Latest developments in the Wild Coast Mining and N2 Toll rd saga

The Amadiba Crisis Committee (ACC) and Legal Resource Centre (LRC) demands decision from the department “by no later than 28 September 2010”, failing which the matter will be taken to High Court.

Social worker John Clarke has provided the following summary of developments, and opinion.

Xolobeni Mining
We are still waiting for DG of Mineral Resources, Sandile Nogcina, to announce the outcome of the appeal by the Amadiba Crisis Committee.  It has been over two years since the appeal was lodged.

In February this year a special committee was appointed by the DG of Mineral Resources Adv Sandile Nogcina, chaired by ANC MP and President of Contralesa Adv Patekile Holomisa, to consider the appeal and make a recommendation to the Mineral Resources Development Board.   The Special Committee has done its job, but are not at liberty to disclose the recommendation they have made to the Minerals Development Board.

The attorney handling the matter is Sarah Septhon of LRC, instructing Adv Gilbert Marcus SC and Adv Isabel Goodman. They presented the Special Committee with documentation that, besides containing excellent specialist studies to support their legal argument, included sworn affidavits that attested fraudulent behavior of the mining rights applicants in producing long lists of local residents whose signatures had been forged and many of whom were long deceased, all stating they were in “full agreement with the mining project going ahead”.

The ACC were confidently expecting that this deceitful and illegal behavior would have on its own constituted sufficient cause for the Minister to summarily revoke the mining licence.  Whatever ambiguities might exist in the legislation governing mining rights (the Mineral and Petroleum Resources Development Act), there is nothing ambiguous about section 47 which empowers the Minister to cancel rights if the applicant has “submitted any inaccurate, incorrect and misleading information…” 

On instruction from the ACC Sarah has now sent a letter to the Minister demanding a decision in respect of the internal review process “by no later than 28 September 2010”, failing which the matter will be taken to High Court. 

If the mining rights are upheld by the Minister, the ACC’s legal team is very confident that they will win, even if it has to go all the way to the Constitutional Court, because the community contends that the award of the mining rights is blatantly unconstitutional. 

N2 Toll Road
The first N2 Toll Road authorization was set aside in December 2004 by Minister Van Schalkwyk, because of a lack of independence of the EIA consultants.  Rufus Muruma, the executive director of the EIA consultancy Bohlweki and Associates, was found to also be a director of one of the consortium partners, Stewart Scott International, indicating a clear conflict of interests.  It was this fatal flaw which left the Minister with no alternative but set aside the authorization.

A new proposal/application was however permitted, provided the requirement for independence of the EIA consultancy was satisfied.  A different firm, CCA Environmental was duly appointed.  They used much of the previous report, including the Social Impact Assessment report, which they deemed to good enough.  The new scoping report was done in 2006 – 2007, the draft EIA in 2008-2009, and the final EIA published in January 2010.  
Comments and objections were lodged at the draft stage by the community through their lawyers Cullinan and Associates.  Particular concern was expressed about the lack of detailed information about the proposed route, compensation arrangements, moving of graves, location of access roads underpasses etc.  

The Deputy DG of DWEA Joanne Yawitch issued an environmental authorization on 19 April 2010 stipulating various conditions, and inviting objections that the Minister would consider before either endorsing or setting aside the authorization. 

Objections from several stakeholders were submitted notably; 

<li>The local Amadiba community who stand to be most significantly affected by the road, and fear that it will render coastal dune mining inevitable. 

<li>South Coast residents who object to having heavy loaded toll fees that South Coast commuters to Durban will be expected to pay to cross subsidize the construction of the Greenfields section through the Eastern Cape. 

<li>Many members of Sustaining the Wild Coast objected in their individual capacities to the failure to consider alternative alignments, the overall failure to assess the road impacts in relation to the cumulative impacts of other proposed developments, notably the Xolobeni mining venture, and to poor public participation methods.  

<li>Southern African Faith Communities Environment Institute (Bishop Geoff Davies) objected again to the failure to seriously consider alternative alignments, and to the artificiality of an administrative separation of the EIA procedures from the Intent to toll procedure, which will only ensue after the road is approved.  
WESSA and other environmental NGO’s focused on the threat to biodiversity in the Pondoland Centre of Endemism by these developments, in contravention of the Convention of Biological Diversity.
  
Significantly, the local Amadiba Community are convinced that the N2 Toll Road is ‘carrying a calf’, in that it goes hand in glove with the mining, a proposal which they have already categorically rejected.  They again contracted attorney Cormac Cullinan to lodge their objections, which were largely focused on the concerns about a very poor public consultation process.  They maintain the Public Participation process failed to meet even the very basic requirements in terms of customary law, which requires that all land related matters must be openly discussed at open consultation meetings held under the auspices of the Tribal Authority  at the Tribal Court house or Komkulu  (Great Place).   This never happened, even during the first round EIA Public Participation done by Bohlweki.  

In contrast, Cormac did meet with them at the Komkulu, and we arranged to have the proceedings filmed to ensure complete transparency.  A DVD copy was submitted with the objections, together with affidavits from the Queen of the AmaPondo, local residents, and various subject matter specialists arguing that the conclusions and recommendations of the EIA were again fatally flawed, having inter alia failed to take meaningful account of comments and concerns submitted on the scoping report and draft EIA.

Sanral lawyers (Bell Dewar and Hall) are apparently trying desperate to counter the objections, which suggest that the confidence SANRAL once had in the EIA report satisfying the legislative requirements was misplaced. 

The local chief, Lunga Baleni, was approached by one of their consultants asking for him to sign an affidavit stating his retrospective consent – which in itself amounts to a procedural violation. 

The Dept of Environment tried to exclude the video submission stating that “only written submissions will be entertained”.  They backed down when it was pointed out that many of the affected residents were illiterate and would be seriously prejudiced by the restriction.  
 
Two further issues of major controversy have now come into play, which have major implications as to how the above two controversies will be ultimately resolved. 

<b>Succession Dispute on Kingship of AmaMpondo</b>
The incumbent King of the AmaMpondo, Mpondombini Sigcau, has been deemed by the Commission for Traditional Leadership Claims and Disputes not to be the rightful successor to King Mandlonke who died in 1937 without fathering a male heir.  

Legal counsel to the Royal family are flabbergasted by the finding and the next tier AmaPondo Traditional Leadership and other members of the Royal House are currently mobilizing to challenge to the Commission and President Zuma’s endorsement of its findings.

Adv Patrick Mtshualana (SC) instructed by Moray Hathorn of Webber Wentzel Attorneys is representing the Royal Family in the matter. Webber Wentzel attorneys have taken on the case on a pro-bono basis because, according to Moray “a gross injustice to my clients appears to have been done, which cannot go unchallenged”. 
 
Given that the incumbent Royal house have vigorously opposed Government plans to impose macro development projects on the AmaMpondo, - notably the Xolobeni Mining, N2 Toll Road and Umzimvubu Dam scheme, - the working assumption is that the Commission has been manipulated by influential people with corrupt political and commercial agendas to subvert the only governance institutions that has consistently and courageously stood up for the constitutional rights of the rural amaPondo residents. 

<b>Proposed curbs on Media:</b>
Several award winning environmental and business journalists have appealed for support in their struggle to prevent the enacting of proposed Media Tribunal and Protection for Information Bills, advocated by the ANC.    
Both SWC and the incumbent Royal Family have added their voice to the opposition, because over the ten year struggle, journalists have engaged extensively in the ‘Wild Coast’ debate to highlight contradictions, challenge authoritarian assumptions, help to publicize and uncover coercion,  fraud, power mongering, politicking, incompetence, human rights abuses and abuse of power, give a voice to the poor and disenfranchised, and tell the stories and perspectives of those whose lives will be drastically changed by these Macro Development schemes

<b>Assessment and analysis:</b>
With respect to the N2 Wild Coast Toll Road, instead of SANRAL acting as a state owned and democratically accountable referee to ensure the commercial motives of the Private Sector do not dominate over the common good and claimed “national interest”, it assumed the role of ‘scheme developer’ from the Private Sector Wild Coast Consortium after their supposed ‘unsolicited bid’ was found to be fatally flawed because of vested interests.  Assuming scheme developer status on behalf of a private sector consortium seems at complete variance with the terms of reference one would expect from a state owned institution serving as ‘referee’ to ensure both a fair game between competing commercial enterprises, and above all the non exploitation of those whose money and assets would be called upon to sustain the “game”.    Instead, after Bolwheki was ‘red carded’ for foul play, and the WCC faded with embarrassment from the game, Sanral appeared instead as both player and referee.   
Surely the responsible thing to have done after the possible ‘match fixing’ was revealed was to start the whole game over from scratch with a new set of players.   
Those who had objected to the first EIA hoped that things would be more transparent the second time round. 

In fact, as the reality of how rural residents really felt about the N2 Toll road has become more frank, the real interests of SANRAL and their corporate clients became correspondingly opaque.  

Vast sums of money have been spent on the new EIA, and while one can sympathize with those dedicated professionals who have worked hard to give sound analysis, the parameters within which their work has been framed appears rigged to achieve an outcome predetermined by remote, faceless and exploitative political and economic interests:  interests that will neither serve the AmaMpondo people nor conserve the Wild Coast biodiversity, archeological and cultural heritage.  

Likewise with respect to the Xolobeni mining venture, the officials from the  Department of Mineral Resources, supposedly the custodian of mineral wealth held on behalf of all citizens and having a primary constitutional responsibility to promote the interests of historically disadvantaged rural residents whose lives and livelihoods will be irreversibly changed by the mining scheme, continue to act with bias toward the interests of foreign mining entrepreneurs and their blatantly corrupt BEE partners. How the DG of Mineral Resources can continue to entertain the idea of upholding the mining rights beggars belief, because there is incontrovertible evidence that massive fraud has been committed.    

Connecting the above dots, a pattern emerges which ought to alarm all who cherish our constitutional democracy– not only those who cherish the Pondoland Wild Coast.   

There is no doubt in my mind that the proposed Protection of Information Bill is motivated by fears among some very senior government officials and politicians that blatant conflicts of interests stand to be exposed.   

Having engaged with all legitimate stakeholders in the course of my social work intervention on the Wild Coast - from Cabinet ministers to illiterate elderly men like Samson Gampe living sustainable livelihoods from subsistence agriculture -  I believe that both the N2 Toll Road and Xolobeni Mining schemes fall far short of what section 24 of the Bill of Rights states as “justifiable social and economic development”.    

The reticence of state stakeholders to be transparent has left me with no other option but to conclude that the interests which are keeping the mining and toll road schemes alive are much the same as those which fuelled the exploitation and injustice of the colonial and apartheid era’s of our history:  the accumulation of power and wealth from mineral extraction at the expense of vulnerable people and fragile eco-systems. 

Four years ago after the well known human rights attorney Richard Spoor first met with the Amadiba Community he warned that they could expect two well tried and tested strategies used against those who stand in the way of commercially driven corporate entities out to make quick and lucrative profits:  Cooption and/or Subversion.   

The Amadiba Community and Royal House have courageously countered the ‘cooption’ tactics by recourse to what Queen Sigcau calls “civil courage” – standing their ground and insisting on their constitutional rights.  

Things were beginning to look very promising in terms of local people’s concerns being given a hearing.  But the two recent developments – the proposed media curbs and attempt to depose King Mpondombini – leave me personally feeling that if these two long ‘ladders’-  which have been absolutely crucial to our success -  are removed from the board, the Long Walk to Freedom that Nelson Mandela embarked upon seventy years ago will have to start all over again.

In short, while SWC volunteers have gone to extreme lengths to try to achieve resolution to the issues without resort to judicial remedies in court, it seems extremely likely that this is now inevitable.  But if we compare the situation we faced in December 2004, when the first proposal for the N2 Toll Road was set aside, with the situation we face today, we are much more confident that the courts have even more compelling grounds to firstly revoke the mining rights and secondly to refer the N2 Wild Coast toll Road proposal back to SANRAL. 

The feeling on the ground is that, masked behind the Xolobeni mining, N2 Wild Coast Toll road and now traditional leadership challenge, are fundamentally corrupt corporate and political interests.  When challenged, in the absence of a constitutionally defensible case, the only advantage that such interests have is deep pockets to fund litigation by attrition.

<b>Films on You Tube</b>
For those who have access to a fast broadband internet connection we have put films up on YouTube, on a channel called “Icosindaba”, which SWC member John Clarke has set up.  

There is a very interesting interview with local Induna from the Sigidi Village Mr Samson Gampe, filmed as evidence to substantiate the objections of the Amadiba Residents to the N2 Toll Road proposal http://www.youtube.com/watch?v=ZXaE0VgTgps

For the full historical context a three part series called Wild Coast Development, Dreams and Disruptions is also featured, containing footage from 50:50 programs dating as far back as 2003. Seven years of drama has been distilled down to 24 minutes of documentary narrative. 

- Part 1.  Wild Coast Development:  Dreams (5 minutes) http://www.youtube.com/watch?v=BVfsvyMszLA
- Part 2:  Disruptions:  Toll Road or ‘Troll’ Road.  (10 minutes) http://www.youtube.com/watch?v=DalsHKXCTEs
- Part 3.  Disruptions: Avatar Again! (10 minutes)  http://www.youtube.com/watch?v=_TjJelYvwxE

Claire Johnston (of Mango Groove fame) and Jeff Maluleke gave permission for us to use tracks from their album Starehe: An African Day, which they recorded to support environmental initiatives. Cartoonist Andy Mason likewise contributed his professional talent in a cartoon strip.