ESCARPMENT ENVIRONMENT
PROTECTION GROUP (EEPOG)
An
ASSOCIATION
Farm
Zoekop, JS426 Belfast District, P O
.
REF 20071106 portfolio presentation
Date: 6 November 2007
Portfolio
Committee for Environmental Affairs and Tourism
Parliament
8000
RE: NATIONAL ENVIRONMENTAL MANAGEMENT AMENDMENT
BILL B36-2007:
PUBLIC HEARING SUBMISSION
ON 6 NOVEMBER 2007
Mr
Chair and ladies and gentleman of the committee,
We wish to thank you for the
opportunity to address you with regards to these proposed amendments to the
National Environment Management Act. (NEMA)
First a little background from our perspective:
The decision to generate electricity
primarily from coal was made 30 – 40 years ago in very different circumstances
– a very different political structure
and method of government. We are very sure that we would not have been afforded
the opportunity to address the portfolio committee as members of the public
then.
Coal fired power stations is however
now a fact and the implications and complications
of that decision has come home to roost on us – the children and grandchildren
of those decision makers.
I grew up as the son of a civil servant who worked in
the Treasury. I remember very clearly that my father told me in the late 70’s
that he was very disturbed about the fact that it seemed as though the whole of
the Highveld in the then Transvaal was going to be mined for coal for
electricity generation. He was of the opinion that it would be disastrous for the country in the long
term.
The change in the commodity price cycle in the early
1980’s and the sanctions imposed by the world on
Show photos:
The question we believe should be:
Where is the least cost coal, based
on the social, economic, and environmental cost basis to use for the generation
of electricity?
The present situation:
We are now in a situation where the
demand for electricity is outstripping supply at certain times of the year and
the commodity cycle is at a peak
again. Demand, both locally and internationally is very high and the price of
coal is very high. Prices are in the region of R450/ ton at Richard bay Coal
Terminal. This is economically very
attractive especially if the constraints on the external costs can be reduced.
There is also a new government structure in place and new laws have been
promulgated to mirror the fundamental change in the way the country is governed
– basically from a one party dictatorship to a multiparty democracy. Decision making has moved from dark
smoke filled backrooms to the porch in full view of the public and where
smoking is only allowed outdoors. NEMA, the MPRDA, the NWA and many other laws
reflect this change.
What we are here for is amendments to NEMA that will fundamentally change the whole process
once again to a situation somewhere in between the two above scenarios and that
would lead in the end, we believe, to a de facto back to the old decision
making process that is completely out of step with the current principles of
government.
We wish to make the following analogy with a computer: In a PC we
have a hard drive with an operating procedure (normally DOS), we have software
that works with the hard drive (eg Windows) and we have a operator that
instructs the software. This is a basic government. The hard drive is the
philosophy of government – liberal democracy based on a constitution. The
software is the laws eg. NEMA , MPRDA and NWA. The operators are the members of
parliament, the civil servants, and the courts. If all is well the system is
well.
We are however concerned about the situation
where the software are incompatible
with the hardware. This is the same as when you wish to open a programme and
the computer tells you that it does not recognise the programme. I believe that
the push by DME to amend both the MPRDA and NEMA is exactly this. The software
(amended acts) will be incompatible with the hardware (constitution and
philosophy) and we will run into all sorts of problems.
What is even more disconcerting is
that the operators in this case, the DME, does
not seem to realise that their proposed software is incompatible with the
hardware.
The main issues:
1) Sustainability
Sustainability forms the basis of decision
making when we have an economic impact with associated social en environmental
impacts. We refer you to the written submissions for the case of the Fuel Retailers
vs MDALA in the
·
At paragraph 44: Development cannot subsist
upon a deteriorating environmental base. Unlimited development is detrimental
to the environment and the destruction is detrimental to development. Promotion of development requires the
protection of the environment.
·
At paragraph 47: The Brundtland report
defined sustainable development as “ development
that meets the need of the present without compromising the ability of future
generations to meet their own needs” .
- At paragraph 48:…..the concept of
sustainable development , according to the ( Brundlandt)report, “provides a framework for the
integration of environmental policies and development strategies”
·
At paragraph 59: Sustainable development is defined to mean “the integration of social, economic and
environmental factors into planning, implementation and decision-making for the
benefit of present and future generations”.
·
At paragraph 61: Whenever a development which may have a
significant impact on the environment is planned, it envisages that there will
be a need to weigh considerations of development, as underpinned by the right
to socio-economic development, against environmental considerations, as
underpinned by the right to environmental protection. In this sense it
contemplates that environmental decisions will achieve a balance between environmental and socio-economic developmental
considerations through the concept of sustainability.
·
At paragraph 80: The objective of this exercise, as NEMA makes
it plain, is both to identify and
predict that actual and potential impact on socio-economic conditions and
consider ways of minimising the negative impact while maximising benefit.
·
At paragraph 81: Finally NEMA requires “a risk averse and cautious approach”
to be applied by decision-makers. This approach entails taking into account the
limitation on present knowledge about the consequences of an environmental
decision. This precautionary approach is especially important in the light of
section 24(7)(b) of NEMA which requires the cumulative impact of a development
on the environment and socio-economic conditions to be investigated and
addressed. And the assessment of the significance of that potential impact.
·
At paragraph 102: “…The present generation holds
the earth in trust for the next generation.
This trusteeship position carries with it the responsibility to look after the
environment. It is the duty of the court to ensure that this responsibility is
carried out.”
Sustainability
is the glasses we look through in
order to assess and evaluate all the facts and make a decision that is informed.
It is fundamental and manifest to
decision making under these circumstances.
In order to compile a sustainability study
we need to know what all the true advantages
and disadvantages are of a project. This includes the costs that are
externalised. If we cannot calculate all of the advantages and disadvantages
then we cannot calculate the sustainability of a project and then it would fail
to meet the standards set out in Section 24 of the Constitution.
We
believe that by watering down the requirements, making DME a Competent
Authority, allowing for exemptions and parallel processes (sufficient
compliance) without setting certain minimum
requirement for such studies the effect will be that no true sustainability
will be available and this will lead to endless problems both for the current
generation but also for future generations. These impacts include the
cumulative impacts of the investigated project and other projects that are
similar and/or have similar impacts.
One of the big issues has always been to what
extent the impacts have to be investigated.
Cumulative impacts are a classical example. Where does this stop? In the draft
MPRDA regulations there was definition. It was however removed from the final
regulations.
Cumulative Impacts:
Whether
a specific resource and ecological component are cumulatively affected by the
proposed mining operation by considering:-
a)
whether the proposed operation is one of several projects or
activities in the same geographic area;
b)
whether other projects or activities in the area have
similar impacts on the specific resource and ecological components;
c)
whether these impacts have been historically significant for
this resources and ecological components; and
d)
whether other investigations in the area have identified a
cumulative impact concern,
To
avoid extending data and analytical requirements beyond those relevant for
decision-making, the selection of geographical boundaries and time period
should, whenever possible, be based on the natural boundaries of the resource
concern and the period of time that the proposed project’s impacts will
persist.
I
believe this explains exactly what is needed and this is the sort of amendments
we need. We need to illuminate the
issues and not switch off the lights.
2)
Alternatives
The same
is for the investigating of alternatives. It is fundamental to the process. In
the MPRDA it states that the beneficiation of minerals should be done optimally. How is it possible to be
sure of this if alternatives of resources are not investigated?
If one
draws a line from
3)
Time for
decision making
Another reason put forward for these
amendments is that it takes too much time for an authorisation to take place.
As I have shown in my written submission the current time frames in the MPRDA
leaves very little time for expert
studies. It does however leave 120 days for a decision to take place.
Let us look at examples. In the case of Lusthof the decision took 10 months, Eerstelingsfontein took 21 months, Klippan took 3 months and Strathrae took -14 days ( was authorised before the documents
were handed in). It is interesting to note that Klippan was the mine where we
were told by the company about how well connected they are within the DME and
political structures and it took less time than what is allowed for in the
MPRDA.
What is clear is that a long time is
sometimes taken on a decision. By decreasing the investigations there will not be
an affect of the time it takes to make a decision except where the information
will be so lacking in detail that a decision can be easily made. The question
then is of course whether it is an informed
decision.
4) Cooperative
governance, Consultation, public participation
An
informed decision can only be in a process where there are strict minimum
standards and where there is cooperative governance with multiparty
responsibility.
From legal opinion it is clear that every
department should keep itself busy with its own field of expertise and not
infringe on another department’s area of expertise. The integration of the expertise
should however be reflected in the decision.
From the
above it is clear that the restrictive old administrative rules regarding
participation had been replaced by rules requiring much active involvement and
notably to the benefit of increased involvement by both government department
and interested and affected parties.
The old
system was characterized by decision-making by a government department with, at
best, the comments of departments and other parties. The new system is based on
the active involvement of interested parties such as other government organs.
It has also come to our attention that
the DME has only 59 officials in the Department tasked with environmental
protection and monitoring across all the nine regional offices. That is a total
of only 6.5 persons per province on average. This shortage of staff is very
clearly evident in the inability of DME to investigate gross irregularities
that are reported to them. (See written presentation). In
One wonders if the inadequate amount of
officials is representing the importance that the environment is given within
the DME.
5) The
appeal process
There is no internal appeal process within the MPRDA. In this we refer you
to two cases in the Free State High Court recently reported. ( Mofschaap
Diamonds vs DME and others, case 3117/2006 and Global Pact trading vs DME and
others, case no 3118/06) The way the wording in the MPRDA is drafted and the
way the delegated power is drafted has seen to that.
In our written submission we had illustrated
that the DME authorises mining rights without
certain very important requirements
being met in either the MPRDA or NEMA. This is especially the case for
alternatives, cumulative impact, public participations and sustainability. If
these amendments are put into law it would mean that the only internal appeal
process ( under NEMA authorisations) would be taken away from the public and
the only recourse would be legal review
at a cost of hundreds of thousands of
Once the
DME, as the competent authority, has granted exemptions and declared the MPRDA
as sufficiently compliant then there would be no internal appeal to the Minster
of Environmental Affairs and every mining right that was granted in error, and there have been numerous, would end up in
court.
We do
not believe that this is what is envisaged by you.
In conclusion the following:
We believe that all of the coal fields
should be rated according to the complete cost discussed above. The DME should
then direct the companies to prospect those areas first that have the least
cost in order to mine coal for ESKOM for electricity generation. This could
only be done if cumulative impacts and alternatives have to be investigated.
By not investigating the alternative coal
fields we are however allowing coal mining to happen in areas where it is not
optimal and the only reason it is economical is because the company does not
have to pay for the acid mine drainage and the loss of soil fertility.
By not investigating impacts,
alternatives, cumulative impacts and doing sustainability studies we are
guessing the importance of these impacts, the advantages, and disadvantages. We
also externalising the cost to society and later generations. We are placing a
burden on the next generations in much the same way that the impact of coal
fired electricity was placed on us by the previous generations.
By not
investigating an impact we are not going to make it go away – we are merely
transporting responsibility from the mining company to society. The mining
company gets the benefits and the society pays the cost.
Let us
not burden our children with the cost for our growth but with a situation where
the cost has been paid for and there is no additional cost for them to pay. I
have a friend that always says good bye in the following fashion: -“May your
children have rich parents” I wish to add – “and grow up in a happy and healthy
family environment”
Dr JP
Pretorius
Chairman
EEPOG
Secretary
MLDPG