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JIMMY MOYAHA: We are taking a look at a deal that we thought might be a good thing for South Africa but seemingly hasn’t happened. The application has been declined; I’m referring to the Jindal Steel and Power deal to build an iron ore mine in KZN that didn’t go over so well.
I’m joined on the line by the environmental lawyer involved in the case on behalf of All Rise, Janice Tooley, to take a look at this. Good evening, Janice. Thanks so much for taking the time. Obviously with deals like this there’s a lot that goes into them before the deal happens.
When the announcement was made that this wasn’t going ahead, what was cited was that there were extensive gaps in the environmental assessment in the context of the constitutional rights that related to this deal. What does that mean in English?
JANICE TOOLEY: South Africa has a Constitution and its Bill of Rights protects the environment and gives people the right to an environment that’s not harmful to their health and wellbeing.
And to give effect to that right, there’s a whole lot of environmental legislation. Where activities like [those of] a big mine have a significant impact on the environment, on culture and the socioeconomic environment, the applicant is required to get an environmental authorisation and various other licences – like a water use licence and a waste management licence.
I think Jindal started this process in 2013 and the current process that led to the refusal has been running since 2021.
They then appointed in terms of the regulations a whole lot of specialists to do studies, and they are also required to consult with all the interested and affected parties.
So the two-and-a-half-year period with all these specialists ended up in a report of over 3 000 pages – but with significant gaps.
So basically what the Department of Mineral Resources and Energy, the DMRE, said is that it can’t make an informed decision to give effect to our constitutional rights in Section 24 because there’s just not sufficient information to make that decision.
JIMMY MOYAHA: Janice, before we get to the community aspects of it, let’s start with the DMRE because you’ve just mentioned them. I read through the report that they sent out when they rejected the application, and they [said] that a part of the reason around the rejection was the fact that independent specialists in certain respects are a no-no because there are prescribed specialists who need to be used for the department to gain a certain level of assurance from their perspective.
I suppose that speaks to what you’ve just alluded to, where you’ve said that the DMRE also confirmed that they didn’t have enough confidence on their side around this. Is there a workaround for this? Is it something where Jindal can come back and say, okay, we’ll employ the specialists that are in line with the DMRE to get this done, or is it something where independent specialists or independent reports are admissible at some point?
JANICE TOOLEY: Well, I think one of the first entry points for being acceptable or not is that they fully meet the reporting criteria in the legislation, and that’s to do full assessments.
So, to end up with recommendations at the end – or these gaps, where so much work still has to be done – Jindal would need to then either reappoint the same specialists or get other specialists to go back and actually complete the work.
It’s not just the specialist studies, but I know you said you’ll come to the community consultation and –
JIMMY MOYAHA: Yes. Let’s look at that. As you mentioned, obviously with those specialists’ reports Jindal cited on their side that it was as a result of a restriction of access.
But let’s look at the community side of it. We’re talking about 20 000 hectares or more of space that is being looked at for this particular mine, and this is what we’re dealing with.
But in and around that there are schools involved, there are homes involved, there are …
JANICE TOOLEY: Clinics.
JIMMY MOYAHA: Clinics and other things that would need to be relocated. Do we know how much of that would need to be moved around for this operation, this deal, to go ahead. According to the reports that Jindal had put together, they had estimated around 350 homes that needed to be relocated. But I suppose that figure would be from their estimates and might not be a full reflection.
JANICE TOOLEY: Yes, because they actually haven’t consulted or notified the people that may have to be relocated. They fall under the mining health and safety regulations, and there’s a requirement that, if you’re going to do blasting within 500 metres of infrastructure, including houses, you need to get a special permit from the department. So generally the mines take as practice that they relocate, they put their fence line at a 500 metre boundary.
But the 350 would be families. It’s just an estimate.
They haven’t actually spoken to people in the area. They haven’t done a relocation action plan. And that’s only for phase one.
So although it’s 202 square kilometres that they are applying the mining right for, they’ve only really in detail assessed phase one. There are two blocks. This would be in the sort of south-east of the southern block. Those are the 350 families there.
And if you look at an average of 10 people per family, that’s about 3 500 people living there. People live outside that area as well, but they still use the area. They might not have houses there but they still graze their cattle, they still have fields, they still use clinics and schools. So it’s a very conservative estimate to say only 350 because they haven’t even looked at all the other phases of the project to come yet.
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And there are 20 villages that are going to be affected in this whole area.
So to say 350 is just the starting point and it’s a very small estimate at this stage.
JIMMY MOYAHA: I take your point around the fact that I think there’s a lot of subsistence farming that takes place there. There could be a positive side to this as well, to say that the communities involved there could potentially see some job opportunities and those sorts of things. But obviously that is something that will have to be included in the agreements and all of that.
As it stands at the moment from a community perspective, from an All Rise perspective, is there an objection to Jindal coming into the space and operating the mine, or is it more about saying that we want to ensure that the communities are safe, that all of the other boxes or all of the other concerns have been addressed before we proceed, rather than it being an outright rejection of this project?
JANICE TOOLEY: I think it’s a mixed response. There are communities in the northern block where they have just blocked access for specialists to go to the area.
They say they don’t want mining there; their land is their ancestral land; their graves, their houses, their culture cannot be bought or substituted.
So there are communities that are completely opposed to the mine because it’s impossible not to end up with those impacts of resettlement and impacts on their livelihoods and culture.
And then there are the other community members who are saying, ‘Well, what’s in it for us?’ They’re not convinced. There are only 800 jobs estimated per year, permanent jobs, by the mine, and most of them are going to be skilled employees.
So it’s going to really not translate to jobs for local people. We see that all around the country in these mines. Most of the mine jobs are for skilled workers, and that skill base is just not there in the community.
JIMMY MOYAHA: I see. So the community’s definitely very hesitant at this stage because they don’t see the value that they would be benefitting from giving up their land, which is a valid concern. We’ve seen that in the past as well.
Where to from here, Janice? What happens here? I suppose Jindal Steel and Power does have other remedies they can pursue, as do the communities and the DMRE in this case. What are the next steps from this point of view?
JANICE TOOLEY: The immediate remedy would be to lodge an administrative appeal of the department’s decision. They would appeal to Minister Barbara Creecy, who is the Minister of Forestry, Fisheries and the Environment. She’s the appeal authority, and they have 20 days to do that.
Then all registered interested and affected parties on the database who participated in the EIA [Environmental Impact Assessment] must be sent a copy of the appeal and they have a chance to respond as well.
But given the lengthy and detailed reasons for the department’s decision, it’s very hard to see that Jindal is going to win an appeal.
It could take it further on review. But in my view, given these gaps, which are undeniable – the specialists, the environmental consultants admitted them themselves – they’d have to start again and do it properly and try and address the conflict because this mine has caused lots of conflict.
People’s lives are endangered, people are in hiding. It’s caused division in families and communities. So that’s another spinoff of when mines come into communities, because not everyone has the same view on the sustainability of the mine.
But certainly our clients are opposed to this development because it will bring about large-scale impacts on their livelihoods, irreversible impacts.
And also there are the commercial farmers.
One of our clients employs 4 000 people, agricultural jobs, for local food production and export. This mine will destroy that economy as well.
So we’re talking about a net job loss, which [makes it] understandable why people are opposed to the project, never mind all the impacts of water quality, water supply, and other big issues such as climate change impacts.
JIMMY MOYAHA: Well, it looks like they still have quite a way to go.
We’ll have to leave it at that. Janice, thanks so much for those insights. That’s Janice Tooley, who’s an environmental lawyer at All Rise, sharing the latest developments around the Jindal Steel and Power attempt to acquire a mining licence in the KZN province, which was declined by the Department of Mineral Resources and Energy.
