the Groundwater Study
Page 65
23.14.7
The planned opencast mining will not dewater the primary aquifer and so
will not overlap with current abstraction from the primary aquifer by
irrigation. In fact, dewatering the primary aquifer is not physically possible
due to its high permeability and hydraulic connection with the Limpopo
River. It is not dewatered by irrigation. The figures were confirmed by a
water balance. 26
23.14.8
The EIA describes the hydrogeological assessment done for the
purposes of the mining right application. Further work was undertaken in
support of the IWULA application; and concentrates on evaluation of the
Overvlakte alluvial aquifer in terms of water abstraction. Modflow is the
standard numerical model that was used.
27
Transmission losses are the
losses from the Limpopo River. Existing river loses to the primary aquifer
were calculated via modflow and calibrated.
23.14.9
There is very little base flow from the secondary aquifer due to low
recharge and evapotranspiration by riverine vegetation; hence the river is
dry for extended periods. This is indicative of the lack of base flow and
low recharge. Under normal conditions, base flow is almost non-existent
and the river losses are low. Due to the high irrigation demands, river
losses have become extensive. This is to reinforce the fact that recharge
is low and that the irrigation water actually comes from the river flow.
23.14.10
The impact on food security is that only 116 hectares of arable land will
be lost.
23.14.11
Evaluation shows that the impact will be contained in the pit area and if
decant occurs, it will be treated and/or disposed in an environmentally
safe way. Thus the impact will only be local. Continued monitoring will
also be done to monitor the situation, so that mitigation measures can be
implemented where necessary.
23.15
23.15.1
26
27
Re 9.3.3.2: Water Quality
The potential for acid rock drainage has been quantified through acid-
See sections 5.1,5.2 and 5.3 of the Groundwater Study
See section 5.1 of the Groundwater Study
Page 66
base accounting and found to be non acid generating. The waste rock at
mine as a whole is not acid generating
28
and the small volume of tailings
with the high pyrite content will be buried below the water table,
preventing acid generation. For acid generation the pyrite needs to be
oxidised. If buried below the water table, it is cut off from oxygen and
cannot be oxidised. Waste rock will be buried INSIDE the Karoo rocks;
hence will not be in the primary aquifer.
29
The pits act as sinks, thus all
water will drain towards them. Only once the pits have recovered to the
original water level (many years after mining has stopped) could there be
a potential of decant. The decant water is not expected to be acidic but
will have an increased salt load.
The Groundwater Study specifically
looked at sulphates and showed how the sulphate load would increase.
30
The background water quality also has a high salt load. The impacts are
therefore expected to be minimal.
23.15.2
It is not explained how burying the waste rock in the pits below the level
of the primary aquifer could possibly contaminate the primary aquifer.
The direction of the seepage is downwards. For upwards flow the tailings
would have to be submerged, at which point they are not acid generating.
Dirty water dams will not be built on the primary aquifer for the simple
reasons that they would not hold water and also that they would be within
the 1:100 year floodline.
23.15.3
The primary alluvial aquifer does not have exceptional good water quality
as claimed, but in fact has poor water quality due to salinisation from
irrigation return flows.
24.
24.1
This appeal should be dismissed
For the reasons set out above, this Appellant has not set out grounds for the
mining right to be set aside.
24.2
28
The appeal should accordingly be dismissed.
See section 5.5 of the Groundwater Study
See section 5.5 of the Groundwater Study
30 See section 5.5.3 of the Groundwater Study
29
Page 67
V.
THE
ASSOCIATION
OF
SOUTHERN
AFRICAN
PROFESSIONAL
ARCHAEOLOGISTS APPEAL SUBMISSION
25.
25.1
25.1.1
General comments on the Appeal
I&APs in the Public Participation Process
This organization was an I&AP in the public participation process
described in paragraph 5.2 above.
25.1.2
Accordingly, these comments already made and responded to do not
provide any grounds for setting aside the EMP approval.
25.1.3
There are also a number of new comments made by this Appellant. As
set out above, the I&AP process followed allowed all parties more than
sufficient time to make their comments. In general, none of the I&AP
respondents expressed the view that they had additional comments which
they wished to make.
25.1.4
Nevertheless, this Appellant appears to believe that it should have an
unlimited number of opportunities to introduce further material and
allegations as to why a mining right should not have been granted to the
Company.
25.1.5
At no time has this Appellant given an indication of what actions of the
Company prevented it from timeously submitting its reviews in the I&AP
process. It also gives no indication why the comments it presents now
were unavailable at the time comments and review of the EMP were
provided.
25.1.6
We submit that there were no such actions by the Company and, as such,
this Appellant should not be given the opportunity to include these
criticisms now.
The introduction of new material for the first time on
appeal undermines the statutory process which is designed to ensure that
extensive, and in many cases, technical criticisms are properly ventilated
and considered at the initial stage during the I&AP process.
The
introduction of new material on appeal is prejudicial both to the Company
Page 68
and the decision-makers.
25.1.7
Notwithstanding this, the appeal submissions are flawed, as set out
below.
25.2
ASAPA is also an Appellant in the EMP Appeal
25.2.1
ASAPA has also appealed against the decision to approve the EIA/EMP.
25.2.2
As discussed below, a large majority of issues in this appeal raise
grounds that centre on the EMP and the adequacy of the EMP.
25.2.3
It is reiterated that the decision to approve the EMP should not be
confused with the decision to approve the mining right and these issues
should be ignored for the purposes of this appeal.
25.3
Irrelevant grounds of appeal
While we do not believe that there is any evidence of “unacceptable pollution,
ecological degradation and environmental damage” following from the grant of
the mining right, certain of these appeal submissions are completely unrelated to
this ground and accordingly should be ignored for the purposes of this appeal.
26.
Specific responses to the appeal submissions made by the Appellant
26.1
26.1.1
Introduction
It is difficult to respond to this submission, as much of it concerns
academic and theoretical views. Limpopo Coal and its specialist do not
disagree with many of these academic submissions. What they disagree
with is the relevance of these submissions to the particular proposed
development, which is not in an area which has been set aside
exclusively for heritage preservation, and has instead been the subject of
intensive agriculture for a number of years. It must be noted that:
26.1.1.1
MNP (and even the existing boundary of the TFCA) represent a
huge area set aside for conservation and heritage preservation
Page 69
purposes.
When MNP was established, its boundaries were
demarcated for a reason;
26.1.1.2
there is already mining in the vicinity of the MNP and extensive
agriculture in the area, the area is also unlike the MNP area in
geology and other characteristics; and
26.1.1.3
a comprehensive HIA Study has been conducted. This met the
requirements of the NHRA.
26.1.2
There is specific legislation to deal with heritage impacts, most
specifically the National Heritage Resources Act 1999 (“NHRA”). This
legislation allows for a range of measures to accommodate heritage
artifacts objects and places. Notably the MNP is proclaimed in term of
environmental legislation, as there is no equivalent in heritage legislation.
26.1.3
It is impractical to seek to sterilize extensive areas on account of history.
A large chunk of the area has been preserved in MNP, 7km to the west of
Vele Colliery, and has been given heritage status. Agricultural uses and
mining uses have been undertaken in the area for many years – even by
inhabitants of Mapungubwe.
26.1.4
The ASAPA Appeal appears to refer interchangeable to the MNP and the
broader Mapungubwe cultural landscape. It is only the area of the MNP
that has been given World Heritage Status under the name “Mapungubwe
Cultural Landscape”. The Mapungubwe cultural landscape is in fact an
extensive area and could have stretched as far as Musina in the east.
31
The latter has not been declared a protected area under the Protected
Areas Act; the World Heritage Convention Act 49 of 1999 or National
Environmental
Management:
Biodiversity
Act,
10
of
2004
(the
“Biodiversity Act”). As stated above, it would be clearly inconceivable to
prevent development in areas that fall within the Mapungubwe cultural
landscape, which in any event already incorporates large towns;
widespread agricultural activity and existing mines, including coal mining
on the Zimbabwean side directly opposite the Vele Colliery.
31
Page 6 of the HIA Study
Page 70
26.1.5
Existing heritage resources within the mining area have been identified
during the mining right application in the HIA Study. During the mining
operations, further heritage surveys of all areas to be disturbed will be
conducted. Areas where there is any doubt regarding the presence of
heritage resources, will be disturbed in a slow and systematic manner,
with a suitable heritage specialist present. This will in fact assist with
documenting and understanding the heritage of the area.
26.1.6
The MPRDA requires a heritage assessment which falls within certain
parameters. In particular, an applicant for a mining right must investigate,
assess and evaluate the impact of his or her proposed prospecting or
mining operations on any national estate referred to in section 3(2) of the
NHRA.
32
The MPRDA Regulations
33
provides that an EMP must
include the following in respect of heritage resources:
26.1.6.1
a description of the environmental objectives and specific goals for
historical and cultural aspects, if applicable; 34
26.1.6.2
an outline of the implementation programme, which must include a
description of the appropriate technical and management options
chosen for each historical and cultural aspect for each phase of
the mining operation; and 35
26.1.6.3
action plans to achieve the objectives and specific goals, which
must include a time schedule of actions to be undertaken to
implement mitigatory measures for the prevention, management
and remediation of each historical and cultural aspect for each
phase of the mining operation. 36
26.1.7
This is precisely what has been undertaken. The Appellant’s assertion
that a “full HIA” should have been conducted is baseless and it is unclear
what is sought here.
32
With the exception of the national estate contemplated in section 3 (2) (i) (vi) and (vii)
Published under Government Notice R527 in Government Gazette 26275 of 23 April 2004
34 Regulation 51(a)iv of the MPRDA Regulations
35 Regulation 51(b)i of the MPRDA Regulations
36 Regulation 51(b)ii of the MPRDA Regulations
33
Page 71
26.1.8
Directions for the compilation of HIA are set out in SG 2.2 SAHRA APM
Guidelines the: “Minimum Standards for the Archaeological and
Palaeontological Components of Impact Assessment Reports”.
These
Guidelines are attached as (Annexure “LC27”). The relevant sections of
these guidelines are set out below.
26.1.9
The
process
of
paleontological
assessment
(PIA)
specialist
for
the
archaeological
components
of
(AIA)
heritage
or
impact
assessments usually involves:
26.1.9.1
Initial Pre-Assessment (Scoping) Phase: where the specialist must
establish the scope of the project and terms of reference for the
developer;
26.1.9.2
Phase 1 Impact Assessment/ Specialist Report: which must
26.1.9.2.1
identify the sites;
26.1.9.2.2
assess their significance;
26.1.9.2.3
comment on the impact of the development;
26.1.9.2.4
make
recommendations
for
their
mitigation
or
conservation, or
26.1.9.3
Letter of Recommendation for Exemption (if there is no likelihood
that any sites will be impacted);
26.1.9.4
Phase 2 Mitigation/ Rescue: which involves planning the
protection of significant sites; or sampling through excavation or
collection (in terms of a permit) at sites that may be lost;
26.1.9.5
Phase
3
Heritage
Site
Management
Plan
(for
heritage
conservation): may be required in rare cases where the site is so
important that development will not be allowed. Developers may
also choose to, or be encouraged to, enhance the value of the
sites retained on their properties with appropriate interpretive
Page 72
material or displays;
26.1.9.6
Field survey: Phase 1 AIA generally involve a survey of the
proposed development and will include:
26.1.9.6.1
details of the property to be developed and the type of
assessment;
26.1.9.6.2
location of the sites that are found;
26.1.9.6.3
a short description of the characteristics of each site;
26.1.9.6.4
a short assessment of the importance of each site,
indicating which should be conserved and which mitigated;
26.1.9.6.5
an assessment of the potential impact of the development
on the site/s;
26.1.9.6.6
in some cases, a shovel test, to establish the extent of a
site, or collection of material to identify the associations of
the site. (A pre-arranged permit is required); and
26.1.9.6.7
26.1.9.7
recommendations for conservation or mitigation;
Public consultation and assessment of spatial and visual impacts:
when a Phase 1 Impact Assessment is part of an EIA, wider
issues (such as public consultation and assessment of the spatial
and visual impacts of the development) may be undertaken as
part of the general study and not be required from the
archaeologist.
26.1.10
The HIA Study clearly complied with this Guideline in assessing the
impact of the Vele Colliery on heritage resources.
26.1.11
The only other impacts on heritage resources that could arise from the
mine would potentially be from dust, other air quality impacts or from
blasting vibrations. These wider issues, being the impact of the dust and
Page 73
vibrations from the Vele Colliery on MNP were assessed in the EMP, in
accordance with the SAHRA guideline, which does not require that these
impacts to be assessed by a heritage specialist.
26.1.12
No separate public consultation was undertaken by the heritage
specialist, as a comprehensive public consultation process was
performed as part of the general study.
Discussions were held with
landowners, neighbouring farmers, farm workers, land claimants and
conservation bodies in the area.
26.1.13
Socio-cultural impacts were not mentioned by any of the local people
during the extensive public participation process.
26.1.14
The Company reiterates that is has compiled with the legislative
requirements and SAHRA’s guidelines in the compilation of the HIA
Study. There is no classification of a “full” HIA in these Guidelines and
the Appellant’s comments regarding the nature of this “full” HIA lack any
substance.
26.1.15
As stated above, the objective of a HIA is to identify heritage resources
affected by proposed operations.
For the most part, this involves an
identification of the heritage resources themselves within the affected
area of the development to ensure these are not impacted on by the
development.
26.1.16
Furthermore, in its approval of the EMP the DMR specifically required that
Phase
2
permits be obtained from
SAHRA
where
necessary.
Accordingly, the issue of heritage was considered by the decision maker
in the EMP approval process.
26.1.17
It is submitted that, for these reasons, this discussion of heritage
resources does not provide a basis for the mining right to be set aside.
26.1.18
26.2
Nevertheless, we respond to the substance of the contentions made.
Re 9.3.1 Industrialization will have a permanent negative impact on the
integrity of the heritage and natural landscape
Page 74
26.3
In respect of the Appellant’s allegations regarding the impact on the sense of
place, reference is made to paragraph 19.1 above.
26.4
Reference is also made to the discussion above regarding the interchangeable
manner in which ASAPA refers to the MNP and the Mapungubwe cultural
landscape. To date SANParks has not been able to properly incorporate the
area of the MNP. Any extension of protected area status to private land requires
land owner consent. Reference is also made to the rock art response below,
which explains the real differences in landscape and geology between MNP and
the Vele Colliery area renders questionable the analysis of the damage that will
be done to the “integrity of the landscape”.
26.5
The actual sites that stand to be impacted directly by the mine are discussed
below.
26.6
Please refer to paragraph 19.2 above for a discussion of the boundaries of the
TFCA.
26.7
Re 9.3.2 A number of archaeological sites from different periods will be
destroyed.
Re 9.3.2.1. General
26.7.1
The Company sets out below its responses to the Appellants allegations
regarding the sites to be destroyed.
26.7.1.1
Sites 1, 2, 23, 24, 25 and 26 are in the location of the East Pit.
From the plan it is evident that Sites 2, 24 and 25 are located
outside the East Pit and will not be disturbed. The only sites that
will be disturbed by the East Pit are Sites 1, 23 and 26 in the longterm; due to a change in the mining plan Sites 1 and 23 will not be
immediately disturbed. .
26.7.1.2
Site 21 is in the West Pit. It is correct that it will be disturbed in
the long term.
Page 75
26.7.1.3
Sites 5, 14, 15, 16, 17, 18 and 19 are within or close to the Wash
Plant. None of these Sites will be impacted on; the infrastructure
was placed to ensure that these sites are not impacted.
26.7.1.4
Because Sites 5 and 18 are in close proximity to the Wash Plant
infrastructure they have been fenced off, it was decided to initiate
this immediate action at these Sites in the short-term due to the
potential for impact at these Sites. (see the attached photograph
marked “LC27.1”)
26.7.1.5
Sites 6 and 7 are within the area of the possible railway line route.
Only Site 7 is situated along the course.
The route will be
deviated to avoid impact. Site 6 is situated to the east of the
railway line route and is not in close proximity to it.
26.7.1.6
Site 4 is not close to the head shaft linking the underground
infrastructure; this is depicted on the map. It will not be impacted.
26.7.1.7
Site 22 will not be impacted. The final designs and routing of the
clean water drains around the West Pit have not been finalized.
This site will therefore be avoided.
26.7.1.8
Therefore only 4 of the 26 sites (15%) will be impacted on directly
(or removed).
26.7.1.9
Two graves are present on Portion 3 of the Farm Overvlakte,
close to the Estelle Esterhuyse farmstead. These graves are far
outside the planned mining areas, as they are within the floodplain
these will not be impacted.
26.7.2
It is completely untrue that no mitigation has been suggested for non-Iron
Age Sites.
Comprehensive mitigation measures for all identified sites
have been suggested. Please refer to the Heritage Management Plan
“LC28”.
26.7.3
Please refer to the response to paragraph 9.3.2.3 below for a detailed
discussion of the criticisms of the Stone Age aspects of the HIA.
Page 76
Re 9,3,2,2 Rock art – Specialist not involved in Phase 1 assessment
26.7.4
Whether rock art is indeed present in the mining area as alleged by the
Appellant is doubtful, for the reasons set out below.
26.7.5
The Company requested specialists to provide supplementary comments
on the Appellant’s contention that rock art is present in the mining area.
Their responses are set out below.
26.7.6
26.7.6.1
Frans Roodt
The Appellants make the assumption that the area where Vele
Colliery is located has similar geo-morphological features to the
area within the MNP and area to the west of it. Therefore, it is
extrapolated by the Appellants that, what is present to the west of
the Vele Colliery must also be present at the Vele Colliery.
26.7.6.2
This is a misconception, which clearly reflects the fact that the
Appellants have not been to the site.
26.7.6.3
A site visit makes the distinctions between landscape at the
mining area and to the west (towards MNP) very clear. The core
Mapungubwe area consists largely of flat topped sandstone ridges
and a broken topography, while the mining area contains granite
outcrops, hills and is more undulating with calcrete outcrops.
Furthermore, at the Vele Colliery the fertile floodplains are mostly
under cultivation and disturbed while at Mapungubwe the
floodplains are mostly intact.
26.7.6.4
The impact of these differences on the potential for rock art within
the area of the Vele Colliery is set out below, as confirmed by a
specialist in geology.
26.7.6.5
The geology of the area also determined where people preferred
to settle. Because crop farming was crucial to the Mapungubwe
period, most settlements were likely in close proximity to the
Page 77
floodplain. This can be seen at the extensive Site 4, where large
numbers of grain bin stands are present. As stated above, within
the mining area there has also been widespread cultivation on the
floodplain during recent years which has resulted in further
destruction of heritage sites.
26.7.6.6
Erosion and a dam have severely impacted on Site 4. Due to
reasons discussed above, at the Vele Colliery there is actually a
low frequency of preserved sites.
26.7.6.7
This cultivation has also been conducted particularly to the west of
the mining area up to the MNP boundary.
These areas have
already been extensively disturbed and if any heritage areas
and/or objects were not identified when this land was first
cultivated, this cultivation is likely to have obliterated all trace of
these.
Destructive natural forces, such as erosion, have also
damaged sites to the west of the Vele Colliery.
26.7.7
26.7.7.1
WSM Leshika Consulting (Pty) Ltd
A geologist, at Leshika compiled a report regarding the possibility
of the rock, which was identified by the heritage specialist as
being conducive to rock art, being present on the mining area.
The responses to this possibility are set out below.
26.7.7.1.1
From a geological perspective, it is understood that the
majority of rock art is found in caves prevalent in the
Clarens Sandstone Formation (also known as the cave
sandstone). In the area of the mine/the region the Clarens
Sandstone Formation is made up of two sub-horizons. In
the Tuli Basin these two layers are termed the Red Rocks
Member and the overlying Tshipise Member.
26.7.7.1.2
The Red Rocks member comprises very fine to fine
grained pinkish to red argillaceous (clayey) sandstones of
up to 60 metres in thickness.
The overlying Tshipise
Member consists of fine to very fine yellowish sandstone,
Page 78
varying from 5 to 140m in thickness.
26.7.7.1.3
The Tshipise Member is weathering and erosion resistant,
relative to the Red Rocks Member; and has the tendency
to form flat-topped “koppies”.
Caves are commonly
developed along the contact between the Tshipise and the
Red Rocks Members.
A geological map illustrating the
trace of the contact between the two strata and so the
probable sites for most of the rock art, as provided in
Leshika’s supplementary report (Annexure “LC23”), is
included below. The Tshipise /Red Rocks Member contact
at its closest juncture is 5, 500 metres to the west of the
western limit of the mine.
26.7.7.2
Thus, from a geological perspective, it is highly unlikely that any
rock art sites do exist within the mining area.
26.7.8
26.7.8.1
Jeremy Hollmann
On the 13th, 14th and 15th July 2010 Mr Jeremy Hollmann of the
Page 79
Natal Museum surveyed the affected areas.
Mr Hollmann’s
credentials in respect of Rock Art are set out in his CV attached
marked “LC29”.
26.7.8.2
Mr Hollmann inspected all rock outcrops and other rock features
with potential for rock art, including large, free-standing boulders
and looked for rock paintings, or traces thereof, as well as rock
engravings. However, no traces of rock paintings were found on
any surfaces, or any indication of rock engravings. His conclusion
was therefore that no rock art occurs on these farms.
26.7.8.3
26.7.8.3.1
As a result of his survey he concluded that:
the absence of rock art is a significant finding, given that
parts of the Limpopo Shashe Confluence Area (“LSCA”),
some 25 km to the west of the mining area, are renowned
for rock art. The reasons for this absence are probably
complex and will include environmental and cultural
factors. More archaeological research is thus required, in
order to understand the distribution of rock art in this part
of the province;
26.7.8.3.2
the types of rock on the surveyed mining area differ in
important respects from the painted and engraved rock
surfaces in the LSCA to the west.
The ridges on the
surveyed farms comprise a variety of quartz and
sandstone with large pebbles. The small, rocky hills on the
surveyed farms are composed of gneiss. None of these
rock types seems suitable for rock art, either painting or
engraving.
They are coarse-grained, especially when
compared with the surfaces to the west, which are a
smoother, finer-grained kind of sandstone.
Prehistoric
artists may therefore have considered these surfaces
unsuitable;
26.7.8.3.3
there was very little evidence of Later Stone Age (“LSA”)
flakes and other artefacts. There were also no signs that
Page 80
any of the ridges and hills was inhabited by people using
LSA technology. Whilst it is true that many South African
rock art sites do not show any evidence of occupation, the
suitability of the rock; lack of any other LSA material
culture; and a general absence of water in most of the
rocky areas could suggest that the LSA populations did not
favour these areas for habitation or making rock art.
Rock art in MNP – impact by dust, chemicals, blasting, water
Dust
26.7.9
The air quality model took into account the truck and shovel operations
and have shown that the level of dust generation falls well within all the
SANS standards for air quality,
37
even without any mitigation measures.
With mitigation these are reduced substantially.
26.7.10
Excessive blast-related dust is caused by insufficient or ineffective
stemming material in each hole. The negative impact significance will be
reduced to low with effective stemming controls in place. With these
measures, atmospheric dust is mostly contained to within about 200 m of
blasting. 38
26.7.11
Based on the distances between the rock art sites listed within MNP and
the proposed mining operations, the potential for elevated levels of dust
to be generated in these areas is minimal. Vehicle entrained dust and
exhaust emissions within the MNP would most probably have a much
higher impact than the mine. Similarly, agricultural dust emissions west
of Vele Colliery would most probably have a much higher impact.
Dust Suppression
26.7.12
As for the dust suppression, the mine has decided to utilize a product
called Dustex.
See an attached report marked “LC30” for more
information.
37
38
Pages 115 – 199 of the EIA/EMP
Page 8 of the Blasting Study (Annex-K, of the EIA/EMP)
Page 81
26.7.13
Dustex is a calcium lignosulphonate, which is a non toxic by product from
the wood-pulping process (King, 2005). Lignin is a natural polymer that
binds wood cells together, giving tree bark its flexible properties (King,
2005). Dustex therefore acts as a binder, as it consolidates aggregate to
form a durable, hard, dust free surface (King, 2005). At LignoTech SA,
spent cooking liquor from Sappi Saiccor is sent through a process to
remove wood fibres and the majority of sulphates, leaving behind a
product which contains about 5% calcium, 5% sulphur and 25% reducing
sugars (mainly pentose) with a pH of around 3.5 (King, 2005).
26.7.14
Lignosulphonate is not corrosive and is also highly water soluble (King,
2005). It is commonly used as animal feed pellet binder and also as an
ingredient in micro nutritionist formulations of agricultural products (King,
2005). The only known negative environmental effect associated with the
use of lignosulphonate is the depletion of dissolved oxygen levels in water
(King, 2005). Water microbes will feed on the wood sugar and consume
oxygen in the process (Adams, 1988). This effect, however, will only be
detrimental to aquatic biota if an accidental release of a large amount of
undiluted lignosulphonate was to be released directly into a watercourse.
The normal recommended application rate of 1.3 – 5 tons per acre
therefore poses no threat with regards to surface runoff or groundwater
contamination (King, 2005).
26.7.15
Upon closer investigation it was found that the majority of dust
suppressant products currently available and used in Australia mainly
consist of water absorbing chemicals.
These chemicals are salts
(calcium chloride, magnesium chloride and sodium chloride). As chloride
is highly corrosive, it would explain damage to rock art in downstream
locations.
26.7.16
Lignin, which is not corrosive, forms cohesive bonds to soils and clay and
is very different from chlorides, which is loosely concentrated on the
surface of a road from where it is easily dispersible by moving vehicles
(Adams, 1988). As such, it should cause no damage to rock art.
26.7.17
Another popular type of dust suppressant, currently used worldwide, is
Page 82
organic petroleum based products.
These products contain heavy
metals, as well as volatile organic compounds (“VOCs”) that may be
dispersed into the air when the product is applied (King, 2005). VOC’s
pose strong UV absorbance spectra qualities and would therefore be
associated with the deterioration of painted surfaces.
According to
Adams (1988), the manufacture of lignin involves the process of
evaporation which drives off all volatile components. Tests carried out by
the CSIR on lignosulphonate in its liquid state (to be used at Vele
Colliery) showed that it is completely inflammable and would therefore not
release gasses like CO2, CO and SO2 into the atmosphere in the event of
a fire.
Vibrations from blasting
26.7.18
Blasting activities will occur a minimum distance of 5 000 m from any
sites containing rock engravings and rock paintings. At these distances,
vibration amplitudes from blasting will not exceed 1.0 mm/s at any of
these sites at any time during mining.
26.7.19
A vibration of 1 mm/s is very low and generates very low strain on rock.
Natural
phenomena
such
as
wind,
temperature
variations
and
thunderstorms will generate strain on the rock formations higher than the
blast induced vibrations.
Human traffic visiting the site will generate
higher local vibrations than 1.0 mm/s by walking around the area.
26.7.20
Therefore, there is no risk that blasting will pose a higher risk to the sites
in question than those that currently exist. Reference is made to the letter
from the blasting specialist, Tony Rorke in this regard (Annexure
“LC31”).
Water
26.7.21
Leshika included in its report, attached as Annexure “LC23”, a response
to the water related issues raised by ASAPA as follows:
26.7.21.1
a significant portion of the proposed opencast mining areas are in
Page 83
areas already disturbed by present irrigation activities; 39
26.7.21.2
mining does not generate acid rain; rather it is the burning of fossil
fuels which generates sulphur dioxide which dissolves in
atmospheric water, causing the creation of acid, which falls to
earth when it rains. There is no direct link between generation of
sulphur dioxide in a particular area and acid rain in that exact
area. Weather patterns will determine whether and where acid
rain will fall from any particular source of sulphur dioxide. Acid
rain is an area problem, not a point source problem, and covers
large areas downwind of sulphur generating stacks. As no fossil
fuels will be burned for Vele Colliery’s operations, there is no
cause for concern regarding acid rain; and
26.7.21.3
the drop in the water table due to dewatering will not affect
leaching rates. The existing water table is presently well below the
rock shelters in the area. Leaching and recharge are not affected
by dewatering, as rainwater will still percolate naturally to the
water table.
26.8
26.8.1
Re 9.3.2.2 Stone Age
The sites that will be directly impacted by mining activities are discussed
above.
26.8.2
The criticism by the Appellant in these paragraphs is focused on the fact
that the HIA Study was insufficient in a number of respects, as Stone Age
sites may have been overlooked and that a Stone Age specialist was not
include in the HIA team.
26.8.3
It is true that Stone Age is not Frans Roodt’s field of specialist study.
However, as discussed below, Roodt is a qualified Principal Inspector
and, as is set out above, is an experienced heritage practitioner who has
undertaken approximately 500 Phase 1 assessments.
39
See Figure 3.2 of the Groundwater Study
Page 84
26.8.4
Frans Roodt holds a master degree in archaeology, with specialisation in
Iron Age studies.
26.8.5
He has undertaken more than 500 Phase 1 HIAs. His ability to conduct
these surveys is derived not from his specialisation in Iron Age sites but
also from his wide experience in a range of heritage contexts; and
identification of potential heritage sites from a visual inspection of the site.
26.8.6
In this regard, he is registered with ASAPA as a Principal Investigator.
According to the ASAPA, the requirements for a Principal Investigator
are:
“A Masters degree in archaeology and; a) proof of three years full
time CRM practice, b) a portfolio of five phase II projects at Field
Director level; or (c) a clear, detailed motivation and a portfolio of
relevant projects of prior learning or (d) relevant experience of
equal value to the above submitted with the application.” (See the
Guideline document attached marked “LC27”.)
26.8.7
Based on his years of experience Frans Roodt has the ability to recognise
most forms of heritage resources, including spiritual/ritual evidence (even
if only derived from environmental evidence).
26.8.8
Frans Roodt has in past surveys noted and recommended further Phase
2 Assessments for recorded Stone Age remains. For example:
26.8.8.1
Mining development on the farm Maandagshoek 254 KT, Tubatse
municipal area, Sekhukhune District: March 2006;
26.8.8.2
Phase 1 archaeological impact assessment report (scoping):
Anglo Platinum mine – Polokwane sewerage effluent pipeline,
Northern Province.
26.8.9
In both cases he recommended further work that was performed by a
Stone Age specialist.
26.8.10
In the context of a Phase 1 Assessment, the recognition of Stone Age
Page 85
remains and Stone Age bearing gravels is what is important and not their
detailed analysis. It is only during a subsequent Phase 2 Assessment
that the specialised knowledge of a Stone Age specialist would be
required to precisely identify all of the relevant details regarding a site
which was demarcated during a Phase 1 assessment.
26.8.11
An archaeological site can generally be identified in terms of man-made
features; structures; other cultural material and eco-fact; and deposits
resulting from past human activities or induced by past human activities.
One Stone Age flake or one pot shard does not constitute a site. At Vele
Colliery, Stone Age material was noted where eroded gravels were
exposed, as is commonly found all over much of South Africa. During the
initial walkover survey no concentration of material was recorded,
especially in the opencast mining area or infrastructure area, because the
material was scattered over large areas (as was mentioned in the report).
26.8.12
The Appellants’ criticism lies in the fact that only three Stone Age
recordings are contained in the report, namely Sites 20, 21 and 22. This
is because it was where there were noticeably identifiable objects, in
particular:
26.8.12.1
Site 20 is located on a hill and probably constitutes a proper
archaeological site;
26.8.12.2
Site 21 records an incomplete Early Stone Age hand axe that was
exposed in gravels. As one would naturally expect, it not to be in
complete isolation in the gravels, it can therefore be postulated
that it constitutes a site; and
26.8.12.3
Site 22 was the location of a complete Early Stone Age cleaver
that was found on the surface in an area that is not eroded and
was probably transported there in some way.
This does not
constitute an archaeological site.
26.8.13
As stated above, scattered Stone Age bearing gravels were noted in
areas where there will be opencast mining or infrastructure impacts. It is
emphasised that the fact that these occur does not necessarily imply that
Page 86
it is a “site”. This can only be determined during further assessments and
excavations. Because of this, it was recommended that a Stone Age
specialist be engaged when topsoils are removed.
Should it become
apparent that there is sufficient Stone Age material exposed during such
monitoring, a Stone Age specialist will conduct a further study in that
area.
26.9
26.9.1
Re 9.3.2.3.5 Inadequacy of HIA and mitigation measures
The actual sites that will be impacted directly by the Vele Colliery are set
out in the response to paragraph 9.3.2.1 above.
26.9.2
It is reiterated that in the context of a Phase 1 Assessment, the
recognition of historical remains is what is important and not their detailed
analysis. It is only during a subsequent Phase 2 Assessment that the
specialised knowledge of for example Stone Age specialist would be
required to precisely identify all of the relevant details regarding the site
which was demarcated during the Phase 1 assessment.
26.9.3
Chance finds of archaeological sites or remains happen often, even after
thorough searching. For this reason, all areas where any mining activity
is to take place will be re-inspected before mining commences, to ensure
that no undetected site or remains have been missed and to implement
heritage resources management measure for any sites/remains.
26.9.4
This recommendation forms part of the Heritage Management Plan
submitted to SAHRA. Reference is made to the Heritage Management
Plan (Annexure “LC28”).
26.9.5
The Company has committed to the appointment of an archaeologist to
monitor all areas to be disturbed on an ongoing basis.
In addition,
allowance has been made for Phase 2 Assessments, in line with the
Heritage Management Plan developed for Vele Colliery (see Annexure
“LC28”).
26.9.6
The immediate, short, intermediate and long-term management actions
are described below.
Page 87
Immediate actions
26.9.7
Protection: During the HIA a number of heritage sites were identified;
however, only two sites (Sites 5 and 18) will be affected by the immediate
actions at Vele Colliery. As stated above, these sites will be fenced off
and enough provision will be made for the subterranean or ‘unseen’
deposits.
Short-term actions: Year 1 - 2
26.9.8
Phase 1B Assessment: Phase 1B Assessments will be implemented, in
co-operation with SAHRA. These assessments will commence as soon
as a permit is obtained from SAHRA. Test pits will be conducted at Sites
5 and 18 to determine the need for Phase 2 Assessments at these sites.
26.9.9
Intangible Heritage: An Indigenous Knowledge Systems specialist will be
consulted and allowed the opportunity to gather data from relevant
stakeholders.
26.9.10
Recent Historical Background: Information regarding the recent historical
period will be researched. The old mining activities on Bergen Op Zoom
dates from the 1970’s, but will not be directly affected by the mining.
26.9.11
Iron Age: To ensure that all Iron Age occupation sites or signs of previous
land use practises were recorded during the initial survey, additional
surveys will be conducted;
26.9.12
Rock Art: Although no signs of rock art were discovered during the initial
survey or the additional specialist studies conducted by the Company,
attention will again be given to rock faces and shelters, to ensure that
none were missed during these surveys. If any are found, a rock art
specialist from the Rock Art Institute will be commissioned, to assess
these finds and implement mitigation management measures.
26.9.13
Stone Age: A Stone Age specialist will be commissioned to assess the
Stone Age bearing gravels. Most of these are not in the area of initial
Page 88
development and will be phased in.
Intermediate actions: Year 2 - 5
26.9.14
Protection: sites that are not directly threatened by the initial mining will
be protected and assessed.
26.9.15
Phase 1B Assessments: Phase 1B Assessments (test pits) will be
implemented at sites that may be threatened by the expansion of the
mining operations.
26.9.16
Phase 2 Assessments: Phase 2 assessments will be implemented at
Sites 5 and 18, if the Phase 1B Assessments indicate the need for further
work.
Long-term actions (Year 5 onwards):
26.9.17
Protection: Sites that may in the long term be threatened by any activity
relating to the mining development will be protected.
26.9.18
Phase 2 Assessments: Phase 2 Assessments will be implemented at
sites that may be affected by mining expansions; or where the Phase 1B
Assessments indicated the need for further work.
26.9.19
Phase 3 Site Management Plan: A Phase 3 Site Management Plan will be
developed and implemented to ensure the protection of sites that will not
be affected by mining related activities.
26.9.20
As stated above, The Company has submitted the proposed Heritage
Management Plan to SAHRA; however, no feedback has been received
from it.
26.9.21
Sufficient budget has been allowed by the Company for environmental
and heritage aspects, amounting to R19.1 million per annum. Over the
life of the mine this commitment adds up to almost R500 million.
Page 89
26.10
Re 9.3.3 and 9.3.4 Intangible heritage resources
26.10.1
The Company is aware and understands that the area has cultural
significance; this is dealt with in the HIA Study, as well as the EMP.
However, the intangible heritage set out in the EMP Appeal is generic, as
it reflects a value appraisal devoted to the entire “Mapungubwe cultural
landscape” by affected Communities. There are no specific places within
the mining area that they relate to; otherwise it would have been
mentioned by the affected Communities during the public participation
process. It therefore clearly cannot be contended that the Communities
have “deep felt connections” to intangible heritage connected with the
mining area.
As discussed above, neither the relevant legislation nor SAHRA’s
26.10.2
guidelines require that the heritage specialist should have himself
conducted consultations with the Community. These consultations were
undertaken during the public participation process.
The information
obtained through this process was utilised by the heritage specialist for
the purposes of his report. Reference is made to paragraph 26.1.12 and
26.1.13 above.
The Appellants’ contend that oral traditions and indigenous knowledge
26.10.3
should be utilised to investigate the impact of the mining on intangible
heritage. The Company agrees that further information can be obtained
to supplement the HIA. Further work in this regard has therefore been
proposed in the Heritage Management Plan submitted to SAHRA (See
Annexure “LC28”). However, based on the information obtained to date
in the public participation process, it cannot be contended that the Vele
Colliery will impact on intangible heritage values.
26.11
Re 9.3.5 Sense of place
Please refer to the General discussion and the response to paragraph 9.3.1
above.
Page 90
26.12
Re 9.3.6 Destruction of heritage resources
26.12.1
Please refer to the response in respect of paragraphs 9.3.1 and 9.3.2.1
above.
26.12.2
With respect to the allegation that a “piecemeal approach” we repeat that
the HIA Study fulfilled the requirements of a Phase 1 Assessment, as
stipulated in the SG 2.2 SAHRA APM Guidelines: “Minimum Standards
for the Archaeological & Palaeontological Components of Impact
Assessment Reports”.
27.
27.1
This appeal should be dismissed
For the reasons set out above, this appellant has not set out grounds for the
mining right to be set aside.
27.2
The appeal should accordingly be dismissed.
VI.
PEACE PARKS FOUNDATION APPEAL SUBMISSION
28.
General comments on the Appeal
28.1
28.1.1
I&APs in the Public Participation Process
This organization was an I&AP in the public participation process
described in paragraph 5.2 above.
28.1.2
All comments provided in the I&AP process were responded to.
28.1.3
Accordingly, these comments already made and responded to do not
provide any grounds for setting aside the EMP approval.
28.2
28.2.1
PPF is also an Appellant in the EMP Appeal
PPF has also appealed against the decision to approve the EMP.
Page 91
28.2.2
As discussed below, a large majority of issues in this appeal raise
grounds that centre on the EMP and the adequacy of the EMP.
28.2.3
It is reiterated that the decision to approve the EMP should not be
confused with the decision to approve the mining right and these issues
should be ignored for the purposes of this appeal.
28.3
Irrelevant grounds of appeal
While we do not believe that there is any evidence of “unacceptable pollution,
ecological degradation and environmental damage” following from the grant of
the mining right, certain of these appeal submissions are completely unrelated to
this ground and accordingly should be ignored for the purposes of this appeal.
28.4
28.4.1
TFCA
The PPF premises its submission on a purported TFCA, which it says
would be impacted by the Vele Colliery.
As described above, this is
extremely misleading. The TFCA which has been envisaged, known as
the Greater Mapungubwe TFCA, did not incorporate the area in which the
Vele Colliery is situated.
28.4.2
The supposed new TFCA, upon which the PPF now relies, would
incorporate land on which the Vele Colliery, not to mention other mining
and agricultural activities are currently undertaken. This new vision of the
TFCA is at best highly aspirational. No key role players have consented
to it and no steps have been taken to bring it into being.
28.4.3
Accordingly, it is unfortunate that the PPF should use the notion of this
new TFCA to attempt to block the Vele Colliery, when the true challenges
lie in bringing the initial TFCA into being, a task which is itself only in its
early stages.
We refer further in this regard to what is set out in
paragraph 19.2 above, and to the maps which indicate the envisaged
Greater Mapungubwe TFCA.
Page 92
29.
29.1
29.1.1
Specific responses to the appeal submissions made by the Appellant
Re paragraph 9.3.1 Impact on Transfrontier Conservation Area
Please see the response in the MAG response in paragraph 19.2 above,
as well as the response in paragraph 19.1 regarding the sense of place.
29.1.2
In addition, it is denied that the mine is located on the “Main Entrance” to
the proposed TFCA.
29.1.3
It is denied that the approval of the mine should have any international
implications. The mine is not located in the TFCA; and there is a coal
mine directly opposite the Vele Colliery in Zimbabwe. Conspicuously, the
Appellant’s submission entirely omits reference to these fundamental
facts. It is submitted that these omissions of crucial facts cast doubt on
the balance of the appeal.
29.1.4
South Africa’s international treaty obligations are given effect to through
national legislation and other similar acts of domestication. South Africa’s
environmental and mining legislation requires extensive environmental
assessment. Legislation such as the Biodiversity Act go a lot further to
domesticate South Africa’s international treaty obligations regarding the
environment than is found in neighbouring countries or even in most
developed countries.
29.2
Re paragraph 9.3.2: Direct impact on water availability
Detailed specialist studies have been undertaken to study any potential impacts
and ensure mitigation of such impacts. The impact on neighbouring states has
been considered in these assessments. Please refer to Surface Water Study
and Groundwater Study (submitted with the EMP as Annex-D and Annex-E
respectively).
Page 93
29.3
Re paragraph 9.3.3: Cumulative impact on water availability
Cumulative impacts have been referred to in the EMP.
40
The difficulties with
undertaking an assessment of developments that are not yet even planned have
been discussed in the EMP. The Company’s application must be considered on
its own merits.
29.4
Re paragraph 9.3.4; Impact on water quality
Leshika provided the following comments to the contentions raised by PPF in this
paragraph, the mine will:
29.4.1
use less water than the existing irrigation; and
29.4.2
not impact on quality, as it will act as a sink during mining, containing all
potential pollutants.
Only many years after mining stops is there a
possibility of decant. This decant will need to be monitored and treated in
an environmentally friendly way before being discharged. The decant is
not expected to be acidic but will have an increased salt load.
The
natural salt content of the Karoo aquifer in the area is also very high; thus
the impact is expected to be minimal.
30.
30.1
This appeal should be dismissed
For the reasons set out above, this appellant has not set out grounds for the
mining right to be set aside.
30.2
40
The appeal should accordingly be dismissed.
Page 146 of the EMP
Page 94
VII.
BIRDLIFE SOUTH AFRICA APPEAL SUBMISSION
31.
General comments on the Appeal
31.1
31.1.1
I&AP in the Public Participation Process
This organization was an I&AP in the public participation process
described in paragraph 5.2 above.
31.1.2
Birdlife however appears to have chosen not to submit any comments in
this process.
31.1.3
It has chosen instead to now submit an extensive submission, in which it
sets out its perspective on avifauna in the area.
31.1.4
As set out above, the I&AP process followed allowed all parties more than
sufficient time and opportunity to make their comments. Birdlife did not
express any need in that process for more time to make its comments.
31.1.5
Nevertheless, Birdlife appears to believe that it should have an unlimited
number of opportunities to provide further reasons why a mining right
should not have been granted to the Company.
31.1.6
At no time has this Appellant suggested actions on the part of the
Company which may have prevented it from timeously submitting its
reviews in the I&AP process.
There were no such actions by the
Company which reflect that it did not comply conscientiously and properly
in the authorisation process.
31.1.7
We submit that there were no such actions by the Company and, as such,
this Appellant should not be given the opportunity to include these
criticisms now. The introduction of new allegations for the first time on
appeal is highly prejudicial to the Company and the decision-makers; and
undermines the statutory process which is intended to ensure that all
relevant material is ventilated during the I&AP process.
Page 95
31.2
Birdlife is also an Appellant in the EMP Appeal
31.2.1
Birdlife has also appealed against the decision to approve the EIA/EMP.
31.2.2
As discussed below, a large majority of issues in this appeal raise
grounds that centre on the EMP and the adequacy of the EMP.
31.2.3
It is reiterated that the decision to approve the EMP should not be
confused with the decision to approve the mining right and these issues
should be ignored for the purposes of this appeal.
31.3
Irrelevant grounds of appeal
While we do not believe that there is any evidence of “unacceptable pollution,
ecological degradation and environmental damage” following from the grant of
the mining right, certain of these appeal submissions are completely unrelated to
this ground and accordingly should be ignored for the purposes of this appeal.
32.
32.1
Response to the appeal submissions made by the Appellant
The issues raised in this section do not relate to “unacceptable pollution,
ecological degradation and environmental damage” and accordingly should be
ignored for the purposes of this appeal.
32.2
In this Appeal and supporting report by Tembele Ecological Services annexed to
the Appeal, no reference is made to the mining right application or to the actual
studies done for the EMP or any deficiencies in these. It contains interesting
information on birdlife in the area around Vele Colliery but is not directly relevant
to the EMP Appeal.
32.3
While Birdlife states that it was an I&AP, it was obviously represented through
individuals who did not state their affiliation to Birdlife. Birdlife did not make any
comments on the EMP.
32.4
Furthermore, this section comprises almost entirely new comments that have not
previously been made. Accordingly, they should be dismissed for the purposes
of the appeal.
Page 96
32.5
The large number of bird species set out in this Appeal is acknowledged. That a
total of 470 bird species frequent MNP is, however, not unexpected because of
the range of habitat provided through the interface of the western and eastern
sub-regions; migratory routes; the importance of riverine (canopy) habitat along
the Limpopo and alluvial zones; and the provision of large man-made
impoundments.
It is a relatively large area of 25 km radius from the main
entrance to the MNP and the area is an interface of southern and northern subregions and forms.
With the range of habitat provided by MNP and its
geographical position, it would be unusual for it to record fewer species.
Checklists of bird species are built up over many years; the list presented by
Birdlife is obviously a list that has been documented over many years by many
birding enthusiasts.
32.6
It must however be noted that only part of the westernmost reach of the mine is
located within 25km from the main entrance to MNP, a lot of this western area is
presently intensively cultivated and the mine is not included in the Birdlife South
Africa Important Bird Area (SA 001 Vhembe Nature Reserve) as is alleged in
paragraph 9.3.1 of the Appeal. As is discussed below, there is a real difference
in terrain and habitat in the mine area as opposed to the MNP area. There is no
indication of how many of the named species have been seen in the area of the
Vele Colliery itself; or the cultivated lands that will be mined to the west of the
Colliery.
32.7
The occasional records of rare vagrant species over the past number of years
are not unexpected.
The provision of large man-made impoundments is
attractive to the named species, and many records of vagrants have been
recorded in numerous areas, as a result of weather patterns and fluctuating food
levels.
32.8
The Vele Colliery area does not offer the same range of habitat as MNP. In
comparison, the rock-faces (koppies) at the Vele Colliery and the extent of
riverine vegetation are insignificant compared to MNP. Similarly, there are no
comparable wetlands.
It would be highly unlikely that the same number of
species would be recorded at the Vele Colliery. .
32.9
This riparian forest and associated plant communities on the Farm Overvlakte
Page 97
has been already degraded, as have most of the farms west and east of MNP.
(In this regard we refer to the report of Gerhard De Beer attached marked
“LC32”). As rehabilitation at Vele is progressed and less water is abstracted
from the boreholes (than is presently abstracted for farming) an increase in bird
activity will be expected.
32.10
In view of the fact that the Venetia Mine is situated where it is, it is interesting that
a total of 470 bird species have been recorded in the area. The impact of that
mine, despite its lights, noise and habitat destruction, has obviously not had a
significant negative impact on avifauna.
32.11
Venetia is a diamond mine which has much greater lighting needs than a coal
mine. Vele Colliery will have a much smaller area working face at any one time
than Venetia and its lighting will be minimal compared to Venetia.
32.12
The Company has implemented a programme of monitoring of bird species
recorded at Vele. Surveys are conducted by knowledgeable bird enthusiasts in
different areas of varying habitat, which represent the entire range of habitat of
the area. To maintain consistency, the same observers are used. Results, as
recorded per “pentad”, are forwarded to the Avian Demographic Unit, as part of
the Bird Atlas Programme.
Dubious or unlikely records are omitted until
confirmed by further observation.
32.13
It seems highly unlikely that the Vele Colliery will have any noticeable effect on
the number of bird species occurring in the area, or on population numbers. On
the contrary, the reclamation of riverine habitat and the potential of artificial water
impoundment 41 will likely increase local records of bird numbers and species.
32.14
Mitigation measures as committed to in the EMP will further reduce the impact on
birdlife. These include:
32.14.1
development of air blast control measures;
32.14.2
implementation of noise reduction measures;
32.14.3
use of directional or cut-off type luminaries to mitigate light pollution;
32.14.4
limiting speed of truck haulers;
32.14.5
ongoing rehabilitation of disturbed areas;
41
See section 21.6 of the EIA/EMP.
Page 98
32.14.6
development of a biodiversity management plan;
32.14.7
closed system for recycling of dirty water to prevent any water quality
impacts;
32.14.8
rehabilitation of riverine forest and floodplain as part of off-set
programme; and
32.14.9
32.15
ongoing environmental monitoring programme.
It is further important to note that the area in question is not pristine as implied.
The impact of water abstraction, agriculture, security fence and elephants has
impacted on the biodiversity, which also would have had a large impact on the
natural bird population prior to 1979.
This is also applicable on any other
development in the area (We again refer to the De Beer report attached marked
“LC32”).
32.16
The impacts of habitat destruction on birdlife were addressed in the EMP.
Detailed species lists have been provided in the Biodiversity Study.
33.
33.1
This appeal should be dismissed
For the reasons set out above, this appellant has not set out grounds for the
mining right to be set aside.
33.2
The appeal should accordingly be dismissed.
VIII.
WORLD WILDLIFE FOUNDATION OF SOUTH AFRICA
34.
General comments
34.1
No indication has been given by WWF why it has chosen now to join an appeal
brought by participants in the initial I&AP process.
It makes no effort to
distinguish itself from the majority of the Appellants who were all involved in that
process nor to indicate why it is involved in the Appeal but was not involved in
the I&AP process. It has put its appeal submissions on an identical template with
the I&AP participants and, as such, has shown itself to have a common cause
with those Appellants. Accordingly, we do not believe there can be any basis to
distinguish between the Appellants.
Page 99
34.2
As set out above, the I&AP process followed allowed all parties more than
sufficient time to make their comments.
34.3
Nevertheless, the WWF appear to believe that it should have an unlimited
number of opportunities to provide further reasons why a mining right should not
have been granted to the Company.
34.4
At no time have WWF given an indication of what actions of the Company
prevented it from timeously submitting a review in the I&AP process. They also
give no indication why the comments they present now were unavailable to them
at the time they could have provided their comments and review of the EMP and
participated in the I&AP process conducted.
Nor why they did not initially
participate.
34.5
We submit that there were no such actions by the Company and, as such, the
Appellants should not be given the opportunity to include these criticisms now.
34.6
WWF is also an Appellant in the EMP Appeal
34.6.1
WWF has also appealed against the decision to approve the EIA/EMP.
34.6.2
As discussed below, a large majority of issues in this appeal raise
grounds that centre on the EMP and the adequacy of the EMP.
34.6.3
It is reiterated that the decision to approve the EMP should not be
confused with the decision to approve the mining right and these issues
should be ignored for the purposes of this appeal.
35.
35.1
35.1.1
Specific responses to the appeal submissions made by the Appellant
Re 8.3.1: Contamination of water resources
Detailed specialist studies have been undertaken to study any potential
impacts and ensure mitigation of such impacts.
The impact on
Page 100
neighbouring states has been considered in these assessments.
35.1.2
42
It is reiterated, as stated in paragraph 1.3.4.3 of the EMP, “a closed
system is being designed whereby all water is recycled for use in the
process”. No dirty water will be discharged into any stream or river during
the operational phase and thus no treatment is required.
35.1.3
Reference is also made to the response to the EWT contention that the
Vele Colliery will impact on the water quality, as set out paragraphs 23.4
to 23.8 above.
35.1.4
The Leshika Response (Annexure “LC23”) included comments to the
contentions raised by WWF. In particular the following was stated:
35.1.4.1
the potential for contamination was investigated and the concern
was found to be unfounded;
35.1.4.2
tailings, that could generate sulphates and acidity, will be
disposed in the bottom of the pits; hence leachate will not be able
to enter surface water courses.
35.1.4.3
further, during mining the mining areas will act as sinks with flow
towards the pits; thus preventing flow downstream and thus
potential contamination; and
35.1.4.4
post mining, these tailings will be submerged below the water
table, hence will not be oxidized. It is only when rock containing
sulphates is exposed to oxygen that acid can arise. Submerging
such rock is an accepted method for avoiding acid mine
drainage. 43
35.2
35.2.1
42
43
Re 8.3.2: Impact on the tourism in the area
While we do not believe that there is any evidence of “unacceptable
Pages 7 – 63 of the EIA/EMP and the Surface Water Study.
Refer to section 5.5 of the Groundwater Study
Page 101
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
completely unrelated to this ground and accordingly should be ignored for
the purposes of this appeal.
35.2.2
The potential impact on tourism has been considered in the MEA Study.
It is reiterated that the employment benefits of mining have been shown
to far out strip those of tourism and the needs and wishes of all within the
community must be balanced.
35.2.3
The Company repeats the response to EWT’s Appeal, set out in
paragraph 23.10 above.
35.3
Re 8.3.3 Desecration of World Heritage Site and the cultural landscape of
Greater Mapungubwe
35.3.1
While we do not believe that there is any evidence of “unacceptable
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
completely unrelated to this ground and accordingly should be ignored for
the purposes of this appeal.
35.3.2
The Vele Colliery will be located approximately 7 kilometres from the
most easterly point of MNP (attached, please see map marked “LC20”).
35.3.3
The area surrounding MNP is already characterised by mining activity –
notably the Venetia Mine is located 5.8km from the southern border of
MNP, which is visible from MNP, and the Tuli Colliery which is directly
opposite the Vele Colliery in Zimbabwe. The 2006 Management Plan for
MNP acknowledges the mineral wealth within the broader area around
MNP and the need to interface the conservation uses within MNP, with
the mining activities in the broader area.
35.3.4
In addition to mining activity, there is presently agricultural and related
activity located in the Limpopo Valley which is also visible from MNP.
Page 102
36.
36.1
This appeal should be dismissed
For the reasons set out above, this Appellant has not set out grounds for the
mining right to be set aside.
36.2
The appeal should accordingly be dismissed.
IX.
WILDERNESS FOUNDATION OF SOUTH AFRICA
37.
General comments
37.1
No indication has been given by WFSA why it has chosen now to join an appeal
brought by participants in the initial I&AP process.
It makes no effort to
distinguish itself from the majority of the Appellants who were all involved in that
process nor to indicate why it is involved in the Appeal but was not involved in
the I&AP process. It has put its appeal submissions on an identical template with
the I&AP participants and, as such, has shown itself to have a common cause
with those Appellants. Accordingly we do not believe there can be any basis to
distinguish between the Appellants.
37.2
As set out above, the I&AP process followed allowed all parties more than
sufficient time to make their comments.
37.3
Nevertheless, the WFSA appear to believe that it should have an unlimited
number of opportunities to provide further reasons why a mining right should not
have been granted to the Company.
37.4
At no time have WFSA given an indication of what actions of the Company
prevented it from timeously submitting a review in the I&AP process. It also give
no indication why the comments it presents now were unavailable to it at the time
it could have provided its comments and review of the EMP and participated in
the I&AP process conducted. Nor why it did not initially participate.
37.5
We submit that there were no such actions by the Company and, as such, the
Appellant should not be given the opportunity to include these criticisms now.
Page 103
37.6
WFSA is also an Appellant in the EMP Appeal
37.6.1
WFSA has also appealed against the decision to approve the EMP.
37.6.2
As discussed below, a large majority of issues in this appeal raise
grounds that centre on the EMP and the adequacy of the EMP.
37.6.3
It is reiterated that the decision to approve the EMP should not be
confused with the decision to approve the mining right and these issues
should be ignored for the purposes of this appeal.
38.
38.1
Specific responses to the appeal submissions made by the Appellant
Re 8.3.1: Potential loss of biodiversity
A Biodiversity Study was undertaken (Annex-C to the EMP). The area is not one
of the areas protected in terms of the Biodiversity Act, nor is it located in one nine
broad priority areas for conservation action, which were identified in the National
Spatial Biodiversity Assessment (“the NSBA”) published in 2005 by the South
African National Biodiversity Institute (“SANBI”) and supported by DEAT. These
Priority Areas are now included in the National Biodiversity Framework (“NBF”)
which was published in 2009 in terms of section 39 of the Biodiversity Act. 44 A
number of biodiversity offset programmes are included in the EMP to mitigate
any impact on biodiversity. 45
38.2
Re 8.3.1: Loss of wilderness character of protected areas
Please see the response on sense of place in the MAG response in paragraph
19.1 above.
38.3
38.3.1
Re 8.3.1: Impact on World Heritage Site
While we do not believe that there is any evidence of “unacceptable
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
44
45
Government Gazette No 32474 in Government Notice 813 dated 03 August 2009.
Page 5 of the EMP.
Page 104
completely unrelated to this ground and accordingly should be ignored for
the purposes of this appeal.
38.3.2
38.4
38.4.1
Please see the response to MAG in paragraph 19.1 above.
8.3.1: Potential Impact on other World Heritage Sites around the country
While we do not believe that there is any evidence of “unacceptable
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
completely unrelated to this ground and accordingly should be ignored for
the purposes of this appeal.
38.4.2
No justification is given for this fairly farfetched concern. No such impact
is foreseeable.
XI.
THE GA-MACHETE ECONOMIC DEVELOPMENT CORPORATION /SOUTHERN
CROSS EXPERIENCES (PTY) LTD
39.
39.1
39.1.1
General comments on this Appeal
I&APs in the Public Participation Process
This organization was an I&AP in the public participation process
described in paragraph 5.2 above.
39.1.2
All comments provided in the I&AP process were responded to.
39.1.3
Accordingly, these comments already made and responded to do not
provide any grounds for setting aside the EMP approval.
39.2
Irrelevant grounds of appeal
While we do not believe that there is any evidence of “unacceptable pollution,
ecological degradation and environmental damage” following from the grant of
the mining right, certain of these appeal submissions are completely unrelated to
Page 105
this ground and accordingly should be ignored for the purposes of this appeal.
40.
40.1
Specific responses to the appeal submissions made by the Appellant
General
We note that in this submission the Machete representatives do not mention the
allege land claim that has been lodged over the Vele Colliery area which is dealt
with in the MAG submission (see paragraph 19.5.3 above). We must assume
that this land claim, which was brought outside of the statutory time period and
which appeared baseless, is no longer being pursued.
40.2
40.2.1
Re 9.3.1: Threat to Mega Eco Cultural Tourism Initiative
While we do not believe that there is any evidence of “unacceptable
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
completely unrelated to this ground and accordingly should be ignored for
the purposes of this appeal.
40.2.2
Please see the response in the MAG response in paragraph 19.2
regarding the impact on the TFCA and the reply to the EWT’s Appeal, set
out in paragraph 23.10 above.
40.3
Re 9.3.2: Noise pollution and Visual Destruction
Please see the response in the MAG response above regarding the Sense of
Place in paragraph 19.1.1.above.
41.
41.1
This appeal should be dismissed
For the reasons set out above, this Appellant has not set out grounds for the
mining right to be set aside.
41.2
The appeal should accordingly be dismissed.
Page 106
XI.
BREGJE DAWSON/KNOLL INVESTMENTS LTD
42.
General comments on this Appeal
42.1
42.1.1
I&APs in the Public Participation Process
This organization was an I&AP in the public participation process
described in paragraph 5.2 above.
42.1.2
All comments provided in the I&AP process were responded to.
42.1.3
Accordingly, these comments already made and responded to do not
provide any grounds for setting aside the mining right.
42.2
Irrelevant grounds of appeal
While we do not believe that there is any evidence of “unacceptable pollution,
ecological degradation and environmental damage” following from the grant of
the mining right, certain of these appeal submissions are completely unrelated to
this ground and accordingly should be ignored for the purposes of this appeal.
43.
43.1
Specific responses to the appeal submissions made by the Appellant
Re 9.3.2: Impact of Mining on Air Quality
A detailed Air Quality Study has been done. Reference is made to the Air Quality
Study (included in the EMP as Annex-F).
43.2
Re 9.3.3 Problem with greenhouse gases, acid rain and ground level ozone
The impacts which are discussed in this section are associated with industries
that utilize coal, rather than coal mines.
43.3
43.3.1
Re 9.3.4 Impact of Coal Fires
Spontaneous combustion normally goes with old, abandoned mine sites
and dumps. The Company has applied normal process and mitigation
Page 107
planning in the EMP so as not to cause this.
43.3.2
It is in the Company’s interests to get the coal to market as soon as
possible after being mined and washed. The coking qualities reduce if
exposed for a period of time. The coal will therefore not remain on the
mining area for an extended time period and the risk of spontaneous
combustion is low.
43.3.3
Mitigation measures such as cladding of stockpiles have been considered
during the engineering design of the mine.
In the unlikely event that
spontaneous combustion does occur, the necessary mitigation measures
will be implemented in accordance with the emergency plans.
43.4
Re 9.3.5: Impact of Mining on Water regime and disturbance to hydrologic
regime
43.4.1
A detailed study of groundwater has been done. Reference is made to
the Groundwater Study (included in the EMP as Annex-E).
43.4.2
Reference is also made to the response to EWT contention that the Vele
Colliery will impact on the water quality and quantity, as set out
paragraphs 23.1 to 23.8 above.
43.5
Acid Mine Drainage
The Company refers to what is stated in response to the EWT appeal in respect
of AMD in paragraph 23.5 above
43.6
Impact of Mining on Land
Existing land use and land capability was addressed in detail in the Soil Study
(Annex-B to the EMP).
The impact of mining on land use and fauna and flora
was extensively addressed in the Soil Study and Biodiversity Study (Annex-C to
the EMP) and the EMP.
46
46
Section 2.2.6.1, page 113 of the EIA/ EMP
Page 108
43.7
Impact of Noise and Vibrations from Mining
A detailed Noise Study and Blasting Study have been done. . Reference is
made to the Noise Study and the Blasting Study (included in the EMP, as AnnexG and Annex K respectively).
44.
44.1
This appeal should be dismissed
For the reasons set out above, this Appellant has not set out grounds for the
mining right to be set aside.
44.2
The appeal should accordingly be dismissed.
XII.
DGR TRUST
45.
General comments on this Appeal
45.1
I&APs in the Public Participation Process
45.1.1
This organization was an I&AP in the public participation process
described in paragraph 5.2 above however did not submit comments.
45.1.2
All comments provided in the I&AP process were responded to.
45.1.3
Accordingly, these comments already made and responded to do not
provide any grounds for setting aside the EMP approval.
46.
Specific responses to the appeal submissions made by the Appellant
No substantiation is given for the impacts listed and nothing has been done to
substantiate
a
claim
of
“unacceptable
pollution,
ecological
degradation
and
environmental damage” and accordingly this appeal should be ignored.
46.1
Re 9.3.1: Avifauna
While the heading is “Avifauna” the issue appears to relate to animal and plant
Page 109
life in general. In this regard, reference is made to the detailed Biodiversity Study
which has been undertaken (included in the EMP, as Annex-C). In addition, a
number of biodiversity offset programmes are included in the EMP to mitigate
any impact on biodiversity. 47
46.2
Re 9.3.2: Archeological resources
Archeological resources are alleged to be eliminated forever.
In this regard
reference is made to the HIA Study (included in the EMP as Annex-H), which has
been undertaken to identify all affected heritage resources and to mitigate any
impact. Presently only 4 sites will be directly impacted by mining activities over
the whole life of mine.
46.3
Re 9.3.3: Cultural Resources
46.3.1
An allegation is made regarding cultural resources - that the opportunity
to study relics will be lost forever. Again reference is made to the HIA
Study (included in the EMP as Annex-H).
46.3.2
A lack of respect for the process laid down in law is alleged but no details
of the basis for this allegation are provided and it is denied.
47.
47.1
This appeal should be dismissed
For the reasons set out above, this Appellant has not set out grounds for the
mining right to be set aside.
47.2
The appeal should accordingly be dismissed.
XIII.
JM AND PD GRAY
48.
General comments on this Appeal
48.1
I&APs in the Public Participation Process
48.1.1
47
Page 5 of the EMP.
These parties were I&APs in the public participation process described in
Page 110
paragraph 5.2 above.
48.1.2
The Appellants raises no new comments and only refers to two
submissions that were made as part of the EMP process, namely:
48.1.2.1
the South African Archeological Society comments dated 9 July
2009 – these were addressed in the Issues & Response Register
submitted to the DMR on 20 August 2009. Thus the authority had
this during decision-making.
48.1.2.2
individual comments by Mrs. and Mr. Gray dated 13 August 2009.
This was received by Naledi Development on approximately 24
August 2009. This was well beyond the deadline of 30 July 2009
for the processing of comments and after the Responses List had
been provided to the DMR. As such, no consideration could be
given to this late submission. In addition, upon considering the
submission, it was apparent that no new issues were raised that
were not addressed previously.
This was communicated by
telephone to the Appellants by Naledi Development at the time.
49.
49.1
Specific responses to the appeal submissions made by the Appellant
The letter of the South African Archaeological Society
49.1.1
The essential allegation is that a “full” HIA has not been undertaken.
49.1.2
A Phase 1 Heritage Assessment was performed in line with the Directions
for the compilation of HIA are set out in SG 2.2 SAHRA APM Guidelines
the: “Minimum Standards for the Archaeological and Palaeontological
Components of Impact Assessment Reports”.
These Guidelines are
attached as (Annexure “LC27”). The HIA Study clearly complied with
this Guideline in assessing the impact of the Vele Colliery on heritage
resources.
49.1.3
The report refers interchangeably to the MNP and the broader
Mapungubwe cultural landscape. It is only the area of the MNP that has
been given World Heritage Status under the name “Mapungubwe Cultural
Page 111
Landscape”. The Mapungubwe cultural landscape is in fact an extensive
area and could have stretched as far as Musina in the east.
48
The latter
has not been declared a protected area under the Protected Areas Act;
the World Heritage Convention Act 49 of 1999 or Biodiversity Act. It
would be clearly inconceivable to prevent development in areas that fall
within the Mapungubwe cultural landscape, which in any event already
incorporates large towns, widespread agricultural activity, as well as
existing mines, including coal mining on the Zimbabwean side directly
opposite Vele.
49.1.4
Heritage resources have been identified during the mining right
application in the HIA Study. None will be disturbed without the requisite
permits. Only 4 of the sites identified are likely to require removal for
mining operations to proceed.
49.1.5
During the mining operations, further heritage surveys of all areas to be
disturbed will be conducted. Areas where there is any doubt regarding
the presence of heritage resources, will be disturbed in a slow and
systematic manner, with a suitable heritage specialist present. This will in
fact assist with documenting and understanding the heritage of the area.
49.1.6
This recommendation forms part of the Heritage Management Plan
submitted to SAHRA. Reference is made to the Heritage Management
Plan (Annexure “LC28”).
49.1.7
The Company has committed to the appointment of an archaeologist to
monitor all areas to be disturbed on an ongoing basis.
In addition,
allowance has been made for Phase 2 Assessments, in line with the
Heritage Management Plan developed for Vele Colliery (see Annexure
“LC28”).
49.2
49.2.1
The letter of 13 August 2009
Heritage (Reasons 1, 2, 5, Observations 2, 4, 5)
See the response above.
48
Page 6 of the HIA Study
Page 112
49.2.2
49.2.2.1
Greater Mapungubwe TFCA (Reason 4)
On 23 January 2009 in a meeting with, amongst others, the
DEAT, SANParks and PPF, representatives of Limpopo Coal were
provided with a MOU between South Africa, Botswana and
Zimbabwe in respect of the Limpopo/Shase Transfrontier
Conservation Area.
The map attached to the MOU does not
include the area of the Vele Colliery.
49.2.2.2
The Company has put forward its belief, based on the EIA it has
undertaken, that its activities can co-exist with other land uses in
the area and has frequently expressed its willingness to engage
regarding this.
49.2.3
Impact on biodiversity and land use / Vhembe Biosphere (Reasons
3, 6, 7, 9 Observation 13)
49.2.3.1
A Biodiversity Study has been undertaken (Annex-C to the EMP).
The area is not one of the areas protected in terms of the
Biodiversity Act, nor is it located in one nine broad priority areas
for conservation action, which were identified in the NSBA
published in 2005 by SANBI and supported by DEA.
These
Priority Areas are now included in the NBF, which was published
in 2009 in terms of section 39 of the Biodiversity Act. 49 A number
of biodiversity offset programmes are included in the EMP to
mitigate any impact on biodiversity. 50
49.2.3.2
The Company’s experts believe it may be possible to restore
Mopane. The Biodiversity Study (Annex-C of the EMP) addresses
the difficulties of vegetation restoration in arid areas (see page
67). As stated above, page 69 of the Biodiversity Study refers to
the research on vegetation restoration in arid areas, and
specifically in the Limpopo River Valley by the Northwest
University.
49
50
The research reflects that mine rehabilitation in
Government Gazette No 32474 in Government Notice 813 dated 03 August 2009.
Page 5 of the EIA/EMP.
Page 113
Mopani veld in the Limpopo River Valley can be done
successfully.
49.2.3.3
A number of biodiversity offset programmes are included in the
EMP to mitigate any impact on biodiversity.
51
One of the
biodiversity offset programmes the Company will pursue will be to
restore riverine forest where this has been damaged by misuse in
the past. 52
49.2.3.4
It is further important to note that the area in question is not
pristine as implied - see the impact of water abstraction,
agriculture, security fence and elephants on the biodiversity in the
larger area. This is also applicable on any other development in
the area. (Please refer to the attached De Beer Report marked
“LC32”)
49.2.3.5
The Company committed that a detailed rehabilitation plan will be
developed for the mine at the commencement of mining. The
rehabilitation plan will undergo an annual review, or whenever
there is a major change in mine scheduling.
The prolonged
rehabilitation measures will be designed to ensure this impact is
as brief as possible.
49.2.3.6
Commitments were made by the mine for the establishment of
animal corridors; and for management agreements with adjacent
landowners to limit these impacts. .53 The rescue plan further not
only addressed the flora in the area, but also looks at the
relocation of fauna, to limit the impact of mining.
49.2.3.7
Sufficient budget has been allowed by the Company for
environmental and heritage aspects, amounting to R19.1 million
per annum. Over the life of the mine this commitment adds up to
almost R500 million.
51
Page 5 of the EIA/EMP.
Page 5 of the EIA/EMP.
53
Page 115 of EIA/EMP
52
Page 114
49.2.4
49.2.4.1
Impact on agriculture (Observation 3)
Due to the combined mining method of opencast and underground
mining, the mining activities will have a limited impact on the
current agricultural activities, which lead to a positive scenario of
co-existence between the two land uses. Only approximately 8%
of the existing agricultural lands will be impacted over the life of
mine as mining progresses.
49.2.4.2
The impact of mining on neighbouring farmers will be continuously
monitored and mitigation measures are in place to ensure no
adverse impacts occur.
49.2.4.3
The Company maintains that its use can co-exist with other
existing uses in the area.
49.2.5
Impact on water (Observations 6, 7, 8, 12, 21)
49.2.5.1
Water uses will be less than the existing agricultural allocation. 54
49.2.5.2
Detailed specialist studies have been undertaken to study any
potential impacts and ensure mitigation of such impacts.
The
impact on neighbouring states has been considered in these
assessments.
49.2.5.3
55
.
It is reiterated, as stated in paragraph 1.3.4.3 of the EMP, “a
closed system is being designed whereby all water is recycled for
use in the process”. No dirty water will be discharged into any
stream or river during the operational phase and thus no treatment
is required.
49.2.5.4
The mine will not impact on groundwater quality, as it will act as a
sink during mining, containing all potential pollutants. Only many
years after mining stops is there a possibility of decant.
decant
54
55
will
need
to
Page 61 – 62 and 133 of the EIA/EMP
Pages 7 – 63 of the EIA/EMP and the Surface Water Study
be
monitored
and
treated
in
This
an
Page 115
environmentally friendly way before being discharged. The decant
is not expected to be acidic but will have an increased salt load.
The natural salt content of the Karoo aquifer in the area is also
very high; thus the impact is expected to be minimal.
49.2.6
Air, dust, noise, lighting impacts (Observations 9, 10, 11, 14, 20)
The impacts associated with dust, noise, lighting has been dealt with in
paragraph 19.1 above in detail and is not repeated here.
49.2.7
49.2.7.1
Skyline reports of infrastructure (Observation 15-19)
It is completely untrue that “skyline” reports have not been
performed during the EIA.
49.2.7.2
A detailed Visual Study was performed (Annex-J of the EMP),
which included viewshed analyses of mining at different stages
and the mining plant infrastructure. All infrastructure was included
in this analyses, including the stockpiles, waste dumps,
overburden dumps, washing plant, etc.
49.2.7.3
Vegetation mapping were also performed to determine the visual
absorption capacity of vegetation. . 56
49.2.7.4
A photographic simulation of the possible exposure to a waste
rock dump of the west pit was also done. 57
49.2.8
49.2.8.1
Impact on Palaeontology (Observation 23)
Clear reference is made to the Palaeontology Study (Annex-I of
the EMP), as well as the fact that previous studies confirmed the
presence of vertebrate fossils in the area. 58
49.2.8.2
56
As mentioned in the Palaeontology Study, it was determined
Section 6.5 of the Visual Study, page 17.
Figure 16 of the Visual Study, page 1)
58
Also refer to section 2.4 (page 152) and Table 2.6(e) (page 163) of the EIA/EMP.
57
Page 116
during the site visit that the bulk of the Solitude and Klopperfontein
Formations in the study area are covered by alluvium and nonfossiliferous formations.
Although no vertebrate fossils were
found in the area investigated at the time, it does not mean that
there are no fossils in the layers covered by alluvium as
mentioned in the Specialist Report.
These layers will only be
exposed when construction and mining commences.
49.2.8.3
A detailed paleontological study of the terrain would be done at a
later stage. Given that no fossiliferous material was found, as the
fossiliferous layers are covered by alluvium and non-fossiliferous
geological strata, this will be a superfluous exercise at his stage.
49.2.8.4
Thousands of tons of material containing plant fossils are
destroyed annually in the coal mines in South Africa, without
SAHRA or anyone else for that matter doing anything about it.
Vele
Colliery
could
make
a
difference
by
involving
a
palaeontologist to salvage at least some of the plant fossils, as per
the specialist’s suggestions. The commitment for the appointment
of a palaeontologist has been made and the necessary funds
made available. 59
49.2.9
49.2.9.1
Impact on tourism (Observation 24)
The employment benefits of mining have been shown to far out
strip those of tourism and the needs and wishes of all within the
community must be balanced. A summary of the Vele Colliery
project and the positive impact anticipated from the project is
attached as Annexure “LC22”. The following employment will be
created, calculated on a national scale:
49.2.9.1.1
Construction phase – during the 3-year construction
period, contractor labour levels will peak at approximately
2,500 employees. A large percentage of employees will
be targeted to be drawn during this period from the local
59
Refer to Table 2.6(e) on page 163 of the EIA/EMP.
Page 117
area. The macro-economic model in the EIA found that
the indirect employment opportunities would amount to
12 926.
49.2.9.1.2
Operational phase – The proposed new development will
employ approximately 826 permanent employees with
varying skills, implying an impact on the direct livelihood
(direct workers and dependents) of approximately 1 495
people. Indirect employment opportunities amount to 28,
255 during the operational phase.
49.2.9.2
A MEA Study was performed to determine the impact on the
economic activity: tourism. The results showed that there will be
some impact on tourism in the direct vicinity of the mining
development, but further showed a higher positive impact by the
mine on employment and GDP in relation to that of tourism.
49.2.9.3
CoAL will be a major contributor to South Africa’s GDP –
R2.1billion during construction and R9.7bn during operational
phase. The initial capital investment in the mine will be R3 billion.
Letters of intent have been signed with prospective customers for
off-take agreements. It is anticipated that sales of coking coal
could replace coal currently imported from Australia, benefitting
South Africa’s balance of payments.
49.2.9.4
In addition to providing employment opportunities, CoAL is
committed to spending R85 million over a five-year period for
Local Economic Development i.e. infrastructure projects, social
investment, health and welfare projects and environmental
projects.
49.2.9.5
The company will contribute R70 million over an eight year period
towards Human Resources Development Programmes i.e. skills
development, Career Progression Plan, a mentorship plan and
internship and bursary plans and local community CSI projects.
49.2.9.6
The Company believes that it is possible for the various
Page 118
ecotourism projects, the communities and the mine to co-exist in a
way that benefits all. Local conservation initiatives will also be
supported.
50.
50.1
This appeal should be dismissed
For the reasons set out above, this Appellant has not set out grounds for the
mining right to be set aside.
50.2
The appeal should accordingly be dismissed.
XIV.
WILLIAM GILFILLAN
51.
General comments on this Appeal
51.1
51.1.1
I&APs in the Public Participation Process
This person was an I&AP in the public participation process described in
paragraph 5.2 above.
51.1.2
51.2
All comments provided in the I&AP process were responded to.
Irrelevant grounds of appeal
While we do not believe that there is any evidence of “unacceptable pollution,
ecological degradation and environmental damage” following from the grant of
the mining right, certain of these appeal submissions are completely unrelated to
this ground and accordingly should be ignored for the purposes of this appeal.
52.
52.1
Specific responses to the appeal submissions made by the Appellant
The Appellant refers to the SAIEA EMP Review.
This was considered and
responded to in the I&AP process conducted for the purposes of the EMP. In
this regard please see the response to the EWT in paragraph IV above.
52.2
The Appellants also alleges a potential loss of World Heritage Status for
Page 119
Mapungubwe. In this regard please see the response to MAG in paragraph 19.2
above.
53.
53.1
This appeal should be dismissed
For the reasons set out above, this Appellant has not set out grounds for the
mining right to be set aside.
53.2
The appeal should accordingly be dismissed.
XV.
MOPANE BUSH LODGE
54.
General comments on this Appeal
54.1
54.1.1
I&APs in the Public Participation Process
This organization was an I&AP in the public participation process
described in paragraph 5.2 above.
54.1.2
54.2
All comments provided in the I&AP process were responded to.
Irrelevant grounds of appeal
While we do not believe that there is any evidence of “unacceptable pollution,
ecological degradation and environmental damage” following from the grant of
the mining right, certain of these appeal submissions are completely unrelated to
this ground and accordingly should be ignored for the purposes of this appeal.
55.
55.1
55.1.1
Specific responses to the appeal submissions made by the Appellant
Re 9.3.1: Groundwater Availability
While we do not believe that there is any evidence of “unacceptable
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
completely unrelated to this ground and accordingly should be ignored for
Page 120
the purposes of this appeal.
55.1.2
The Vele Colliery will not abstract more water from the Limpopo River
than was abstracted previously.
Furthermore, as a closed system is
being designed, whereby all water is recycled for use in the process, the
operations will not impact on the water quality of the Limpopo River.
55.1.3
A detailed study of groundwater has been done, including the regarding
the availability. Reference is made to the Groundwater Study (included in
the EMP as Annex-E).
55.1.4
Reference is also made to the response to EWT’s contention that the
Vele Colliery will impact on the water quantity, as set out paragraphs 23.1
to 23.3 above. Further reference is made to the Leshika Response in
reply to the Sustainable Solutions comments on groundwater (attached
as Annexure B to the EWT Report), set out in paragraph 23.14 above.
55.1.5
An Integrated Water Use License Application has been submitted for the
water uses that require authorisation under the NWA.
55.2
55.2.1
Re 9.3.2: AMD
It is incorrect that the planned operations will be conducted below the
Limpopo River.
55.2.2
It is reiterated, as stated in paragraph 1.3.4.3 of the EMP, “a closed
system is being designed whereby all water is recycled for use in the
process”. No dirty water will be discharged into any stream or river during
the operational phase and thus no treatment is required. Reference is
made to the Surface water Study (included in the EMP as Annex-D).
55.2.3
The Groundwater Study also included a detailed analysis of the potential
of AMD. Reference is made to the Groundwater Study (included in the
EMP as Annex-E).
55.2.4
The Company repeats what is stated in response to the EWT appeal in
respect of AMD in paragraph 23.5 above. It further refers to the Leshika
Page 121
Response in reply to the Sustainable Solutions comments on
groundwater (attached as Annexure B to the EWT Report), set out in
paragraph 23.15 above.
55.2.5
There is no basis for the Appellant’s allegation that the Company will
pollute the Limpopo River, thereby impacting on the livelihoods of farmers
in the region or the people of Mozambique who live along the banks of
this river.
55.3
55.3.1
Re 9.3.3: Dust Pollution
The Air Quality Study (Annex-F to the EMP) included dispersion
simulations to reflect the combined impacts from the sources of inhalable
particulate and nuisance dust deposition rates from all the activities at the
Vele Colliery. Comparison with the predicted daily and annual average
ground level concentrations to the current South African standards
reflected that there was no exceedance at or within the Vele Colliery
boundary area. 60
55.3.2
No exceedances were noted for inhalable particulates over the adjacent
areas when comparisons are made to the stricter SANS 1929 daily and
annual limits. They only exceeded the stricter SANS 1929 daily limits for
residential areas which is 600 mg/m²/day but not for the industrial limit of
1200 mg/m²/day. With the implementation of mitigation measures, the
concentrations would however be significantly reduced. 61
55.3.3
It is recognised in the EMP that excessive blast-related dust is caused by
insufficient or ineffective stemming materials in each hole.
As stated
above, the negative impact significance will however be reduced to low
with effective stemming controls in place, resulting in atmospheric dust
mostly being contained to within 200 metres of the blasting. Air blast
monitoring will also be conducted for all blasts to ensure that the limits are
being achieved; and to provide an indication of when modifications are
needed to the blasting method, for increased vibrations and air blast
60
61
Page 29 of the EIA/EMP
Page 29 of the EIA/EMP
Page 122
levels. 62
55.3.4
Mitigation measures for potential dust pollution, during both the
construction and operational phase, will inter alia include regular watering
on the haul and in pit road, as well as application of chemical dust
suppressants on the main haul road; tarring of the access road;
vegetation of permanent stockpiles and berms; use of water spray
systems at the stockpiles; sprays of all transfer points; cladding of the run
of mine and product stockpile; limitation of vehicle speed on unpaved
roads; and developing air blast control measures to limit dust from
blasting. 63
55.3.5
Figures 5-4 to 5-6 of the Air Quality Study shows the maximum predicted
ground level concentrations with planned mitigation measures in place.
The specialist concluded that, as a result of these mitigation measures, all
predicted emissions (including dust fallout and PM concentrations) fall
below the South Africa Standards of 180μg/m³ and 60μg/m³, as well as
the stricter SANS limits of 75μg/m³ and 40 μg/m³ for daily and annual
limits respectively. 64
55.3.6
This is with the exception of the residential dust fallout limit of
600mg/m²/day which is exceeded for a short distance outside of the
southernmost border of the mine lease area. As is noted in Figure 5.6
this exceedance will only be for a distance of approximately 1km. The
relevant property is the farm Erfrust. This property has no residents or
agriculture; and is not pristine, consisting of restored grazing land which
also belongs to Harrisia.
It will not impact on for example Dongola
Ranch, which is further than 1km south.
55.3.7
With the implementation of mitigation measures, the concentrations would
however fall well below the SANS maximum levels.
55.3.8
As set out in Annexure “LC15”, the Company has included extensive
mitigation measures to mitigate any impacts on air quality.
62
Pages 125 - 126 of the EIA/EMP
Pages 115 – 119 of the EIA/EMP
64
Pages 26 – 28 of the Air Quality Study
63
Page 123
55.3.9
As specialist studies have concluded that dust pollution will not impact on
areas outside the mining area there are patently no grounds for the
Appellant to state that “all surfaces of Mopane Bush Lodge and
Mapungubwe World Heritage Site and the environment will be covered in
dust” or that dust pollution will have a detrimental effect on the agricultural
production of the area.
55.4
55.4.1
Re 9.3.4: Smell
Smog, Smell and Pollution are related to the control of spontaneous
combustion.
55.4.2
Spontaneous combustion normally goes with old, abandoned mine sites
and dumps. The Company has applied normal process and mitigation
planning here so as not to cause this.
55.4.3
It is in the Company’s interests to get the coal to market as soon as
possible after being mined and washed. The coking qualities reduce if
exposed for a period of time. The coal will therefore not remain on the
mining area for an extended time period and the risk of spontaneous
combustion is low.
55.4.4
Mitigation measures such as cladding of stockpiles have been considered
during the engineering design of the mine. In the unlikely event that
spontaneous combustion does occur, the necessary mitigation measures
will be implemented in accordance with the emergency plans.
55.5
55.5.1
Re 9.3.5 Noise
The Company instructed a specialist to compile the detailed Noise Study,
which is attached as Annex-G to the EMP.
55.5.2
Reference is made to Annexure “LC15”, where the potential noise
impacts and the mitigation measures that will be implemented are
discussed.
Page 124
55.6
55.6.1
Re 9.3.6 Light
The Company instructed a specialist to compile the detailed Visual Study,
(attached as Annex-J to the EMP).
55.6.2
Reference is made to Annexure “LC15”, where the potential light impacts
and the mitigation measures that will be implemented are discussed.
55.7
55.7.1
Re 9.3.7 Transport
The Appellant states that the Vele Colliery will transport 1 million tonnes
of coal per year over a local road. It is not clear which road the Appellant
is referring to, as no specific information is given.
55.7.2
A detailed assessment was undertaken of transport and road
infrastructure for the purposes of the EMP.
55.7.3
The Company plans to construct an access road off the R572. Initially
the road will be gravel but will be upgraded to tar once the mine is in full
production. A by-pass road has been constructed by the Company (the
new Venetia – Harper Link Road) to the MAC Siding. The construction of
this road will alleviate any traffic congestion. 65
55.7.4
There is absolutely no basis for the Appellant to state that the vehicles
travelling to Vele Colliery will “destroy the road”.
55.7.5
Mitigation measures have been included in the EMP to ensure that coal is
not spilled off the trucks and exhaust fumes are controlled. 66
55.8
55.8.1
Re 9.3.8: Visual
The Company has instructed a specialist to compile the detailed Visual
Study (attached as Annex-J to the EMP).
55.8.2
65
66
Reference is made to Annexure “LC15”, where the potential light impacts
Page 22 – 23 of the EMP
Page 156 – 166 of the EMP
Page 125
and the mitigation measures that will be implemented are discussed.
55.9
55.9.1
Re 9.3.9 Environment
The residential limits / standards used in the Air Quality Assessment are
of course the most stringent South African standards.
There are no
standards for sensitive landscapes but one would imagine that the
potential impact of any emissions on humans, particularly children, in a
residential context would result in the highest possible standards and that
it would be unusual to find an impact standard allowed for a sensitive
landscape that is higher than the impact standard allowed for a child.
55.9.2
Mitigation measures suggested for implementation at the mining area
were based on best available technology approaches for the reduction of
impacts associated with mining activities. The implementation of these
suggested measures at the mining area aim to ensure the reduction of
impacts to within the prescribed health risk standards, set by the South
African National Department of Environmental Affairs. These standards
are set to manage impacts on human settlements, as well as sensitive
vegetation.
55.10
55.10.1
Re 9.3.10 Cultural Heritage
While we do not believe that there is any evidence of “unacceptable
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
completely unrelated to this ground and accordingly should be ignored for
the purposes of this appeal.
55.10.2
The Appellant has no basis for its exaggerated claim that the Vele
Colliery will place at risk the opportunity of Zimbabwe and Botswana also
gaining World Heritage status for their areas of the ancient Kingdom of
Mapungubwe.
55.10.3
The Company repeats paragraph 19.1 above regarding the allegation that
the Vele Colliery will have an impact on the status of MNP.
Page 126
55.11
55.11.1
Re 9.3.11 People
While we do not believe that there is any evidence of “unacceptable
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
completely unrelated to this ground and accordingly should be ignored for
the purposes of this appeal.
55.11.2
It is incorrect that there is no plan regarding the accommodation of
employees of Vele Colliery.
55.11.3
There will be no onsite housing. The issue of employee housing and
service delivery in Musina was assessed thoroughly in the SEA Study.
55.11.4
Vele Colliery will provide a range of accommodation options to employees
and will promote home ownership through various mine-sponsored
initiatives.
55.11.5
67
In respect of service delivery, the following conclusions were set out in
the SEA Study:
55.11.5.1
water: Musina Local Municipality has a bulk water scheme,
abstracting water from the Limpopo River for purification and
distribution. The system does require upgrading and expansion to
be able to address current needs of the Musina town. This is
however a problem common in most Municipal areas in South
Africa;
55.11.5.2
sewerage: a water-borne sewage works exists in the town of
Musina;
55.11.5.3
electricity: four electrical sub-stations are located within the
Musina Local Municipality; and
55.11.5.4
67
Page 18 of the SEA Study
refuse: the Musina Local Municipality has access to three general
Page 127
disposal landfill sites, excluding those privately operated by
mining.68
55.12
55.12.1
Re 9.3.12: Sense of Place
In respect of the Appellant’s allegations regarding the impact on the
sense of place, reference is made to paragraph 19.1 above.
55.12.2
It is denied that there are no possible mitigation measures for the
potential impact on the sense of place. The specialists have identified
measures to mitigate any potential impact on the sense of place. This is
set out in Annexure “LC15”.
55.13
55.13.1
Re 9.3.13 TFCA
It is denied that the Vele Colliery falls “well within the planning domain of
the TFCA”, in terms of the MOU for the TFCA.
55.13.2
The Company repeats the contents of paragraph 19.2 above regarding
the alleged impacts on the TFCA.
55.13.3
With respect to the addition of Vhembe, including the Mapungubwe
Landscape to the UNESCO World Network of Biosphere Reserves, South
Africa does not have legislation or any other instrument in which it
domesticates the UNESCO Framework. The only statutory instrument
which refers to Biosphere reserves is the National Biodiversity Framework
(NBF) which states that the implementation of the Biosphere Reserve
concept is relatively new to South Africa, with the first South African
Biosphere Reserve designated by UNESCO in 1998.
55.13.4
The NBF says a Biosphere reserve usually includes one or more formal
protected areas, but is more than just protected areas. Those parts of the
Biosphere Reserve which do not constitute a protected area have no
legal status.
68
Page 38 of the SEA Study
Page 128
55.13.5
The area of the Vele Colliery includes a number of areas subject to
intensive agriculture.
55.14
Re 9.3.14: Alternative site
While we do not believe that there is any evidence of “unacceptable
55.14.1
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
completely unrelated to this ground and accordingly should be ignored for
the purposes of this appeal.
55.14.2
The coal in this area is predominantly a blend coking coal, which South
Africa has very limited remaining resources of. This deposit is one of the
few remaining economically viable Southern African resources of this coal
type.
55.15
Re 9.3.15: Constitutional Right
55.15.1
It is correct that the Appellants have a constitutional environmental right.
55.15.2
Section 24(b) of the Constitution of the Republic of South Africa 1996
provides that everyone has a right to have the environment protected, for
the benefit of present and future generations, through reasonable
legislative and other measures that prevents pollution and ecological
degradation;
promotes
conservation;
and
secures
ecologically
sustainable development and use of natural resources while promoting
justifiable economic and social development.
55.15.3
The principle of sustainable development requires that the environment,
economic development and human development must be balanced. The
principles of sustainable development are included in NEMA. 69
55.15.4
It is submitted that the approval of the mining right is in accordance with
the doctrine of sustainable development and the Appellant’s constitutional
environmental right has not been infringed.
69
Sections 3 of NEMA.
Page 129
56.
56.1
This appeal should be dismissed
For the reasons set out above, this appellant has not set out grounds for the
mining right to be set aside.
56.2
The appeal should accordingly be dismissed.
XVI.
PETER FITT/NORTHERN TULI GAME RESERVE;
57.
General comments on this Appeal
57.1
57.1.1
I&APs in the Public Participation Process
This organization was an I&APs in the public participation process
described in paragraph 5.2 above.
57.1.2
57.2
All comments provided in the I&AP process were responded to.
Irrelevant grounds of appeal
While we do not believe that there is any evidence of “unacceptable pollution,
ecological degradation and environmental damage” following from the grant of
the mining right, certain of these appeal submissions are completely unrelated to
this ground and accordingly should be ignored for the purposes of this appeal.
58.
58.1
58.1.1
Specific responses to the appeal submissions made by the Appellant
Impact on the TFCA
While we do not believe that there is any evidence of “unacceptable
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
completely unrelated to this ground and accordingly should be ignored for
the purposes of this appeal.
58.1.2
Please refer to paragraph 19 of the MAG response regarding the impact
Page 130
on Mapungubwe; paragraph 19.4 regarding the loss of World Heritage
Status of MNP and paragraph 19.2 regarding impact on TFCA.
58.1.3
The Company has a dual listing on the JSE and a number of South
African shareholders, including its black economic empowerment partners
amongst others.
It clearly will act with due regard to its corporate
responsibilities and in compliance with local law.
58.2
58.2.1
Culture
While we do not believe that there is any evidence of “unacceptable
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
completely unrelated to this ground and accordingly should be ignored for
the purposes of this appeal.
58.2.2
A HIA Study has been undertaken and included in the EMP to identify all
heritage resources which will be affected by the Vele Colliery.
(See
Annex-H of the EMP).
58.3
58.3.1
Flora and Fauna
A Biodiversity Study has been undertaken and included in the EMP, as
Annex-C.
58.3.2
The area is not one of the areas protected in terms of the Biodiversity Act,
nor is it located in one nine broad priority areas for conservation action
which were identified in the NSBA.
These Priority Areas are now
included in the NBF which was published in 2009 in terms of section 39 of
the Biodiversity Act. 70
58.3.3
A number of biodiversity offset programmes are included in the EMP to
mitigate any impact on biodiversity.
70
71
71
Government Gazette No 32474 in Government Notice 813 dated 03 August 2009.
Page 5 of the EMP.
Page 131
58.4
End of Eco Tourism
While we do not believe that there is any evidence of “unacceptable
58.4.1
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
completely unrelated to this ground and accordingly should be ignored for
the purposes of this appeal.
58.4.2
These comments are based on other developments occurring in the area,
which are unrelated to the Vele Colliery.
59.
59.1
This appeal should be dismissed
For the reasons set out above, this appellant has not set out grounds for the
mining right to be set aside.
59.2
XVII.
The appeal should accordingly be dismissed.
TOURISM
WORKING
GROUP
OF
THE
GREATER
MAPUNGUBWE
TRANSFRONTIER CONSERVATION AREA;
60.
60.1
General comments
No indication has been given by this Appellant why it has chosen now to join an
appeal brought by participants in the initial I&AP process. It makes no effort to
distinguish itself from the majority of the Appellants who were all involved in that
process nor to indicate why it is involved in the Appeal but was not involved in
the I&AP process. It has put their appeal submissions on an identical template
with the I&AP participants and, as such, has shown itself to have a common
cause with those Appellants. Accordingly we do not believe there can be any
basis to distinguish between the Appellants.
60.2
As set out above, the I&AP process followed allowed all parties more than
sufficient time to make their comments.
60.3
Nevertheless, this Appellant appears to believe that it should have an unlimited
Page 132
number of opportunities to provide further reasons why a mining right should not
have been granted to the Company.
60.4
At no time has this Appellant given an indication of what actions of the Company
prevented it from timeously submitting their reviews in the I&AP process. It also
gives no indication why the comments it presents now were unavailable to it at
the time it provided its comments and review of the EMP and participated in the
I&AP process conducted. Nor why it did not initially participate.
60.5
We submit that there were no such actions by the Company and, as such, the
Appellant should not be given the opportunity to include these criticisms now.
60.6
Irrelevant grounds of appeal
While we do not believe that there is any evidence of “unacceptable pollution,
ecological degradation and environmental damage” following from the grant of
the mining right, certain of these appeal submissions are completely unrelated to
this ground and accordingly should be ignored for the purposes of this appeal.
61.
61.1
61.1.1
Specific responses to the appeal submissions made by the Appellant
Re 8.4.1: TFCA
While we do not believe that there is any evidence of “unacceptable
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
completely unrelated to this ground and accordingly should be ignored for
the purposes of this appeal.
61.1.2
The Company repeats the contents of paragraph 19.2 regarding the
alleged impact of the Vele Colliery on the proposed TFCA.
61.2
61.2.1
Re 8.4.1 Tourism
While we do not believe that there is any evidence of “unacceptable
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
Page 133
completely unrelated to this ground and accordingly should be ignored for
the purposes of this appeal.
61.2.2
The potential impact on tourism has been considered in the MEA Study.
It is reiterated that the employment benefits of mining have been shown
to far out strip those of tourism and the needs and wishes of all within the
community must be balanced.
61.2.3
It is completely incorrect that the Vele Colliery will only create 650 jobs.
As set out above and included in the EMP, Vele Colliery will create 2, 500
and 1, 495 jobs in the construction and operational phases respectively.
It is further estimated to potentially create 12, 926 and 28, 255 jobs
indirectly in the construction and operational phases respectively.
In
addition, its SLP will lead to the upliftment of the local community.
61.2.4
The Company repeats the response to EWT’s Appeal regarding the
impact on tourism, set out in paragraph 23.10 above. It further repeats
paragraphs 19.5.9 and 23.10, being its responses the comments of MAG
and EWT on the employment created by the Vele Colliery.
62.
62.1
This appeal should be dismissed
For the reasons set out above, this Appellant has not set out grounds for the
mining right to be set aside.
62.2
The appeal should accordingly be dismissed.
XVIII. DJ WESTCOTT/JW TAYLOR TRUST
63.
63.1
General comments
No indication has been given by this Appellant why it has chosen now to join an
appeal brought by participants in the initial I&AP process. It makes no effort to
distinguish itself from the majority of the Appellants who were all involved in that
process nor to indicate why it is involved in the Appeal but was not involved in
the I&AP process. It has put their appeal submissions on an identical template
Page 134
with the I&AP participants and, as such, has shown itself to have a common
cause with those Appellants. Accordingly we do not believe there can be any
basis to distinguish between the Appellants.
63.2
As set out above, the I&AP process followed allowed all parties more than
sufficient time to make their comments.
63.3
Nevertheless, this Appellant appears to believe that it should have an unlimited
number of opportunities to provide further reasons why a mining right should not
have been granted to the Company.
63.4
At no time has this Appellant given an indication of what actions of the Company
prevented it from timeously submitting their reviews in the I&AP process. It also
gives no indication why the comments it presents now were unavailable to it at
the time it provided its comments and review of the EMP and participated in the
I&AP process conducted. Nor why it did not initially participate.
63.5
We submit that there were no such actions by the Company and, as such, the
Appellant should not be given the opportunity to include these criticisms now.
63.6
Irrelevant grounds of appeal
While we do not believe that there is any evidence of “unacceptable pollution,
ecological degradation and environmental damage” following from the grant of
the mining right, certain of these appeal submissions are completely unrelated to
this ground and accordingly should be ignored for the purposes of this appeal.
64.
64.1
Specific responses to the appeal submissions made by the Appellant
Re 8.3.1
A general concern is raised regarding the region and the waterfall and vegetation
within the region and the pollution of these.
A detailed Biodiversity Study,
Groundwater Study and Surface water Study was undertaken for the purposes of
the EIA/EMP. These studies are included in the EMP, as Annex-E Annex- D and
Annex-C respectively.
Page 135
64.2
64.2.1
Re 8.3.2: TFCA
While we do not believe that there is any evidence of “unacceptable
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
completely unrelated to this ground and accordingly should be ignored for
the purposes of this appeal.
64.2.2
The Vele Colliery does not form part of the area of the TFCA included in
the MOU referred to in this paragraph. The Company has put forward its
belief, based on the EIA it has undertaken, that its activities can co-exist
with other land uses in the area and has frequently expressed its
willingness to engage regarding this.
64.3
64.3.1
Re 8.3.3
While we do not believe that there is any evidence of “unacceptable
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
completely unrelated to this ground and accordingly should be ignored for
the purposes of this appeal.
64.3.2
The Appellant makes a general statement that it is questionable that the
Company compiled a full and comprehensive EIA / EMP by responsible
and involved parties, and whether proper consultations with all I&AP took
place. No grounds are given to substantiate this general statement.
64.3.3
As is set out in paragraph 5.5 above, the Company conducted an
extensive public participation process. It has compiled its EIA / EMP in
compliance with all the provisions of the MPRDA. In addition, it expended
significant resources in ensuring that a wide range of specialists, in all
relevant fields, thoroughly investigated and assessed the potential
impacts of the Vele Colliery.
65.
65.1
This appeal should be dismissed
For the reasons set out above, this Appellant has not set out grounds for the
Page 136
mining right to be set aside.
65.2
The appeal should accordingly be dismissed.
XIX.
JEREMY FITT/NORTHERN TULI GAME RESERVE;
66.
General comments
66.1
No indication has been given by this Appellant why it has chosen now to join an
appeal brought by participants in the initial I&AP process. It makes no effort to
distinguish itself from the majority of the Appellants who were all involved in that
process nor to indicate why it is involved in the Appeal but was not involved in
the I&AP process. It has put their appeal submissions on an identical template
with the I&AP participants and as such has shown itself to have a common cause
with those Appellants. Accordingly, we do not believe there can be any basis to
distinguish between the Appellants.
66.2
As set out above, the I&AP process followed allowed all parties more than
sufficient time to make their comments.
66.3
Nevertheless, this Appellant appears to believe that it should have an unlimited
number of opportunities to provide further reasons why a mining right should not
have been granted to the Company.
66.4
At no time has this Appellant given an indication of what actions of the Company
prevented it from timeously submitting their reviews in the I&AP process. It also
gives no indication why the comments it presents now were unavailable to it at
the time it provided its comments and review of the EMP and participated in the
I&AP process conducted. Nor why it did not initially participate.
66.5
We submit that there were no such actions by the Company and, as such, the
Appellant should not be given the opportunity to include these criticisms now.
66.6
Irrelevant grounds of appeal
While we do not believe that there is any evidence of “unacceptable pollution,
Page 137
ecological degradation and environmental damage” following from the grant of
the mining right, certain of these appeal submissions are completely unrelated to
this ground and accordingly should be ignored for the purposes of this appeal.
67.
Specific responses to the appeal submissions made by the Appellant
67.1
Re 9.3.2: Vegetation
67.1.1
No power station is “required” for the Vele Colliery.
67.1.2
No decision has yet been made on the construction of a railway access.
67.1.3
AMD is not “inevitable”.
The Company refers to what is stated in
response to the EWT appeal in respect of AMD in paragraph 23.5 above
67.1.4
Topsoil will be preserved and rehabilitation will be undertaken on an
ongoing basis to restore vegetation in rehabilitated areas. The studies
undertaken for the purposes of the EIA and EMP have identified all
potential negative impacts and provided mitigation for these.
67.2
67.2.1
Re 9.3.3: Fauna
The Company committed that a detailed rehabilitation plan will be
developed for the mine at the commencement of mining.
The
rehabilitation plan will undergo an annual review, or whenever there is a
major change in mine scheduling.
67.2.2
67.2.2.1
The following minimum standards will apply:
vegetation will be left intact in areas not earmarked for immediate
excavation for as long as possible, to assist in prevention of soil
erosion and mitigation of noise and particle pollution;
67.2.2.2
the above-ground vegetation layer will be stripped (cut down) prior
to topsoil stripping and stockpiled. This organic material will be
mulched and used with the topsoil as compost in the restoration
and rehabilitation program;
Page 138
67.2.2.3
all available topsoil will be stripped and utilised for rehabilitation.
Direct placement will be implemented as far as possible, limiting
the stockpiling of topsoil;
67.2.2.4
rehabilitation (levelling & topsoiling) will be initiated within 5 strips
of active pit;
67.2.2.5
restoration of the vegetative layers will take place immediately
thereafter using the mulch, harvested seeds and plants from the
indigenous plant nursery. Ongoing research will be conducted to
improve on the sustainable restoration of the natural veldt;
67.2.2.6
soil analysis, to provide corrective fertilisation regimes, will be an
ongoing procedure to facilitate vigorous plant growth.
67.2.2.7
until the herbaceous (shorter period) and woody (longer period)
vegetation layer is established, artificial watering of reclaimed
areas will be applied;
67.2.2.8
erosion control measures will be implemented where necessary;
67.2.2.9
the final profile will be free-draining. Ponding will be prevented as
far as practically possible;
67.2.2.10
the final end land use will reflect the initial land capability as far as
possible. As a minimum, the final end land use should be grazing
(topsoil depth = 0.25m); and
67.2.2.11
all rehabilitation programmes will be properly monitored and
documented for future referencing on the impacts, restoration and
rehabilitation programs within semi-arid areas.
67.2.3
The implementation of the rehabilitation plan will be coordinated and
supervised by a suitably qualified rehabilitation officer.
67.2.4
The prolonged rehabilitation measures will be designed to ensure this
Page 139
impact is as brief as possible.
67.2.5
Commitments were made by Vele Colliery for the establishment of animal
corridors; and for management agreements with adjacent landowners to
limit these impacts. .72 The rescue plan further not only addressed the
flora in the area, but also looks at the relocation of fauna, to limit the
impact of mining.
67.2.6
All other mitigation measures committed to reduce the impact of noise,
blasting and traffic management will also assist with minimising the stress
on the animals.
67.3
Re 9.3.4 Pollution
Please refer to the MAG response in paragraphs 19.1 and 19.4 above regarding
the impact on Mapungubwe National Park and the sense of place.
67.4
Re 9.3.5 International Agreements
While we do not believe that there is any evidence of “unacceptable
67.4.1
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
completely unrelated to this ground and accordingly should be ignored for
the purposes of this appeal.
67.4.2
The Vele Colliery does not form part of the area of the TFCA included in
the MOU referred to in this paragraph.
67.4.3
The Company has not been consulted as a private land owner regarding
the proposed further expansion of the TFCA.
67.4.4
The Company has put forward its belief, based on the EIA it has
undertaken, that its activities can co-exist with other land uses in the area
and has frequently expressed its willingness to engage regarding this.
68.
72
This appeal should be dismissed
Page 115 of EIA/EMP
Page 140
68.1
For the reasons set out above, this Appellant has not set out grounds for the
mining right to be set aside.
68.2
The appeal should accordingly be dismissed.
XX.
MASHATU NATURE RESERVE
69.
General comments
69.1
No indication has been given by this Appellant why it has chosen now to join an
appeal brought by participants in the initial I&AP process. It makes no effort to
distinguish itself from the majority of the Appellants who were all involved in that
process nor to indicate why it is involved in the Appeal but was not involved in
the I&AP process. It has put its appeal submissions on an identical template with
the I&AP participants and as such has shown itself to have a common cause with
those Appellants.
Accordingly we do not believe there can be any basis to
distinguish between the Appellants.
69.2
As set out above, the I&AP process followed allowed all parties more than
sufficient time to make their comments.
69.3
Nevertheless, this Appellant appears to believe that it should have an unlimited
number of opportunities to provide further reasons why a mining right should not
have been granted to the Company.
69.4
At no time has this Appellant given an indication of what actions of the Company
prevented it from timeously submitting their reviews in the I&AP process. It also
gives no indication why the comments it presents now were unavailable to it at
the time it provided its comments and review of the EMP and participated in the
I&AP process conducted. Nor why it did not initially participate.
69.5
We submit that there were no such actions by the Company and, as such, the
Appellant should not be given the opportunity to include these criticisms now.
Page 141
69.6
Irrelevant grounds of appeal
While we do not believe that there is any evidence of “unacceptable pollution,
ecological degradation and environmental damage” following from the grant of
the mining right, certain of these appeal submissions are completely unrelated to
this ground and accordingly should be ignored for the purposes of this appeal.
70.
70.1
70.1.1
Specific responses to the appeal submissions made by the Appellant
Re 8.3.1: TFCA
While we do not believe that there is any evidence of “unacceptable
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
completely unrelated to this ground and accordingly should be ignored for
the purposes of this appeal.
70.1.2
The Vele Colliery falls outside the area of the TFCA in the MOU referred
to in this paragraph.
70.2
Re 8.3.2 and 8.3.3: Environmental Legislation
70.3
The DMR is the decision maker in the approval of the mining right and the
EIA/EMP required for mining.
70.4
70.4.1
Re 8.3.4: Employment
While we do not believe that there is any evidence of “unacceptable
pollution, ecological degradation and environmental damage” following
from the grant of the mining right, this appeal submission in particular is
completely unrelated to this ground and accordingly should be ignored for
the purposes of this appeal.
70.4.2
A MEA Study was performed, to determine the impact on the economic
activity: tourism. The results showed that there will be some impact on
tourism in the direct vicinity of the mining development, but further
showed a higher positive impact by the mine on employment and GDP in
Page 142
relation to that of tourism.
70.4.3
CoAL will be a major contributor to South Africa’s GDP – R2.1 billion
during construction and R9.7 billion during operational phase. The initial
capital investment in the mine will be R3 billion. Letters of intent have
been signed with prospective customers for off-take agreements. It is
anticipated that sales of coking coal could replace coal currently imported
from Australia, benefitting South Africa’s balance of payments.
70.4.4
The contribution to employment means that both directly and indirectly,
12 926 people will be advantaged during construction and 28 255 will be
advantaged when the mine is operating.
70.4.5
In addition to providing employment opportunities, Coal of Africa is
committed to spending R85 million over a five-year period for Local
Economic Development i.e. infrastructure projects, social investment,
health and welfare projects and environmental projects.
70.4.6
The company will contribute R70 million over an eight year period
towards
Human
Resources
Development
Programmes
i.e.
skills
development, Career Progression Plan, mentorship plan and internship
and bursary plans and local community CSI projects.
70.4.7
The Company believes that it is possible for the various ecotourism
projects, the communities and the mine to co-exist in a way that benefits
all. .Local conservation initiatives will also be supported.
70.5
Re 8.3.5 Prevailing wind
The Air Quality Study, included as Annex-F in the EMP has modelled the wind
directions; and the potential pollution plume and mitigation measures have been
put in place to reduce any impact.
70.6
70.6.1
8.3.6 Dark Nights
It was recognised in the main report of the EMP and the Visual Study that
the sense of place in the areas surrounding the Vele Colliery is quiet and
Page 143
peaceful, especially at night time when there is complete darkness
against moonless nights with excellent star gazing.
70.6.2
The impact of lighting and associated glow in the absence of any other
light source; and the possibility of a direct line of sight of the Vele Colliery
to visitors at MNP was raised particularly by the private lodge owners and
tourist safaris that commented during the public participation processes.
70.6.3
Initially the lighting in the wash plant area was designed to be a height of
30 metres high-intensity masts; however, to mitigate any potential light
pollution impacts the lighting within the plant will be directional or cut-off
type luminaries, below the maximum stipulated height of 20m. No high
masts will be erected.
70.6.4
No light impact is anticipated to arise from the opencast pits. Movable
directional lights will be used by employees, which will not be visible
outside the pits.
70.6.5
The natural topography and vegetation in the area will assist in mitigating
any light pollution. The Vele Colliery is situated in a low lying area. 73
70.6.6
Due to the potential impacts of the Wash Plant causing light pollution in
the construction and operational phase, various mitigation measures will
be implemented by Limpopo Coal in both phases. The Wash Plant has
been designed to be constructed below a maximum height of 20 metres.
Directional or cut-off type luminaries will also be utilized in both the
construction and operational phase of the Wash Plant, to mitigate any
light pollution caused by the Wash Plant. These luminaries will be set to
focus beams downwards to mitigate light pollution.
74
The luminaries will
be directed away from MNP
70.6.7
Vegetation screens along the western edge of the Wash Plant area will
also be used, which will also assist in the absorption of light. It was
proposed that Baobab trees could be relocated from the opencast area
73
74
See page 17 of Annex -J to the EIA/EMP
Pages 158 and 161 of the EIA/EMP
Page 144
for this purpose, provided that the habitat is suitable.
75
Similarly, as
much vegetation as possible will be retained in the opencast pits and
revegetation will occur to create screening against lighting from this area.
70.6.8
It is noted that, even though the Vele Colliery is on a low lying area, the
reflection of the light from the Wash Plant area may create sky glow,
which will be visible as a dome above the horizon.
76
However, as the
Wash Plant is on a low lying area, as opposed to Venetia Mine which is
located on a relatively high area, the Wash Plant will have less exposure
with an associated lesser degree of glare.
70.6.9
At MNP, the overnight areas are furthermore not on top of the mountain
and the lighting from the Wash Plant should not be visible from these
overnight areas of Mapungubwe.
71.
71.1
This appeal should be dismissed
For the reasons set out above, this Appellant has not set out grounds for the
mining right to be set aside.
71.2
The appeal should accordingly be dismissed.
XX.
SOUTH AFRICA ARCHAEOLOGICAL SOCIETY
72.
General comments
72.1
No indication has been given by this Appellant why it has chosen now to join an
appeal brought by participants in the initial I&AP process. It makes no effort to
distinguish itself from the majority of the Appellants who were all involved in that
process nor to indicate why it is involved in the Appeal but was not involved in
the I&AP process. It has put their appeal submissions on an identical template
with the I&AP participants and, as such, has shown itself to have a common
cause with those Appellants. Accordingly, we do not believe there can be any
basis to distinguish between the Appellants.
75
76
Pages 158 and 161 of the EIA/EMP
Page 20 of Annex-J to the EIA/EMP
Page 145
72.2
As set out above, the I&AP process followed allowed all parties more than
sufficient time to make their comments.
72.3
Nevertheless, this Appellant appears to believe that it should have an unlimited
number of opportunities to provide further reasons why a mining right should not
have been granted to the Company.
72.4
At no time has this Appellant given an indication of what actions of the Company
prevented it from timeously submitting their reviews in the I&AP process. It also
gives no indication why the comments it presents now were unavailable to it at
the time it provided its comments and review of the EMP and participated in the
I&AP process conducted. Nor why it did not initially participate.
72.5
We submit that there were no such actions by the Company and, as such, the
Appellant should not be given the opportunity to include these criticisms now.
72.6
Irrelevant grounds of appeal
While we do not believe that there is any evidence of “unacceptable pollution,
ecological degradation and environmental damage” following from the grant of
the mining right, certain of these appeal submissions are completely unrelated to
this ground and accordingly should be ignored for the purposes of this appeal.
73.
73.1
Specific responses to the appeal submissions made by the Appellant
Re 8.3.1: Impact of mining on MNP is permanent and irrevocable
Impact on MNP, Mapungubwe Cultural Landscape and archaeological heritage
“The MNP and World Heritage Site was declared to preserve and protected the
Mapungubwe Cultural Landscape….”
“Mining and the associated activities will damage this landscape (the
Mapungubwe Cultural Landscape) and alter the sense of place permanently and
forever”
Page 146
Impact of the Vele Colliery on MNP
73.1.1
The comments in this paragraph are largely academic, illustrating the
importance of MNP and the Mapungubwe Cultural Landscape.
73.1.2
Whilst the Company does not respond to these academic comments, it
has always recognised that MNP and the broader Mapungubwe cultural
landscape are an important part of South Africa’s heritage. It was for this
reason that the Company instructed a heritage specialist and a
palaeontology specialist to conduct thorough investigations and compile
comprehensive reports.
73.1.3
As stated above, MNP itself has been declared a World Heritage Site
under the name “Mapungubwe Cultural Landscape”. The area of the
World Heritage Site does not extend beyond the area of the MNP.
73.1.4
A thorough HIA Study was undertaken to investigate the potential impacts
on heritage resources and propose mitigation measures to avoid such
potential impacts.
73.1.5
None of the sites identified in the HIA Report was accorded a high
significance rating.
“A phase 1 heritage survey was undertaken of the demarcated
area
during
which
archaeological
sites
relating
to
the
Mapungubwe cultural landscape were recorded. These are socalled commoner sites and most have been degraded by natural
forces.
None of the sites have been assigned to a high
significance grading and it is recommended that phase 2
assessments be undertaken in line with the provisions of
section 38 of the National Heritage Resources Act (25 of 1999)
should mining be implemented. It is argued that this work will add
value to and further understanding of the existing information
about the Mapungubwe cultural landscape.
In addition, Stone
Age material was observed and these must be assessed once
Page 147
mining operation commence due to their obscured subterranean
occurrence.” 77
73.1.6
The map attached as “LC6” plots the heritage sites identified on the site
as against the activities to be undertaken.
73.1.7
The areas with the potential to be impacted in the next year of operations
have been fenced off.
Attached as Annexure “LC28” is the Draft
Heritage Management Plan for Vele Colliery, setting out this information.
73.1.8
It is therefore denied that the Vele Colliery will damage this landscape
(the Mapungubwe Cultural Landscape) permanently and forever”.
Impact on the sense of place
73.1.9
In respect of the Appellant’s allegations regarding the impact on the sense
of place, reference is made to paragraph 19.1 above.
73.1.10
Based
on
its
specialist
reports
and
the
mitigation
measures,
recommended by the specialists, which it is obliged to implement, the
Company believes that the sense of place of MNP will not be impacted
on.
73.2
73.2.1
Re 8.3.2: A “full HIA” was not carried out
The Appellants contend that due to the range of different sites, inputs
from specialists in paleontology, archaeology and Stone Age should have
been included in the EIA. It is alleged that this was not done and a “full
HIA” should have been carried out.
73.2.2
The Appellant’s requirement that a “full HIA” should have been conducted
is baseless and unclear.
It has complied with the provisions of the
MPRDA in the compilation of the HIA Study. As set out above, the HIA
Study also complies with SAHRA’s directions for the compilation of HIA
are set out in SG 2.2 SAHRA APM Guidelines the: “Minimum Standards
77
Page 3 of the Vele Heritage Impact Assessment Report.
Page 148
for the Archaeological and Palaeontological Components of Impact
Assessment Reports”.
(Annexure “LC27”).
The relevant sections of
these guidelines and the provisions of the MPRDA have been set out in
paragraph 26.1.9 and 26.1.6 above respectively, in response to the
Appeal by ASAPA.
73.2.3
The Company reiterates that is has compiled with the legislative
requirements and SAHRA’s guidelines in the compilation of the HIA Study
and repeats the contents of paragraph 26.1.6 to 26.1.13 above. There is
no classification of a “full” HIA in these Guidelines and the Appellants’
comments regarding the nature of this “full” HIA lack any substance.
73.2.4
As stated above, the objective of a Phase 1 HIA is to identify heritage
resources affected by proposed operations.
For the most part, this
involves an identification of the heritage resources themselves within the
affected area of the development to ensure these are not impacted on by
the development.
73.2.5
The EMP consisted of reports from Frans Roodt, who holds a master
degree in archaeology, with specialisation in Iron Age studies. It also
consisted on a report from Dr. Durant, a specialist in palaeontology.
73.2.6
As set out in paragraph 26.8.3 above, Roodt is not a specialist in Stone
Age. He is however a qualified Principal Inspector and is an experienced
heritage practitioner who has undertaken approximately 500 Phase 1
assessments. His ability to conduct these surveys is derived not from his
specialisation in Iron Age sites but also from his wide experience in a
range of heritage contexts and identification of potential heritage sites
from a visual inspection of the site.
73.2.7
In the context of a Phase 1 Assessment, the recognition of Stone Age
remains and Stone Age bearing gravels is what is important and not their
detailed analysis. It is only during a subsequent Phase 2 Assessment
that the specialised knowledge of a Stone Age specialist would be
required to precisely identify all of the relevant details regarding the site
which was demarcated during the Phase 1 assessment.
Page 149
73.3
Re 8.3.3: Many heritage resources have not been excavated and the mining
will result in permanent damage
73.3.1
Whilst many heritage resources have not been excavated in the area to
date, there can be no guarantees that funding will actually be obtained for
such excavations.
73.3.2
The Company has committed to the appointment of an archaeologist to
monitor all areas to be disturbed on an ongoing basis.
In addition,
allowance has been made for Phase 2 Assessments, in line with the
Heritage Management Plan developed for Vele Colliery (see Annexure
“LC28”).
Therefore, if any heritage resources are excavated, the
Company will deal with them in accordance with this plan.
73.3.3
The immediate, short, intermediate and long-term management actions
are described in paragraphs 26.9.7 to 26.9.19. It is therefore incorrect
that mining will result in permanent damage to heritage resources.
73.3.4
Sufficient budget has been allowed by the Company for environmental
and heritage aspects, amounting to R19.1 million per annum. Over the
life of the mine this commitment adds up to almost R500 million.
73.3.5
Furthermore, if fossils or archaeological heritage resources remain
underground for thousands or millions of years, the information will also
be lost to humankind.
It is neither in the interest of science nor
humankind not to study nature.
73.3.6
Many thousands of fossils and heritage resources have been salvaged
successfully from mines (both abandoned and functioning) in South
Africa.
73.3.7
Although not all of these fossils were undamaged, the storerooms at the
Council for Geoscience, Bernard Price Institute for Palaeontology and the
Transvaal Museum contain hundreds of thousands of such fossils from
mines in the Cradle of Humankind, Makapan’s Valley and Collieries.
73.3.8
Thousands of tons of material containing fossils or archaeological
Page 150
heritage resources are destroyed annually in the coal mines in South
Africa, without SAHRA or anyone else for that matter doing anything
about it. Vele Colliery could make a difference by involving a specialist to
salvage at least some of heritage resources, as per the specialist’s
suggestions. The commitment for the appointment of a palaeontologist
has been made and the necessary funds made available. 78
73.3.9
It is therefore denied that the Vele Colliery will cause permanent damage
to the archaeological and paeleoontological remains
74.
74.1
This appeal should be dismissed
For the reasons set out above, this appellant has not set out grounds for the
mining right to be set aside.
74.2
The appeal should accordingly be dismissed.
------------------------------------------------------------------Riaan van der Merwe
Director
Limpopo Coal Company (Pty) Ltd
30 July 2010
78
Refer to Table 2.6(e) on page 163 of the EIA/EMP.