In 2005 I was asked to organise an event at the Royal Geographic Society in London, to raise awareness to Africa’s wild nature. The keynote speaker at the event was the late Dr. Ian Player, a much beloved South African conservationist and a deep-thinking writer. Little did I know at the time that this meeting with Dr. Player would make such a profound impact on my life.
Hearing Dr. Player talk was a great inspiration and touched something deep within. Then reading his books, in particular Zulu Wilderness, Shadow and Soul, made such an impression that this led me to change my entire career.
After working in corporate communications for many years I decided to use my creativity and story-telling skills to tell stories that matter. I want to share the untold universal stories that need to be heard, those stories that can make a real difference to timely social and environmental issues affecting us all.
Passionate about the wellness of people and the environment, I intuitively felt that human and nature interconnect. I got affirmation to my intuitive feeling when I read the works of great writers, philosophers, poets and naturalists, and especially when spending time in nature.
In 2010 I wrote to Dr. Player and asked his permission to make a film inspired by his life and pioneering work in the wilderness. Dr. Player lived and worked in the African wilderness nearly all his life. He fought to protect wilderness and promoted a worldview of interconnectedness and deep ecology.
Over many years, he and his Zulu mentor and bush guide, Baba Maqgubu Ntombela, introduced thousands of people to the iMfolozi Wilderness, an ancient wilderness which nestles within the oldest game park in Africa, the Hluhluwe-iMfolozi park in Northern KwaZulu-Natal, South Africa.
Dr. Player wholeheartedly supported my initiative to make a social impact film set in the wilderness. He invited me to visit him and his wife Ann in his farm Phuzamoya, in the Natal Midlands in South Africa.
This was the beginning of four extraordinary life-changing years of in-depth mentorship by Dr. Player, and a special friendship developed with him and his dear and wise wife Ann. Sadly, Dr. Player passed away at the end of 2014. His passing created a deep void. At the same time, I was determined to continue with the film and social impact projects.
I aspired to create a moving image story to reconnect audiences with nature and raise awareness to the value of nature to our well-being. In particular I was drawn into the African wilderness, which is unlike any other wild nature, with its primordial wildlife and fauna.
A moving experience, that I had on a wilderness journey in iMfolozi, gave me confidence that this is where the film should be set and that this precious wilderness must be protected. Here an ageless spirit survives and one can sense a spiritual connection to the land.
The iMfolozi valley was home to the first people of Southern Africa and later became the heartland of the Zulu people, who lived here in harmony with nature and with great respect (inhlonipho) to Mother Earth and all creation. This is also the place where the Southern White Rhino was saved from extinction. This wilderness is alive and it enriches and revitalises its visitors, physically and spiritually.
In the film, I wanted to ‘transfer’ the audience to this primal place where no barriers separate human and nature. A journey into this wilderness is an intense experience where one can expect to undergo a personal transformation. It is a place of great inspiration.
Sadly, the iMfolozi Wilderness is now severely threatened. An existing open cast coal mine on the eastern border of the wilderness is expanding regardless of its devastating impact on nature, the surrounding rural communities and their livestock. Moreover, there are additional proposed coal mines in very close proximity to the park’s southern boundary which threatens to devastate even further this fragile nature ecosystem and the nearby communities.
Wild nature is fast disappearing due to humanity’s careless and irresponsible behaviour over generations. But we can stop this destruction! If we allow ourselves to pause and listen to nature and appreciate the value of nature to our wellbeing, and let nature remind us that we are nature and nature is us and what we do to nature we do to ourselves; that if we harm nature, we harm ourselves. When we develop an awe and reverence to nature, for nature sustains and nourishes us, we will be on the path to avert the destructive trend.
The film, which takes one on an immersive journey within and without into the African wilderness, tells the story of five young Zulu women going into the iMfolozi wilderness on a journey of healing and self-discovery. On their journey they learn about the plight of this primordial wilderness from an open-cast coal mine on its border and an intensifying rhino poaching calamity.
Sisters of the Wilderness is not just a film. It is also a social impact project which aims to make a difference to timely and important social and environmental issues. The project’s key impact goals are:
Young people empowerment and leadership development, using the power of wild nature, with a special focus on women empowerment.
Re-connect audiences to wild nature and raise awareness to the value of nature to our well-being.
Help the efforts to save the iMfolozi wilderness from the threat of unsustainable mining and the illegal hunting of its rhinos and other endangered species.
The film is now screening in film festivals worldwide.
If you wish to support my project, host a screening of the film in your organisation, event or to a special interest group, or distribute the film in your part of the world, please contact me directly at firstname.lastname@example.org.
The Crowd Versus works to support the defence of the Hluhluwe-iMfolozi Wilderness through the foundation Save Our Wilderness.
If my article motivated you to help The Crowd Versus, you can get involved by being creative (link here) or to contribute to the case of The Crowd Versus Destructive Mining in Zululand. Thank you!
The Crowd vs. Destructive Mining in Zululand
Coal companies and the South African government have to stop with coal mining that puts Zululand and its people in danger and threatens the world’s greatest concentration of rhinos in the wilderness area of the Hluhluwe-iMfolozi Game Reserve. Read more …
Local people seek justice through the courts over forced evictions and lack of consultation at Mirador copper mine
Ever since more than 30 indigenous households were forcibly evicted by police and security personnel between September and December 2015, the River Quimi valley in the middle of the Ecuadorean Amazon has not had a moment’s peace.
Today, where these Shuar and Cañari-Kichwa families once lived, there gapes the gigantic open pit of the Mirador mine. The River Quimi descends from the Cordillera del Condor, a small mountain range in Zamora-Chinchipe province. The government hopes that copper extraction will begin there by the end of this year.
Mirador is the largest mine in Ecuador’s history and one of President Lenín Moreno’s “strategic” projects in a nationwide mining drive. Yet its future is uncertain in the face of a conflict between Chinese company Ecuacorriente and the villlagers of Tundayme, who are intent on recovering what they consider ancestral lands.
The backdrop is a corner of the country that scientists and biologists consider a “lost world” of immense natural wealth.
No one in the Condor can agree on whether Rosario Wari Ampush reached 95, 107 or, improbably, 120 years old. However, all are certain she was the first in her family to die outside her home.
Two years before her death in July 2018, Wari Ampush and her son, who are indigenous Shuar, lost their ancestral home.
“They burned house. Grandparents built years ago. We were growing up and living there. They died there and left to us,” Rosario’s 64-year-old son Mariano Mashendo recounts in a broken Spanish almost devoid of articles. “You born here like trees, and age and die like them. Now, we don’t know what will happen with mining company. I am last of the family.”
Mashendo tells his story from a humble wooden hut, from where can be seen the blue roof of a mining camp occupying the spot where his home once was.
At least 32 families, some 126 people, lost their homes due to evictions which the community and NGOs described as violent. The process was similar each time. Officials arrived at dawn ordering them to hand over their land and saying a cheque for compensation awaited them at the office of mining regulator Arcom.
They were given five minutes to leave. Their houses were demolished, the rubble buried in front of them.
“We filed two suits for cattle raiding, as they took 120 head of cattle and we recovered only 48, but they haven’t acknowledged liability… There has been no response from the government,” says Luis Sánchez Shiminaycela, a prominent community leader who identifies as indigenous Cañari-Kichwa.
Sánchez’s wife, daughter, parents, two brothers, their wives and five children lived in two seized houses on the banks of the Tundayme River.
At the heart of the conflict is a legal designation known as “mining easement”, which enables the government to identify property as necessary for a development project. Instead of expropriating it, the government can mandate it’s rental for up to three decades. In return, landowners receive compensation.
“Even though people may say they don’t want to, or don’t understand the procedure, it doesn’t matter,” says attorney Francis Andrade of the Pan-Amazonian Ecclesial Network (Repam), a Catholic organisation.
Some victims were even Ecuacorriente employees at the time of eviction.
“They knocked my house down and caused me a great deal of pain, emotionally and psychologically. My parents lost their lives trying to leave us something and this company has left us with nothing,” says William Uyaguari, who worked for seven years loading drilling machinery for the mine. Uyaguari says he was fired after suing the company over the eviction.
Like others, Mashendo, Sánchez and Uyaguari rejected earlier purchase offers and, outraged by the eviction, decided not to claim compensation. Instead, they are challenging the mine in the province of Zamora Chinchipe as members of the Amazonian Community of the Cóndor Mirador Mountain Range (Cascomi), which unites indigenous Shuar, Kichwa and peasant families.
No houses remained on the eastern bank of the Quimi River, between the Tundayme and Wawayme tributaries, which flow down from the mountain and into the Quimi. Where the small hamlet of San Marcos once stood, with its church and school, there is a steep headland. Atop the cliff a gigantic hole will soon serve as a tailings pond.
On the horizon is a five-storey building hugging the edge of a hill. Behind it, Ecuacorriente S. A., also known as Ecsa, plans to open the pit to extract copper.
Tongling Nonferrous Metals Group, a mining conglomerate from China’s Anhui province and the country’s second largest copper producer, along with China Railway Construction Corporation (CRCC), one of the largest construction companies in the world, own the mine. Both are state-owned companies.
Tundayme’s story is not unique. Indigenous Shuar, who used to live where the Panantza-San Carlos copper mine now operates in another corner of the Cóndor mountain range 40 kilometres away, complained of similarly violent evictions. The owner of that mine is ExplorCobres S.A. (Exsa), which is also controlled by Tongling and CRCC.
From protests to courts
Powerless to stop the evictions, the indigenous people of Cascomi changed tactics. They took the company and the Ecuadorean state to court.
In Ecuador, as well as in other Latin American countries, local communities are now opting to complain via legal and political challenges, having realised that marches and roadblocks often lead to clashes with the police and criminal proceedings.
Many are winning. Last year, the courts decided that the Kichwa indigenous community of Río Blanco was not consulted on a gold mine in their territory. In October, another court ruled in favour of the Cofán of Sinangoe, who filed a similar complaint against mining concessions. Two months ago, the Waorani of the Amazon won a case against an oil project.
The residents of Tundayme have been less fortunate but continue to explore legal options in the ongoing Mirador conflict. Their case is complex, with at least five cases awaiting judgement.
The first and highest profile legal action argued that environmental rights had been violated.
In 2013, when Rafael Correa was president of Ecuador, four NGOs, a university, and the Shuar communities claimed the mine’s environmental impact assessment had not acknowledged the habitat of two endemic bird species where the mine pit would be.
Ecuador recognised the rights of nature in its 2008 constitution. Exterminating a species is tantamount to a violation of nature’s rights, the plaintiffs argued.
Dismissed by a judge in Quito, the case remains open in the Organisation of American States supranational Inter-American Commission on Human Rights.
At the end 2013, Correa shuttered one of the NGOs involved, the Pachamama Foundation. He accused it of interfering in state policy and threatening national security. In June 2012, the Inter-American Court ruled in favour of an action brought by Pachamama Foundation against the state over its failure to consult the indigenous Kichwa of Sarayaku an oil project.
A year later, high profile Mirador opponent José Isidro Tendetza was found brutally murdered with signs of torture on his body. As Mario Melo, Pachamama’s lawyer, said: “All this shows how sensitive the Mirador issue is.”
Confrontations with mining opponents, who Correa described as “stone throwers” and “backward townspeople” have eased under Moreno. Legal challenges to mines, however, have multiplied.
In February 2018, Cascomi filed a second action, accusing the state of violating their right to decent housing by sanctioning evictions. They demanded Ecsa compensate them.
This suit, supported by Repam and legal NGO Inredh, was based on three arguments.
First, they were never forewarned of the evictions. All they were told was that there would be a process of mining easements and, in some cases, hearings.
Secondly, evictions were arbitrary and violent. They occurred at antisocial times and destroyed property.
Finally, there was no relocation plan. Many families still live in overcrowded conditions in borrowed houses, or pay rent elsewhere with no means of supporting themselves.
The state countered that it does not consider Cascomi to represent an indigenous ancestral community and that Tundayme has no collective land deed demarcating the presence of an ethnic people who had to be consulted. (In Ecuador, like the US, indigenous communities own land under collective land deeds. The state says: no deed, not indigenous.)
The judge ordered an expert anthropological evaluation. But the report was inconclusive. It found that while Cascomi is not indigenous as an organisation, the territory is.
On 15 January 2019, a Quito judge sided with the government and dismissed the case, ruling that Cascomi is not indigenous and that evictions accorded with the law. After an appeal, on June 7 the provincial court of Pichincha upheld the ruling. Villagers are now preparing a final appeal to the constitutional court and will also submit to the UN Committee on Economic, Social and Cultural Rights.
There is also a criminal complaint against Ecuacorriente for environmental damage to water sources, presented by provincial indigenous governor Salvador Quishpe and the Confederation of Indigenous Nationalities of the Ecuadorean Amazon (Confeniae).
There is a request before the constitutional court, the country’s highest court, for risk management assessments that guarantee the dam Ecsa is building on the Tundayme River will not cause a disaster similar to Brumadinho in Brazil. This request is based on a study by US hydrologist Steve Emerman.
Finally, Cascomi and the communities of the nearby Panantza-San Carlos project, filed another action arguing that the state has failed to implement the Comptroller General’s recommendations on prior consultation and mining controls.
Cascomi leaders have spoken at hearings of the IACHR in Washington and at the UN’s periodic review of China’s human rights.
The lost world of the Cóndor
On crossing the Zamora River, mountains of an intense emerald colour suddenly rise up from the ground.
Two scientific expeditions to the El Quimi Biological Reserve, located 10 kilometres from the copper mine as the crow flies, revealed that the Cóndor mountain range is one of the most biodiverse locations in Ecuador.
Among the dwarf plants living on its rocky, flat table-top, scientists came across a minute but eye-catching brown frog with yellow spots. Following two years of study, they announced their discovery in January 2019. It was a treefrog, which they named Hyloscirtus hillisi, a new species. Its most peculiar trait is a large claw at the base of the thumb, a suspected defence mechanism.
They also found two other frogs, a lizard and a rodent in the enigmatic tepuis Amazon ecosystem that rises 2,000 metres above the jungle. These are being documented and are expected to be announced as new species imminently.
“It was such an extraordinary place, where no specimens had been collected before. We need to go back again, because there are so many species waiting to be discovered,” says evolutionary biologist and renowned herpetologist Santiago Ron.
Scientists at the Zoology Museum are still unsure what makes the Cóndor such a biodiverse place but they have several hypotheses. One is the limestone soil comprising millions of tiny seashells, something unusual in the Andes.
It’s comparable to the large rocky tepuis of the Guiana Shield that rise up sporadically in the Amazon, from Colombia to the Guianas of northeastern South America. Another is the strange mineral composition attributable to vegetable tannins that flow from their heights and give it a translucent cola-coloured hue.
As these unique habitats have a high proportion of endemic species, scientists recommended classifying the new treefrog as “critically endangered”, especially given the destruction of its habitat by the nearby Mirador mine.
Such high biological value prompted scientists to call for the designation of a national park in the Cóndor mountain range.
“We have so much to lose and we’re not taking proper care of resources that can benefit all of humanity,” says Santiago Ron.
There is another powerful, political reason why the area’s protection matters.
Between January and February 1995, a hundred people died during a brief war between Ecuador and Peru. The conflict centred on the Cenepa River on the Peruvian side of the Cóndor.
A peace treaty signed by the two countries in Brasilia in October 1998 put an end to more than a century of territorial disputes by promising to create contiguous national parks that would preserve the border area and mitigate future conflict. It even stipulated that indigenous people should be able to travel freely between them.
“We have made the decision, both countries, that where we used to fight, where Peruvian and Ecuadorean soldiers have died, we must honour their memories in the best way we can: by celebrating life. That is why, in that same place, we have created two ecological parks in perpetuity … so that never again can a drop of blood be shed in that part of our territories,” said then Ecuadorean President, Jamil Mahuad.
However, Ecuador has only created two small biological reserves (Quimi and Cóndor), which total 114 square kilometres.
“We feel betrayed because we helped the Ecuadorean government build these roads for the Army to use in the war, and now, when we need them, they abandon us,” says Luis Sánchez.
The scientists who have tried to publicise their findings remain concerned about the risk of open pit mine for Cóndor’s biodiversity.
“In Ecuador we don’t take into consideration the environmental mishaps of mining,” says Ron.
Ecuadorean and Chinese national interests
Faced with dipping global oil prices, Ecuador’s last two governments sought alternative revenue streams and focused on mining.
With 3.18 million tonnes of copper, 3.39 million ounces of gold and 27.11 million tonnes of silver, Mirador is the jewel in the crown of the country’s plans for mining to contribute 4% of GDP by 2021.
Despite this, neither the government nor Ecuacorriente recognise the legacy of social and legal conflict that persists in Mirador and that could hinder its future operation.
The current government blames past mistakes on Correa’s belligerence. “We want to do things differently,” says Benalcázar, vice-minister for mining at the Ministry of Energy and Non-renewable Resources. “We want to have adequate financial, legal and security conditions in place for investors to come, with an understanding of the existing laws and regulations.”
Benálcazar cites Moreno’s 2018 decision to create a super-ministry to promote a long-term policy on hydrocarbons, mining and energy.
For the vice minister, the mine’s advantages are obvious: 3,000 direct and 10,000 indirect jobs; US$211 million in anticipated royalties and taxes; US$5.5 billion total income for the government, with 60% of the royalties to be invested at the local and provincial levels, according to the law.
Partnering with a Chinese company also gives them guaranteed access to the world’s largest copper market.
“I have not witnessed any conflict. What I have seen leads me to think that a good relationship exists. They have very interesting community projects involving environmental and social issues,” says Benalcázar, who used to work in the oil sector in Colombia and Syria.
The ministry, he says, is working with Ecsa to demanding action plans to resolve environmental violations and improve industrial safety after two fatal accidents at the mine in late 2018. It also aims to increase employment of local, rather than Chinese, workers.
Ecuacorriente says it has already invested US$1.4 million in Mirador and acknowledges that relations with the communities were initially tense. It insists that they have improved since channels for dialogue were opened and community projects including folkloric dance workshops invested in.
The company is adamant that the court ruling which declared the lands of public interest justified the evictions.
“If the two parties fail to reach an agreement and the price is unreasonable, the government may resort to the right of easement as a national strategic project. It was not our company that carried it out, but the Ecuadorean government,” says Jun Zhu, Ecsa’s head of community relations.
“They proposed the solution when the project was at a standstill,” Jun says. The company, he explained, paid up to six times the market price for the land and is building the new town of Nuevo San Marcos to relocate affected families.
Neither of the two recognises Cascomi as a valid complainant, insisting that the courts proved it is not an indigenous organisation and does not have collective rights. They also say it has been manipulated by foreign actors.
“South Americans are very decent people, but are easily mobilised by slogans, especially of the spiritual or anti-materialist sort,” says Jun. “Although they are poor in life, they don’t understand that these resources can satisfy their needs, and many NGOs seize on this to promote illusions, such as opposing mining or protecting the environment for future generations. And it is easy to believe their words.”
Like Río Blanco, the Mirador case highlights that indigenous self-identification is complicated. “To be honest, I don’t think it is their own initiative. They are influenced by the NGOs, for better or for worse… It is difficult to deal with NGOs that have extreme positions and are against any kind of development”, says Benalcázar, despite the Ecuadorean government itself promoting self-identification since 2010.
Many social and academic organisations disagree.
“It is often believed that communities do not have self-determination, that their strategies and discourse are those of others who manipulate them, as if they were children or fools,” says Ivonne Yáñez, a biologist with the NGO Acción Ecológica.
“The state believes it is a question of employment, royalties and direct foreign investment, and not the environment”, Yáñez adds.
“That [self-identification] doesn’t mean there isn’t a right, which must be respected and protected, to be consulted and to protect their homes”, agrees Mario Melo, director of the Catholic University’s Human Rights Centre.
The Inter-American Court’s ruling on Sarayaku in 2012 ordered that prior consultation be regulated in Ecuador in accordance with international norms. This motivated an official visit by Victoria Tauli-Corpuz, the UN’s special rapporteur on indigenous peoples, last November. Mirador was one of six places she visited.
Benalcázar confirmed that the government is working on a draft regulation.
Several parties seem unaware of the complexities of a territory where diverse groups have co-existed since the mid-20th century.
The Shuar, who were originally nomads, are the most numerous people of the Ecuadorean Amazon. The first settlers were the Ampush family, in 1910. Four decades later, thousands of Kichwa families migrated from the highlands to the jungle in search of land to cultivate. Among them were Luis’ family from the Sigsig mountains.
Many arrived thanks to agrarian incentives from the military dictatorship that took power in 1963, which sought to guard the border with Peru. However, that policy meant indigenous peoples from the highlands occupying other ethnic groups’ ancestral territories.
The state did not recognise collective land deeds of Amazonian peoples such as the Shuar of Tundayme, paving the way for future conflicts such as that of Mirador.
With an absent state and no space for dialogue, disputes in remote territories can rapidly escalate into open conflicts. When the government becomes aware and reacts, it is often too late.
“Instead of militarising and evicting people, sending machinery and backhoes to bury houses, the state should intervene differently, helping communities to plan,” says Jaime Vargas, Achuar leader and president of the Confederation of Indigenous Nationalities of Ecuador (Conaje).
The environmental issue, meanwhile, seems relegated to second place.
“If the region is so [biologically] rich, if it meets the requirements to be part of the system of protected areas – which is an exhaustive process – and becomes one, we will respect it,” says Benálcazar. “That was the decision of the Ecuadorean people,” he adds, referring to the February 2018 referendum that banned mining in protected areas.
Benálcazar had not heard of the newly discovered frog, nor of the state’s commitment to create a national park in the Cóndor. He did say he wants to work on biodiversity and water management with large international NGOs like the World Wildlife Fund, the Wildlife Conservation Society and The Nature Conservancy.
Ecuacorriente, for its part, insists that Tongling has never had any accidents and that its mine has the highest technical standards.
“The fact that one dam in Brazil collapsed does not mean all the dams in the world will be affected. It must be because they didn’t do their job well,” says Zhu. He says he still hopes for reconciliation with Cascomi and the Tundayme population.
Despite the appearance of tranquillity that the company and the government seek to present, a significant portion of the local population still feel their concerns have been ignored. The number of lawsuits shows that if efforts are not made to diffuse the conflict. Operations at Mirador will begin extracting copper without the community’s consent.
As Melo says: “People have seen that legal actions can be an alternative. That’s good, because if the violence escalates, everyone loses.”
This report, the second in a three-part series on the environmental and social footprint of two Chinese mining projects in Ecuador, received support from the Rainforest Journalism Fund through the Pulitzer Center on Crisis Reporting.
Friday 31 May 2019 was an important day for the case supported by The Crowd vs. Destructive Mining in Zululand. Attorney Kirsten Youens, and second Applicant and Treasurer of the community organization, MCEJO (the first Applicant), Sabelo Dladla, filed supplementary founding affidavits in the application to review and set aside at 222 square km mining right for open cast coal.
Call to Action:
Kirsten Youens shares special moments with you, while working on the case. Do you want to know more about it, or support her legal battle?
THIS SOCIAL IMPACT DOCUMENTARY ‘SISTERS OF THE WILDERNESS’ WON BEST SOUTH AFRICAN FEATURE DOCUMENTARY AT THE DURBAN INTERNATIONAL FILM FESTIVAL AND QUALIFIES FOR THE OSCARS.
The film is mostly set in the iMfolozi wilderness area, within the oldest proclaimed game reserve in Africa and one of the fast disappearing pockets of wilderness where wild nature can be experienced at its purest form.
Since time immemorial this sanctuary has maintained its raw wildness. Here an ageless spirit survives and one can sense a spiritual connection to the land. The iMfolozi valley was the heartland of the Zulu people who lived here in harmony with nature and with great respect (inhlonipho) to Mother Earth and all creation.
This wilderness acts as the main character in the film. Into this wilderness a group of young Zulu women enters on a life-changing journey to experience true wild nature for the first time in their lives.
The young women, mostly from townships and semi-rural communities, aspire to elevate themselves beyond challenging life conditions. They have an interest in nature and a spark of leadership but they lack the opportunity to experience wild nature in their impoverished lives. Accompanied by veteran female wilderness guides, they camp under the stars in big game country, totally surrounded by wild animals such as elephants, rhinos and lions. Exposed to the elements and carrying on their back all they need for the journey, they have to cope with emotional and physical challenges, and learn what it takes to survive in the wild.
A wilderness journey is an intense experience where one can expect to undergo personal transformation. It can enhance personal growth and leadership development; and it is also a soulful experience that has the capacity to heal. The solitary night watch where one is responsible for the entire camp, the solitude contemplation sessions and the possible close encounters with wild animals like a charging rhino, an elephant ambling next to the camp at night, the yellow eyes of a wild cat in the dark of the night, all contribute to enhance one’s sense of connection to nature and encourage self-introspection.
The latter especially occurs whilst one sits around the campfire, listening to the lively Zululand wilderness night, hearing the cough of the leopard, the cry of the hyena or the roar of the lion.
Mentoring the women and initiating them into the wilderness is, KwaMashu born, Lihle Mbokazi, the first black South African woman wilderness guide. Lihle is also deeply interested in reviving indigenous knowledge systems and share the wisdom of the old days with the young women. Along with Lihle we also see Janet and Zondi, the lead wilderness guides, who share nature wisdom with the women.
Long periods of Nature’s ambient sounds help the audience to connect with wilderness and when interweaved with the soulful music of film composer, Ian Arber, transports one into the same inner world of connectivity that nature takes one on.
Despite the tranquil setting, the iMfolozi wilderness is now severely threatened.
An existing open-cast coal mine on the Eastern border of the wilderness is expanding regardless of its devastating impact on the surrounding rural communities and their livestock.
Additionally, a proposed coal mine just 40 metres from the park’s southern boundary threatens to devastate even further this fragile nature gem and the communities.
The park is home to incredibly important populations of both white and black rhino. It is renowned worldwide for being the historical home of the Southern White Rhino, following the successful ‘Operation Rhino’ in the 1960’s driven largely by the park’s then-warden, Ian Player.
Dr. Player’s efforts brought the rhinos back from the brink of extinction. The park now has the largest population of Southern White Rhino in the world.
The success of this program has recently been compromised by a gruesome increase in rhino poaching within the park. This critical threat has not only become a great concern for the park, but for rhino conservationists worldwide.
An environmental watchdog has challenged a legal decision by a Pietermaritzburg high court judge, fearing that his ruling will encourage mining companies to disregard the country’s environmental protection laws.
The challenge has been mounted by the Cape Town-based Centre for Environmental Rights, after judge Rishi Seegobin dismissed an application in October to shut down the Somkhele coal mine — owned by Johannesburg-based Tendele Mining — on the periphery of the flagship Hluhluwe-Imfolozi Game Reserve in KwaZulu-Natal.
The centre has lodged an application to intervene as an amicus curiae (friend of the court) in an application for leave to appeal against Seegobin’s ruling.
The centre, represented by attorney Catherine Horsfield, said it was concerned that the ruling “may open the door” to companies disregarding environmental safeguards in the constitution.
The centre believes the Tendele verdict has broad national implications and could have a “profound influence” on the ability of government inspectors to monitor and enforce environmental laws in mining areas.
It could also provide “an excuse” for companies to operate outside the law and to strip legal powers from government enforcement officers.
The ruling may open the door to companies disregarding environmental safeguards …
The centre also said the judge’s punitive costs order against two community-based environmental groups would have a “chilling” legal effect that could cow other vulnerable people from mounting public-interest litigation against powerful mining companies.
In 2018, the Global Environmental Trust, the Mfolozi Community Environmental Justice Organisation and local resident Sabelo Dladla launched an interdict application against mine owners Tendele Mining, arguing that the mine was operating illegally.
Represented by attorney Kirsten Youens, they submitted that the Somkhele mine was operating with no environmental authorisation, no municipal planning approval, no waste disposal licence and no permits to shift ancestral graves.
Dladla also alleged in court papers that several homestead structures were cracking because of daily dynamite blasting at the open-pit coal mine, and several of his livestock had died or disappeared after wandering into mining land that had not been fenced off adequately.
Life had changed forever, said Dladla, with many local residents forced to leave their land and homes to make way for mining. They had lost access to grazing for cattle and other natural resources, and were also worried about the risks to their health from polluted air and water.
The mine painted a different story in court papers, denying that its operations were unlawful and arguing that nearly 1,000 mineworkers would lose their jobs if the mine was forced to close.
Seegobin threw out the application, noting that there had been a number of amendments to mining and environmental laws that took effect in 2014. He said these changes to the law also contained transitional provisions which permitted companies to continue existing operations without obtaining fresh environmental authorisation for listed activities.
If the amended laws did not contain these transitional provisions, said Seegobin, previously lawful mining operations would have been rendered illegal, overnight. “This would have been an unreasonable, insensible and un-businesslike result,” he commented.
Seegobin also suggested that senior officials of the departments of mineral resources and environmental affairs would have intervened against Tendele if they believed the mine was operating unlawfully or causing significant pollution or environmental damage.
Horsfield said the centre recognised that judges had discretion to award cost orders, but the National Environmental Management Act included a clause intended to protect people who sought assistance from the court, provided that they were acting reasonably, in the public interest or in the interests of the environment.
During a landmark public interest case involving the Biowatch Trust and the multinational group Monsanto, the Constitutional Court had reaffirmed the principle of not punishing unsuccessful litigants with crippling legal costs, provided their cases were not “frivolous, vexatious or manifestly inappropriate”.
Horsfield also attacked Seegobin’s assertion that government officials would have taken action against Tendele if they believed the company was contravening environmental obligations. There was no basis to assume that government officials were satisfied with, or had even considered the issues taking place at Somkhele mine.
Seegobin’s approach seemed “tantamount to introducing a standard of deference to functionaries” in the mining and environment departments that was not supported by law.
Responding in court papers, Tendele CEO Jan du Preez said his company did not agree with the legal arguments opposing Seegobin’s main ruling, but would not object to the centre being admitted as a friend of the court — provided it did not try to introduce new evidence.
Du Preez said his company would abandon all claims to the money awarded to it by Seegobin for legal costs.
“I hereby confirm that Tendele unconditionally abandons the costs order granted in its favour by this court…. The issue of the costs order granted in Tendele’s favour need accordingly not feature either in the amicus application, or in the application for leave to appeal,” the company said.
Seegobin has yet to make a ruling on whether he will grant leave to appeal.
Below is a summary of the court case scheduled for 24 August 2018.
A list of relevant court papers and documents are provided below with links to download or view.
The Parties Bringing the Application Are:
Global Environmental Trust
Mfolozi Community Environmental Justice Organisation
The Application Is Brought Against:
Tendele Coal Mining (Pty) Ltd – opposed
Minister of Minerals and Energy – no response
MEC: Department of Economic Development, Tourism and Environmental Affairs – no response
Minister of Environmental Affairs – no response
Mtubatuba Municipality – no response
Hlabisa Municipality – watching brief
Ingonyama Trust – opposed but didn’t file affidavits in time
Ezemvelo KZN Wildlife – will abide by the decision of the court
AMAFA aKwaZulu-u-Natali Heritage Council – no response
Amicus Curae Applicants Who Submitted Papers in Terms of Rule 16(A) on 20 July 2018 Are:
Mpukunyoni Traditional Council and Mpukunyoni Traditional Authority
The 30 Izinduna of the 30 Isigodi of the Mpukunyoni Area
Mpukunyoni Community Mining Forum
Association of Mine Workers and Constructions Union and National Union of Mine Workers
Tendele is acting illegally in conducting the mining, in that it has no Environmental Authorization issued in terms of Section 24 of the National Environmental Management Act 107 of 1998 (“NEMA“), or any equivalent thereof, such as Section 38 A of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), as amended.
Tendele is conducting the mining without any land use authority or approval from any Municipality and has no written approval in terms of Section 35 of the KwaZulu-Natal Heritage Act 4 of 2008 to remove or alter traditional graves from their original position.
Tendele also has no waste management licence issued by the Minister of Environmental Affairs (Fourth Respondent) in terms of Section 43 (1) or the Minister of Minerals and Energy (Second Respondent) in terms of Section 43 (1A) of the National Environmental Management: Waste Act 9 of 2008 (“the Waste Act”), despite requiring a licence as a result of its activities.
Such non-compliance has resulted in Tendele carrying on its mining operations illegally, with the result that the residents in the area of Reserve 3 are suffering irreparable harm. This includes the Third Applicant.
1.6 A tranquil rural environment adjacent to a provincial game reserve has been destroyed and polluted by dust and noise. Homes have been removed or destroyed and the environment and the amenity of all who live there and the public at large has been destroyed and continues to be destroyed day by day. The wilderness has been turned into a vast industrial rock dump. Massive blasting takes place and the quality of life is being destroyed.
1.7 The family of Third Applicant has taken the matter up with Mineral Resources, the Centre for Environmental Rights, the Public Protector and the Mpukonyoni Traditional Administrative centre. Applicants have also appealed against the grant of the latest Mining Right. This appeal was rejected.
1.8 Applicants seek the interdict to ensure that Tendele is fully compliant with the law.
The Applicants Seek the Following Order:
1. THAT First Respondent be and is interdicted and restrained from carrying on any mining operations at the following sites: –
1.1 Area 1 on Reserve No. 3 (Somkele) No 15822 measuring 660.5321 hectares as described in the Mining Right dated 22nd June 2007;
1.2 Areas 2 and 3 on Reserve No. 3 (Somkele) No.15822 measuring 779.8719 hectares as described in the Mining Right dated 30thMarch 2011;
1.3 Areas of KwaQubuka and Luhlanga areas on Reserve No. 3 No. 15822 measuring 706.0166 hectares as described in the Amendment of a Mining Right dated 8th March 2013;
1.4 One part of the Remainder of Reserve No. 3 No. 15822 in extent 21233.0525 hectares described in the Mining Right dated 26thOctober 2016;
Until Further Order of this Honourable Court
2. THAT First Respondent pay the costs of this application together jointly and severally, with any other Respondent who opposes this application.
3. THAT Applicants be granted further and/or alternative relief.”
As an alternative the above Honourable Court may elect to grant a structured interdict. The Judge has requested that we provide an alternative to him by 22 August 2018.
The interdict being sought by Applicants is semi-temporary in that it is sought “until further order of this Honourable Court.” If Tendele complies with its legal obligations and establishes that it has done so, the interdict may be lifted.
The Amicus Curae Application
Applicant’s case is based on our rights under Section 24 of the Constitution 1996, coupled with the non-compliance with the law by First Respondent under the environmental legislation and notices, mining law, land use law, and the legislation which protects graves. These are largely legal issues.
The Amici hardly address these issues. They are more concerned with their own self-interest and the benefits to them that the mining brings, whether it is legal or not.
The Applicants wish to have these irrelevant facts struck out. Not only are they irrelevant to the issues Applicant brings before the Court but there is no time to deal with these issues at this stage of proceedings.
In the event that any part of the mass of facts put forward are considered in the interests of justice to be relevant and important, we submit details:
Second Applicant has presently 2503 members. There are new members who are being processed from lists received recently, and more joining every day. This is because of the increased interest by the affected communities as the Court Hearing approaches. These members have an average of 10 dependants each. The numbers of people opposed to the mining and the unlawful activities of First Respondent are therefore at least 25 000 people;
The Actionaid Social Audit Report compiled by Sifiso Dladla;
A Pscyho-social Impact Assessment by Michael R. Edelstein PhD, Professor of Environmental Psychology, Environmental and Studies Programs at Ramapo College of New Jersey.
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A drop in prices for dirty bitumen has been blamed on lack of pipeline capacity, which has been blamed on RAVEN Trust. Besides this, RAVEN Trust has enjoyed other major accomplishments: an overview.
RAVEN Trust’s Accomplishments
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At this moment in history, Indigenous First Nations are on an unprecedented winning streak in the country’s courts. These wins are setting powerful precedents that will reshape our common future.
The impact of RAVEN Trust’s work writes the landscape.
Held Off Open Pit Mining
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Please commit to help Indigenous Nations see groundbreaking legal challenges through, all the way from inception to eventual success: find out more about our Circle of Allies.
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The incomprehensible judgement handed down by the Pietermaritzburg High Court this morning, 20 November 2018, dismissed with costs the application by Sabelo Dladla, the Global Environmental Trust (GET) and Mfolozi Community Environmental Justice Organisation (MCEJO). This will not go unchallenged.
In essence, the applicants approached the High Court when their attorney found the mine had no environmental authorisations issued by Department of Environmental Affairs (or the Department of Mineral Resources) for the listed activities associated with mining operations. This is particularly concerning given the close proximity of the mining area to the Hluhluwe-iMfolozi Park, and the critical biodiversity of the area that includes hundreds of protected plant species, plus the water scarcity and the thousands of rural farmers living in the area, many of whom have lost their land and their livelihoods to the mine. Consequently, many Somkhele residents have been left impoverished as a result of the mine operating in Somkhele. This challenges the argument of the court that the mine has brought many benefits, including infrastructure, to the community. The recently conducted Social Labour Plan audit, conducted by ActionAid, was included in the submission to the court, and strongly challenges the narrative that Tendele mine has brought the benefits it purports. Bewilderingly Judge Seegobin does not mention this in his judgement, nor the South African Human Rights report on human rights abuses in Somkhele community nor the psychosocial impact report by Prof. Edelstein.
One of the main arguments by Judge Seegobin is that if the Minister of Mineral Resources was not so satisfied he would not have granted the additional mining rights. Similarly, the late “Minister of Environmental Affairs would also have had something to say if it was found Tendele was acting unlawfully”. Consequently there were clearly no grounds to challenge the mine’s operations.
The judgement also argues that because the mine initially commenced operations before the implementation of the one mining system, there was no need for the mine to have obtained environmental authorisation and that an EMP is sufficient.
The judgement is extremely punitive in awarding costs when it clear that a mining affected community supported by an NGO brought this application in an effort to ensure that Tendele Mine is compliant, in the public interest. In the Biowatch case, the Constitutional court ruled that lower courts should embrace the ruling made 8 years ago against punitive cost orders being awarded when challenges were brought against Monsanto a corporation that had unequal power and financial resources.
Kirsten Youens, the attorney for this case, states: “Far from being demoralised, GET and MCEJO see this as an important opportunity to take the matter to higher judicial authorities starting with the Supreme Court and even to the Constitutional Court, if necessary, to ensure justice is done and that law applies to all. They take courage from other mining affected communities, like the Lesetlheng community, who lost their case until eventually receiving a Constitutional Court ruling in their favour, setting important precedents for social and environmental justice for lower courts to follow. The Tendele case is set to do the same.”
While our lawyers are busy preparing leave to appeal against this judgement, Tendele mine faces another challenge from the community. Last week, Sabelo Dladla and MCEJO filed a Review Application in the North Gauteng High Court to review and set aside the Director-General’s decision to grant Tendele a further 222km2 right to mine. The Application is also to review and set aside the Minister’s decision to dismiss the internal appeal that was brought against the Director General’s decision to grant the mining right.
Implications of the landmark Constitutional Court decision for mining affected communities
26 October 2018
Yesterday’s Constitutional Court of South Africa (ConCourt) judgment represents a hugely significant decision for communities and land owners. It means that mining companies who have obtained a mining right cannot simply go onto the land and start mining, as they could to date even without the agreement of the land rights holder.
The Court held that before mining starts there must be an agreement between the community and the mine on compensation. If that is not agreed, then compensation must be determined by the court or by arbitration before mining can commence.
The Court also held that the award of a mining right does not override the community’s rights as owners or lawful occupiers.
EFFECTS OF DECISION:
In a situation like that at Somkhele and Fuleni this decision has huge significance.
The mining companies always offer minimal compensation, an RDP house and a few thousand rand cash to compensate each family, and then to start mining.
When offers are refused by the community, the bulldozers advance destroying lands and resources. So, even as the “negotiations” continue, life becomes increasingly intolerable until resistance appeared futile and community members capitulate and agree to be resettled on the mine’s terms.
This is a pattern that has repeated itself many times in the past.
This should not happen anymore.
If the mine doesn’t offer a fair deal, which, in this context, means simply that the community member’s lives should be better not worse after mining, then mining won’t happen until such time as a court or an arbitrator has considered the compensation on offer and ruled on it.
In front of a court we would be arguing for compensation not only for our land and our homes and the lost livelihoods, but also to be compensated for the loss of community, the harm done to our culture and our traditions and our way of life.
Compensation would not necessarily be limited to cash. On the contrary we would expect programs to restore livelihoods and to re-equip us to live in a changed world. Women who would otherwise be engaged in subsistence farming would need to be trained and re-skilled for other livelihoods. Children would need to be properly schooled and equipped to live a modern life.
IMPACT OF DECISION:
The impact for a community like that of Fuleni and Somkhele would be significant. Mining for coal may be economical if you can get away with an RDP house and R100 000 per family, but it may not be economical if you are obliged to provide alternative land (hectares of indigenous bush and grazing land costs a lot of money) and to compensate for lost livelihoods and the social and economic networks that have sustained the community for generations.
Let’s face it, this kind of mining expansive open cast could never be undertaken in Europe or even in Australia, the cost of compensation is simply too high.
Mining is viable in much of Africa because you can get away with a 4×4 for the Chief, a backhander to the local politicians and a bunch of lousy RDP houses. The reality is that many of those whose land and livelihoods are taken from them by mining are left worse off and not better off than they were before.
The decision does not go so far as to affirm the right of community’s to say no. The court says that this is a question to be answered on another day, but it is a huge step forward.
It’s not a guaranteed outcome but certainly for the first time communities that are well advised and supported will be well placed to ensure that they actually benefit from mining on their land and are not impoverished thereby.
[Paraphrased from Richard Spoor’s summary on 25 October 2018]