CSOs 4 Tailings Justice

The following are priorities as derived from discussions with activists during the two-day consultative workshop on tailings convened by Earthworks and Bench Marks Foundation on 26/7 June 2024. It was supported by the Federation for Sustainable Environment, GroundWork, the National Union of Mineworkers and numerous other participants from mining affected organisations whose names are attached below. These may not be exhaustive but it is sufficient to get us started.

1. Public Awareness 

There is a need for literacy around tailings and mine waste and its wider impacts on society, particularly the most vulnerable: workers, communities living adjacent to mining, and the wider society. This appeal must be to the whole society because when a dam bursts, its impacts will be indiscriminate and widespread.

These awareness campaigns could take various formats (factsheets and other advocacy tools in all media) but must emphasise the risks and dangers of poorly constructed, and poorly managed tailings facilities, especially when directly affected communities and mine workers and their organisations are excluded from decision-making. 

Furthermore, we must factor in the impacts of the unpredictable weather patterns during the climate crisis, where extreme levels of heat and heat waves,  unpredictable rainfall patterns and floodings, inevitably put pressure on structures and systems designed to manage tailings generally but especially in times of crisis. South Africa has experienced both extended periods of droughts and heavy rainfalls and storms in some of its provinces and neighbouring areas. These higher levels of intense rainfalls that have occurred like the tropical cyclones in KwaZulu Natal, Western Cape and neighbouring Mozambique invariably will lead to more erosion and flooding of these tailings dams. Engineers and society at large must seek to find solutions for them. The solutions are not only about where and how this should be built but must involve consent of communities that may suffer most harm.

In addition, how climate change impacts on how these facilities are designed, built and managed, suggests that this is a more urgent necessity for the government and the corporations to listen to the voices of citizens.

2. Build the movement

Following from the general appeal to wider society, it is clear that we need a movement of those most affected. If a movement of the marginalised and voiceless living near the mines is not fully organised and working with their own experts and allies, very little will be done to obtain both an awareness and justice around tailings dams and mine waste. It is for this reason that movement is needed. A movement which will continue building and consolidating the various fragments of groups to build effective pressure must come about soon. This means a unity of the workers and their unions as well as the mining affected communities and the poor.  

How do we organise communities to work with unions and others in the progressive movement?

• For this to be realised, good data (phone, email address) is needed.
• Do we need area committees and an interim coordinator? Already those in Soweto- Riverlea and Snake Park have formed whatsapp and email groupings and are busy defining or refining their issues for joint activism  and advocacy.
• Regular briefings and study on how we have gone towards implementing the Programme of Action?
• Should Communities demand space in workplaces with infrastructure to ensure that their work can continue? This could use existing laws or we can find a way of doing this afresh
• Identifying common issues around is a task to work upon democratically. We did discuss health literacy and advocacy as interventions around the impacts of mining, in particular tailings dams on poor communities. We must seriously consider if specific demands must be made to the authorities to mitigate poor living and environmental conditions of those living close to mine dumps and are directly impacted by tailings to obtain support in various forms including in the short term, obtaining ventilators for those in need.
• As part of this movement we will seek to urgently consolidate groups of experts who will be National and International.
• With this in mind, we must build on the contacts and follow up with those  authorities, in Water and Sanitation, Minerals and Mining as well as the Environment.

3. Collective meetings with authorities

As a collective, we must demand a meeting with all the authorities who have some jurisdiction in the construction, regulating and monitoring of tailings and mine waste fields, including the re-mining of tailings facilities. As indicated in our concept note, the policies and laws pertaining to tailings is spread widely and can be found in such:

– The Water Act 1998

– The Minerals Act 1991

– The Mine Health and Safety Act 1996

– The Code of Practice for Mine Residue Deposits published by the South African Bureau of Standards in 1998

– The Guideline for the Compilation of a Mandatory Code of Practice on Mine Residue Deposits issued by the DME in 2000

– The Mining Residue Regulations (MRR) established by the Department of Environmental Affairs (DEA) in July 2015. It was established by the Department of Environmental Affairs (DEA) to control mine waste dumps, stockpiles and tailings storage.

These regulations and guidelines aim to ensure safe and responsible tailings management, covering various critical aspects that are aimed at protecting life and property. As we will show, these generally cover how these tailings are designed and built and how they are operated. In addition they touch on the environmental impact assessments and monitoring:

          – Closure and rehabilitation plans

– Community engagement and risk management

– Emergency preparedness and response

Most often these policies and laws ensure that government bodies that ought to regulate end up working in silos and fail to serve the public. We must campaign for a more rationalised regulatory approach by the authorities so that they can act in an urgent, efficient and effective manner. We insist that such rationalising be done in a participatory democratic and inclusive manner.

4. Safety First

We must campaign around SAFETY FIRST, sending it to all the relevant government departments and then also offering workshops around it. We offer speakers to them. We must also use it in our legal advocacy – embed these principles in our letters and complaints to companies as well in LITIGATION We must also share our positions as contained in Safety First with mining corporations.

5. Focus on health

In our work with our members and wider communities we must educate around the health impacts of poor tailings and inadequate mining waste management on the health of poor communities. Obtaining information from public health authorities is critical. We can also embark upon our own health scanning as a first face of health literacy to educate around tailings and mine waste and damage as well as demanding that the department of health provide the statistics of common illnesses in mine affected communities.

6. Mine closure

 Given that South Africa is an old mining country, it is imperative that we keep in focus our work around mining closure. The failure of the authorities to close mines properly in line with the principles of the constitution as well as the non-existent laws and strategy to deal with the proper demands that we must work with the Auditor General.  

6.1. The Auditor General has pointed out that more work has to be done to close mines properly noting that: During the 2009 performance audit, the department reported that they managed 5 906 abandoned mines. Subsequently, the 2021 audit found that the DMRE manages 6 100 D&O mines. The increase in mines is a result of the department’s identification of additional D&O mines. The mines include the following high-risk commodity mines:  261 asbestos mines, and  2 322 other high-risk commodity mines such as gold, coal and copper. Prior to the 2009 audit, the department had rehabilitated five asbestos mines. From 2009 to 2021 the department rehabilitated an additional 27 asbestos mines. To date none of the 2 322 other high-risk commodity mines have been rehabilitated. In addition to the 6 100 mines, the department is also reporting on and managing 1 170 mine openings (referred to as holings), of which 507 were closed by 31 March 2021. 

6.2. Whilst not the total number of mines as listed above, the figures of the Department of Mineral Resources and Energy of 2019 remain instructive. Their break-down of Ownerless and Derelict Mines being spread out across the country is as follows: https://sawic.environment.gov.za/documents/10656.pdf    

We will have to work to ensure that the polluting owners of these mines are found and that they are made to pay for their externalisation of costs onto citizens and the government. 

7. Rehabilitation Funds

Closely related to the above is the emotional issue, as seen by activists, of Rehabilitation Funds. The communities demand greater clarity and advocacy on the operations of REHABILITATION FUNDS. This must be discussed in relation to the demand of SAFETY FIRST on Public Liability Insurance to be provided to cover for damages from sudden, accidental or gradual pollutant releases. Insurance estimates must be updated annually (guideline 12) as there seems to be a lack of transparency and accountability on the workings of this fund.

8. Water Affairs

How we engage consistently with Water Affairs: the structures on catchment areas of DWAS and how the Water Use Licences work and in  whose interest, is another urgent task. The reason is simple as water is a fundamental human right and without it we will all die. We have to process these new initiatives and how we can work with the department in terms of NATIONAL WATER ACT 36 OF 1998 (Gazette No. 19182, Notice No. 1091. (See Act for commencement dates). Published under Government Notice 704 in Government Gazette 20119. Commencement date: 4 June 1999.). South Africa is a water stressed country and managing water and waste from mining is integral for sustainability of our society.

The necessity to ensure equitable access to water demands that we redress past racial and gender allocations of water and to ensure that socio-economic development is in line with our values and principles. How wastewater is managed may have implications when accidents and disasters strike as they would undermine lives and livelihoods. Do anti mine waste activists work in the currently untransformed and undemocratic Water Users Associations?

9. Chapter 9s

We must discuss in our groups the complaints of activists that the current Chapter 9 bodies in particular the South African Human Rights Commission, the Commission for Gender Equality and the Public Protector have not worked efficiently and justly with the complaints of mining affected communities. Do we have the luxury of leaving these groups aside?

10. Mapping exercise

We continue to demand that all tailings dams and waste facilities be mapped and be publicly available for all citizens and professionals interested in these fields of work. This mapping exercise will spell out which mines are Active tailings and old tailings, Dumps and dust, Pits and Water Waste.

11. On Jagersfontein

We recall that the disaster took place on 11 September 2022 when, according to reports, the waste torrents spread, causing havoc to the neighbouring communities of Charlesville and Itumeleng, killing at least two people, leaving two missing and injuring dozens more. The untold damage to animal life and wider ecology not often spoken off must also be factored in as well as the damage to close to 164 houses. Almost two years after this tailings disaster, workshop participants were appalled at the lack of transparency and accountability following the disaster and agreed that action be taken. 

One of the first acts is to immediately issue a  media release that is supported by the unions, the NGOs and community based activists groups. In the statement we will underwrite the necessity for the authorities and corporations to work in a transparent and accountable manner and to enforce the  polluter pay principle. In addition, we must demand that:

• The full forensic report on the Jagersfontein disaster including the recommendations to avoid such disasters be made public. 
• The National Prosecuting Authority must  prosecute the owners of the mine. We are aware that some government departments have supported this call, including the department of water and sanitation.
• The principal regulatory departments, ie DWAS, DMRE [including the health and safety branch] and DFFE, report jointly and severally, how they will address the policy gaps in relation to tailings and risk management.

12. On climate change

We must engage Public Education Campaigns about the risks due to climate change / catastrophe surrounding the management of Tailings and mine waste management. We must discuss ways and means of reducing risks. Mitigation and reducing risk is certainly better than no mitigation and not reducing risk, but the question is whether the remaining risk is acceptable, where the equation seems to be not just risk = probability x consequence, but also factors in “to whom”; risk to marginalised communities is treated as more acceptable. 

In addition, the cost of rebuilding and/or relocating tailings facilities – ironically, including GHG emissions – is huge. Carbon dioxide (CO₂) makes up the vast majority of greenhouse gas emissions from the sector, but smaller amounts of methane (CH₄) and nitrous oxide (N₂O) are also emitted.Those who profited must pay, wherever and to the greatest extent possible.

13. On the Mine Residue Code of Practice

We note traditional organisations of professionals such as the South African Institution of Civil Engineering who have stated publicly that they want – together with the South African Institution of Civil Engineering (SAICE) – to revise SANS 10286, the Mine Residue Code of Practice. They believe that the previous version, born out of the Merriespruit tailings dam failure in 1994, was well aligned to international standards, and has served South Africa and multiple jurisdictions in Africa well. Many South African mining companies are now required to comply with the GISTM, even if they are not ICCM members, because many investors and insurance companies require compliance. The updated SANS 10286 will align with the GISTM and will incorporate specific South African requirements and practices. The question remains why have they not engaged civil society on the necessity for this?

14. On GTMI

During early 2019, the United Nations Environment Programme (UNEP), the Church of England Pensions Board (representing the Principles for Responsible Investment PRI  announced that they would be forming an independent Global Tailings Management Institute (GTMI) aimed at driving mining industry safety standards and guided by their Global Industry Standard on Tailings Management (GISTM). We must engage critically with this GTMI which we believe will be housed in South Africa sometime in 2024.

15. On the protection of human right defenders

We are aware as activists that we need to work to protect those frontline pro-justice warriors. This means demanding corporations and governments protect whistle-blowers and protection for activists against Strategic Litigation Against Public Participation. Activists (SLAPPs) must also seek support in local human rights organisations that provide such support.