CONCLUSIONES DEL ANÁLISIS ECONÓMICO-FINANCIERO

7.4.1 Conventional scientific risk assessment is flawed

It is clear from the interviews that I conducted and from my review of literature that conventional risk assessment is the preferred modus operandi of resolving the AMD issue. The fact is further informed by all the respondents who indicated that science based risk assessment is currently the only tool that can be applied to resolve issues that are related to AMD. Hence I found that conventional risk assessment is perceived as sacrosanct.

This line of discourse is not surprising because all scientific approaches are based on the articulation of two fundamental parameters, which are then reduced to an aggregated concept of risk. First are things are listed that might happen: hazards, possibilities or outcomes. Second is an assessment of the likelihood or probability associated with each. Either of these parameters might be subject to variously complete or problematic knowledge. This articulation yields four logical permutations of possible states of incomplete knowledge70 _{— of course; these are neither discrete nor mutually exclusive and} typically occur together in varying degrees in the real world. Conventionally, risk assessment

addresses each of these states essentially by applying the same battery of techniques: quantifying and aggregating different outcomes and multiplying by their respective probabilities to yield a single reductive picture of 'risk'.

To state it in more detail: conventional risk management entails the identification, assessment, and prioritization of risk, followed by a coordinated and economical application of resources to minimize, monitor, and control the probability and/or impact of unfortunate events.71 _{As per its definition, it is} thus clear that conventional risk assessment is a reactive process riddled with uncertainty, hence its challenge to meaningfully address AMD issues successfully.

The mining industry, government and scientific community, however, must in my opinion desist from arguing that absolute safety cannot be proven or guaranteed, because I think that this is an excuse and also an attempt to hide the shortcomings inherent in conventional risk assessment. Firstly, incomplete knowledge or lack of knowledge of the natural systems is making scientifically based environmental decision-making cumbersome. The shortcomings of conventional risk assessment are found in its inability to effectively address uncertainty, which is the hallmark of science based decision- making. As alluded in the previous chapter it is because science is inherently uncertain that it struggles to deal with the AMD problem.

The uncertainty of conventional risk assessment is mostly driven by lack of knowledge, which to some extent is influenced by the failure to understand complex natural systems, and also by the uncertainty inherent in science. All these issues cloud the implementation of reliable environmental decision- making by shifting the burden of proof from the proponents of an action to the victims of it, as is the case with the AMD issue. The victims of the AMD scourge are expected to prove that mining is responsible for AMD and not the proponents of mining activity. This state of affairs is morally incomprehensible and needs to be reviewed by appealing to an alternative decision-making tool like the precautionary principle which shifts the burden of proof from the victims to the initiator of a project.

On a conceptual level, confirmed by my interviews, it is clear that conventional risk assessment relies on only one mode of knowledge, scientific knowledge, while indigenous knowledge and lived experiences as they are articulated by the broader public, are typically side-lined, and are typically not trusted by the scientific community. Indigenous knowledge and lived experiences on, for instance, the

71 Hubbard, Douglas (2009). The Failure of Risk Management: Why It's Broken and How to Fix It. John Wiley & Sons. p. 46.

effects of mining on communities, is typically ignored, something that is often confirmed by the lack of participation of communities in decision-making affecting their lives. The only time they are allowed to participate is when conducting EIAs during scoping processes. The main drivers of these processes are scientists whose decisions have a final say even if there are objections raised by communities. The decisions of the scientific community will subsequently be rubber-stamped by bureaucrats. It is my considered view that the non-scientific community may assist scientific communities and policy- makers in resolving the AMD issue by articulating indigenous knowledge and lived experiences in decision-making. Unfortunately this exclusion of non-scientific communities has led to mistrust of science whilst the victims are left to count the cost of the AMD mismanagement.

My conclusion is that conventional risk assessment has its inherent weaknesses, notably with regards to uncertainty; in most cases it fails to understand the complexities inherent in social and environmental systems. Conventional risk assessment is also monocratic and it borders on autocracy because it takes decisions without embracing and articulating community concerns. The way communities have been treated by both government and the scientific community has led to mistrust and violent response in some cases as it was pointed out in this thesis in the preceding chapters. Thus it is my conviction that conventional risk assessment protects the status quo, is unreliable and shifts the burden of proof in an unjust manner away from the proponents of an action to the victims of it. It is my considered view that conventional risk assessment is flawed and it cannot be relied upon as an effective tool to resolve environmental problems like AMD.

7.4.2 The Precautionary Principle can respond to scientific uncertainty

The PP determines that scientific uncertainty about the causal relationship between an activity or product and harm to the environment (serious or irreversible) shall not be a reason for postponing action to protect the environment. The PP, thus in the case of scientific uncertainty and risk of significant harm to the environment requires the taking of measures to protect the environment, yet, it, as the prevention principle, does not determine the type of measures that need to be taken. Such measures could include transparent environmental/risk assessment procedures, combined with participative community decision-making processes, on the basis of which all relevant factors can be considered, and concerned individuals and groups can participate in decision-making.

The test for knowing when to apply the PP is the combination of threat of harm and scientific uncertainty. For an example, some people may say that the threatened harm or hypothetical harm must be serious, or at least irreversible, whilst others point out that this does not necessarily allow for cumulative effects of a large number of relatively small risks. The PP moves from the position that

instead of asking how much damage or harm we will tolerate (this is typical of the conventional risk based approach), rather it asks how to reduce or eliminate hazards, and it considers all possible means for achieving that goal, including scrapping the proposed risky project or activity. It is also critical, according to the PP approach, to look for alternatives to a hazardous activity or project, and such alternatives must be subjected to some gruelling scrutiny of the hazardous activity itself.

My conclusion is therefore, that the PP can help science to deal with uncertainty by providing a tool that recognises uncertainty, and indicates a strategy to respond to it.

7.4.3 The Precautionary Principle shifts the burden of proof

The precautionary principle states that if an action or policy has a suspected risk of causing harm to the public or to the environment, in the absence of scientific consensus that the action or policy is not harmful, the burden of proof that it is not harmful falls on those taking an action.

The precautionary principle assumes that the proponents of a product or project should provide evidence that (a) they have looked at all reasonable alternatives and are going about their business in the least harmful way possible; and (b) that their activities are not likely to degrade human health or the natural environment. For example in the case of environmental decision-making involving mining, the proponents of mining should be able to demonstrate that their actions or policies are not harmful. The precautionary principle therefore takes a clear and unambiguous position: policy makers must justify discretionary decisions in situations where there is the possibility of harm from making a certain decision (e.g. taking a particular course of action) when extensive scientific knowledge on the matter is lacking. The principle implies that there is a social responsibility to protect the public from exposure to harm, when scientific investigation has found a plausible risk. These protections can be relaxed only if further scientific findings emerge that provide sound evidence that no harm will result.

In other words, the mining houses, government, and scientists have a moral obligation to demonstrate that the environmental project in question that is envisaged will not result in irreversible damage. The buck stops with the initiator of the mining project and the decision-makers to prevent harm; the burden cannot be shifted to the victims of the environmental onslaught to prove otherwise. In other words, the precautionary principle clearly states that those who have an interest in the mining endeavour should not allow collateral damage to ensue on afflicted communities. Those who initiate mining projects, or any other project for that matter, should therefore be placed under a strict obligation to make a persuasive case for what they wish to do and must accept the consequences of that project. Part of burden sharing means an obligation on the part of those who initiate and get

involved in mining projects. When someone talks about shifting the burden of proof, the proponents of the activity have an obligation to ensure at the end of its lifetime that the decommissioning of a mine will not result in AMD. Formulated in more detail: The proponents of mining or the mining industry have the obligation to test the ground for possible AMD causation, and to communicate such information publicly without distortion. On the other hand, the PP acknowledges that communities and people affected by mining have the right to know the details of the project, as they are the ones who are going to pay the price if things go wrong. This is a right enshrined in the Bill of Rights of the Constitution of the Republic of South Africa, and the PP is clearly a viable decision-making tool that can give effect to this right.

7.4.4 The Precautionary Principle entails an ethics of care

The PP plays an important role in terms of the question when to take protective and preventative action. As such, the PP entails a duty of care which is closely related to the duties of good neighbourliness and due diligence emanating from sources such as Roman Law, which speaks to relations between neighbours, the duty of reasonable and equitable use, and the obligation to refrain from abuse of rights. The duty of care enjoins policy makers to take proactive action in situations where the risk of endangering the environment or human health is high. The duty of care as articulated in the PP can be reinforced by scientific knowledge about the environment in question and the availability of technology that is able to protect the environment and its citizens.

As such, the PP encourages that the more we know about the vulnerability of an ecosystem and how to protect it against degradation, together with the increased availability of technology to protect the ecosystems or sensitive sites, the more concrete the preventive measures are required. In the case of mining in SA which has contributed to the scourge of AMD, the government thus has a constitutional duty of care to take appropriate and timely action to protect the environment and the public from harm that can be reasonably foreseen to follow from mining activities, even if causal links between the envisaged mining activities and its possible effects are not scientifically proven. In cases where harm has been demonstrated by lived experience to be clear and present in communities and in the environment, as is the case with AMD, the duty to address this harm is even clearer.

As I have argued in this study, it has become absolutely clear that mining house has to demonstrate a duty of care as propagated by the PP, thereby ensuring that, for instance, mining projects or any other environmentally related projects do not hinder valuable ecosystems upon which communities depend. This can be achieved by ensuring that no-go areas are established where mining will not be allowed at if it is proven that the mining activity may result in harm to the ecosystem and the

communities around it.72 _{In other words financial considerations should not be in the forefront when} such decisions are taken. Instead, the driving motivation should be that of protecting and safeguarding the environment and the health of people.