Originally published in Business Brief - October/November
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
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
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
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In terms of section 29 of the National Environmental Management: Air Quality Act 39 of 2004 ("NEMAQA"), which provides for pollution prevention plans: "(1) the Minister of Environmental Affairs (the "Minister") may by notice in the Gazette
Two important principles of South African law collided head
on, with unsatisfactory consequences, when Chief Bareki (a
traditional leader acting on behalf of his tribe) and an
environmental concern group sued Gencor and certain
subsidiaries for the environmental clean up following
discontinued asbestos mining activities.
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