human rights lawyer opposes dune mining
29 October 2007

Celebrated human rights lawyer Richard Spoor has fired off a broadside to the department of minerals and energy (DME), calling on it to prove that the licence issued to Australian company MRC to prospect in Pondoland‘s Xolobeni dunes does not violate an existing Wild Coast conservation decree.  In a letter sent to the department on behalf of the Sustaining the Wild Coast (SWC) public participation and environmental coalition, Spoor said unless the department could prove there was no violation of existing law – it should dismiss MRC‘s application to mine the area.

Spoor made a name for himself by winning damages for 1 600 workers whose lungs were damaged by asbestos mining. In 2003, former mining house Gencor had to pay R448-million into the Asbestos Relief Trust – the biggest payout of its kind in South African history.  Spoor said his letter to the department followed on a precedent-setting verdict in the Bloemfontein Appeal Court on September 6 in which holiday cottage owners were calling on the court to set aside an order by the State that their cottages should be demolished.

The cottage owners argued that although their cottages fell within the Wild Coast coastal nature reserve established by the former Transkei government‘s 1992 Environmental Conservation Decree, the decree had never been gazetted and no regulations or guidelines had been drawn up. “The court found, however, that, notwithstanding the lack of regulations to guide its application, this law does have effect. The appeal was rejected, for this reason, and the order for the cottages to be removed was confirmed,” said Spoor.

Spoor and the SWC argue that the Bloemfontein ruling is central to the debate on the Xolobeni mining application as the dunes envisaged for excavation lie well within the reserve, which stretches 1km inland from the high water mark, all along the Wild Coast. The decree stipulates that there should be no removal of soil or vegetation from the reserve without a permit. The SWC contends that no permit to do this was ever issued by the Eastern Cape environment department to MRC or its subsidiaries although they removed 60 tons of dune sand as far back as 2001.

Spoor said his September 24 letter, sent to DME director general Sandile Nogxina and Eastern Cape director Nomvuyo Ketse, had been aimed at ascertaining whether Ketse was aware of the existence of the reserve when she issued the prospecting licence. “If she was aware, then she was breaking the law. If she was not aware, then it was a serious mistake. Government officials are supposed to know the law. “If DME fails to establish why the (Bloemfontein) decision is not binding on the issue of a prospecting or mining licence in the coastal reserve, then the prospecting licence should be . . . null and void and the mining rights application should be terminated.”

Spoor said that if this course of action was not followed, then he would be taking the matter to court on behalf of the SWC.
Leading SWC member John Clarke said it would be untenable if the cottage owners were forced out by the ruling on the coastal reserve but a foreign company was allowed to muscle its way into the same area.

He said the issue was also key in terms of the argument from the minerals and energy department that applications to mine should be ruled on by it and not the environment department.
“Here we have a mining project within a nature reserve. Surely the environment department should have a legitimate veto vote, in a case lie this at least?”  Asked if the department had taken cognisance of the declared coastal conservation zone, Ketse said her understanding of the letter from Spoor was that it was simply a statement of intent to sue. “We took all relevant facts into consideration when we issued the prospecting permit. Further than that, I have no comment.”

Guy Rogers, www.theherald.co.za