SUBMISSION TO THE PORTFOLIO COMMITTEE ON JUSTICE REGARDING THE OPEN DEMOCRACY BILL

Provisions relating to the Protection of the Environment and the Open
Democracy Bill.

1. Reasonable measures to protect the environment.
The Constitution states that the environment shall be protected through
reasonable legislative and other measures that prevent pollution, promote
conservation and sustainable development.
(Constitution clause 24.)
When interpreting the Bill of rights, international law must be considered.
(Constitution clause 39)
Public international law has been interpreted in South Africa to include
both non-binding as well as binding law. Due regard should therefore be
given to international treaties and Declarations such as the Rio Declaration
and the Aarhus Convention on Access to Information, Public Participation in
Decision-Making and Access to Justice in Environmental Matters when
deciding what reasonable measure to protect the environment should be.

Access to information about the environment and the duty to disclose certain
information about the environment are recognised tools for the protection
thereof. (See Rio Declaration, principle 10, the Aarhus Convention ,
articles 4 and 5)

2. The National Environmental Management Act and access to information.
The National Environmental Management Act ("NEMA") provides access to
government held information about the environment and risks to the
environment. It also gives powers to government to obtain environmental
information. It allows the Minister of Environmental Affairs and Tourism to
draft regulations allowing for access to privately held information. These
provisions lapse when the Open Democracy Act ("ODA") comes into being. As a
reasonable measure and in order to comply with its constitutional
obligations to protect the environment, the ODB process must retain in
some way those aspects of NEMA which are protective of the environment namely:

1. The definition of commercially confidential information which states
this information can only be refused if disclosure would prejudice to an
unreasonable degree the commercial interests of the holder.
Comment:
The ODB refuses disclosure if commercially confidential information
(acquired through third parties) is reasonably likely to cause harm. The
result is a far greater restriction on the disclosure of commercial
information. Theoretically even information which can cause only slight harm
cannot be disclosed, provided it came to government via a third party who
held it confidentially. Government must refuse a request of this nature. A
government official who receives a warning that commercial information about
to be disclosed might cause harm is under a duty to refuse to disclose it .
Government officials will not have the capacity to verify the truth of
statements like this. The consequences of disclosure could be a damages
claim. It is not difficult to see how these provisions effectively nullify
much of the right access to commercial information.

that this information does not include information about emissions and
waste streams.
Comment:
It is internationally accepted in many jurisdictions as well as in
environmental treaties such as the Aarhus convention that this type of
information should be exempt form being described as commercially confidential.

2. The right of the Minister of Environmental Affairs and Tourism to make
regulations about the disclosure of environmental information held by
private person.

3. The right of government to obtain from private individuals information
about the environment and emissions into the environment.

The failure to ensure that these provisions are preserved could result in a
challenge to the constitutionality of the ODA.

2 Positive measures to ensure disclosure of information
It has been recognised internationally, (and in particular in the Rio
Declaration and Aarhus Convention) that the protection of the environment is
greatly enhanced by measures which compel public disclosure of information
about the environment. It is also a cost effective mechanism for government
to exercise control over environmental violators. Such reasonable measures
it is submitted should be included even if only in principle in the ODA, and
later to be fleshed out in regulation.

It is submitted that the ODA should have specific provisions defining what
is meant by "environmental information" and should provide mechanisms for
the disclosure of such information. This should include not only mechanisms
for responding to requests for information but mechanisms for obtaining and
making public information about the environment without it being requested.
This would include for example reports on the state of the environment,
toxic release and transfer registers, information about policies plans and
programs that affect the environment, and information about environmental
dangers.

Examples of provisions of this nature are available in the Aarhus Convention
on Access to Information, Public Participation in Decision-Making and Access
to Justice in Environmental Matters.

3. Suggestions for draft provisions relating to environmental information.
The Open Democracy Bill should have the following provisions ensuring access
to environmental information:

3.1 Definition of Environmental Information.
"Environmental information" means information in written visual , aural,
electronic or any other material form on:
a) the state of elements of the environment, such as air and atmosphere,
water , soil, land, landscape and natural sites, biological diversity and
its components, including genetically modified organisms, and the
interaction among these elements;

b) factors such as substances, energy, noise and radiation, and activities
or measures, including administrative measures, environmental agreements,
policies, legislation, and programmes, affecting or likely to affect the
elements of the environment within the scope of subparagraph (a) above, and
cost benefit and other economic analyses and assumptions used in
environmental decision making.

c) the state of human health and safety, conditions of human life, cultural
sites and built structures, inasmuch as they are or may be affected by the
state of the elements of the environment or, through these elements, by the
factors, activities and measures mentioned in subparagraph (b) above
(This definition is taken from the Aarhus Convention)

3.2 Chapter 2 of the ODB should include a provision relating to access to
environmental information which reads as follows:

43A(1) Every person shall be entitled to access to information held by the
State and organs of State which relates to the implementation of the
National Environmental Management Act or any law affecting the environment,
and to the state of the environment and actual and future threats to the
environment, including emissions to air, water or soil and the production,
handling and transportation, treatment, storage and disposal of hazardous
waste and substances;

(2) organs of state are entitled to have access to information relating to
the state of the environment and actual and future threats to the
environment, including any emissions to water, air or soil, and the
production, handling, transportation, treatment, storage and disposal of
hazardous wastes held by any person, where that information is necessary to
enable such organs of state to carry out their duties in terms of a
provision of the National Environmental Management Act, or any other law
concerned with the protection of the environment or the use of natural
resources.

(3) a request for information contemplated in paragraph (1) can only be can
be refused only:
(i) the request is manifestly unreasonable or formulated in too general a
manner;
(ii) if the public order or national security would be negatively affected
by the supply of the information;
(iii) for the reasonable protection of commercially information, including
information received by government via third parties. For the purposes of
this section commercial information shall be defined as commercial
information, from whatever source, the disclosure of which would prejudice
to an unreasonable degree the commercial interests of the holder, and shall
not include details of emission levels and waste products notwithstanding
the provisions of any other law.
(iv) if the granting of information endangers or further endangers the
protection of the environment; and
(v) for the reasonable protection of personal privacy.

(These provision largely mirror the provisions in section 31 of the
National Environmental Management Act)

3.3 The Open Democracy Bill should state that the Minister of Environmental
affairs and Tourism retains the right to make regulations for access to
privately held environmental information.

3.4 Provision should also be made in the ODB for access to privately held
information, and should have particular provisions relating to privately
held environmental information. A provision in this regard should require
that the applicant show that the information is required for the protection of one of their rights;
that the information is environmental information or information relating
to the implementation of any environmental law;
Limitations on access to such information should be along the lines set out
in section 31(1)(c) of the National Environmental Management Act which is
largely spelt out in paragraph 3.2 above.

A Andrews
For Environmental Justice Networking Forum
Legal Resources Centre
Cape Town
19 March 1999