Mutuso Dhliwayo-Zimbabwe Environmental Law Association

Introduction

The Zimbabwe Environmental Law Association (ZELA) welcomes the government’s ban on mining in National Parks and Riverbed and Alluvial Mining on Rivers.[1] “Mining on areas held by national parks is banned with immediate effect. Steps are being undertaken to immediately cancel all mining title held in national parks,” Information Minister Monica Mutsvangwa said.The ban followed an outcry by stakeholders on the announcement that some Chinese mining companies had been granted Special Grants under the Mines and Minerals Act with consent from the Department of National Parks and Wildlife Management to prospect for coal in the iconic Hwange National Park. The stakeholders’ and conservationists who made an outcry against mining in the national park  include ZELA. This ban was very welcome because while Hwange attracted worldwide interest because of its iconic status, mining by both Large-Scale Miners (LSM) and Artisanal and Small-Scale Mining (ASM) has been happening and is currently ongoing in a number of National Parks and Rivers.

Zimbabwe’s Parks and Wildlife Estate covers about 12,5% of Zimbabwe surface area.  Besides being home to wildlife resources, some parts of Zimbabwe’s Parks and Wildlife Estate are endowed with rich mineral deposits that include gold and coal and this is what has attracted and resulted in both legal and illegal mining.  It is estimated that approximately 1.31 % of 5 million hectares of the entire Parks and Wildlife Estate is under mining activities (legal and illegal)[2]. Protected areas where mining is taking place include the following: Chegutu / Mupfure Recreational Park, Umfurudzi Safari Area in Shamva, Doma/ Chewore SafarI Area, Rhodes Estate (Ex Matopo National Park), Nyanga National Park and Chimanimani National Park.[3]  With regards to riverbed mining, this is happening / ongoing around rivers surrounding Gonarezhou National Park, Kyle Recreational Park, Umzingwane, Mutare, Mazowe, Angwa, Insiza, and Muterekwi Rivers.

There are a number of reasons why mining is taking place in protected areas and rivers. Firstly, with a number of economic challenges that have faced the country over the past two decades that have now been compounded by climate change and the COVID-19 pandemic that greatly affected the informal sector, the mining sector is widely regarded as a viable source of livelihood. The Mid Term Budget and Economic Review of July 2020 states that the mining sector is the largest foreign currency earner for the country accounting for 60 percent of total foreign currency. Recently, the Government of Zimbabwe launched the US12 Billion Mining Economy by 2023. The mining sector is also predicted to play a leading role in anchoring the realization of Vision 2030 when Zimbabwe is expected to have become an upper middle-income country.[4]

Secondly,several rich mineral districts in Zimbabwe were pegged during the colonial era by Multinational Corporations. This means that there is now limited mining land that is available for new entrants like ASM and new investors that the country is attracting. Protected areas and riverbeds have been seen as alternatives for new entrants and this has resulted in the Ministry of Mines and Mining Development demarcating land in protected areas and along rivers for mining.[5]

Thirdly, some of the parts of the Parks and Wildlife Estates are richly endowed with mineral resources that have been protected over all these years and are now being discovered. It is also important to note that some areas were actually mining areas / sites before they were declared National Parks and mining has continued after their proclamation. Examples include Rhodes Matopos Estate farms outside Matopos National Park and World Heritage Site and Umfurudzi Safari Area in Shamva.

The importance of the Tourism Sector

One of the justifications that is given for allowing mining in protected areas is that it is a huge generator of revenue through Foreign Direct Investment (FDI) which is critical to the realization and achievement of Vision 2030. Zimbabwe Parks and Wildlife Management Authority (ZIMPARKS)  is targeting financial growth and self sufficiency and one of the ways of doing this is by increasing mining revenue to 5 million per annum by 2020.[6] However, this thinking tends to miss the fact that tourism is also  a major anchor of the 2030 Vision and that tourism in Zimbabwe is largely wildlife based . The ZIMPARKS Strategy itself regards tourism as a priority intervention area. The Transitional Stabilisation Programme (TSP) regards the tourism sector as one of the most important service sectors to propel Zimbabwe towards the realization of the 2030 Vision.[7] Allowing mining in protected areas and other critical ecosystems that destroys the tourism base seems to negate this envisaged key role of the tourism sector in economic recovery, stabilization and eventual growth.

Impacts of mining in protected areas and rivers

The impacts of mining in protected areas and other CES are well known and documented and they will be briefly recaptured here.  These include the following:

1. Potential chemical pollution of aquatic ecosystems, if the processing is not handled responsibly
2. Potential changes / disruptions in the dispersal patterns of wildlife
3. Habitat fragmentation and increased potential for alien plant invasions that can be brought in by people
4. Increased poaching of wildlife resulting in Illegal Wildlife Trade

Most importantly, it affects the realization of environmental rights as human rights as provided for in the Constitution of Zimbabwe[8] and the Environmental Management Act.[9] Both the Constitution and EMA provides that every person has the right:

To have the environment protected for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation, promote conservation and secure ecologically sustainable development and use of natural resources while promoting economic and social development.

The Problem with the Purported Ban

The implications of this purported ban have resulted in some confusion among stakeholders.  The Government pronouncement is to the effect that mining in areas held by National Parks is banned with immediate effect. Furthermore, steps are being undertaken to immediately cancel all mining titles held in National Parks. Based on this statement, it may be concluded that mining in all those protected areas and rivers systems that were highlighted above has stopped forthwith. This is misleading. It may have been stopped in Hwange as a result of the public outcry, but mining continues in other national parks and CES.

Mining in National Parks is regulated by the Parks and Wildlife Act and the Mines and Minerals Act. In terms of the Parks and Wildlife Act , it is permissible for prospecting and mining to take place in national park, botanical reserve, botanical garden, sanctuary , safari area or recreational if this is done in terms of a permit issued by the Minister of Environment , Tourism and Hospitality Industry  with the consent of the Minister of Mines and Mining Development. The Act provides that “ no person shall prospect in terms of the Mines and Minerals Act within the Parks and Wildlife Estate except in terms of a permit issued by the Minister of Environment , with the consent of the Minister of Mines or in accordance with any prospecting rights lawfully acquired in respect of the area of the national park, botanical reserve, botanical garden, sanctuary , safari area or recreational park before the date when such area became a national park , botanical reserve , botanical garden sanctuary or recreational park.[10]  Furthermore , the Minister of Environment , Tourism and Hospitality Industry has the power and authority to set the terms and conditions of prospecting or working in any mining location in a national park on the relevant permit of agreement or in accordance with the mining rights, as the case may be.[11]

This pronouncement purports to ban mining activities in national parks activities which are legally provided for under the Parks and Wildlife Act and the Mines and Minerals Act without amending the offending statute. Thus, while a pronouncement was made on mining in national parks, the legal position is that the pronouncement has no legal binding force and hence the provisions of the Parks and Wildlife Act in terms of section 119 remain in force until such a time the law is amended. As things stand, all forms of mining in protected areas remain allowed subject to satisfying the requirements of the Parks and Wildlife Act. This shall be so until such a time that the Act has been amended. ZELA is made to understand that the Government of Zimbabwe is working towards an amendment of the Parks and Wildlife Act to give legal effect to the ban.[12] This is a step in the right direction if it is followed through.

However, it is important to note that even when it is amended , it is possible that mining may still remain in those areas like Umfurudzi Safari Area, the Rhodes Matopos Estate outside Matopos National Park and World Heritage National Park , Ngezi Recreational Park  Mupfure Recreational National Park because of prospecting and mining rights that were acquired in respect of these areas before the date when these areas were proclaimed safari area and national parks respectively. Section 72 of the Constitution makes provisions for property rights. Property is defined broadly as property of any description and any right or interest in property and this includes mining claims that were lawfully or legally granted. Therefore, if mining was happening in an area before it was proclaimed a national park or safari area, there are conditions that have to be satisfied before a person can be compulsorily deprived of their property.[13]

The same applies to mining in CES like rivers. Through Statutory Instrument (SI) 92 of 2014, the Government of Zimbabwe restricted alluvial mining.[14] However, this restriction was overturned by Statutory Instrument 258 of 2018 which allowed alluvial mining.[15] Thus, just like with mining in protected areas , this purported ban of river bed mining is of no legal force as long as SI 258 of 2018 remains in place. However, ZELA understands that the Government of Zimbabwe through the Ministry of Environment, Tourism and Hospitality is working on a SI to make the pronouncement on the ban of mining in rivers is legally binding.  However, we are informed that the proposed SI will be applicable to all rivers where riverbed and alluvial mining is taking place except the Angwa River. However, we  are not sure why the Angwa River has been made an exception.

What needs to be done

While the policy ban on mining in protected areas and rivers by the Government of Zimbabwe is welcome , it must be understood for what it is. A policy pronouncement has no legal force. In other words, mining titles legally granted through the Mines and Minerals Act  cannot be legally cancelled though a policy pronouncement or ban. A policy is a statement of intent and the Government needs to follow up on this intent by amending  the respective laws that allows mining in protected areas in the form of the Mines and Minerals Act and the Parks and Wildlife Act. The policy ban comes at a very timely opportunity as there are ongoing discussions to reform the Parks and Wildlife Act and reforms of the Mines and Minerals Act are ongoing through the Mines and Minerals Amendment Bill. While it is understandable that for those areas where mining was already happening , the Government faces a dilemma as it will have to comply with sections 119 of the Parks and Wildlife Act and section 71(3) of the Constitution , there is no justification whatsoever to continue to issue out prospecting licences and mining titles in protected areas as was the case with the Special Grant for mining in Hwange National Park that was awarded to Zhongxin Mining Group Tongmao Mao Coal Company (Pvt) Ltd and Zimbabwe Mining Development Corporation . This should not be allowed to happen and the Government should build on this policy ban. Stakeholders should therefore not rest  on their laurels based on the policy pronouncement. They need to continue to mobilise , organise ,engage the Government and advocate for reforms of the offending laws.

In those areas where mining was already taking place before the proclamation and it is not possible for it to be compulsorily acquired for a purpose beneficial to the community which could include proclamation as a National Park , the Government should develop guidelines on how mining can be done in a responsible and sustainable manner. There are guidelines that have been developed by the World Conservation Union -IUCN that are used to regulate mining in protected areas. These could guide the Government of Zimbabwe.

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[1] Riverbed Mining and Environmental Challenges. Post Cabinet Press Briefing: Thirty -First Meeting: 8^th September 2020

[2] Presentation by the Permanent Secretary for the Ministry of Environment, Climate, Tourism and Hospitality Industry, Mr. Munodawafa at the 9^th Zimbabwe Alternative Mining indaba side session on Mining in Protected Areas: Delving Deeper into Hwange National Parks, Holiday Inn, Bulawayo, 30 September -2 October,2020.

[3] Willie Mafuta & 26 Others v Zimbabwe Parks and Wildlife Management Authority

[4] Presentation Honourable C. Chinanzvavana , Chairperson of the Portifolio Committee on Environment , Climate and Tourism at the Zimbabwe Alternative Mining Indaba , 2020, 30 September -2 October , 2020. Holiday Inn, Bulawayo

[5] Zimbabwe Environmental Law Association, 2020. Concept note on webinar on Mining in Protected Areas: Delving deeper into the Hwange National Park case and beyond.

[6] Zimbabwe Parks and Wildlife Management Authority Strategic Plan , 2019-2023

[7] Ministry of Finance, Transitional Stabilisation Programme, 2018-2020

[8] Section 73

[9] Section 4

[10] Section 119 (1)

[11] Section 119(3)

[12] Presentation by the Permanent Secretary of the Ministry of Mines at the Zimbabwe Alternative Mining  Indaba session on Mining in Protected Areas

[13] Section 71(3)

[14] Environmental Management (Control of Alluvial Mining ) Regulations , 2014

[15] Environmental Management (Control of Alluvial Mining ) (Amendment ) Regulations of 2018 (No.1)