Concourt strikes a blow for nature | Fin24
 
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Concourt strikes a blow for nature

Aug 20 2017 06:00
Sizwe Sama Yende

Nature conservation and geology are the biggest winners after the Constitutional Court upheld a decision of the Supreme Court of Appeal, which dismissed a mining company’s application to prospect for gold in a nature reserve.

The hallmark decision in effect prohibits mining in protected areas and gives a bite to the National Environmental Management: Protected Areas Act (Nempaa), 57 of 2003.

Barberton Mines, a subsidiary of JSE-listed Pan African Resources, is already producing 150 000 ounces of gold per year in its three mines – Fairview, Sheba and Consort – and operates a gold tailings retreatment plant in Mpumalanga’s gold-rich Barberton area.

The mining company wanted to extend its operations into the 27 808.5-hectare Barberton Nature Reserve after the department of mineral resources (DMR) granted it a prospecting permit in 2006, but the Mpumalanga Tourism and Parks Agency (MTPA), a state-owned enterprise, and Mountainlands Estate Owners’ Association (MOA) objected by lodging an appeal with DMR.

Barberton Nature Reserve is located within the Barberton Greenstone Belt – a Mecca for geologists from the world over because its rocks, estimated to be 3.6 billion years old, are repository of scientific information about early Earth.

The reserve is also habitat to 2 200 plants, considered threatened by climate change, and 300 bird species.

The Greenstone Belt was placed on South Africa’s tentative list of World Heritage Sites in 2008.

The DMR dismissed the MTPA’s and MOA’s appeal on April 16 2012, but when Barberton Mines wanted to access the area, these organisations prevented it.

The mining company then went to the Pretoria High Court in 2015 to interdict the MTPA and MOA from denying it access to prospect in the area. It won the case.

MTPA and MOA then took the matter to the Supreme Court of Appeal in Bloemfontein and won. Barberton Mines then decided to approach the Constitutional Court, but lost again, because the Pretoria High Court had, in the first place, rejected three Mpumalanga provincial acts declaring the area a nature reserve.

In his SCA ruling of March last year, Judge Visvanathan Ponnan found that Barberton Mines’ application for leave to appeal “bears no prospects of success”.

MTPA’s CEO, Johannes Nobunga, said that, after this ruling, nature reserves and other protected areas in the country were now safe from prospecting and mining.

Nobunga said the ruling clarified the status of conservation areas established under provincial legislation before the commencement of Nempaa.

He said that the status of conservation areas established under such legislation had been the subject of considerable dispute, particularly as it pertained to mining and other forms of development.

“Those seeking to exploit our natural resources must understand that we cannot place profit ahead of people’s wellbeing. It is time that we acknowledged the value of our unspoilt natural environment and the important role that such areas play in providing us with clean water to drink and air to breath”, said Nobunga.

MOA chairman, Nico Oosthuizen, said: “This is a landmark victory for all protected areas in South Africa. Too many of them have, like us, suffered from the indiscriminate awarding of mining and prospecting rights.

“The long-term value of ecosystem services derived from our protected areas, especially those that protect sensitive water catchments and areas of high biodiversity, can never be sacrificed for the short-term gains of mining and its profit-seeking shareholders.”

constitutional court  |  mtpa  |  mining industry
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