Great victory for eco-activists

COURT RULES: NO COAL MINING IN SENSITIVE MABULA

Judgment allows environmentalists to challenge the decision to redraw a protected area’s boundaries.

“This is a very practical and progressive judgment, and one that will set a standard for mining projects going forward.”

Judge Davis had choice words for the ministers: “… there is a disturbing feature in the conduct of the ministers or their departments which gave rise to one of the complaints of a lack of transparency … the primary beneficiaries of the mining activity sought to be permitted are based off-shore and their local BEE component is, to an extent, ‘politically connected’.”

The minister of environmental affairs, at the time the mining licence was granted, had admitted to violations of procedural fairness under Paja, but argued these were fair and reasonable departures.

Environmental groups complained they were not given an opportunity to have their objections to the project heard.

Judge Davis said: “My initial impression on the ministers’ method of exercising their discretion was simply to apply a ‘tick-box’ approach, namely: had all the other organs of state given their approvals? If so, then permission is granted.”

Edna Molewa, the late minister of environmental affairs, argued that she had no duty to apply her mind freshly. This was simply wrong, said Judge Davis.

This case is one of several administrative and legal challenges brought by CER, against an Indian-owned mining company Atha-Africa Ventures and the government. It’s seen as a test case for establishing the boundaries of ministerial decisionmaking, in allowing mining to take place in environmentally sensitive areas.

CER challenged the ministers’ decisions to allow Atha-Africa to proceed with its coal mining project in Mpumalanga, as lacking transparency and being procedurally unfair. They also argued that mining in such sensitive areas could only be allowed in exceptional circumstances.

Days before the matter was heard, the Mpumalanga MEC for mining published a notice in the provincial gazette to exclude the proposed mining area from the Mabula Protected Environment. The MEC instructed the state attorney to seek a postponement.

This is a very practical and progressive judgment

The court wasn’t buying it.

This latest judgment allows environmentalists to challenge the MEC’s decision to redraw a protected area’s boundaries.