LEGAL RESOURCES CENTRE
SUBMISSION TO PORTFOLIO COMMITTEE ON ENVIRONMENTAL AFFAIRS AND TOURISM
ON
This submission is made by
the Legal Resources Centre.
Submitted by:
Angela Andrews and Ellen Nicol
Legal Resources Centre
3rd Floor
This is a comment by the Legal Resources Centre on the
proposed National Environmental Management Amendment Bill, B36 –2007.
It is divided into two sections.
Part A deals with general
authorisations under NEMA. Part B deals
with authorisations in the sphere of mining.
EXECUTIVE SUMMARY PART A
The NEMA Amendment Bill will fundamentally change and
significantly water down the provisions of NEMA which protect the environment
when authorisations are granted after environmental impact assessments. These aspects of NEMA are the core of its
protection of the environment and the changes which are proposed will
significantly erode the core of legislative enactments intended to give effect
to the fundamental right to the environment contained in our Constitution. The
proposed changes will also reduce avenues for public participation in
environmental decision making, an internationally recognised safeguard against
bad environmental decision making.
Minimum requirements for
environmental assessments (Section 24(4))
The bill proposes
to change most of the important mandatory requirements for environmental impact
assessments including investigation of alternatives, mitigation measures,
public participation and arrangements for monitoring into discretionary requirements meaning
that in the authorisation process decision makers will have a discretion as to
how far reaching an environmental impact assessment must be. By removing the mandatory requirements set
out above, there will be no consistency
in environmental impact assessments, and
the shape and form of environmental impact assessments will depend on discretion. The Bill provides no guidance whatsoever as
to how this discretion should be
exercised in order to protect the fundamental right to the environment. Given that fundamental environmental rights
may be threatened in the exercise of this discretion, the failure to provide
guidance and criteria for the exercise of this discretion may render the
amending provisions unconstitutional.
Authorisations done under
laws other than NEMA
Section 24(8)[1]
allows a competent authority (which could be the DEAT or the Department of
Mineral & Energy Affairs when the activity relates to mining) to treat
authorisations obtained after investigations under laws other than NEMA’s
environmental impact assessments to be regarded as sufficiently compliant with
the assessment requirements for NEMA.
Some of these laws might not have public participation or the remaining
procedural rights under NEMA.
Authorisations under departments like the Department of Mineral &
Energy Affairs for activities such as mining present a potential conflict of
interest as DME is expected to promote mining rather than protect the
environment. No guidance is given the
exercise of discretion under this section rendering it possibly
unconstitutional.
Exemptions
Finally, section 24M allows the Minister or MEC to
grant exemption from an environmental impact assessment. The public does not have a right of participation
in such process. Whether such right
emerges later will depend on how the Minister or MEC defines the process to be
followed for lodging of applications for exemptions. Exemptions may not be
granted if they are likely to result in significant detrimental consequences
for the environment or adversely affect the interests or rights of affected
parties. However it may be difficult to
determine these two questions without an impact assessment.
What does this mean for the protection of the
environment and for public participation
which is an internationally recognized requirement for procedural fairness in
environmental decision making.
1
Impact assessments may
be conducted according to a variety of standards under a variety of laws
and the public may or may not even know about them or have a right of public
participation. No longer will the mandatory
NEMA requirements be the standard for environmental impact assessments
2
Exemptions may be granted without the public knowing about
the applications for exemptions and without having a right of participation.
3
The requirements for environmental impact assessments may be
so weak and the level of monitoring non existent so that the law in effect
fails to result in a proper protection of the environment. It is not possible to know how far reaching
the results of these provisions will be and under which circumstances the
public may or may not be excluded from participating in environmental impact
assessments.
4
In total the future for environmental protection through the
eia process is very uncertain and is under threat.
The provisions of the NEMA Amendment Act will fundamentally alter the regulatory scheme for environmental impact assessments
from one which containing reasonable measures based on certainty and minimum
requirements to one based on discretion and complete lack of certainty. This discretion, which will be exercised by
the competent authority whether within the Department of Environment Affairs
and Tourism, or the Department of Mineral and Energy Affairs is not guided by
any criteria which would ensure consistency and the protection of the
environment. The failure to provide
criteria for the exercise of such discretion
may result in the legislation being declared unconstitutional. The fact that a reasonable measure enacted to
give effect to the constitutional right to environment will be replaced by
complete uncertainty and wide discretion is in itself a basis for the amendment
Bill to be declared unconstitutional if enacted into law.
EXECUTIVE SUMMARY: PART B
The environmental assessment process in the
MPRDA and its regulations is inferior to the current NEMA environmental impact
assessment process.
The
MPRDA and NEMA require similar aspects of the impact of activities on the environment
to be assessed. The major difference
lies in the legitimacy of the assessment.
The NEMA process ensures greater legitimacy of the assessment by
requiring an independent assessment open to specialist review and by providing
for a meaningful public participation process with full access to all relevant
information and the guarantee of a fair process where input from interested and
affected parties forms part of the material to be considered by the
authority. The MPRDA process fails to
give these assurances of quality and independence and the assessment process
lacks legitimacy and consistency as a result of this.
The assessment system of mining impacts is
to be even further weakened by the NEMA amendments.
2.1
A mine might follow any of the following processes for
obtaining an environmental authorization:
a)
The NEMA EIA process
and to have its application considered by the Minister for Minerals and Energy
as the competent authority. A mine may
follow this process based on the change in definition of competent authority
and the listing of mining as an activity under the act;
b)
the MPRDA process for obtaining the necessary environmental
approval. Currently this means that the
mine must obtain approval for its environmental management plan. A mine may follow this process on the basis
of section 24(8)(a) or (b) and section 24L;
c)
any other process required in terms of another law for an
environmental authorization in terms of that law. This may be as little as a basic assessment
in terms of land use planning laws, or a limited assessment in terms of laws
governed by the National Nuclear Regulator.
A mine might rely on section 24(8)(b) for this approach.
2.2
Following the NEMA EIA process under the Bill will lead to
an environmental authorization in that is potentially weaker than is currently
the case under the MPRDA.
2.3
The amendments to NEMA may erode the quality of
environmental impact assessment is done in terms of the MPRDA.
2.4
by relying on section 24(8)(b), and mine may in effect
circumvent any meaningful environmental impact assessment.
2.5
instead of removing and avoiding duplication of
environmental authorisation processes, the amendments will in the case of
mining activities, lead to duplication, additional administrative burden and
considerable and certainty.
The proposed NEMA
amendments will have chaotic results for mining activities. Apart from the unnecessary administrative
duplication with the resultant differences in application of the same
legislation, the processes available will create the opportunity for eroding
access to information, opportunity for comment and fair process.
The proposed NEMA
amendments will turn back the clock on environmental regulation of mines. It will replace a reasonable system for this
regulation was one which does not comply with generally accepted principles of
environmental law.
PART A: DETAILED
DISCUSSION
1. Removal
of mandatory requirements for environment and impact assessments
1.1 Environmental Impact Assessments within the Framework of International
Environmental Law and the South African Constitution.
The South African
constitution[2]
guarantees that the State will take reasonable legislative and other measures
to protect the environment. In order to
ascertain what reasonable measures might be the Constitution states that when interpreting the Bill of
Rights, a court, tribunal or forum must consider international law and may
consider foreign law.[3] One of those international instruments which
is of relevance here is the Rio Declaration where 182 nations stated that the
right of access to information, access to justice and public participation is
fundamental to the future protection of the environment.[4] These principles were then imported into our
law in the National Environmental Management Act in 1998 and are of particular
application in the sections dealing with integrated environmental management and
environmental impact assessments. Environment impact assessments are regulatory
tools which are key to the prevention of future negative impacts on the
environment and to creating certainty in the field of environmetal governance.
1.2 Minimum requirements for environment and impact assessments
Flowing from the
commitments made by states to the protection of the environment at Rio,
regulatory approaches to the environment and environmental impact assessments
were developed by a number of nations including
1.2 Proposed Amendments to Section 24 of NEMA
The clause in Bill
B26-2007 which is of most concern to the
work of the Legal Resources Centre is clause 2 which proposes to limit the
minimum requirements for the investigation, assessment and communication of
potential impacts of activities on the environment under section 24(4).
The investigation of the potential consequences or
impacts of alternatives to the activity on the environment is proposed to no
longer a mandatory requirement nor is the option of not implementing the
activity. This tool which enables the authorities to establish the best
environmental option may therefore not be consistently applied, leading to a
weakening of protection of the environment and less pressure to consider new
ways of doing activities which may be less detrimental thereto.
(ii)
Mitigation measures
As with alternatives the issue of the investigation of
mitigation measures is proposed to no longer be a mandatory requirement of
section 24 investigations and environmental impact assessments. Mitigation
measures are one of the one of the most important tools in order to reduce
environmental impacts. Without this being
a mandatory requirement it is difficult to understand what the purpose of an
environmental impact assessment is and how it can work to protect the
environment.
(iii)
Public participation
The requirement of public information and
participation procedures which provide all interested and affected parties with
a reasonable opportunity to participate in such information and participation
procedures is proposed to no longer be a mandatory requirement for
environmental impact assessments under section 24. This requirement is spelt out repeatedly in the
national environmental management principles under section 2 which are required
to be taken into account in any decision made by an organ of state in relation
to any proposed policy, programme, process, plan or project which is a listed
activity[7].
“2(4) (f) 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 ensures.
(g) Decisions must take into account the
interests, needs and values of all interested and affected parties and this
includes recognising all forms of knowledge including traditional and ordinary
knowledge.
(h) 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.
(k) Decisions must be taken into account in
an open and transparent manner, and access to information must be provided in
accordance with the law.”
(iv)
Reporting on gaps in knowledge
The NEMA amendment bill proposes that the requirement
of reporting on gaps and knowledge, the adequacy of predictive methods and
underlying assumptions, and uncertainties encountered in compiling the required
information is no longer a requirement.[8] This conflicts with the requirements of the
Promotion of Administrative Justice Act which require the consideration of all
relevant material[9].
It also conflicts with the risk averse and cautious
approach set out in the NEMA principles[10]
where one of the requirements for sustainable development is the consideration
of all relevant factors including
“(vii) that
a risk averse and cautious approach is applied which takes into account the
limit of current knowledge and the consequences of decisions and actions.”
The investigation
and formulation of arrangements for the monitoring and management of the
consequences of impacts on the environment is also proposed to no longer be
a mandatory requirement[11].
The consequence of
making this requirement into a discretionary requirement will have a serious
impact on environmental governance since there may be instances where no
arrangements are made for the management of the environmental impacts of
projects after authorisation. This will
severely weaken the regulatory system as some authorities may avoid making arrangements
for the monitoring and management of environmental impacts of an authorised
activity.
By removing the
mandatory requirements set out above,
there will be no consistency in environmental impact assessments, and the shape and form of environmental
impact assessments will depend on
discretion. The Bill provides inadequate
or no guidance as to how this discretion should be exercised in order to protect the
fundamental right to the environment.
Given that environmental rights may be threatened in the exercise of
this discretion, the provision of insufficient
guidance for the exercise of this
discretion may render the amending provisions unconstitutional.[12]
3. Re Section 24(8)
The first concern
regarding the proposed amendment to this section is the removal of the
mandatory requirement for public participation contained in sub-section
4(d). As has been stated above public
participation is a mandatory requirement of the NEMA principles. However if authorisations take place under
laws other than NEMA in many instances public participation is not a
requirement. For example, authorisations
under nuclear regulatory statutes. The
principle of public participation is fundamental to modern environmental good
governance and prevention of corruption and harm to the environment and is
contained in principle 10 of the Rio Declaration.[13] For example the AARHUS Convention which is adopted in
Section 24(8)(b)[15]
is an even more far reaching provision obliterating environmental
protection. This section grants the
relevant authority under NEMA the overall discretion to consider authorisations
obtained under other statutes as providing sufficient compliance for purposes
of NEMA. According to this discretion
any investigation of the potential consequences of activities required for
environmental authorisation may be sufficient to trigger the discretion to deem
the investigation sufficient for the purposes of NEMA. Insufficient
guidance is given in the amending Bill to indicate to the authorising
authority how to exercise this discretion.
Seen in the context of the other amendments to Section 24 which remove
mandatory requirements for assessment, it is clear that very watered down
provisions for environmental assessment under other statutes may well be deemed
to constitute compliance with NEMA. The
protection of the environment is further compromised by the fact that
departments which may be keen to promote certain activities rather than protect
the environment will in effect be conducting environmental impact
assessments. For example, authorities like
the Department of Mineral and Energy Affairs may be more keen to promote mining
activities than to protect the environment.
Section 24L[16]
allows for joint authorisations.
Paragraph 24L(3) is ambiguous and it is not clear what is meant by this
provision.
Firstly, the power
to grant an exemption is based on the discretion of the Minister or MEC with
very little in the way of guiding criteria, contrary to what has been
determined as desirable in the case of Dawood & Another v Minister of
Home Affairs & Another: Shalabi & Another v Minister of
Home Affairs & Another 2000(3)SA936 (CC). The proposed Section 24M gives the Minister
and every MEC an unconstrained mandate to grant exemption from the provisions
of Section 24(4)(b). The only guidance
that is given is that the Minister or MEC must prescribe a process to be followed for lodging and
processing of such application.[18] Further there are three provisions which
restrict the granting of exemptions, namely the exemption may only be granted
if:
(a)
it is unlikely to result in significant detrimental
consequence for the environment[19];
(b)
the provision cannot be implemented in practice in the case
of the application in question[20] (It is very unclear what is meant by this
provision);
(c)
the exemption is unlikely to adversely affect the rights of
interested or affected parties.[21]
Firstly
sections 24M(3)(a) and (c) are difficult if not impossible to determine without
the impact assessment process. Section
24M does not make clear that there is provision for public participation in the
making of the decision about exemptions, only referring indirectly thereto by
reference to the fact that an exemption may only be granted if it is unlikely
to adversely affect the rights of interested or affected parties.
The provisions of the NEMA Amendment Act will fundamentally alter the regulatory scheme for environmental impact assessments
from one based on certainty and minimum requirements to one based on discretion
and complete lack of certainty. This
discretion, which will be exercised by the competent authority whether within
the Department of Environment Affairs and Tourism, or the Department of Mineral
and Energy Affairs is not guided by any criteria which would ensure consistency
and the protection of the environment.
The failure to provide criteria for the exercise of such discretion may result in the legislation being declared
unconstitutional.
*******************************************************
PART
B
Comment
on the implication of NEMA bill 36 on the quality of environmental
authorisations for mining activities
Introduction
1.
Mining has severe
impacts on the environment. Management
of the environmental impact of mining activities and the necessary legal
framework to achieve this, only recently started to receive the attention
necessary to move mining activities to a more sustainable level. Legislation preceding the Minerals and
Petroleum Resources Development Act was woefully inadequate to prevent mine
pollution and degradation. Many problems
caused in the past are now particularly difficult to rectify.
2.
To make development
in
3.
4.
It is imperative
that regulation of the environmental impacts of mining must be strengthened,
particularly in relation to insistence by the authorities on compliance with
the existing legal requirements. There
is no justification for weakening environmental regulation of the mining
industry. For that reason it is
particularly worrying that Bill 36 will in effect achieve a significant
weakening in the environmental regulation of the mining industry.
5.
These comments
explain how the proposed bill 36 will weaken environmental authorisations for
mining. It also highlights the confusion
created by bill 36 if read in conjunction with bill 10 (Mineral and Petroleum
Resources Development Amendment Bill).
These comments refer to comment contained in Part A of this
submission. Relevant parts of Part
A are summarised, and the two sets of
comments should be read together.
Sections of Bill 36 relevant to this comment
6.
Section 1(c)(b) of the bill - definition of “competent
authority”
This addition to
the definitions designate the Minister of Minerals and Energy as the competent
authority for the evaluation of environmental impacts and the granting of
environmental authorisations under NEMA for mining, prospecting, petroleum
exploration and production
7.
Section 24(8) – in some instances an authorization obtained
under another law may absolve the applicant from the need for a NEMA
authorization.
This addition
provides for two ways in which an authorization for a listed or specified
activity that was obtained under another law, may absolve the applicant from a
specific NEMA authorization.
Firstly, if the
authorization had been granted in the manner contemplated in section 24L(1) to
(4), it is sufficient. The manner
contemplated in section 24 L requires compliance with the processes in NEMA
chapter 5.
Secondly, in a very
broad provision, the competent authority may regard an environmental
authorization, (including an exemption in terms of s 24M or permits obtained
under any law) for an activity identified in terms of NEMA, as sufficient for
purposes of NEMA. The only requirement
is that the authorization, permit or exemption must have been obtained after any
investigation, assessment and communication of the potential consequences of
activities required for environmental authorisations.
This addition is
confusing. It does not require
compliance with any standard. It seems
to be sufficient if there had been some investigation (not necessarily a full
investigation) of potential consequences of the activity required for an
environmental authorization under another act.
There is no reference that such an investigation must comply with NEMA
chapter 5.
8.
Section 24L – an integrated environmental authorization may
be issued if the relevant provisions of another law regulating the same
activity and NEMA have been met. Furthermore, the Minister or an MEC may
consider an authorization issued in terms of any other legislation that meets
all the requirements of the processes in NEMA chapter 5, to be an environmental
authorization in terms of that chapter.
9.
Section 43 – appeals against a decision of a competent
authority must be made to the Minister or the MEC for DEAT.
It is unclear to
whom appeals must be made where the activity at stake is mining. It appears that an appeal against a decision
by the Minister for DME regarding environmental authorisations for mining, will
have to be made to the Minister of DEAT.
We are not aware of any precedent where an appeal against a decision of
one minister lies with another and submit that such a situation will create
administrative confusion and have serious implications for the division of
jurisdiction between ministers of departments.
Implications
of the amendments proposed by bill 36 for environmental authorisations relating
to mining
Mines will have a choice of process to
follow for obtaining an environmental authorization
10.
A mine might follow any of the following processes for
obtaining an environmental authorization:
10.1.the NEMA EIA
process and have its application considered by the Minister for Minerals and
Energy as the competent authority. A
mine may follow this process based on the change in definition of competent
authority and the listing of mining as an activity under the act[22];
10.2.the MPRDA process
for obtaining the necessary environmental approval. Currently this means that the mine must
obtain approval for its environmental management plan. A mine may follow this process on the basis
of section 24(8)(a) or (b) and section 24L;
10.3.any other process
required in terms of another law for an environmental authorization in terms of
that law. This may be as little as a
basic assessment in terms of land use planning laws, or a limited assessment in
terms of laws governed by the National Nuclear Regulator. A mine might rely on section 24(8)(b) for
this approach.
Following the NEMA EIA process will lead to
an environmental authorization that is potentially weaker than is currently the
case
11.
Currently, mines have to obtain approval for an
environmental management plan in terms of the MPRDA before a mining
authorization can be issued. Under the
MPRDA and its regulations there are certain requirements for the investigation
of environmental impacts. These include
a consideration of alternatives and mitigation measures, a basic form of public
participation and a consideration of cumulative impacts.
12.
If a mine chooses to follow the NEMA EIA process as amended,
it will not be required to consider cumulative impacts and the competent
authority will have a discretion to dispense with the requirement that
alternatives and mitigation measures must be considered or that a public
participation process need to be followed.
The weakening of the EIA processby the proposed amendments to NEMA is
discussed in Part A and the two
submissions should be read together for a full understanding of how the NEMA
EIA process will be weakened.
13.
Accordingly, an environmental authorization under the
amended NEMA may be obtained after an investigation of environmental impacts
that is weaker than that currently required of mines.
The MPRDA process for obtaining an
environmental authorization is already inferior if compared with NEMA in its
current form
14.
Under the current versions of the MPRDA and NEMA, the impact
assessment is very similar. However,
there are two shortcomings in the MPRDA assessment that are so significant that
they erode the value of any impact assessment done under that act:
14.1.Under the MPRDA the
applicant is not required to appoint an independent environmental assessment
practitioner to manage the assessment process;
14.2.The public
participation process under the MPRDA is inadequate, providing insufficient
safeguards to ensure that interested and affected parties are able to participate
and comment meaningfully on the environmental impact assessment.
15.
Annexure A to these comments contains a more detailed
discussion of these shortcomings.
16.
The requirements of an independent party conducting the
assessment and of adequate public participation lies at the heart of reasonable
measures to ensure a proper assessment.
Without these requirements, the legitimacy of the process is
affected. The current NEMA process ensures
greater legitimacy for the assessment by requiring an independent assessment
open to specialist review and by providing for a meaningful public
participation process with full access to all relevant information and the
guarantee of a fair process where input from interested and affected parties
forms part of the material to be considered by the authority. The MPRDA process fails to give these
assurances of quality and independence and the assessment process is
meaningless as a result of this.
17.
Accordingly, if a mine chooses to follow the current MPRDA
process for obtaining an environmental authorization, this may result in a
decision that is not adequately protective of the environment and the rights of
interested and affected parties and falls short of the reasonable standard set
by NEMA in its unamended form.
The amendments to NEMA may even erode the
quality of environmental impact assessments done in terms of the MPRDA
18.
In terms of section 24L, if a mine chooses to follow the
MPRDA process for assessing environmental impacts and obtaining an
environmental authorization under that act, this authorization may be
considered a NEMA authorization if it meets the requirements of Chapter 5 of
NEMA.
19.
If NEMA is amended, it will require a less stringent impact
assessment in some respects than that currently required by the MPRDA and its
regulations. For instance, the
consideration of alternatives and mitigation measures will not be mandatory
under an amended NEMA, whereas it is in terms of the MPRDA and its regulations
in its current form.
20.
This discrepancy in processes may leave the avenue open for
mines to follow the MPRDA process, but only to the extent that it complies with
chapter 5 of NEMA. A mine may argue that
it wishes to follow the MPRDA process for ultimate recognition of its environmental
authorization as a NEMA authorization and that, for that reason, it does not
have to comply with the more stringent requirements of the MPRDA.
By relying on section 24(8)(b), a mine may
in effect circumvent any meaningful environmental impact assessment
21.
By far the most advantageous choice for a mine wishing to do
as little as possible in terms of environmental impact assessment, is to rely
on section 24(8)(b) and to convince the competent authority that a lesser form
of assessment of impacts of the proposed project is sufficient.
22.
Under this amendment, there is no standard set for the
investigation leading to the authorization.
It need simply be “any” investigation.
Investigations leading to environmental authorizations under the nuclear
regulatory statutes, do not require public participation, for instance. The investigations are also limited in extent
as regards environmental impacts, and the issue of alternatives to the proposed
activity. An authorization obtained
under this regulator could be used to convince the competent authority that it
is sufficient for purposes of NEMA. In
this manner, a mine may cross the hurdle of NEMA by avoiding a meaningful
assessment of environmental impacts.
Instead of removing and avoiding
duplication of environmental authorization processes, the amendments will, in
the case of mining activities, lead to duplication, additional administrative
burden and considerable uncertainty
23.
By making the Minister of Minerals and Energy the designated
authority for the administration of NEMA in the case of applications for
environmental authorizations, the amendment implies that the DME must create
new processes and positions and spend considerable time, money and effort in
training relevant officials to be able to administer the NEMA EIA process.
24.
There is a real possibility that DME and DEAT officials will
have different approaches in dealing with the NEMA EIA process, leading to
confusion and different outcomes.
25.
Interested and affected parties will face many
uncertainties. These may include which
assessment process is being followed in a particular application, the extent of
the public participation on which they may insist, the standard of
environmental assessment to apply and the uncertainties created by the broad
provision in section 24(8)(b). This will
erode the public participation process regarding mining activities even
further, diminishing one of the cornerstones of administrative justice.
Conclusion
26.
The proposed NEMA amendments will have chaotic results for
mining activities. Apart from the
unnecessary administrative duplication with the resultant differences in
application of the same legislation, the processes available will create the
opportunity for eroding access to information, opportunity for comment and fair
process.
27.
The proposed NEMA amendments will turn the clock back on
environmental regulation of mines. It
will replace a reasonable system for this regulation with one which does not
comply with generally accepted principles of environmental law.
Annexure
A
The
environmental assessment process in the MPRDA and its regulations is inferior
to the current NEMA EIA process
1.
I assume that the argument in support of the proposed
amendment to the MPRDA will include praise of the impact assessment process in
the MPRDA and its regulations. This
would be misplaced since the MPRDA and its regulations prescribe a process that
does not have the same safeguards to ensure a proper impact assessment as those
contained in the current NEMA EIA process.
The MPRDA environmental impact assessment
process
2.
The MPRDA (s.39(1)) requires someone who applies for a
mining right to conduct an environmental impact assessment and submit an
environmental management programme once that person is notified that the
application for a mining right has been accepted (acceptance of the application
has to do with compliance with formal requirements etc.) For prospecting only an environmental
management plan is required.
3.
Section 39 of the MPRDA lays down certain requirements for
the assessment that must be done. These
are very similar to the requirements for the NEMA EIA regulations. In addition, certain of the regulations under
the act provide more detailed requirements for the impact assessment.
4.
Regulation 48 says that the impact assessment contemplated
in section 39(1) of the act is a process that results in the compilation of a
scoping report followed by an environmental impact assessment. Regulation 49 and 50 contain detail of what
the scoping report and the impact assessment must contain and regulation 51
gives guidance on what must be contained in the management programme.
5.
Section 39 of the act and the applicable regulations mirror
the NEMA EIA regulations to a large extent in terms of the requirements for
what the impact assessment process must investigate and consider and what must
be contained in the management programme.
Alternatives must be considered, the receiving environment must be
described, impacts must be described and investigated, etc. In some instances the MPRDA requirements are
even better that the NEMA EIA requirements
– the applicant is for instance required to evaluate cumulative impacts
which is no longer the case under the NEMA EIA regulations.
6.
Despite the fact that the content of the impact assessment
is very similar under MPRDA and NEMA, there are two shortcomings in the MPRDA
assessment that are so significant that they erode the value of any impact
assessment done:
6.1.
Under the MPRDA the applicant is not required to appoint an
independent environmental assessment practitioner to manage the assessment
process;
6.2.
The public participation process under the MPRDA is
inadequate.
The MPRDA does not require the appointment
of an independent environmental assessment practitioner to manage the impact
assessment process
7.
It does not matter how much detail the act and the
regulations require the impact assessment and the management programme to
consider and describe, if the process is not managed by an independent party,
there can be no certainty of the quality of the assessment.
8.
In reality mines often manage and even conduct the impact
assessment process themselves. This
means that there is an automatic conflict of interest. The failure of the MPRDA to require an
independent assessment, compromises the legitimacy of the process.
9.
Where the NEMA EIA process provides for specialist review of
the independent assessment where necessary, the MPRDA also fails to do
this. There is no mechanism in the MPRDA
to ensure that the impact assessment and the development of the management
programme is done independently and unbiased.
The MPRDA process does not require a
reasonable and adequate public participation process
10.
The MPRDA environmental assessment process is inferior to
the NEMA EIA process in the area of public participation. Mining has a high impact on the environment
and in many cases this impact is felt by poor and marginalized
communities. One of the few tools
available to interested and affected parties to protect their rights, is the
public participation tool in the assessment of an application for approval of
an activity.
11.
The NEMA EIA process has specific requirements to protect
the procedural rights of interested and affected parties:
11.1.the EIA process
must be managed by an independent environmental assessment practitioner who has
experience and the necessary skill to do so and it is this person’s duty to
ensure that the public participation process requirements are complied with
(reg 18);
11.2.provision is made
for a specific public participation process to be conducted at basic
assessment, scoping and environmental assessment stages;
11.3.the public
participation process is described in detail with provisions for giving notice
of applications, to whom and where notice must be given and the content of the
notices (reg 56);
11.4.a register of
interested and affected parties must be opened and maintained (reg 57);
11.5.registered
interested and affected parties are entitled to comment on all written
submissions and reports given to the authorities (reg 58) and their comments
must be included in the reports submitted to the authorities (reg 59). In this manner the comments and objections
become part of the application and must be considered by the authority;
11.6.the person
conducting the public participation process must ensure that all relevant facts
in respect of the application are made available to potential interested and
affected parties (reg 56);
11.7.the person
conducting the public participation process must facilitate participation by
potential interested and affected parties in such a manner that they are given
reasonable opportunity to comment on the application (reg 56);
11.8.registered
interested and affected parties must be informed of any decision taken in
relation to an application within a specific time and must be informed about
the right to appeal.
12.
The provisions in the MPRDA process for public participation
are limited. Section 10 of the MPRDA
provides that the regional manager must, in the prescribed manner, after
accepting an application for a mining (or prospecting, etc) right, make known
that an application was received and call upon interested and affected parties
to submit comments regarding the application within 30 days (this period is too
short to allow for a proper dovetailing with the scoping report or
environmental impact assessment.)
13.
Regulation 3 prescribes the giving of notice and the content
of the notice.
14.
Regulation 49 provides that the scoping report must
“describe the process of engagement of identified interested and affected
persons, including their views and concerns”.
15.
Regulation 50 provides that the environmental impact
assessment must include “details of the engagement process of interested and
affected persons followed during the course of the assessment and an indication
of how the issues raises by interested and affected persons have been
addressed”.
16.
This falls short of the NEMA EIA provisions for public
participation in significant respects:
16.1.there is no
requirement for an independent person of any specific background or skill to
conduct the process and protect the rights of interested and affected parties;
16.2.there is no
prescribed process of identifying interested and affected parties, of making available information and documents
to interested and affected parties or facilitating the process so that
reasonable opportunity is given for comment on those documents;
16.3.there is no
requirement that a register of interested and affected parties must be kept;
16.4.there is no
specific provision that interested and affected parties have a right to comment
on any written submissions or reports;
16.5.there is no
requirement that comments by interested and affected parties must form part of
the application and that full copies must be provided to the authorities – the
scoping report need merely describe the views and concerns of interested and
affected parties and the impact assessment must just indicate how issues raised
by interested and affected parties have been addressed;
16.6.there is no
requirement that interested and affected parties must be informed of the
decision taken by the authorities or of their right to appeal;
16.7.there is no
requirement that the authorities need consider the full version of any comment
or objections by interested and affected parties.
17.
The NEMA EIA regulations go a long way to protect the
procedural rights of interested and affected parties by providing for access to
information, opportunity to participate meaningfully in the decision making
process and a fair process. The same can
not be said for the MPRDA provisions.
18.
In reality, some mines follow a process of calling, with
little and insufficient notice, only one meeting at a venue and time not
selected to make it easy for interested and affected parties to attend. Here, typically, an official from the mine
describes broadly the planned development and then allows time for questions
and comments. This is usually done in an
intimidating way so that it is not easy for interested and affected parties to
have their say. Interested and affected
parties are not properly registered, are not given any documentation and are
not informed of any opportunity to view and comment on a scoping report or
environmental impact assessment.
19.
The MPRDA process pays lip service to the public
participation process, but does not provide for a process that is at all able
to enhance the decision making process or to protect the rights of interested
and affected parties.
Conclusion
The MPRDA and NEMA require similar aspects
of the impact of activities on the environment to be assessed. The major difference lies in the legitimacy
of the assessment. The NEMA process
ensures greater legitimacy of the assessment by requiring an independent
assessment open to specialist review and by providing for a meaningful public
participation process with full access to all relevant information and the
guarantee of a fair process where input from interested and affected parties
forms part of the material to be considered by the authority. The MPRDA process fails to give these
assurances of quality and independence and the assessment process lacks
legitimacy and consistency as a result of this.
Part A : Angela Andrews
Part B:
Ellen Nicol
Legal Resources
Centre
[1] Page 6 line 15
[2] Clause 24 Constitution Of The
[3] clause 39 (1)
[4] In the Rio Declaration the
need for the public to play a role in environmental decision making was
recognized in principle 10’s assertion that :
“Environmental
issues are best handled with participation of all concerned citizens, at the
relevant level. At the national level
each individual shall have appropriate access to information concerning the
environment that is held by public authorities, including information on
hazardous materials and activities in their communities and the opportunity to
participate in decision making processes.
States shall facilitate and encourage public awareness and participation
by making information widely available. Effective access to judicial and
administrative proceedings, including redress and remedies shall be provided.”
[5] http://www-penelope.drec.unilim.fr/penelope/library/Libs/Int_nal/unep/unep.htm
[6]
Unep Principles: Principle 1
States (including their competent authorities) should not undertake or
authorize activities without prior consideration, at an early stage, of their
environmental effects. Where the extent, nature or location of a proposed
activity is such that it is likely to significantly affect the environment, a
comprehensive environmental impact assessment should be undertaken in
accordance with the following principles.
Principle
4
An EIA
should include, at a minimum:
(a) A
description of the proposed activity;
(b) A description of the potentially affected environment, including specific
information necessary for identifying and assessing the environmental effects
of the proposed activity;
(c) A description of practical alternatives, as appropriate;
(d) An assessment of the likely or potential environmental impacts of the
proposed activity and alternatives, including the direct, indirect, cumulative,
short-term and long-term effects;
(e) An identification and description of measures available to mitigate adverse
environmental impacts of the proposed activity and alternatives, and an
assessment of those measures;
(f) An indication of gaps in knowledge and uncertainties which may bev encountered
in compiling the required information;
(g) An indication of whether the environment of any other State or areas beyond
national jurisdiction is likely to be affected by the proposed activity or
alternatives;
(h) A brief, non-technical summary of the information provided under the above
headings.
[7] Section 24(4)(a)(ii)
[8] proposed s 24(4)(b)(iv) p4 line 49
[9] Promotion of Administrative Justice Act s 6(2)(e)
[10] Principle 2(4)(viii)
[11] Section 24(4)(f)
[12] Dawood and Another v Minister of Home Affairs and Another: Shalabi and Another v Minister of Home Affairs and Another 2000 (3) SA 936 (CC)
[13] see footnote 5 above
[14] Section 24 and Section 39(1)(b)
[15] page 6 line 21
[16] page 9 line 45
[17] section 24M page 10 line 20
[18] Section 24M(2)
[19] Section 24M(3)(a)
[20] Section 24M(3)(b)
[21] Section 24M(3)(c )
[22] Once the relevant items in the “listing regulation” is made operational.