Originally published in Business Brief - October/November 2008
Environmental Impact Assessments (EIAs) have been part of South African environmental law since the enactment of the EIA Regulations under the Environmental Conservation Act in 1998. These have been amended and streamlined since the new EIA Regulations were introduced in 2006 under the National Environmental Management Act and are currently undergoing further amendments.
Public participation, and the public's right to information by interested and affected parties (IAPs), is a fundamental cornerstone of participatory environmental democracies around the world. However, an allegation which is frequently levelled at the EIA process is that it is merely a rubber stamping exercise carried out by the applicant's consultant and given credence by the regulators.
If the allegation is correct then participation by the IAPs (particularly those representing public interests such as non-governmental organisations and environmental action groups) is completely ineffective. Furthermore, the applicants, often large corporations with considerable resources, merely ride roughshod over the IAPs' rights, objections and legitimate participation in the EIA process.
Not The Case?
While it is easy to understand why public interest groups may feel that way towards EIAs, it is submitted that this is not the case either factually or as interpreted by our courts.
This is evidenced by judgments such as Director: Mineral Development Gauteng Region and another v Save the Vaal Environment and Others and more recently Earthlife Africa (Cape Town) v Director General: Department of Environmental Affairs and Tourism and another. In the former case the court confirmed the basic principle of audi alteram partem, whereby it stated that all parties must be given the right to a fair hearing during public participation on matters relating to decisions taken by the authorities. In the more recent Earthlife Africa case, the court again confirmed the importance of public participation and stated that all information in the public domain and in the possession of the authorities must be distributed to the public in order for the public to participate meaningfully in the process.
These two cases, as well as some others, lend support for the contention above that public participation is not a mere rubber stamping process. In fact, it is a meaningful part of the EIA and the failure by applicants and their environmental consultants to adequately engage with the public is seen in a serious light by the courts; indeed it can be a fatal flaw in an EIA process.
If that is the case then one must examine the question as to why public interest groups find it so difficult to participate meaningfully in the EIA process. The nature of the process is such that the environmental consultants are expert at running the process as efficiently as possible. In their own words they are "process specialists". The quality of information supplied to IAPs and the level of participation with IAPs varies. At some public participation meetings the level of interaction is excellent, while at others it is very basic.
What can IAPs therefore do to ensure that they do participate meaningfully and that any queries or objections that they have are taken seriously? Part of the answer may lie in having an organised participation strategy. This includes having set objectives and also having the right people with the requisite skills on one's side. The applicant's environmental consultants will often have almost unlimited access to information and legal resources. However, IAPs can counter this by using the information given to them by the applicant's environmental consultants. Where, however, this information is lacking, the process often needs to be bolstered by including "process experts" on the IAPs' side. This could be in the form of a legal expert together with an environmental consultant.
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