Page 74
LIMPOPO COAL COMPANY (PTY) LTD REPLYING SUBMISSION to
THE MINING RIGHT APPEAL PREPARED IN TERMS OF regulation 74(7)
OF THE MINERALS AND PETROLEUM RESOURCES DEVELOPMENT ACT, 2002
In respect of the appeals brought by:
endangered wildlife trust First Appellant
peace parks foundation Second Appellant
the ASSOCIATION OF SouthERN African pROFESSIONAL Archaeologists
Third Appellant
the Mapungubwe Action Group Fourth Appellant
BIRDLIFE SOUTH AFRICA Fifth Appellant
BREGJE DAWSON / KNOLL INVESTMENTS Sixth Appellant
JM & PD GRAY Seventh Appellant
DGR TRUST Eight Appellant
MOPANE BUSH LODGE Ninth Appellant
PETER FITT / NORTHERN TULI GAME RESERVE Tenth Appellant
WILLIAM GILFILLAN Eleventh Appellant
MASHATU NATURE RESERVE Twelfth Appellant
Tourism Working Group,
Greater Mapungubwe Transfrontier
Conservation Area Thirteenth Appellant
DJ WESTCOTT / JW TAYLOR TRUST Fourteenth Appellant
Ga-Machete Economic Development
Corporation Southern Cross
Experiences (Pty) Ltd Joint Venture Fifteenth Appellant
THE SOUTH AFRICAN ARCHAEOLOGICAL SOCIETY Sixteenth Appellant
JEREMY FITT / NORTHERN TULI GAME RESERVE Seventeenth Appellant
WILDERNESS FOUNDATION OF SOUTH AFRICA Eighteenth Appellant
WORLD WILDLIFE FOUNDATION OF SOUTH AFRICA Nineteenth Appellant
(Collectively referred to as the “Appellants”)
REPLYING SUBMISSION
I. INTRODUCTION
1. This is the replying submission of Limpopo Coal Company (Pty) Ltd (“Limpopo Coal” or the “Company”) of Coal House, Pine Wood Office Park, 33 Riley Road, Woodmead to the appeals brought by the above named Appellants to the grant a mining right to it for coal in terms of section 22 of Minerals and Petroleum Resources Development Act 28 of 2002 (the “MPRDA”) on 19 March 2010, over Portion 3, 4, 5, 6, 14 and the Remainder of the Farm Overvlakte 125 MS; the Farm Bergen op Zoom 124 MS; the Farm Semple 155 MS; and the Farm Voorspoed 836 MS (the “mining area”).
2. Limpopo Coal was provided the appeal submissions in respect of these appeals on 15 June 2010 by the Department of Mineral Resources (the “DMR”). This was a significant period after they was served on the DMR. While this replying submission was due within 21 days of the date of receipt of the appeal submissions, in an email, dated 23 June 2010, the DMR agreed that the Company’s response could be submitted on 30 July 2010.
II. preliminary matters common to all appeals
3. It is immediately apparent that the appeals have all been prepared using an identical template, which in certain cases has not been fully completed.
4. As such, there are certain matters common to all the appeals which we deal with at the outset.
5. Most of the issues raised in the Appeals have been raised previously by the Appellants; were responded to by the Company; and were before the decision maker
5.1 Most of the Appellants were participants in the public participation process, undertaken in terms of the MPRDA for the purpose of the mining right application.
5.1.1 The Ga-Machete Economic Development Corporation Southern Cross Experiences (Pty) Ltd Joint Venture; Bregje Dawson/Knoll Investments Ltd; DGR Trust; JM and PD Gray; William Gilfillan; Mopane Bush Lodge; Endangered Wildlife Trust (“EWT”), Association of South African Professional Archaeologists (“ASAPA”), World Wide Fund for Nature South Africa (“WWF”), Birdlife South Africa (“Birdlife”), Peace Parks Foundation (“PPF”) and the South African Archaeological Society were all participants in the Interested and Affected Parties (“I&AP”) process, conducted by the Company for the purpose of preparing the Environmental Impact Assessment (“EIA”) / Environmental Management Programme (“EMP”) during the mining right application. The members of Mapungubwe Action Group (“MAG”) were also participants in this process, as was Northern Tuli Game Reserve from which two Mr Fitt’s have now appealed. These parties furnished detailed comments on the EMP during that process, evident from Annexure “P2” of the EMP, being the Issues and Responses Register (“the Response List”, attached marked “LC1”).
5.1.2 No indication has been given by the Tourism Working Group, Greater Mapungubwe Transfrontier Conservation Area; DJ Westcott/JW Taylor Trust; Wilderness Foundation of Southern Africa (“WFSA”); and Mashatu Nature Reserve why they have chosen now to join an appeal brought by participants in the initial I&AP process. They make no effort to distinguish themselves from the majority of the Appellants who were all involved in that process; nor to indicate why there are involved in the Appeal but were not involved in the I&AP process. They have put their appeal submissions on an identical template with the I&AP participants and, as such, have shown themselves to have a common cause with those Appellants. Accordingly, we do not believe there can be any basis to distinguish between the Appellants.
5.2 In accordance with the objects of the relevant legislation, the I&AP process was extensive, rigorous and the views of affected parties were canvassed and given on a number of occasions. Unfortunately, the Appellants appear to have used the opportunity of these appeals simply to restate that which they previously submitted, without considering and referring to the comprehensive and detailed responses contained in the EMP.
5.3 Alternatively, as set out further below, some Appellants while opting out of the I&AP process prior to this point, or choosing to limit their submissions previously, have now introduced new material and allegations for the first time on appeal. This is highly prejudicial to the Company, who has engaged in the statutory process constructively and in good faith. It is also prejudicial to the decision-maker, who is required to deal with new material for the first time on appeal.
5.4 The I&AP process is set out in detail below.
5.5 I&AP Process
July 2008 onwards
5.5.1 A data base of I&APs was compiled. The date base included authorities, landowners and other I&AP that had been registered. It was continually updated as new I&AP were identified throughout the project (see Annexure N1 of the EMP).
5.5.2 A background information document (“BID”) for the project was compiled. The BIDs and a Response Form were distributed via mail, per hand, fax or email to all I&APs from July 2008; and also continuously to all newly registered I&APs. The BID provided background to the proposed project; highlighted the legal requirements and EIA process to be followed. A Response Form was attached, inviting I&APs to provide any comments regarding the proposed activities, to identify any further I&APs who should be consulted, and to register on the I&AP data base (see Annexure “N2” of the EMP for a copy of the BID);
Friday 22 August – Thursday 28 August 2008
5.5.3 Advertisements for the EIA process appeared in two regional newspapers. Notices were also places on site; at intersections and buildings commonly used by the local community on 15 August 2008 for the duration of the process (full details are provided on pages 4 -5 in Annex-N of the EMP).
31 July 2008 to January 2009
5.5.4 Meetings were held with the Authorities, directly affected landowners, neighbours, land claimants; King Mphephu, the recognised authority of Venda; and other key stakeholders. The main purpose of these meetings was to raise any issues and concerns regarding the project. A background to the EIA process and findings were provided at these meetings. These meetings are set out below.
5.5.4.1 Vhembe District and Musina Local Municipality
A meeting was held with these Authorities on 31 July 2008 to present the project; and gather the issues and recommendations on the project, as well as the Social and Labour Plan (“SLP”). (The minutes of the meeting are included as Annexure “N5” of the EMP).
5.5.4.2 National and Provincial Government
5.5.4.2.1 A meeting was held with the Authorities on 26 September 2008. (The list of authorities that attended this meeting and the issues that were discussed, as well as the minutes of the meeting, are provided in pages 5 – 6 of Annex-N of the EMP and Annexure “N4A” respectively).
5.5.4.2.2 A subsequent meeting was held with the then Department of Environmental Affairs and Tourism (“DEAT”); Limpopo Economic Development, Environment and Tourism (“LEDET”), South African Heritage Resources Agency (“SAHRA)”, South African National Parks (“SANParks”), the Transfrontier Conservation Area (“TFCA”) Coordinator and the PPF on 23 January 2009. (The minutes of the meeting are included as Annexure “N8” of the EMP).
5.5.4.3 Landowners meeting
5.5.4.3.1 The landowners of affected farms in an approximately 10km radius of the Vele Colliery (set out in page 7 of Annex-N of the EMP) were consulted on an ongoing basis throughout the project. In particular, they were consulted on 19 September 2008 and 20 November 2008. (The minutes of the meeting are included as Annexure N6 of the EMP).
5.5.4.3.2 Key interviews and focus group discussions were also held all direct neighbours, as well as I&APs in Zimbabwe.
5.5.4.4 Land Claimants meeting
5.5.4.4.1 In this period a meeting with the Tshivula Community, who are land claimants of certain properties over the mining area was held on 29March 2009, once the Land Claims Commissioner had provided the necessary information regarding the claimants. (A copy of the minutes of the meeting is included as Annexure “N7” to the EMP. The minutes of the meeting reflect that it was held on 29August 2009. This is incorrect; the meeting was held on 29March 2009, as is evident from the attendances register).
5.5.4.4.2 As indicated in the minutes, the Company undertook to send a formal invitation to the Tshivulu Tribe to attend the Open Day. This invitation was duly sent to the Tshivulu Tribe and several representatives attended the Open Day.
5.5.4.5 Meetings with King Mphephu
5.5.4.5.1 During the course of the public participation process the Company consulted with King Mphephu, the recognised authority of Venda.
5.5.4.5.2 In these meetings between the Company and King Mphephu issues pertaining to land claims and the traditional communities were discussed.
27 November 2008
5.5.5 The DMR accepted the mining right application.
15 December 2008 to 15 January 2009
5.5.6 Comments to the Scoping Report were invited from all registered I&APs. Copies of the documents were made available at the Musina Municipality Offices; Jacana Environmental CC (“Jacana”); and Vhembe District Municipality.
5.5.7 The Scoping Report was also distributed to all registered I&APs through email, delivering and post.
5.5.8 A comment period of 30 days was set from 15 December 2008 to 15 January 2008. Due to the holiday season, the period was extended by an additional 30 days to 16 February 2009. (The comments submitted by I&APs to the Scoping Report are included in the EMP as Annexure “N13”).
August 2008 – 15 April 2009: Specialist studies
5.5.9 The Company instructed numerous specialists to conduct investigations on the impacts of the mining operations; compile specialist reports and include proposed measures to mitigate any impact. A table is attached as Annexure “LC2”, setting out the specialists’ qualifications and experience in their respective fields.
16 April 2009
5.5.10 A public open day was held at Dongola Ranch. All registered I&APs were invited to the day. Due to the wide scale media attention, more I&APs attended than registered and others were added to the data bases.
5.5.11 Posters and handout documents provided a summary of the findings of specialist reports and mitigation commitments made by the Company. (A copy of the handout is included as Annexure “N11” in the EMP).
5.5.12 The open days allowed for a question and answer session. (Specific details of this session are included as Annexure “N12” in the EMP).
18 May 2009 to 27 July 2010
5.5.13 The registered I&APs were first notified of the availability of the Draft EIA/EMP on 18 May 2010, this was done over a few days due to the size of the I&AP list. The EMP was made available for review at the following locations:
5.5.13.1 Musina Library (hard copy for review on site);
5.5.13.2 Musina Local Municipality (hard copy for review on site);
5.5.13.3 Jacana, 7 Landdros Mare Street, Polokwane (hard copy for review on site, as well as electronic copies of the report);
5.5.13.4 Naledi Development (Pty) Ltd, 142 Blyde Avenue, Sinoville (hard copy for review on site, as well as electronic copies of the Report); and
5.5.13.5 download from www.coalofafrica.com/thuli website (from Friday 22 May 2009).
5.5.14 A second notification was done on 1 July 2009, indicating the availability of EMP on the Coal of Africa website.
5.5.15 The draft EIA/EMP included the specialist reports set out below.
5.5.16 I&AP were provided a period of over 60 days to comment of the Draft EIA/EMP on or before 26 July 2009. (26 July fell on a Sunday, so the Company allowed comments to be submitted until Monday 27 July 2009).
3 August 2009
5.5.17 The DMR provided written comments, inclusive of a number of comments from other state departments and I&APs to the Draft EIA/EMP.
20 August 2009
5.5.18 The Company responded in writing to the comments to the EIA/EMP raised by the DMR, the I&APs and the independent reviewer of EWT (being the Response List, attached as Annexure “LC1” hereto).
13 October 2009
5.5.19 Additional comments were received by the Company from the DMR on 13 October 2009. The Company submitted responses to the DMR regarding these comments on 16 October 2009. A copy of the Company’s response is attached as Annexure “LC3”. These issues included:
5.5.19.1 whether Phase 2 Heritage Impact Assessments (“HIA”) had been conducted. The Company confirmed that the EMP and the specialists’ reports were forwarded to SAHRA, with a request to proceed with Phase 2 HIAs. However, SAHRA rejected the request and advised that it would only consider this once the mining right had been granted. (The letter from SAHRA is attached to the Company’s response);
5.5.19.2 details on the mitigation measures included in the EMP. The Company referred the DMR to the section of the EMP containing these measures; and repeated the mitigation measures in its response;
5.5.19.3 the total area that would be disturbed. It was confirmed that the area was 8, 663 hectares and the properties included in the application were confirmed;
5.5.19.4 information on any threatened graves. The Company confirmed that two graves had been identified, however they would not be impacted on by the mining or infrastructure development;
5.5.19.5 financial provision. It was conveyed that the guarantee documentation was being prepared and would be delivered once it had been issued;