Indian coal miner blasts ‘green lobby’ lawfare in South Africa

South Africa cannot afford to be manipulated by environmental self-interest groups who are blocking multibillion-rand projects from taking off.

This is what Indian mining group Uthaka Energy (formerly Atha-Africa) will tell the Constitutional Court next month as it looks to start its coal mining project in Mpumalanga.

The project in which Atha claims to have already injected R1bn has been held up in the court for a decade, a situation that the group bodes ill for South Africa’s reputation as an investment destination.

The group in a scathing affidavit filed with the apex court said the environmental groups, which it describes as the “green lobby”, are opposed to any coal projects at all costs.

“This case is all about the tension between the need for the protection of the environment and the need for development. This tension is especially manifested in a developing country. The South African history of racial discrimination resulted in widespread poverty for the previously disadvantaged communities,” Uthaka’s papers read.

“On the one hand we have the privileged few, enjoying the benefits of development with the luxury of putting the environment above all else (but only for the sake of the future generations, ignoring the needs of the present generation), and on the other hand we have the underprivileged masses, deprived of human dignity and in need of development (for the sake of fulfilling their basic human rights).

“This case must also be seen in the context of the ongoing lawfare engaged in by the appellants, who form part of a group of environmentalists, which can be generally referred to as the ‘green lobby’.”

The dispute between the parties is centred on a multi-year effort to block a proposed underground coal mine inside the ecologically sensitive Mabola Protected Environment near Wakkerstroom, Mpumalanga.

A coalition of eight civil society organisations — represented by the Centre for Environmental Rights — legally challenged approvals granted by state ministers to permit coal mining in the protected regional water basin.

The civil society organisations have asked the apex court to set aside the decision of the Supreme Court of Appeal (SCA) last year, whose effect gave the company the green light to start the project, which is expected to produce about 2.2-million tonnes of coal per annum.

The SCA, in its judgment, was scathing on the lawfare launched by the environmental groups.

“In all of this, the appellants ask this court to make an order overturning the decisions of the high court and the Competition Tribunal and to replace them with a decision refusing the water use licence. Given the expertise of the tribunal and the nature of the matter, this submission cannot seriously be made,” the SCA ruled.

“There comes a time when it is right for a court to hold an organisation that brings vexatious proceedings and claims to act in the interests of the public and the environment to the same standards of conduct as any other litigant.”

Uthaka will argue before the Constitutional Court that the net effect of the several litigation it has had to face over the past decade is that no mining has taken place, notwithstanding an investment it had made, and “there appears to be no end in sight to the legal challenges, which form part of a developed strategy by the green lobby and have, in essence, scuppered a viable mining project.”

The company said the strategy to frustrate fossil fuel projects has been developed internationally and has been adopted locally.

“It presents itself over and over again in litigation against any mining activities opposed by the green lobby, as part of environmental activism,” the court papers read.

“At the heart of the strategy lies the presenting of a distorted narrative in which coal mining is the villain, the environment has to be protected at all costs against all the evil impacts propagated, and the ordinary citizens are portrayed as the victims of environmental injustice.

“The environmental special interest groups, the green lobby, have a specific agenda, namely, the eradication of coal mining worldwide, and often exaggerate harm to the environment. In pursuing this agenda, they often destroy the economies of developing nations. A sensible and balanced approach is required; the country cannot afford to be manipulated by self-interest groups.”

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The environmental groups in their responding affidavit have taken umbrage at the accusations levelled against them by Uthaka.

“The second respondent (Uthaka) characterises the applicants as being part of a so-called ‘green lobby’,” the Centre for Environmental Rights says in its papers.

“The second respondent goes on to attack the entire ‘green lobby,’ accusing the applicants and the ‘green lobby’ of favouring future generations over current generations, engaging in lawfare and harassment, destroying economies of developing nations, destroying the social and economic welfare of an entire region, and so on.

“Implicit in these assertions are suggestions that the applicants are radical outliers in contending that the mining of fossil fuels is ecologically unsustainable and economically unjustifiable…Lawfare has been accepted by our courts as a commonplace and legitimate process of holding parties to the rule of law.”