Nature Reserves and other protected areas across the country are safer from prospecting and mining as the first test case on the prohibition on mining in protected areas, went all the way to the Constitutional Court.
In the matter between Barberton Mines (Pty) Ltd v Mpumalanga Tourism and Parks Agency and Mountainlands Owners Association (CCT 84/17), the Constitutional Court dismissed Barberton Mines’ application for leave to appeal; ruling that it “bears no prospects of success”.
Thus, the Constitutional Court upheld the ruling of the Supreme Court of Appeal (SCA) that found that the Barberton Nature Reserve, which was first reserved in 1985 for conservation purposes in terms of the then Provincial Nature Conservation Ordinance, enjoys the status of a Nature Reserve as defined in the National Environmental Management: Protected Areas Act 57 of 2003 (NEMPAA).
In terms of NEMPAA, prospecting and mining is not permitted in a nature reserve. The ruling clarifies the status of conservation areas established under provincial legislation before the commencement of NEMPAA. As can be imagined there was a proliferation of such legislation, including legislation enacted before the current constitutional era. The status of conservation areas established under such legislation has been the subject of considerable dispute, particularly as it pertains to mining and other forms of development in those areas.
This is the end of a dispute that began in 2006 when Barberton Mines, a subsidiary of Pan African Resources PLC, was granted a prospecting right in terms of the Mineral and Petroleum Resources Development Act, 2002, (MPRDA) by the Department of Mineral and Resources (DMR). This despite the strong objections of the Mpumalanga Tourism and Parks Agency (MTPA) and the Mountainlands Owners Association (MOA), whose land had been incorporated into the reserve. A number of administrative appeals and reviews were brought by MTPA and MOA in an attempt to reverse that decision which threatened the future of one of the Mpumalanga provinces flagship nature reserves.
When Barberton Mines sought to commence with the prospecting work the MTPA and private landowners refused Barberton Mines access to the nature reserve on the basis that prospecting within a nature reserve is prohibited under the NEMPAA. The mine then brought an application in the North Gauteng High Court to secure access to the reserve in order to carry out prospecting. The mine contended that the reservation of the land for the purposes of “conservation and outdoor recreation” by the Administrator under the old Transvaal Nature Conservation Ordinance, did not establish a nature reserve for the purposes of NEMPAA.
In 2015 the High Court found for Barberton Mines and granted the company an order allowing it to enter the properties for the purposes of exercising its prospecting right and directed the MTPA and MOA not to interfere with the exercise of that right.
MTPA and the MOA took the High Court’s decision on appeal to the Supreme Court of Appeal (SCA) in Bloemfontein. The SCA upheld the appeal and found that the Barberton Nature Reserve was indeed a nature reserve as contemplated under NEMPAA and that the mining or prospecting within the reserve was therefore prohibited.
Barberton Mines then applied for leave to appeal the SCA decision on the Constitutional Court. On 25 July 2017 the Court dismissed the application for leave to appeal on the grounds that the appellant had no prospect of success in the appeal.
Barberton Nature Reserve is located in the Barberton Mountain Land which is one of the most ecologically important areas in the Province of Mpumalanga and South Africa. It has been placed on the National List of Terrestrial Ecosystems that are Threatened and in Need of Protection and has been identified as one of the most important refugia in the province for plant species threatened by climate change. It is also world renowned for its ancient geology and the area was placed on South Africa’s Tentative List of World Heritage Sites in 2008 [and subsequently inscribed as a World Heritage Site in 2018] . Barberton Nature Reserve is home to more than 2200 plant species of which several are endemic, rare and endangered, as well as over 300 bird species.
The Mpumalanga Tourism and Parks Agency and Mountainlands Estate Owners Association wish to thank their legal team consisting of advocates Mark Wesley and Janice Bleazard, and attorneys Richard Spoor, George Kahn and Johan Lorenzen for their work in this matter. They also extend their thanks to all the individuals, organisations and officials who over the years supported this effort in the interest of conservation.
Mr. Johannes Nobunga, Chief Executive Officer of Mpumalanga Tourism and Parks Agency: “Those seeking to exploit our natural resources must understand that we cannot place profit ahead of people’s well-being. It is time that we acknowledge the value of our unspoilt natural environment and the important role that such areas play in providing us with clean water to drink and air to breath. The Constitution guarantees everyone the right to an environment that is not harmful to their health or well-being and to have the environment protected for the benefit of present and future generations. It is the MTPA’s mandate to ensure implementation of that guarantee in Mpumalanga”
Mr. Nico Oosthuizen, Chairman of Mountainlands Estate Owners Association: “This is a landmark victory for all protected areas in South Africa. Too many of them have, like us, suffered from the indiscriminate awarding of mining and prospecting rights. The long term value of ecosystem services derived from our protected areas, especially those that protect sensitive water catchments and areas of high biodiversity, can never be sacrificed for the short term gains of mining and its profit seeking shareholders.”