Western Cape Region
|
|
31
The Sanctuary, off
PO Box 30145, Tokai, 7966
Tel: (021) 701 1397
Fax: (021) 701 1399
SUBMISSION TO THE PORTFOLIO COMMITTEE ON
ENVIRONMENTAL AFFAIRS AND TOURISM
On the
NATIONAL ENVIRONMENTAL MANAGEMENT AMENDMENT BILL (B36-2007)
This submission is made by the Wildlife and
Environment Society of South Africa (WESSA)
Submitted by:
Andy Gubb
Regional Manager: WESSA
TOKAI
7966
2
November 2007
This comment on the proposed National Environmental
Management Amendment Bill, B36-2007, (the Bill) is by WESSA, a national, membership-based,
environmental NGO whose mission is, "To promote public participation in
caring for the Earth".
INTRODUCTION
Despite a largely adequate and progressive
framework for environmental governance having been developed since 1994, the
overall condition of the environment is deteriorating. The positive steps in environmental
governance have not been met with rigorous implementation, compliance,
monitoring, or enforcement. Primary
sector activities like mining, agriculture and forestry still contribute
substantially to environmental degradation, for example, mining is the largest
producer of hazardous and general waste.
A suite of constraints hinders progress towards sustainable development,
most notably insufficient capacity and skills.
The introductory paragraph above consists entirely
of text quoted directly from the 2006 publication, South Africa Environment
Outlook: A Report on the State of the Environment, which was recently released
by the Department of Environmental Affairs and Tourism – the very same
Department that has submitted, for consideration, the proposed National
Environmental Management Amendment Bill, B36-2007. Ironically, the primary focus of this Bill is
to facilitate quick and smooth decision-making by:
·
Extending environmental
decision-making powers to other government departments, specifically the
Department of Minerals and Energy,
·
Including less stringent
decision-making tools such as Integrated Development Plans, Spatial Development
Frameworks and Norms and Standards,
·
Making the existing Environmental
Impact Assessment process less rigorous,
·
Making public participation, the
cornerstone of our democracy and of future environmental sustainability,
optional,
·
Dispensing with the requirement
of applying the precautionary principle,
·
Creating escape routes to avoid
the disciplined, scientific assessment of potential impacts that a development
may have on our social and natural environment.
The National Environmental Management Act is the
enabling legislation through which Constitutional rights in terms of the environment
are given meaning and yet, with each amendment, the effectiveness of this
legislation is diminished.
COMMENT
1.
Section
1(c)(a): WESSA
notes its concern that the Minister of Minerals and Energy is defined as the
competent authority in respect of the evaluation of the environmental impact
and the granting, amending or refusing of an environmental authorisation in
respect of mining or a range of mining-related activities. This concern must be seen in conjunction with
Bill 10B-2007, the Mineral and Petroleum Resources Development Amendment Bill,
wherein it has been proposed under Section 4(3) that, "The provisions of
the National Environmental Management Act, 1998 (Act No. 107 of 1998), relating
to environmental authorisations and any other related matters, shall not apply
to activities of holders regulated in terms of this Act."
Environmental
authorisations granted under the Minerals and Petroleum Resources Development
Act (MPRDA) as per proposed amendments to Section 38 and Section 39, which do
not require a full environmental impact assessment, do not have the same
thoroughness, integrity and legitimacy as environmental authorisations granted
in terms of NEMA, following a full environmental impact assessment. While WESSA acknowledges the important
economic role played by mining in
If the
Bill is read together with replacing each instance of the term "competent
authority" with the Minister of Minerals and Energy and if each instance of
"environmental authorisation" is taken to include the environmental
authorisation as articulated in the MPRDA, as envisaged by the amendments
contained in Sections 8(b), 24L and 24M of the Bill, the environmental
implications of this amendment have the potential to be extremely serious. The use of a separate and less stringent
environmental impact assessment process by the mining fraternity should not be
supported.
In
addition, WESSA is concerned that pressure applied by the Department of
Minerals and Energy to receive special dispensation in terms of environmental
authorisations will set a dangerous precedent that could conceivably result in
similar pressure from other government departments who find current
environmental legislation too restrictive, e.g. Department of Agriculture or
the Department of Water Affairs and Forestry.
It is conceivable that this amendment paves the way for similar
amendments that will considerably weaken the effectiveness and authority of the
Minister of Environmental Affairs and Tourism.
2. Sections 24(2)(b) and 24(2)(d): In essence, these sections allow for the use
of decision-making tools other than an Environmental Impact Assessment process,
specifically Integrated Development Plans, Spatial Development Frameworks and
what the Bill refers to as "Norms or Standards". WESSA believes that the Environmental Impact
Assessment process is currently the only comprehensive, reliable, valid and
scientifically acceptable tool for assessing the potential environmental
impacts of a proposed development and for developing recommendations with
respect to the mitigation of these anticipated impacts. There is no guarantee that Integrated
Development Plans and Spatial Development Frameworks have, in the process of being
formulated, adequately assessed the potential environmental impacts of
suggested development types. The
"Norms or Standards" referred to in Section 24(1)(d) have not yet
been developed. Section 24(10) refers to
the development of these Norms or Standards for activities listed in terms of
Section 24(2)(d), but it is impossible to anticipate the real substance of
these Norms or Standards. WESSA believes
that it would be irresponsible to approve amendments that refer to Norms or
Standards prior to there being clarity about these. In addition, WESSA is sceptical about such
Norms or Standards, which inherently imply a "one size fits all"
approach. Norms or Standards which may
"commonly and repeatedly" be used and "against which the
performance of activities or the results of those activities may be
assessed" will inevitably, by their general nature, be reduced to the
lowest common denominator. Environmental
processes, natural communities and eco-system dynamics are complex and invariably
unique in space and time, which is precisely why individual, tailor-made
Environmental Impact Assessment processes remain the best tool for assessing
potential environmental impacts and establishing mechanisms for measuring
performance of specific activities at specific locations. No two Environmental Impact Assessment
processes are the same and neither should they be.
3. Section 24(4): This section specifies
what is required in terms of an environmental impact assessment and represents
substantial dilution of the current status quo, by the use of the word
"may", which allow for the use of discretion in relation to
activities which require environmental authorisation. Significantly and sadly, consideration of
alternatives, including the no-development option, investigation of mitigation
measures, public participation and the monitoring and management of
environmental impacts, are not mandatory.
WESSA foresees that this loophole that has been created in the
Environmental Impact Assessment process will be used with increasing frequency
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 is likely to be extremely serious.
It would
seem that these amendments have been included as a means of streamlining the
process of obtaining environmental authorisations at the expense of sound
environmental governance. The Bill
allows for a situation whereby Plans of Action submitted by developers or
proponents are rubber-stamped by officials, because they meet the minimum
requirements of the law. As the
Department of Environmental Affairs and Tourism, itself, has stated, the
problems associated with obtaining environmental authorisations do not lie with
existing legislation, but are rather an outcome of lack of capacity and skills. WESSA considers it short-sighted,
inappropriate and unacceptable to water-down sound environmental legislation,
rather than to address the root cause of the problem. Through this amendment, the Department of
Environmental Affairs and Tourism is abdicating it responsibility for sound
environmental governance.
WESSA is
particularly concerned about the compromising of the public's right to
participate in Environmental Impact Assessment processes (or
"environmental authorisations" under separate legislation) as
interested and affected parties.
Ultimately, the integrity of the South African and, indeed, the global
environment depends on fundamental and far-reaching commitment and
participation of the public in general.
Public participation in environmental decision-making is one of the best
known mechanisms for ensuring sound and sustainable environmental
decision-making.
4. Section 24C(1): This section concerns the identification of
the competent authority responsible for granting environmental authorisations
in respect of the activities listed in terms of Section 24(2). The competent authority so identified would
have to exercise discretion when applying the provisions of Section 24(4). No guidelines are provided and it is
conceivable that the application of the law will be inconsistent across the
identified "competent authorities".
This is unacceptable. WESSA is
concerned about the wide distribution of decision-making powers across
government departments and tiers of government.
Such decision-making, in terms of the Bill, includes environmental
authorisations which may be given in terms of legislation other than the
National Environmental Management Act (Section 24(L)).
5. Section 24M – Exemptions from
application of certain provisions: WESSA
is unable to understand why it has been regarded necessary to provide for
exemption from the provisions of section 24(4)(b), when none of Section
24(4)(b) is mandatory, in any event.
Furthermore, it is difficult to understand how the Minister will, prior
to an Environmental Impact Assessment process, be in a position to determine
if:
·
the granting of the exemption is
unlikely to result in significant detrimental consequences for or impacts on
the environment;
·
the exemption is unlikely to
adversely affect the rights of interested or affected parties.
Once
again, this proposed amendment leaves much to the Minister's discretion without
providing any tools or guidelines for the application of such discretion. WESSA strongly opposes this amendment.
6. The
amendments to Section 24 as proposed in the Bill result in a conflict between
Sections 23 and 24. For example, Section
23(2)(d) explicitly states that there should be adequate and appropriate
opportunity for public participation, yet the amendments to Section 24(4) make
it clear that public participation will not necessarily occur. Section 24 of the Bill is intended to provide
the mechanisms whereby the objectives in Section 23 are met. In this respect, the Bill not only fails
dismally, it is in direct conflict with the objectives.
CONCLUSION
WESSA is distressed by the dilution of
Forward to a healthy environment.
