The need for Health Impact Assessment in mining



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The need for Health Impact Assessment in mining

An analysis of South African and Kenyan legislation

by

Shalom Ndiku (NDKSHA002)


Submitted to The University Of Cape Town

in fulfilment of the requirements for the degree LLB

Faculty of Law, University of Cape Town
Date of submission: 20 September 2012
Supervisor: Professor Hanri Mostert

Mentor: Janine Howard

Department of Private Law, University of Cape Town



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The need for Health Impact Assessment in Mining

An analysis of South African and Kenyan legislation

by

Shalom Ndiku (NDKSHA002)



Word Count: 9208

This paper was written under the auspices of the LandLawWatch project. The views and opinions expressed here are the author's own and should not be attributed to the LandLawWatch project or the University of Cape Town.




Abstract


Mining impacts community health in a variety of ways. In South Africa and Kenya, the law does not require those responsible for mining activities to conduct Health Impact Assessments (HIA) on nearby communities. This study presents an analysis of South African and Kenyan legislation on community health in relation to mining activities. The results show that the legislative framework governing mining and health do not require any assessment on health impacts to be conducted, particularly in the mining industry. This study illustrates that legislation requiring a stand-alone HIA mechanism can ensure that community health is protected.

Table of Contents




Abstract iii

Table of Contents iv

1. Introduction 1

2. Background 2

2.1. General Concepts and Definitions 2

2.2 The Relationship between Mining and Community Health 3

2.3 A Brief History and Development of HIA 5



3. The Current Legal Framework 6

3.1 The Constitutions of Kenya and South Africa 7

3.2 Mining Legislation 9

3.3 Environmental Legislation 11

3.4 Health Legislation 13

3.5 Conclusion 14



4. The Way Forward 14

4.1 The Need for HIA 15

4.2 Mitigating Health Determinants 18

4.3 Statutory Organs 19

4.3.1 South Africa 19

4.1.2 Kenya 20

4.4 Integrating HIA with other IAs 20

4.5 Suggested Adaptation 21

4.3.1 Option 1: Integrating HIA with EIA 21

4.3.1 Option 2: A Special Authority to Conduct Integrated Assessment 22

4.3.1 Option 3: Standalone HIA 23

5. Conclusion 23

Bibliography 25

Literature 25

Printed 25

Electronic 26

Primary sources 26

Legislation 26

Regulations 27

Bills 27


Treaties and International Documents 27

Policy Documents 27





1. Introduction


Various consequences that impact human health have arisen from mining activity. They include noise, water and dust pollution; the release of toxic elements which affect the nervous system, vision, memory, cancer, and brain cells; and heart problems.1 The persons most severely affected are frequently from low-income communities in the vicinity of the mines.2

This paper focuses on the communities that live in the vicinity of mines and whose health is either directly or indirectly affected by mining activity. The argument advanced is that the use of a Health Impact Assessment (HIA) could benefit community health. HIA serves to inform decision-makers, particularly those in power, of the steps to take as regards the impact of health. Imploring those carrying out mining projects to conduct HIAs will most likely arise where such assessment is required by law.

This paper recommends the introduction of HIA in the legal framework, particularly mining and health, of South Africa and Kenya (hereafter ‘focus countries’), where no such requirement exists at present. Instead, environmental and social impact assessments are the primary means of assessment required by law. While such other forms of impact assessment and the health care system in both countries do give health some attention, this is insufficient. These forms of assessment place less focus on health, due to the increased costs its inclusion would add to the process. Even more so, assessing health using mechanisms structured for social or environmental issues falls short of dealing with the matter in-depth.

Recent attempts at formulating a more integrated approach to health have seen HIA rank higher on the priority lists of international organizations like the World Health Organization (WHO) and the World Bank.3 This paper investigates how a more integrated approach can be implemented in South Africa and Kenya by structuring the inquiry as follows: A brief contextual background of the relationship between mining and health is provided to examine the historical development of the health impact assessment instrument. The focus is then on the current legal frameworks governing mining, the environment and health in the focus countries which are discussed briefly, in as far as they relate to community health. Thereafter a general need for HIA is presented, and the more specific need for it in the legal and policy-making structures of the focus countries is set out. Pointing out the concerningly minimal presence of the obligation to conduct HIAs in the two jurisdictions under investigation, the paper concludes by discussing a way forward. It is necessary, at the outset, however, to define the core concepts involved in this analysis.


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