A Gold Rush to Nowhere? The rights-based approach to environmental governance in South Africa’s mining sector in question

Abstract

In this article we focus on the impact that the mining industry has had, and continues to have, on the environment in South Africa. The country is renowned for its mineral wealth and the mining sector continues to significantly contribute to its gross domestic product. Yet, as we demonstrate, these socio-economic benefits are often short-lived and they frequently come at a high price, especially where mining impacts on the environment and the attendant health and well-being of people. The South African legal regime does, however, provide an explicit environmental right; other environmental-related substantive rights to water, housing and sanitation; as well as a set of procedural rights that should facilitate participative governance and provide means to protect substantive rights-based interests. Flowing from these rights is also a comprehensive and modern environmental law regime that seeks to regulate mining impacts. Collectively, these rights and statutory arrangements should provide for better protection against the adverse environmental impacts of mining. Yet, despite the existence of this rights-based regime, environmental abuses by the mining sector continue to hamper the country’s quest for sustainability. The questions that arise in this respect include: are rights in South Africa still mere symbolic statements of intent, instead of meaningful and powerful drivers in environmental governance; and more importantly, is the rights-based approach a viable means of holding mines to account for adverse environmental impacts in South Africa? We attempt to answer these interrelated questions by discussing the impact of mines on South Africa’s environment; investigating the underpinnings and meaning of the rights-based approach; and critically analysing some recent instances where the judiciary was called on to adjudicate matters involving mines and their relationship with people and their environment.