Environmental Impact Assessment Regime: public hearings (day 1)

Water and Sanitation

30 July 2013
Chairperson: Adv J de Lange (ANC)
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Meeting Summary

The Department of Environmental Affairs briefed the Committee on the background to the environmental impact assessment regime. There had been legislation in the past, but this had not been fully satisfactory.  Problems with the current regime were that a strategic process was not being followed.  There was a perception that environmental assessment practitioners were not partial.  There were cost barriers.  More authority needed to be delegated to provincial and local level.  Interim measures had been put in place.

Professor Richard Hill briefed Members on the need to consider alternatives in environmental assessments.  Too many assessments were undertaken at a project level, and more strategic thinking was needed.  A professional body had been established and a tertiary qualification had been developed.

The Centre for Environmental Rights presented on the importance of conducting environmental impact assessments. This was a constitutional imperative.  More empirical evidence needed to be produced by assessments. Ways had to be found to mitigate against the costs for it as poorer communities were unable to access the system.  Environmental issues were often regarded as the work of the most junior members of an organisation.  The Department found it difficult to place qualified graduates in posts dealing with the environment, as there was still no recognised qualification.

A representative of the Western Cape government briefed the meeting and what was happening in the province.  The provincial government supported local authorities, which often lacked a strategic vision.  The importance of integrated and proactive planning was stressed.  Communication in the form of workshops and written manuals and guidelines formed a key part of the strategy.

Representatives of the Wildlife and Environmental Society of South Africa argued that environmental impact assessments did little to protect the environment.  The costs to society and the environment of new developments were not fully considered.  Assessments were often only carried out after the damage had been caused.  The public was able to participate fully.  Penalties were too light.  The Committee assured non-governmental organisations of its full support should they uncover any cases of political influence being abused.

A member of Earthlife Africa told the Committee that the public was being denied its voice in environmental issues.  More public participation was needed.  Another problem was the partiality of environmental assessment practitioners.  Often the only alternative put forward in assessments was the nomination of alternative sites for development.  The Department responded that the formation of the body for practitioners would improve the aspect of impartiality.  There were offences prescribed.  Members proposed that government should have the option of launching a parallel assessment process where if felt misleading results were being offered.

The Chairperson of the Environmental Assessment Practitioners Association of South Africa briefed the meeting on how the Association would advance the profession.  It would provide impartial practitioners to conduct assessments.  It would also regulate the profession and promote transformation, but funding was needed.  The Association was told that it should be self-funded, but some initial funding might be provided.  Members had misgivings about such bodies where professionals sat in judgement of their peers.

A member of the Legal Resource Centre, acting on behalf of community organisations, emphasised the benefit of environmental impact assessments.  They could be a forum for community participation and could help to protect the environment.   On the other hand, poor communities found it difficult to participate in the process for various reasons.  She cited the practice in the European Union.  Certain potentially harmful activities always had to be subject to assessments while others were judged according to predetermined thresholds of activity.  The Department reported that some of these principles were already being applied.

The Chairperson felt that the hearings had been positive. Many interesting possibilities had been raised.  He looked forward to Department of Environmental Affairs' report.  There must be a degree of flexibility. The big problem was that there had not yet been conclusive debates on the environment.  Some said the environment was not important and favoured development at the cost of the environment.  The country needed to have the debate.

Meeting report

The Chairperson said that all parties agreed on the need for sustainable development.  There needed to be a balance between economic growth and regulation. The National Environmental Management Laws Second Amendment Bill [B13-2013] had been passed recently by the National Assembly, and was now before the National Council of Provinces (NCOP).  Many of the submissions might have been made while this was being processed, and some of the presenters' concerns might be already addressed.  There had been some innovative suggestions.  The original plan of three days of hearings had been compressed into two. 

Department of Environmental Affairs Efficacy of SA's Environmental Impact Assessment Regime Presentation
Ms Lize McCourt, Chief Operations Officer (COO), Department of Environmental Affairs (DEA), introduced the delegation.  The situation regarding environmental impact assessments had been reviewed since the conference held in 2008, and a report had been compiled.

Mr Alf Wills, Deputy Director-General (DDG) – Chief Negotiator, DEA, South Africa Specialist Adviser, gave the background to environmental impact management.  Different types of development had their own unique requirements.  Impact assessments had been criticised for being more about assessment than management.  Assessors were paid by the applicants, which raised questions of partiality.  There was a suggestion that applicants should rather pay into a fund that would provide for independent assessors.  Many small activities were assessed rather than the overall development.  The public participation process was felt not to be meaningful.  Affordability had been raised, especially where applicants could not afford to conduct an environmental impact assessment (EIA).  Industry could be limited due to a lack of storage capacity.  Maintenance had to be assessed in green field projects but not during the operational process.  Trivial appeals had to be considered.  There was a further issue over the range of instruments to de-list in terms of approved environmental guidelines.  Practitioners were found to have a lack of technical expertise, and it was felt that it might be more efficient to use the staff of the applicant, subject to peer review.  The process only considered mitigation.  There was a need to move into the digital space as technology developed.

Mr Wills said that the next issue related to the relevance of the conditions attached to the record of decision.  A further issue was the interpretation of the listed activities not being applied consistently across the provinces.  The reviewing department was not getting involved at an early stage.  Section 24G was being abused, where developers found it cheaper to pay the fine than halt the project.  There was a need to collect the information made available in specialist reports.  There was a need to reduce the time frames for state departments to comment on applications.  Good geographical data was needed, with online access.  Alignment was needed between departments.

Mr Wills said that the report recommended a set of fines to ensure sustainable development.  There should be more emphasis on indirect and cumulative effects on the environment.  Strategic impacts needed to be considered.  There was a need to categorise activities regarding their strategic importance.  Geographical areas should be identified.  Another recommendation related to the package of instruments.  This demanded the use of a wide range in the regulatory system, such as strategic EIAs.  There was a recommendation on the screening mechanism.  Specialists should scan an area before the full EIA was conducted.  Holistic environmental impact management was needed.  Attention was needed to the spatial development framework.  There was a set of recommendations on monitoring and enforcement.  Decision-making should be delegated to more junior levels.  There were issues on human resource development to enhance career development pathways.

Mr Wills said that at the end of the 2008 conference, all the recommendations were to be considered through stakeholder driven processes in order to recommend a strategy to government.  There was tension between the non-governmental organisation (NGO) community demanding absolute control, and the industry arguing for a self-regulatory process. 

Mr Wills said that there was now a set of activities to address the issues raised.  Government would continue to act on the recommendations of the report where possible.  Stakeholders included competent authorities, the industry, labour and NGOs.  There was an opportunity to address issues that had not been raised in the efficiency and effectiveness report.  The process had lasted three years, and he expected the final findings in March 2014.  The purpose of the EIA management strategy process was to identify the desired future state of integrated environmental management strategy, and how this could be achieved.  The regulatory system should be optimised through the use of a variety of tools.  Various government processes would be integrated. 

Mr Wills said that a vision of sustainability was needed to guide the processes across government departments.  An integrated permitting approach might be needed.  Mandates could be devolved to local authorities to apply national standards.  A hierarchy of environmental plans was needed and a set of tools to focus on monitoring and evaluation.  There should be the ability to choose the most appropriate tool.  Spatial tools should be identified.  Up to date and readily available environmental information was needed.  A quality assurance system was needed for the peer review process.

Mr Wills proposed an adaptive management strategy.  He recommended that a professional sector be established to maintain environmental data.  All role players should have the capacity to use the tools provided.  Public participation must be considered.

Mr Wills listed some of the interim actions that had been taken.  The first was separating EIA policy from the regulators.  The second was developing a tracking and public access system.  This would improve the quality of statistics, both nationally and at provincial level.  The third was capacitating provinces by introducing a specific dispensation to focus on the skills of environmental assessment practitioners (EAP), and improving access at provincial level to hardware and software and providing administrative support.  The next area was geographic information systems (GIS), backed up by intranet and internet access.  A further screening tool was developed for pre-screening issues.  A set of standards for dangerous goods was being developed.  Standards were being developed for ostrich farming and aquaculture.  Work was being done on the time frames associated with documents.  Time frames were prescribed for competent authorities but not for applicants.  The next aspect was work around waste management and spatial tools.  Strategic EIAs were developed.  Action had been taken on support services.  An association had been established for EAPs.  A pro bono arrangement had been made with North West University.  This was currently for municipalities, but would be extended to applicants without resources. 

Mr Wills said that there was a split between policy and systems building functions at national level from the monitoring and enforcement functions.  There was a focus on the recommendations emerging from the effectiveness report.  At the same time, the assessment process was being improved.  An electronic system, the National Environment Assessment System (NEAS), had been developed.  Manual and electronic systems were being reconciled.

Mr Wills said that there were 47 applications pending out of the time frame.  These were due to delays by the authorities.  There was a much greater number of delayed applications due to applicants not providing information.  There was still a disjuncture between manual records and NEAS, although this gap was being closed.

Mr Wills said that since April 2012, about 30 assessments were being received per annum for each reviewer.  It seemed that there were enough reviewers appointed.  Since these measures had been introduced in 2012 the number of delayed applications had been reduced. 

Mr Wills said that the key issues regarding integration were waste, water resources and mining rights.  DEA had worked with the Department of Mineral Resources (DMR) on time frames He sketched the process of aligning applications to mining rights.  The process had been streamlined.  The result had been a set of amendments to regulations.

Mr Wills continued that a standardised geographical data set had been developed to screen applications.  This should be available on the internet within the following two months.  He hoped to support a much-shortened process in determining the sensitivity of the site.

Mr Wills told the meeting that EIAs needed to be undertaken within a strategic framework.  The strategic integrated project (SIP) process had been used as a case study to test the new approaches and tools.  The national goal was to create 5 million new jobs by 2020.  There were various barriers to development that had been identified as structural problems in the economy.  The SIP process was based on a needs and gap analysis.  It would identify bulk infrastructure requirements.  SIP 1 was in the northern mineral belt, and was a regional cluster of projects including road, water, rail, and electricity infrastructure.

Mr Wills listed the types of project that could be addressed by SIPs.  There were sets of projects related to transport infrastructure and mining.  Some SIPs comprised projects not requiring prior authorisation.  A more efficient environmental assessment methodology would be developed.  He demonstrated how renewable energy projects could be identified, such as solar power sites.  Zones could be identified with different EIA requirements.

Mr Wills said that the SIP process would be used as a case study for integrated development.  This would ultimately lead to the law reform process that was needed to streamline the system.  He hoped this would address all the issues related to the efficiency of the current EIA process.

Ms McCourt said that some issues had been deleted in the interest of brevity.  There had been two amendments to the National Environmental Management Act (NEMA) and the EIA regime.  Just over 50 environmental frameworks had been finalised of a total of 140 projects.  No activities had been de listed as yet.  There would be continuous implementation while the system was refined.

The Chairperson was impressed by the presentation.  A lot had happened in the meantime.  One of the interesting developments was constitutional and legal and other practical issues.  The Presidential Infrastructure Committee (PIC) had identified nineteen sectors for infrastructure developments.  He thought that the relevant departments were not geared to deal with these projects.  A framework had been created, but he feared that the thinking in some other departments was muddled and there had not been due consideration of the legal consequences.  The thinking in 1994 and 1997 had been fragmented.  The amendments tabled before the Committee the previous week demonstrated this approach.  It was time to sort the problems out.  He was excited by the direction being taken, but the pace had to pick up without being reckless.  There was enough experience to drive the process quicker.

Professor Richard Hill The Efficacy of South Africa's EIA Regime Building on Four Decades of Continuous Improvement Presentation
Prof Richard Hill, Senior Lecturer, Department of Environmental and Geographical Science, University of Cape Town, said that environmental policy was based on state intervention to protect the environment.  The right to the environment had to be balanced with the rights of industry. Reports must do something.  He offered a definition of an EIA, focussing on alternatives, mitigation of impacts, and equitable distribution of impact and benefits.  Half the population lived below the poverty line.

Prof Hill gave the stages of the EIA process.  The first was screening, which he likened to a butterfly net.  An American professor had pioneered environmental assessments.  The process was knowledge based, but information had to be brought together with value judgements on the future environment vision.

Prof Hill took Members through his first EIA.  The then University of Port Elizabeth had produced an EIA that had saved considerable costs and environmental damage in the construction of a bridge.  He encouraged his students to include alternatives in their assessments.

Prof Hill said that compulsory practice had been introduced in 1997 after twenty years of voluntary action.  In 2006 the situation had been assessed.  There were probably still too many EIAs being conducted.  A more nuanced screening approach might be needed in future.  DEA was becoming more efficient in processing applications.  In 502 cases between 1997 and 2006, the average time to produce an EIA was five months.  If environmental considerations were included in planning, the EIA should not be subject to time constraints.  Environmental information should be integrated timeously. 

Prof Hill was a member of the steering committee on planning.  This was an active body.    His main recommendation was to implement and improve the function of the DEA.  More strategic assessments were needed and fewer EIAs at project level.  The Minister should appoint the association for environmental practitioners as an official registration body. 

Prof Hill demonstrated how the City of Cape Town was incorporating environmental considerations into their planning.  Appropriate activities were identified for each sector of the environment.  The Environmental Assessment Practitioners Association of South Africa (EAPASA) had developed a qualification for environmental practice.  They were negotiating with the Council for Higher Education to have these programmes recognised.  Many disciplines used environmental practice.  Students should be able to register with EAPASA for their practical experience.

The Chairperson asked if EAPASA existed already.

Prof Hill replied that the first meeting had been in 2011, and the board had met quarterly since then.  They were waiting for the Minister's approval for recognition.  The Chair of the Board was present and would present later in the day.

Centre for Environmental Rights (CER) Efficacy of SA's EIA Regime Presentation
Ms Melissa Fourie, CER Executive Director, sketched the legal context.  It was disappointing that EIA was considered as a strategy.  This was a constitutional imperative.  Space was needed for public participation.  It was more about how the state should fulfil this role rather than if EIAs were needed.

Ms Fourie said that the regime had developed significantly over time.  The system was a lot more significant than in the past.  The 300 day limit might affect the quality of an EIA.  What was sorely missing was empirical data.  It was a struggle to find the evidence when the rationale of the system was challenged.

Ms Fourie said that EIA was actually a life and death situation rather than merely an issue for regulation.  She wanted to see compliance with the law.  Self-regulation had led to climate change.  EIA was a burdensome process for civil society.  Communities faced multiple series of licence applications. 

Ms Fourie presented various recommendations.  One was balancing quality and quantity.    The DEA's strategic plan was full of numbers, but this did not say how effectively EIAs had assisted in sustainable development.  Perhaps outcomes should be measured instead.

Ms Fourie continued with recommendations on access to information.  Persistent offenders, such as certain farmers, should be made known.  Civil society struggled to make a meaningful contribution.  There were language barriers for poorer communities.  There was a low compliance rate of only about 4%.  Accessible compliance data would create better prospects of success. 

Ms Fourie said that appropriate public expenditure had to be considered.  There was a high staff turnover rate both at DEA and DMR.  There were about 78 officials at DMR dealing with all environmental aspects.  These were all at junior levels and thirteen of these posts were vacant.  The budget for NEMA issues was a low percentage of the total DMR budget.  She felt that funding was being spent in the wrong areas.

Ms Fourie was impressed by the amendments put forward by the Committee, but would continue to argue against the rectification procedure in Section 24G.

The Chairperson asked that the DEA be given a chance.  They had now been given some teeth.

Ms Fourie had also argued for civil and administrative penalties that could assist with enforcement of environmental regulation.  The issue was making regulation more effective rather than the need for such regulation.

The Chairperson assured Ms Fourie that the Committee would not back down on its stance on the environment.

The Chairperson said that the good ones in government were always lured to the private sector.  Amended mining legislation was on its way.  Members would need to see how the synchronised processes could be achieved.  The current legislation was something of a blank cheque.  If the legislation could not trump other mining legislation it would be ineffective.

Mr F Rodgers (DA) asked what was meant by under-motivated staff.

Ms Fourie said that much could be gained by getting people at the right level with appropriate remuneration in the public sector generally.  People had to be appointed at the right level.  Environmental functions were normally at the most junior level.

The Chairperson said that government often worked in funny ways.  Often the most important people were not in the front line.  Decisions were passed up the chain of command and were taken remotely.  This was his experience across government.  The Occupation Specific Dispensation (OSD) system was one way to deal with this, but there was often resistance within the department.  Departments could often not see the benefit of the OSD system, and there were considerations of self-interest.  Implementing such a system would also be challenged by trade unions.

Ms McCourt said that the universities were not producing enough specialists to satisfy the scarce skills requirements.

The Chairperson said that if necessary there should be engagement with universities on this issue.

Western Cape Provincial Government Efficacy of South Africa's EIA Regime Presentation
Mr Henri Fortuin, Director: Land Management, Western Cape Provincial Department of Environmental Affairs and Development Planning, said that the Constitution demanded that the environment be protected for future generations, especially water resources.  The EIA regime had to be effective enough to deal with these issues.  The greatest need was for informed decision making.  The EIA was the most commonly used tool to fulfil this imperative.  The perceptions of EIA currently were very negative.  EIAs were not there just to generate reports.  Business complained that they were being held hostage by the long cycle, which impacted on their profitability.

Mr Fortuin said that a Directorate had been established in the province, aimed at unlocking problem areas as they moved from red tape to the proverbial green carpet.  Legislation impeding service delivery was being identified, but human action was more of a problem.  The approach was to deliver proactive support.  The Directorate would also give advice on strategic planning.  An effort was needed to use NEMA regulations smartly and in a proactive fashion.  The Directorate combined planners and environmental specialists.

Mr Fortuin said that people and their needs had to be at the forefront.  Local governments needed to be supported to become agencies for front line development.  The lack of strategic planning at local government level was a problem.  There was generally a lack of integrated planning.  Questions arose at a project level that should have been addressed at a strategic level.

Mr Fortuin said that planning should be done on a community basis.  Too often there was limited stakeholder involvement only.  The best time to talk to each other was at the Integrated Development Plan (IDP) level, where disaster management and other planners should work together to iron out problems before an EIA was done.  Contingency planning for informality and disasters was needed.  He showed an example of the Monwabisi area and how the informal housing areas had grown.

Mr Fortuin said that environmental issues had to be considered at the planning stage.  The Cape winters were marked by floods and the summers by fires.  In the case of major fires in Khayelitsha, the municipality had done an EIA in advance for such an event.  Integrated processes speeded up the process.  EIA should be boosted by spatial planning and other tools.  Standards would reduce the need for individual EIAs.  Exclusion zones should be declared.  Maintenance plans had to be in place for expected disasters such as floods.

Mr Fortuin continued that as far as possible plans had to be integrated.  Strategic options were needed for project approvals.  More combined applications were needed.  Existing provisions should be used to make life easier.  Provinces needed to communicate better with municipalities.  The focus in the Western Cape was supporting municipalities and integrated planning.

The Chairperson found this to be a most useful input.  He asked if there was a simplified manual for municipalities to guide them through the process, or if they were left to interpret the legislation themselves.

Ms McCourt said that there was a series of local government support guidelines.  One of these was on the environmental management process.  This was a planning support tool for local government, including issues of biodiversity.  Pro bono work was also done for municipalities.  Environmental functions were often bundled up with parks or waste functions.  The Western Cape was configured differently.  Another tool was the GIS.

Mr Fortuin said that Western Cape also issued guidelines to municipalities.  Regular workshops were held with municipal managers and councillors.  There had been about 24 in the preceding two years.  There was also close interaction with housing authorities.  Ongoing support was more important than merely issuing manuals.

The Chairperson said that integrated planning was an important issue to be addressed in the report.  This should be the first and not the last step in the process.  The new infrastructure brought by the PIC had more challenges in development.  Environmental considerations had to be part of the SIPs. 

Mr Rodgers made a general comment, reflecting on the DEA presentation.  A lot of delays were caused by poor implementation.  Less than 1% of applications in Gauteng had been processed as compared to 11% in the Western Cape and 25% at DEA level.  It was interesting to look at these figures.

Ms McCourt said it was important to look at pending applications in terms of those within and out of time frames.  This was largely dependent on manual inputs, and there might be some misleading information.  The NEAS would not allow for incorrect reporting.  The figure of applications passed within time frames was now over 90%.  In Gauteng, if the required information was not received within six months, the project was closed.  This policy had been challenged.  It then fell back on the applicant. 

Mr Fortuin had a colleague whose main job was to track applications by municipalities.  She had to report to the MEC, and followed up cases that seemed to be lagging.  In some cases the initial EIA processes showed that there were insurmountable challenges to that project, which was then discontinued.

The Chairperson wanted to look at legislative mechanisms on how to force local government to take environmental aspects of a project at an early stage, with legal consequences if not.

Ms McCourt said that the Spatial Planning and Land Management Bill would address these concerns. 

The Chairperson was still waiting for a final summary of the Bill.  He did not want to see more fragmentation. 

WESSA Comments on the Efficacy of South Africa's EIA Regime
Ms Rendani Mammbonani, Green Sebenza Intern, Wildlife and Environmental Society of South Africa (WESSA), said that the full potential of EIAs had not been reached.  Their findings rarely changed the outcomes of projects. 

Mr Steven Mbopha, Environmental Education Intern, WESSA, said that there were poor monitoring and enforcement conditions.  Assessment of cumulative impacts was poor, with not enough consideration of social and environmental costs.  There was not enough assessment of alternative development options.  The authorisation process was unsatisfactory especially in the threat of costs to civil society.  This was mainly regarding the cost of retaining legal counsel for an appeal. 

Mr Mbopha felt that the independence of environmental assessment practitioners was questionable.  Most jobs were created during the construction phase of projects, and were not sustainable.  There were other very important instruments not being utilised, such as strategic analysis.  A broad context needed to be established.  There was not enough public participation.  There was a lack of biodiversity considerations.  Impact on the environment should be minimised as far as possible.  EIAs were often done after the damage was done already. 

Mr Mbopha felt that the penalties were insufficient.  R1 million was not enough as a fine.  Offending facilities should be destroyed.

The Chairperson reminded WESSA about the amendments to Section 24G that had already been made.

Ms Mammbonani reminded Members of the Constitutional imperative regarding the environment.

The Chairperson pointed out that Section 24G had been strengthened considerably, with a variety of penalties.  Special measures were to be put in place to speed up the application process.

Mr J Skosana (ANC) asked to what political interests the presentation referred.

Mr Mbopha felt that there were cases in the rural areas, which denied the poor proper participation measures.

The Chairperson said that these were not so much issues of transparency as a lack of access.  Transport to attend meetings was a problem.

Ms Mammbonani said that the public was not given enough chance to interact with the various phases of the EIA.

The Chairperson said that if there was any political interest at play, it was up to NGOs like WESSA to use whatever means at their disposal to expose these issues.  Issues could be highlighted in the media, or criminal charges could be pressed if appropriate.  The Committee would fully support any action taken to expose such illegal activities if the law was being undermined.

Earthlife Africa Presentation
Mr Muna Lakhani, Branch Co-Ordinator, Earthlife Africa, apologised for his late arrival as he had been misdirected.  It seemed that there was now a policy of economic development at any cost.  As the EIA process unfolded, there seemed to be a paucity of information provided up front.  This led to more and more questions as the process unfolded, and inevitable delays.  This was before issues of language and translation were addressed.  The notion that any money spent on the economy was good for all was flawed.  EIAs were watered down to such an extent that alternatives were only other sites.

Mr Lakhani said that this had not been the intent of the policy.  There was a lack of socio-economic expertise amongst the environmental consultants.  There was seldom a way of showing how the plan met social needs.  The independence of the consultants had to be improved, and the scope had to be better defined.  Some government processes excluded the submissions made by civil society.  South Africa was not fulfilling its role of being a constitutional democracy.  The people were not being heard.

Mr Lakhani said that EIAs were still the right way to go.  There were, however, many fatal flaws, one of these being the lack of independence of the environmental consultants.

Mr Lakhani pleaded with the Committee to hear the inputs coming from all quarters.  Many of the inputs were being ignored.  He quoted former President Mandela on the need to guard against short term benefits which could compromise the birth right of future generations.

The Chairperson thanked Earthlife Africa for a passionate presentation.  There was as yet no recognition of the Environmental Assessment Practitioners Association of South Africa.  He asked if there was any means to revisit a controversial decision.

Ms McCourt said that once EAPASA was recognised it would be mandatory to make use of their services.  In the meantime, the requirements for independence were detailed in the regulations, covering financial and other aspects.  DEA had invoked the provision for a peer review to be conducted at the applicant's expense.  There were also criminal offences.  A practitioner had been charged for not disclosing the presence of a wetland, and been found guilty.  The issue was that more things needed to be challenged to bring them to the fore.  There was a challenge of an administrative burden, where an independent person would be appointed.  EAPASA was the way to go.

The Chairperson felt that registration bodies were often a bit dubious.  It was difficult for such bodies to set standards and take action against their peers to their own detriment.  He quoted the example of the isiMangaliso dunes in KwaZulu-Natal where there had been an appeal to President Mandela, which had resulted in the mining operation being stopped.  Government still needed to exercise authority.  One form of this would be to allow government to conduct its own EIA.  There had to be some way to get information that was at least perceived to be more independent.

Mr Lakhani said that the EIA should not have to go through the concerned department.  National Treasury should be satisfied that the work was done correctly.  There was no way currently to measure how affected parties felt about the process.  This would reflect the voice of the people.  There was a case where 1 000 people had submitted objections to a proposal, but all of these had been deemed to be a single objection.

The Chairperson felt that this could be investigated.  Public participation should be strengthened.  If the law gave the power to make a decision to a certain authority, then it would remain that way.  However, there had to be some channel to express grievances.  Perhaps a complainant could submit an objection directly to DEA.  There was no way to please everybody.  He could not allow third parties to participate in the discussion of a submission, but Prof Hill could make his comments known to DEA.

Environmental Assessment Practitioners Association of South Africa (EAPASA) Proposed Contribution to Quality Assurance in Environmental Practice in South Africa Presentation
Ms Sibusisiwe Hlela, Chairperson, EAPASA Board, said that the purpose of the submission made was to provide a progress report on the establishment of EAPASA to strengthen the EIA regime.  The Board had been founded in January 2012.  There were thirteen board members.  The qualification had been recognised by the National Qualifications Framework.  Once EAPASA was appointed as the registering authority by the Minister, membership would be mandatory.

Ms Hlela said that the objectives would be to promote professional development in their sector, promote empowerment of black and female professionals and to promote awareness of the purpose of environmental assessment.  EAPASA would make a contribution by addressing the challenges and critiques of the EIA process.  It would provide quality assurance.  Their main purpose was to advance the profession.  It would assess the competence of environmental practitioners.  Criteria, upholding a code of conduct and disciplinary measures would be developed.

Ms Hlela requested that the Committee review the allocations to DEA in order to make funding available for EAPASA.

Mr Ishaam Abadar, DDG: Environmental Quality and Protection, DEA, said that funding would come from registration fees paid by its members.  In the interim funding was needed to establish the body properly.

The Chairperson disagreed with this recommendation.  All such bodies should be self-funded.  Nothing would be decided at this meeting.

The Chairperson outlined how a structure could protect itself.  In each discipline there was an option for peer review.  It was not about making money, but about preserving the integrity of Section 24.  There was corruption in all walks of life.  Ultimately there had to be an independent operation.  Government had to look at mechanisms to ensure that this actually happened.  The oversight structure had to be dependent, and should also not be controlled by government.  An annual report to Parliament would be one way for government to exercise some form of oversight without undermining the operational independence of the body.  Some innovative thinking was needed on this issue.

Mr Rodgers agreed with the Chairperson's views on independence.  Very often, such bodies slowed the process and created further problems.  Self-funded people tended to be more efficient than those funded by the state.

The Chairperson said that there should be criteria in place.  Staff needed to be in place to exercise their oversight role, and it might be necessary for the state to provide some funding until the body was fully on its feet.  There could be legal challenges on appointments.  The arguments on the need for support because of transformation were not convincing.  Fees should be set as a proportion of earnings.

Mr Abader did not anticipate long term funding. 

The Chairperson said that there were many practical issues to be dealt with, including the question of how the industry should be regulated.  DEA should have the automatic right to run its own EIA in parallel to that of the applicant.

Mr Wills said that government officials responsible for the reviews would also have to be registered EAPs.  During the start-up phase DEA would pay subscription fees at the candidate level for its own officials.  This would give EAPASA an income stream.  In the appeal process, the MEC or the Minister already had the right to run the parallel process.  A more flexible approach was possible at present.

The Chairperson asked how independent the board would be.

Ms Nosipho Ngcaba, Director-General (DG), DEA said that there were two NGO representatives on the board.

The Chairperson said that such boards were often hesitant to make decisions impacting negatively on the profession.  The board had to act with integrity.  A structure was needed to exercise quality control.  The more he talked about it the more worried he got.  Government might be creating a monster rather than a watchdog for the environment.  This body would be different to any other such body.  He asked the DG for a proper briefing on EAPASA. 

The meeting adjourned for lunch.

Legal Resources Centre Efficiency and Effectiveness of Environmental Impact Assessments under NEMA 1998 Submission on behalf of the Federation for a Sustainable Environment & South Durban Community Environmental Alliance
Ms Angela Andrews, Legal Resources Centre (LRC), said that the two NGOs she represented were impoverished communities living near industrial areas.

Ms Andrews said that the purpose of EIAs was to achieve benefit and least harm to an environment at an acceptable cost.  This was particularly the case with mining.  Specialist studies were normally pretty complex.  This was a significant regulatory exercise.  The EIA scheme was to guide decision-making on significant activities affecting the environment.  There was a Constitutional obligation to do this.  Section 24 dictated how reasonable measures should be taken to protect the environment.  Government outsourced this function.

Ms Andrews said one of the benefits of EIAs was that communities could start to shape decision-making based on their local knowledge of the impacts.  She mentioned the example of the Natref refinery at Sasolburg, where the planned sulphur emissions had been drastically reduced. 

Ms Andrews said that there were concerns from civil society.  One of these was that there was insufficient time to comment.  Hearings were often held in the office of the EAP.  Vast quantities of documents were produced.

Ms Andrews only knew of two studies, one of these conducted by the then Department of Environmental Affairs and Tourism (DEAT).  The second was conducted in the Free State by Retief et al.  There had been no empirical national study on the efficiency and effectiveness of EIAs.  The DEAT review had raised concerns over costs, delays, quality of documents, partiality, access to information, monitoring and enforcement of conditions, and EIAs were aimed at getting approval rather than making a real impact assessment.  The conclusion of this study was that it was not an empirical one.  Most EIAs were conducted efficiently.  Statistics were skewed by the time taken to complete projects.  Cost was not a major issue except to disadvantaged communities.  There was no comparison of the views of different participants, nor was there consultation with provincial officials.  EIA regulations played an immeasurable role.

Ms Andrews quoted some statistics.  Of the documents assessed, 78% were found to be generally good or average, but there were lower marks in other areas.  The electricity sector produced consistently low scores.

Ms Andrews noted the recommendations.  These were increased government capacity, greater independence of EAPs. Identification of sensitive areas, alternatives and other instruments.  A significant finding was that screening for compatibility should be done early.

Ms Andrews said that the second study had shown a need for screening.  This could be done by lists, thresholds for impact and consideration of sensitive areas.  The study showed that 64% of basic assessments were triggered by four activities, including change of land use, cell phone masts and concentrations of animals.

Ms Andrews described the approach of the European Union (EU).  Certain types of activity were listed as always requiring an assessment, such as oil refineries.  In others, various types of considerations were applied such as the extent of the proposed development and the types of materials used during construction and operations.  Thresholds were applied to determine if an EIA or a basic assessment was required.

Ms Andrews said that all the criteria were set out in an annex, and had to be applied.  They were determined through questionnaires.  The applicant had to explain any aspect that might affect the environment.  An assessor would then decide, based on the answers given, if an EIA was needed or not.  There was another set of criteria for activities in certain areas.  Norms and standards had to be developed.

Ms Andrews said that lists of developments requiring EIAs should be developed.  Activities in sensitive areas would also help to move away from an unsatisfying and rigid system.

The Chairperson asked if the DEA study would cover the areas described.

Mr Wills said this would not be the case, but there would be determination of priorities.  Applications would be classified according to the SIP in which they fell.  There were about 50 environmental management areas

Ms McCourt said that in the DEA Strategic Plan there was a map showing all the environmental frameworks.  They were classified into three categories.  Everything listed in the orange and red categories should have EIAs carried out.  There were thresholds set for sensitive areas.  Decisions were made on the nature of the activity, the scale of the activity and the sensitivity of the environment. There was additional screening at a strategic level.

The Chairperson said that more efficiency would be derived from a proper analysis of the list.  A large number of activities might only make up a small percentage of the applications. 

Ms McCourt said that cellphone masts had been removed from the list, unless the project was planned in a sensitive area such as a school.  A basic assessment had to be done before such requests were even considered.  A proposal had been submitted to the Department of Performance Monitoring and Evaluation on the contribution of EIAs to the environment.  The cumulative impact was being debated in many instances.  In this case the EIA would not be an efficient instrument.  A risk assessment might be more appropriate or some other tool.

The Chairperson had experience of relatively decent people in the environmental community.  It would be good to engage the “usual suspects” for their input beforehand.   The goodwill should be captured.

Mr Wills said that the “usual culprits” sat on the board, which made the process a bit difficult.  Industry, academics and labour were all represented.  There were many issues on the perception of independence.  The biggest problem faced by the EU was that the applicant filled in the questionnaire, and the answers were not always honest.

The Chairperson said that this stressed the need for government to have the right to run its own EIA.  If anyone hid information they should be denied any further opportunity to conduct an EIA.  There had to be strict conditions associated with members of EAPASA.  An oversight structure was needed.  EIA procedures needed to be in place.  Poor people could not afford to manage an EIA, but in this way government would address their concerns.

Ms Andrews could only think of a model for independence of EAPs would be where the practitioner for the job was chosen from a panel.  This was the model used for legal aid.  There were reservations about the ability of those on the panel in a particular area.  Reports were also biased in favour of the applicant.  LRC had been contemplating instituting some form of review structure.

The Chairperson said that this was what was being attempted with peer review.  However, what might be needed was a fresh new investigation.

Ms Andrews extended an offer to Members to visit areas that had been ravaged by mining without an EIA.

The Chairperson felt that the hearings had been positive.  It was clearly a deeply complicated area.  There would be continuous evolving.  It was an ongoing task for DEA, and speed was of the essence.  It was not a precise science.  Capacity was a major issue.  Government had more considerations than in the private sector.  Many interesting possibilities had been raised.  He looked forward to DEA's report.  He liked the idea of tying down the list even tighter.  Other tools would only be developed once the legislation in place.

Mr Wills said that some of the tools were already available.

The Chairperson said that there must be a degree of flexibility.  The big problem was that there had not yet been conclusive debates on the environment.  Some said the environment was not important and favoured development at the cost of the environment.  The country needed to have the debate.

The meeting was adjourned.

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