Implications of the Precautionary Principle for responding to AMD

It is clear from the interviews conducted in Phase 2 of my fieldwork that policy-makers have allowed industry to escape responsibility for the negative impact of mining on the environment. Some arguments that came out during interviews included references to the failure of government to robustly enforce environmental legislation in the mining arena; government's financial interest in mining (government is a shareholder in the mining sector), thereby playing the role of being both a player in and the referee of the mining sector at the same time, which in essence curtailed government's influence in decision-making; while an over reliance on science and technology in environmental decision-making by way of instituting environmental impact assessment, which is to a large extent a component of conventional science based decision-making also came to the fore. Furthermore, the interests of the erstwhile government and the present government were firmly grounded on generating profit rather than protection of the environment and its citizens. As I have argued extensively above, the challenge of AMD is the result of such mismanagement. Therefore, in the following discussion below, I will make a few suggestions about new ways of thinking that can be followed in environmental decision-making about mining in general and the AMD in particular when the PP is followed.

7.5.1 Planning a new mine

If a new mine is envisaged, the PP strongly argues that such a mine should be subjected to stringent environmental laws by way of transparent prospecting licensing. As first step in all of this, the PP will require that all role players should be effectively consulted and effectively incorporated in the decision-making process to make sure that all their concerns are addressed, even if "only" based on lived experience and non-scientific knowledge, before a single action is taken to start to embark on the mining activity. This will include that notice of prospecting should be advertised in local newspapers using the languages mostly used in the area in question. It will also entail that before any prospecting can be allowed, feasibility studies must be undertaken by way of conducting environmental impact assessment studies which will be adjudicated by non-scientific communities

72 _{A case in point is mining in wetland areas, which should in fact be prohibited in terms of the Ramsar Protocol} (see the Ramsar Convention Secretariat, 2007).

with their elected environmental scientists, together with the scientists representing government through the scoping process of the EIA. In the final EIA report, all concerns raised by communities and other interested and affected parties should be reflected, particularly where there is suspicion of potential hazard to the environment and to the parties affected by the proposed mining project. Equally so, the PP dictates that those who have an interest in the development of a mine and those who may be affected by the impact of the environmental project should have a big say in terms of accepting or rejecting the status quo if signs of environmental degradation are beginning to emerge. However, long before any mining commences, the PP requires that any information about environmental impact emerging from conventional EIAs or CRAs must be made available publicly, so as to enable communities and people that could be adversely affected to validate and assess that information by experts chosen by them. By following this approach, decision-makers will avoid the objection of bias, ignoring affected communities, and/or moving ahead unilaterally. The PP thus also requires that EIA or CRA reports should also be communicated to the public in non-technical terms an in the language best understood by those affected by the decision that is envisaged.

In addition, on a technical level, the PP enjoins those actors or initiators of a mining project to conduct, as part of their EIAs and QRAs, pre-mining sampling and analyses for acid producing minerals, based on acceptable practices.73 _{For the purposes of transparency and effective community participation, as} required by the PP, the typical practice of keeping any sensitive information regarding the possible or actual harm that may occur on particular sites away from the public domain, should be regarded as anathema, irresponsible and unethical. In fact, sensitive information regarding mining sites and operations should be declassified and published to enable any affected role players to give their input through their appointed experts, making sure that methods of sampling and analysis are meeting the standards of the best available practices and techniques.

In terms of identifying sites for mining development, the PP similarly requires that it shall be the responsibility of the proposer or proponent to indicate to the relevant government departments that the environment that the sites identified for the development of the mine will not cause physical damage to the environment or surrounding communities by increasing or initiating risks, of which AMD is but one example.

73 _{This kind of sampling and analysis should of course also be done in all cases of mining activities already in} operation.

7.5.2 Oversight and Monitoring

Given the flaws inherent in science as discussed in the previous chapters of the thesis, it is a given that if science induced projects are not monitored in and through processes going wider than science, they are likely to impact negatively on the environment and communities surrounding it.In this regard, the PP in the first place imposes a duty of care on policy-makers and the mining industry alike to make sure that natural ecosystems and communities are not adversely affected by the activities that they respectively have licenced, or embarked upon. In practical terms this entail not only effective oversight by the board members and regulators of companies impacting the environment, but also detailed and meticulous monitoring of routine activities, with effective community involvement in all of these processes.

Further, in cases where violations occur, the duty of care required by the PP dictates in the second place that owners (i.e. mining houses in the case of AMD) should immediately take steps to contain the challenge getting out of hand.

In order to ensure that these aspects of an ethics of care are properly discharged, the PP effectively requires that the environmental performance of mining houses should be audited by a team of highly trained specialists, and that their findings should be addressed in independent environmental audits. These kinds of audits should be conducted regularly and peer reviewed by, as I have indicated above, affected communities as well through their chosen experts and such results must be communicated and made available. As such, the PP states that communities, through their elected leadership, should have the right to independent monitoring and oversight of the environmental programme, taking into account the lived experiences of those communities involved, together with the lay and/or indigenous knowledge they may have of the environment or their health that are affected.

7.5.3 Decommissioning and post closure of mines

Since the challenge of AMD manifests during the decommissioning and post closure of a mine, the PP enjoins government, mining houses and those who have an interest in the project to ensure that the details of closure and post closure are made available to those impacted by the activity. Firstly, a detailed report regarding the reclamation and restoration of the mining site must be drawn up by a team of specialists, particularly those who have first-hand experience of the AMD issue. Against the background of the argument articulated above, it is clear that the PP will require that if affected parties feel that the team so selected may not meet their expectations, they should be able to force the mining industry and government to commit financial resources to make available such expertise, even

if it means getting such expertise from beyond our borders. Those affected by the decommissioning of a mine should thus not be expected to fund the decommissioning, or the studies that should precede it; because in a sense this will already reduce them to victims. Positively stated, the PP requires that role players, including lay communities affected by the closing of a mine, should be part of plenary meetings when decommissioning is planned and implemented. Part of the purpose of such meetings will of course be to draft reports and detailed plans for post-closure monitoring and maintenance of all mine facilities, including, as was so clearly revealed by the case of AMD, surface and underground water. Post-closure tailing dams, for instance, should be monitored for overflow and be subjected to periodical ‘flushing’ as well as general waste that could impact on the functioning and health of the systems and communities surrounding the closed mine. In addition, the plan should periodically be revisited to make sure that the newest technology or best practices are applied to monitor and manage the effects of the closed mine.