Kangaluwi – An environmental dilemma where everyone is right?

Mbinji Mufalo

Mbinji Mufalo

By Mbinji Mufalo

“The earth will not continue to offer its harvest, except with faithful stewardship. We cannot say we love the land and then take steps to destroy it for use by future generations.”
― Pope John Paul II

I have overtime kept away from commenting on environmental issues. More so, because of the time in the 1990s when World Bank-likes moved into the territory. They had an unnerving “economics, free-market and technology will fix it all” attitude. The arguments of simply preserving or conserving our environment more on its life-support attributes, and indeed the celestial aesthetic appeal of its wilderness went out through the window. Their belief always seemed to be one of “we can always eat a piece of the earth for economic development, but we will eat it nicely”.

“The people will benefit, the environment will benefit”. It was and still is a valid argument, I must admit. But, we forget, like Mahatma Gandhi observes – “Earth provides enough to satisfy every man’s needs, but not every man’s greed”. Thus, in a developing country context like ours, the degradation of the environment on the premise of enhanced economic development has in most cases neither benefitted the people nor the environment. In any case, there is now grounded knowledge that it is not those that allow more extraction from the earth that develops the most. It is those that come and extract, destroy and leave rich.

The fact is always that those that come to extract, destroy and leave rich do not come yielding guns or drones. They come because we allow them in the name of seeking economic development. They dangle a nicely ripe banana that we believe will quench our hungry and deprived, and we jubilantly pontificate the necessity of their investment. We even parade deprived traditional leaders to launder the argument clean. But, then some State oversight agencies and other interest groups rise up and dissent. “Even if it’s in the name economic development, this piece of the earth can never be eaten nicely”. “It is in a game park”.

Well, the Kangaluwi Copper Project in the Lower Zambezi National Park keeled me back into the environmental discourse after nearly a decade.

In my further reading to understand what it was all about, two statements interested me.

The first is what I came across in Kangaluwi Copper Project, Mwembeshi Resources Ltd, Environmental Impact Assessment of February 2012. The Kangaluwi Project already had a large scale mining license – No 15547-HQ-LML! And this is where the legal confusion starts.

In section 25 of the Mines and Minerals Development Act, 2008 a large scale mining licence can be granted, but with an attendant environmental management plan (subsection 1(e); and that the “applicant’s environmental management plan conforms to specifications and practices established by national standards for the management of the environment as it is affected by mining operations (section 26(1)(d))”.

Further, if we read this with section 127 (1)(h) it provides that “a holder of a licence or permit shall not exercise any rights under this Act or the licence or permit upon any land comprised in a National Park or game management area without complying with the Zambia Wildlife Act”. This is corroborated by section 24(2) of the Zambia Wildlife Act 1998 which stipulates that “the Authority may impose conditions as to the exercise of any mining rights in accordance with the measures specified under an environmental impact assessment  approved by the Environmental Council (now Zambia Environmental Management Agency (ZEMA))”.

Put simply. I want to dig a hole for copper in a national park. So I go to Mines department, there they give me a license, but they tell me I should do an EIA approved by ZEMA; and get permission from Wildlife department, who will also tell me I need an EIS approved by ZEMA. I do that, but ZEMA disapproves, yet I still have my license. But now I cannot start my mine development. I am seriously confused! Why did you grant me the license when surely you should know that ZEMA and ZAWA will refuse simply because it is in a national park?

Anyway, since the green light from ZEMA is paramount to the exercise of the mining rights the license provides, does the license have no legal force?  Can we surmise that the Mwembeshi Resources Ltd large scale mining licence No 15547-HQ-LML, is just a piece of paper?

No, it is not just a piece of paper. It has an inherent power of appeal to authorities higher than ZEMA. The Environmental Management Act, 2011, in section 116(1) provides that, “a person aggrieved with the decision of the Agency may appeal to the Minister within thirty days of the decision; (2) A person aggrieved with the decision of the Minister may appeal to the High Court within thirty days of the decision”.

Thus ultimately, in all these legal provisions that permits or does not permit mining development, not only a national park, the final decision maker is a political entity or the Courts of Law. But this is not to say ZEMA’s decision  is not respected, it is but it should be founded on strong arguments against a particular development. Political decisions are more often about perceived economic development gains, than environmental protection. It is only when environmental protection arguments are meaningful, that they can influence political decisions.

Perhaps, this where the main actor in this debate, ZEMA, lost the environment!

News media evidence so far shows that ZAWA had concerns; such concerns were appropriately provided to ZEMA as per legal requirements.

In addition, ZAWA in its position paper of April 2013 observes:

“It is the strong position of ZAWA that Mining should not be allowed in the Lower Zambezi National Park. The General Management Plan (GMP) for Lower Zambezi National Park approved by the then Permanent Secretary MTENR Mr. J. C. Kasongo on 1st November 2001 and ratified by the Minister, Honorable M. M. Mabenga, MP did not provide for mining operations in the area which was zoned as a Wilderness Zone”.

ZAWA can be absolved of any failings for as stakeholders they did their part. But can ZEMA be absolved?

And this brings me to the second statement.

“The proposed site is not suitable for the nature of the project because it is located in the middle of a national park thus intends to compromise the ecological value of the park as well as the ecosystem,” – Ms Chipili (Zambia Environmental Management Agency (ZEMA) public relations officer) .

I found this statement unfortunate and legally ill-informed. This statement has no legal basis as Kangaluwi Copper Project’s Large Scale Mining License 15547-HQ-LML is valid, as shown earlier. Mineral rights reign supreme in a national park, though conditional.

Noteworthy, however is that, ZEMA rejected the Kangaluwi Copper Project EIS on five other issues, not simply “because it is located in the middle of a national park”.

On location of the mine in a National Park, ZEMA’s concerns were that:

a)    “The proposed site is not suitable for the nature of the project since it is located in the middle of a national park;
b)    The adverse impact of open pit mining would therefore permanently destroy the landscape of the park, thereby reducing the tourism value of the Lower Zambezi National Park;
c)    Lower Zambezi National Park is one of the four major national parks according to ZAWA which earns the country a lot of money” .

Unfortunately, I must admit Mwembeshi Resources rebutted these concerns very well. On the first (like noted earlier), they were on firm legal ground. On the second and third, especially on the tourism value of the park, perhaps ZEMA should never even have raised this.

Mwembeshi Resources observes,

“Tourism in the Lower Zambezi National Park contributed approximately US$600,000 revenues in 2011 (ZAWA Annual Report for the LZNP, 2011). This value is substantially less than the total foreign direct investment to be made by Mwembeshi Resources Ltd, which will exceed US$495 million.”

Ecological resource exploitation for aesthetic value or ecological protection for ecosystem integrity can never compete with expected or projected economic returns from mineral extraction. Mines have a higher socio-economic multiplier effect (though not sustainable in the long term) than tourism based economic activities.

At face value the socio-economic returns from a mining development are always extremely enticing. The nicely ripe banana that we believe will quench our hungry and deprived – direct and indirect employment opportunities, increased socio-amenities, local business opportunities, and indeed the biggest catch of them all, increased revenue to the State!

But, the figures on contribution to domestic revenue tell a different story.

“Copper is Zambia’s most important export, making up 75% of its export revenue. However, despite all this, copper mining only contributes 2% to Zambia’s domestic revenue.”

Notwithstanding the foregoing, ZEMA has a legitimate question on the location of Kangaluwi, even if not legally valid or not economically sound. Perhaps it is time environmental protection lobby groups (and ZEMA), also started focusing their energies on reviewing the laws. A national park is a pristine area, a celestially aesthetic wilderness. It’s a heritage! No law should allow its rape and defilement. Period.

Thus, I here argue that, this is one environmental battle that should go beyond Kangaluwi. We hope the laws that allow such development acts like the Kangaluwi Copper Mine project can be found inconsistent with environmental protection for ecosystem integrity, and thus are invalid. National parks should all simply be declared as Environmentally Protected Areas. Perhaps, we can amend the Protected Places and Areas Act CAP 125, to include National Parks (Just a digression)!

ZEMA’s other concerns were on:

a)    Treatment of Tailings Storage Facility (TSF) -possible damage to TSF due to seismic activity, possibility of effluent from TSF reaching major rivers in the event of catastrophic failure;
b)    TSF failure and location adjacent to Mana Pools – that is, likely tailings impact on Mana Pools from TSF failure;
c)    Acid rock drainage – this issue and consequently the metal leaching has not been addressed;
d)    Infrastructure would compromise the ecology – “The footprint of the mine would increase when the road is widened and the power line is constructed. The integrity of the national park will therefore be compromised and in the long-term the ecological value would be affected”; and,
e)    Contradictions in life of mine contained in the EIS.

Further concerns during the appeal hearing of June 7, 2013 were likelihood of groundwater aquifer pollution and, wildlife and wildlife movements.

Mwembeshi Resources again ably responded to these technical concerns and issues, but perhaps for the response to seismic activity. Mwembeshi Resources observes that “the proposed area of the mine and the TSF is within the Zambezi escarpment, this area is considered to be seismically inactive”. And in the same breath they do acknowledge the likelihood of tremors. Precaution is needed as even Dumisani (2001) observes that the Deka fault zone and the mid-Zambezi basin show high seismic activity .

The core defense of Mwembeshi Resources is clearly that environmental impacts due to development are always likely as any human development process is ecologically permissible, and that technological fixes can minimize the likely impacts.

In the same vein, even the Joint UNESCO World Heritage Centre/IUCN Mission Report Reactive Monitoring Mission Mana Pools (2011), observes the following:

“The mission recommends that regulations related to mining in ZAWA managed areas (GMA and NP) should be complied with and the compliance monitored by ZAWA and special regulations and requirements developed to ensure that overburden and drainage from the mine activities can, in no way, enter the drainage systems that lead to the Zambezi River. Further the Zambezi River waters should be monitored at strategic points to ensure that any appearances of pollutants related to the mining operations are detected and the mining operations charged with removing same and the sources thereof.”

There is nothing wrong with this, as the core objective of an EIA is just that. An EIA does not seek to stop development, but to guide it in a manner that environmental damage can be avoided or reduced so as to ensure that development projects and their benefits are sustainable. An EIA is in the ambit of development, not outside it.

Clearly, in my opinion so far, there is no substantive argument provided that the intended technological fixes cannot minimize the likely impacts from Kangaluwi Copper Project, nor that the socio-economic benefits are a fallacy. Perhaps, this is where the Minister and Mwembeshi Resources are right.

But they are also very wrong, and ZEMA and environmental protection interest groups are right. Though, legally they are wrong!

ZEMA is not simply a question of the legality of environmental protection but more so its legitimacy. This is because environmental protection is not solely a legal question. It is more a question of legitimacy. The act of mining right in the middle of a National Park (a national heritage), irrespective of the technological fixes, can never be ecologically legitimate. In hindsight, perhaps we should accept that an EIA request for a mining development in a national park should not even arise. The laws have to be reviewed and amended accordingly.

In other words, “we cannot always eat a piece of the earth for economic development, if the law allows, especially if eating that piece of the earth is not publicly perceived to be fundamental and acceptable as it does not enhance the integrity of ecosystems and indeed the social well being of the hungry and deprived in the longer term.”

In conclusion and undoubtedly, for me the Kangaluwi Copper Project is a NO. National Parks are more a question of the legitimacy of environmental protection for ecosystem integrity, than the fulfillment of EIA legal requirements for resource exploitation.

Like the Chinese say, “the frog does not drink up the pond in which it lives”.

Ora pro nobis.

End script: Comments on errors of fact are most welcome.