SUBMISSION BY MARIE LE ROUX: EXECUTIVE OFFICER: HABITAT COUNCIL

Section 24M allows the Minister or MEC to grant exemptions from the need to do an EIA. This process does not include public participation; no public notification of the application for exemption of the requirement for public participation is required. Ironically, it is stipulated that exemption may not be granted if there will be significant detrimental environmental consequences, or if the rights of parties are affected. BUT how can this be determined without an EIA being done?

Discretionary requirements

It is a matter of the greatest concern that the mandatory requirements for EIAs are changed to discretionary requirements. The decision makers will enjoy the discretion to determine what the extent of the EIA to be done will be. The minimum requirements in an EIA were public participation, monitoring, assessment of alternatives, and mitigation measures.

Excessive discretionary powers

It is highly significant that both sections 24(2) and 24(3) use the word "may" and are thus discretionary. We are aghast at the fact that the Minister or his delegated officials are given the power to exercise discretion as to whether or not they will apply NEMA section 23 and 24. No guidance is given as to how to exercise this discretion, and no provision is made for public participation in the process.

Criteria for decision-making

The environmental assessment criteria for decision-making still are not spelt out. This serious shortcoming was highlighted in a number of the 2005 submissions, put was not responded to in the 2005 Response Report. Unguided discretion entrusted to decision-makers is not acceptable. This is contrary to the Promotion of Administrative Justice Act, since there is no accountability, and can no doubt be challenged in the Constitutional Court.

Minimum criteria no longer need to be applied

Currently the requirement is that certain criteria must "as a minimum" be considered. The criteria that must as a minimum be considered lie at the heart of the EIA process, namely whether the environment will be "significantly" affected, whether viable alternatives need to be consider~ whether mitigation measures need to be imposed whether public participation (see section 24(4)(a)-(i)) The proposed amendment to section 24(4) removes the "as a minimum" requirement and splits subsections (a) to (i) into two new subsection (a) and (b). While stipulating a "must" requirement for part (a), the real problem is that the new subsection (b) ((i) to (v» is now reduced to "may include".

Alternatives dispensed with

The proposed amendment, section 24(4)(a), deletes the phrase "investigation of the environment likely to be significantly affected by the proposed activity and alternatives thereto" (own emphasis). Deleting 'the alternatives' requirement will remove one of the generally accepted pillars of the EIA process, namely the need to explore viable alternatives in a given situation. This is untenable, since it is at the very heart of the EIA process. It is unacceptable to say that we don't have government capacity to achieve these minimum requirements. The minimum requirements are designed to ensure that environmental needs and socio-economic needs are integrated. Government is in honour bound to make provision that this is achieved.

Uncertainty

A glaring weakness of the amendments is the uncertainty that is created. The general objectives of integrated environmental management are set out in Section 23 of NEMA. These are in line with the original NEMA objectives. However, section 24 gainsays much of what is in section 23.

Mandatory requirements

The mandatory NEMA requirements will no longer be the standard for environmental Impact Assessments. These are the following:

Mitigatory measures

The investigation of mitigatory measures to reduce environmental impacts will no longer be a mandatory requirement of section 24. It boggles the mind what the purpose of an EIA is other than the protection of the environment. This lack of clarity makes a mockery of EIAs

Public participation

Under section 24, public participation will no longer be a mandatory requirement.

NEMA Section 2: Principles sets out the basis for environmental management. In 2(4)(f). (g_ (It) and (k) the requirements for public participation are stipulated

[(t) - participation of all I& APs in environmental governance; development of skills to participate; participation by the disadvantaged]

[(g) decisions to take into account needs and values of all I& APS]

[(It) - decisions to be taken in an open and transparent manner; access to information]

Reporting on gaps in knowledge

The abandoning of the need to report on gaps in knowledge, and giving an assessment on adequacy of predictive methods and assumptions, places this amendment in conflict with the Promotion of Administrative Justice Act, which required the consideration of all relevant material.

This flies in the face of the risk-averse approach (principle 2(4)(viii)).

Monitoring

Arrangements for monitoring and management of the consequences of impacts is also no longer a mandatory requirement (Section 25(4)(t)

These proposed amendments fly in the face of all that NEMA stands for. We consider that this Amendment Bill, if it goes through, will effectively emasculate our environmental management provisions. Such an act will be dishonourable, and unworthy of a department to whom the custodianship of our country's environment has been entrusted.

It is inevitable that loopholes provided by thee proposed s will be used to fast-track development by reducing the number of full environmental impact assessments, and compromising the quality of such assessments. The cumulative impact of this on the South African environment will be far-reaching and extremely damaging.

When considering the proposed amendments to the NEMA, one needs to determine whether the proposed amendment enhance or detract from ensuring the provision of enough relevant and reliable information to decision-making officials, including from stakeholders, to help

them make better decisions. If that cannot be guaranteed, the amendments cannot be accepted.

I thank the Portfolio Committee for having been granted the opportunity to air our concerns. Now we can only trust in your insight and integrity to do what is right by the environment.