Postnet Suite 87,

Private Bag X033,

RIVONIA.

2128.

 

November 1, 2007.

 

The Chairperson,

Portfolio Committee for Environmental Affairs and Tourism,

P.O. Box 15,

Parliament,

CAPE TOWN.

8000

 

FOR ATTENTION: MR. LANGA ZITA

 

Dear Sir,


NATIONAL ENVIRONMENTAL MANAGEMENT AMENDMENT BILL B36-2007

WRITTEN SUBMISSION

 

INTRODUCTION

 

It is respectfully submitted that the mischievous effects and the aggregate long-term environmental consequences if the amendments to the National Environmental Management Act (Act 107 of 1998) are promulgated are so palpable, that, perhaps I ought merely to dwell upon a comparison of the consequences if the amendments are to be implemented into law with the consequences of the forbearance, and leave the honourable members of the committee to determine the set of consequences which gives the balance of advantage:  which yields the larger residue of probable good for all our people, or (adopting a different, though exactly equivalent expression) which leaves the smaller residue of probable evil.

 

It is necessary to pause and to recapitulate the objectives of an environmental impact assessment and thereafter to question with penetration the consequences if these objectives are to be ignored.  Accordingly, I shall endeavour to address the gross anomalies between the proposed amendments and the Bill of Rights of the Constitution of the Republic of South Africa[1] and the principles of Common Law, that answer to the calls of justice, equity, morality, the needs of our time and reasonableness as completely as my time limits will permit.

 

BILL OF RIGHTS AND JURISPRUDENCE

 

The promulgation of the proposed amendments will be at the expense of long term socio- economic upliftment and environmental costs.  To justify all kinds of unethical practices, such as the wholesale destruction of the environment and the long term contamination of water resources, in the name of employment creation, short term political priorities and revenue earned by local municipalities and elitist groups are current short-term political priorities and a pernicious infraction of Section 24 of the Constitution of the Republic of South Africa.   Commercial and wealth-generation mining and development for elitist groups that ignore social and environmental consequences by fast tracking EIA authorisations will in the long run be harmful to commerce and industry themselves.

 

In the face of environmental degradation, loss of biodiversity, poverty and ill health, and the increasing cost of doing business as a result of increased social taxes and higher resource costs, the proposed amendments to the National Environmental Management Act (NEMA) are conceived as imbalanced thinking.  It is respectfully stated that it is an evolutionary step back in human consciousness, awareness and behaviour and will cause retrogression to the lowest level of consciousness, that is, to operate in a purely survivalist mentality, without an awareness or understanding that harm to the environment  will eventually cause harm to all.

 

We therefore seriously question the rationale behind the proposed amendments of the NEMA.  Is it to maintain profits for a few or is it to sustain people and the planet?  We have only one earth and development must be scaled down within the limits of the Earth’s capacity to renew the resources that sustain both life and development. If developments and activities degrade the land, contaminate the water and destroy the diversity of life, and spew out pollution, sick people and loss of agricultural potential, it is not sustainable development.  It is perverse reasoning that economic growth should be measured in terms of how much we produce and consume, but not in what we destroy in the process.

 

OBJECTIVES OF AN ENVIRONMENTAL IMPACT ASSESSMENT

 

The International Association for Impact Assessment Environmental Impact Assessment the environmental impact assessment defines the process as:  “The process of identifying, predicting, evaluating and mitigating the biophysical, social and other relevant effects of development proposals prior to major decisions being taken and commitments made.”

 

The objectives of an Environmental Impact Assessment are:

  • To ensure that environmental considerations are explicitly addressed and incorporated into decision-making processes.
  • To anticipate and avoid, minimize or offset the significant adverse biophysical, social and other relevant effects of development proposals;
  • To protect the productivity and capacity of natural systems and the ecological processes that maintain their functions; and
  • To promote development that is sustainable and optimizes resource use and management opportunities.


For an EIA to be useful as a decision-making tool in order for the relevant authorities to make an informed decision, it is trite to say that an EIA should:

 

  • Provide sufficient, reliable and usable information to decision-makers at every stage of the project planning cycle;
  • Involve the application of best practicable science, using the methodologies and techniques appropriate to address the problems being investigated;
  • Generate outcomes that help mitigate adverse environmental impacts, are socially acceptable, and able to be implemented by the developers;
  • Be transparent and systematic, providing appropriate opportunities to inform and involve interested and affected parties, whose inputs and concerns should be address explicitly in the documentation and decision-making, especially local communities who will be called upon to carry the risks or hazards and environmental impacts.
  • Consider viable alternatives to the proposed development, inclusive of the no go option.

 

The removal of the proposed sections of the NEMA may lead to the authorization of activities which may have significant and long term impacts on the receiving environment since it will escape the scrutiny of relevant authorizing officials and a proper consideration of the impacts before the development proceeds.

 

PUBLIC PARTICIPATION

 

Participatory democracy is the axiom of the Constitution of the Republic of South Africa.  Public participation is the basic operating principle behind the sound working of a democracy, and also contributes towards the growing awareness and sensitivity to the importance of environmental justice.  There is furthermore a growing trend worldwide that requires projects and developments to be discussed with the public, especially local communities and interested and affected parties.  The purpose is not merely for affected parties to raise their concerns and objections to a proposed development but to get opinions and to learn from the knowledge and experience that local communities possess through living in a particular area.

 

To that end the following maxims of the National Environmental Management were implemented:

  • "the participation of all interested and affected parties in environmental governance must be promoted, and all people must have the opportunity to develop the understanding, skills and capacity necessary for achieving equitable and effective participation and participation by vulnerable and disadvantaged persons must be ensured.
  • "Decisions must take into account the interests, needs, and values of all interested and affected parties, and this includes recognizing all forms of knowledge, including traditional and ordinary knowledge.
  • "Community wellbeing and empowerment must be promoted through environmental education, the raising of environmental awareness, the sharing of knowledge and experience and other appropriate means."

Notwithstanding the aforesaid maxims there are many challenges to public participation, such as:

  • Insufficient time is afforded to the public to obtain and peruse documents, to understand highly technical issues and to provide substantial comments on the documents;
  • The public, especially previously disadvantaged communities are prevented from adequate participation by their lack of understand of the EIA process and ignorance of their rights to participate as well as their right to access to information.  Public creation awareness campaigns ought to be conducted by the custodians of our environment, that is, the relevant organs of State;
  • Failure to engage with the public will result in conflict and the time consuming and potentially costly High Court review applications.  The inclusion of the public in the early stages of the EIA process, and the inclusion of mitigation measures for adverse environmental or social impacts will have positive implications for the developer as well as the authorizing officials and regulators. Failure to include communities and individuals from participation in proposed developments that will alter the day to day way in which they live, work, play and relate to one another, and their aesthetic and cultural character as a community will undoubtedly result in social ramifications.
  • Unsubstantiated and unsupported claims of the developers are not being challenged.

The proposed amendments to the NEMA will exacerbate the aforementioned problems even further.  The involvement of the local communities in decisions that affect their lives is a fundamental right and principle and as such has been incorporated into a number of international agreements and policy initiatives such as the Rio Declaration and the Aarhus Convention and plans of action such as Agenda 21, and the Johannesburg Implementation Plan.

ALTERNATIVES AND THE NO-GO OPTION

Without realistic development alternatives, the need and desirability of a proposed development for society as a whole can not be adequately demonstrated.  Without consideration of alternatives and the no-go option benefits will accrue to the developer and his shareholders while the costs will be borne by the broader section of society who will gain none of the benefits.

A no development option must be fully explored as part of the process.  No developer has the right to simply expect to be granted permission; there ought to be some mechanism by which it is possible to reject outright a development proposal that obviously causes unacceptable environmental degradation and harm.

Alternatives and the No-Go Option is a valuable predictive tool in order to assess risk.  In the absence of full information a value judgment will be crude and defective.

CONCLUSION

It is respectfully submitted that the amendments to the Bill are agreeable to the notion that the well-being and health of the people and the environment (inclusive of the agricultural potential of the land, the protection of our water resources, tenure of land and the public health) are sacrificed without scruple in order that the commercial interests of a few elitist groups and individuals may wax and prosper.

 

Yours respectfully,

MARIETTE LIEFFERINK.


[1] Please see annexed document for exemplification of human rights violations within the gold mining industry.  It is foreseen that the proposed amendments to the NEMA will violate our highest or paramount obligations in terms of the Bill of Rights.