National Environment Management Bill: hearings

Documents handed out

Department of Water Affairs and Forestry

Department of Mineral and Energy Affairs

Department of Agriculture

This meeting has not been minuted.

Submissions presented on the National Environment Management Bill:

Department of Water Affairs and Forestry

Department of Mineral and Energy Affairs

Department of Agriculture

Cape Metropolitan Council

South African Local Govt. Association

Eskom

Lichtneburg Town Council

Council for Nuclear Safety

Commission on Gender Equality

Environmental Monitoring Group

Group for Environmental Monitoring

Dr Cairncross

Chamber of Mines

Industrial Environmental Forum of South Africa

Business South Africa

Cosatu

Environmental Justice and Networking Forum

Habitat Council

CSIR

International Association for impact Assessment

Cape Institute of Architects

National Monuments Council

Association of Consulting Town and Regional Planners

Appendix
Department of Water Affairs & Forestry

COMMENTS ON THE DRAFT ENVIRONMENTAL MANAGEMENT BILL, JULY 1998.

The draft National Environmental Management Bill (EMB) of 20 August 1998 contains positive improvements on the previous version of 1 July 1998 for which this Department should express its appreciation. These improvements cover both structure and content and largely incorporate the department's previous comments.

The objective of the EMB is to provide for co-operative environmental governance by establishing principles for decision making on matters affecting the environment, institutions that will promote environmental governance and procedures for co-ordinating environmental function exercised by organs of state and to provide for matters connected therewith. If the EMB is assessed using its objective as back- drop it could be stated that the EMB accomplishes its objectives. Of importance to this Department, however, could the implications of implementing the EMB in its current form on departmental resourcing and planning.

1. PRINCIPLES

It is noted that Sustainable Development is now broadly defined. It is, however, of concern that specific reference to environmental sustainability is removed at the bottom of page 6.

2. ENVIRONMENTAL MANAGEMENT AND IMPLEMENTATION PLANS

The objective of the Environmental Management and Implementation plans are supported. However Schedule 1 (implementation plans) and 2 (management plans) on page 48 of the EMB includes this Department on the list of departments which should comply. However, the resources that will be required to develop, implement and monitor these plans could be very demanding even to the degree of becoming restraining on other equally important governmental functions.

There is concern that the requirement to take into account all plans that have already been adopted may result in functional paralysis of departments. It is understood why this is required but practically it may be too onerous and time consuming. Perhaps an investigation of alternatives should be done.

3. REGULATIONS

Regarding the Minister's powers to make regulations (page 45, Clause 47 of the EMB) it is proposed that where these regulations affect the mandates of line function departments, the formulation of regulations should be done "in consultation" with the Minister(s) of line function department(s) as relevant primarily due to the impact these regulation may have on the institutional integrity of organs of state.

4. PRIVATE PROSECUTIONS

The rationale (Clause 33(1)(b)) of excluding organs of state in public duty from private prosecution is questioned. The reason for this is that private prosecution can only be instituted if the breach of that duty is an offence in terms of any legislation Does this stipulation mean that a government authority e.g. this Department or local authorities as the owners and operators of waste water treatment works in the event of non-compliance could not be prosecuted by members of the public? If the answer is in the affirmative then is it correct that organs of state belong to a body of elitist that could pollute the environment that we expect others to protect?

5. CRIMINAL PROCEEDINGS

The EMB schedule 3 refers to the National Water Act as Act 34 and should be amended to Act 36 of 1998.

Environmental Justice Networking Forum

Complementary input by the Environmental Justice Networking Forum on the Draft National Environmental Management Bill No: 101 / 98

(Italicised bold script additional to input from the 28 July 1998)

2 September 1998

This submission represents the views of the Environmental Justice Networking Forum (EJNF) affiliates and provincial offices and is presented pursuant to a mandate from EJNF’s constituent members. Severe time constraints imposed by a one-month comment period inevitably limited the scope of consultation and comment that was possible. Nonetheless, EJNF has made a top priority of engaging its member organisations in a meaningful consultative process, resulting in comments on the Draft Bill which represent the views of a wide range of non-governmental organisations throughout the nation. During the public comment period, EJNF’s national office co-ordinated distribution of the Draft Bill and requested that each provincial office of EJNF hold workshops. On short notice, meetings and workshops were convened by EJNF offices in the Western Cape, Gauteng, Kwazulu Natal, and Northern Province. The workshops were attended by representatives of approximately 30 EJNF member organisations. Each province sent its comments to the national office, resulting in the consensus positions taken in this submission. During the coming weeks, EJNF will continue to assist its member organisations in educating the public about the Bill and encouraging participation in Parliamentary hearings.

Introduction: The need for strong public participation and public enforcement tools

The Draft Bill, as this government’s first foray into the field of environmental legislation, faces the challenge and necessity of complying with the constitutionally entrenched environmental rights. If the bill fails to build a constitutionally sound foundation for environmental management, then the subsequent regulations and practices, as well as future legislation, will likewise be flawed. Government has a vital responsibility to deliver a bill that meets this challenge.

Equally, government has the responsibility of paying heed to the will of the public as expressed through the consultative processes leading up to this Draft Bill. Countless members of every sector of the public and government participated in the CONNEP process during the past four years. As EJNF and as representatives of other organisations, we have taken every opportunity to give inputs into draft papers, a Green Paper, a White Paper, and various drafts of this Bill. When the process has been slowed through changes in government officials and reassessment of departmental priorities, we have continued to push forward with building a common consensus on environmental governance issues. Keeping always in mind the goal of effective government action, we have reached agreement on a range of issues. One measure of the success of this Draft Bill will be its consistency with the White Paper, Green Paper, and public comments throughout the consultative process.

The job of drafting an adequate bill is complicated by the notion that South Africa cannot afford the infrastructure of environmental governance that is found elsewhere in the world. EJNF workshops uniformly called for creation of a well-resourced environmental inspectorate, along the lines of the United States’ Environmental Protection Agency. The bill responds to industry’s request for "one-stop" permitting with section 8(3)(d), yet the rejection of an enforcement agency precludes unified, "one-stop" monitoring and enforcement of permits. However, it appears likely that government will insist that the Bill will not include an environmental inspectorate, an environmental enforcement body, or an environmental tribunal. Instead, the Bill reflects a frank admission that government will not do the job of investigating, identifying and prosecuting violations of environmental laws. Nor does the Bill impose a strong incentive structure, whereby environmentally harmful activities are significantly taxed and sustainable practices are subsidized and rewarded. Likewise, the Bill does not provide for creation of well-resourced, expert agencies within government in order to push forward an effective regulatory regime.

Instead of creating governmental capacity to implement an environmental management system, the Bill relies overwhelmingly upon the following measures:

(1) public participation,

(2) private enforcement of environmental laws,

(3) creation of governmental coordination and planning.

Given the retreat from governmental enforcement, each of these three elements must be promoted as robust measures.

As presently drafted, the Bill betrays the guarantees of the Constitution and the extensive consultative process leading up to this Draft Bill. Earlier drafts of the Bill came far closer to establishing a workable framework, but each successive draft has revealed a steady trend away from governmental accountability, co-operation or empowerment of civil society. The following comments set forth the minimum necessary steps to making the Bill workable, constitutional, and consistent with the consultative process.

Although we strongly criticize the dilution of the Bill during the previous drafts, EJNF also gives unequivocal endorsement to important elements of the Bill, including the following: well-articulated principles, a section unambiguously requiring consultation prior to taking action, reform in the law relating to standing and costs, provision for access to information, and expansion of the duty of care.

Public Participation

The White Paper reflected a fundamental paradigm shift from the narrow conservationism of the past towards a path of sustainable development. Central to this White Paper is the principle of public participation in which government is required to "encourage the inclusion of all interested and affected parties in environmental governance with the aim of achieving equitable and effective participation." EJNF welcomes the inclusion of the principle of public participation in Chapter 1 and the series of provisions for public consultation or participation. However, EJNF objects strongly to the consistent evisceration of the role of the public, when comparing earlier drafts of the bill with the current version.

EJNF believes that the bill falls short of two related elements which have been consistently raised by EJNF at every stage of the environmental consultative process, beginning with our 1996 Resolution on the Environment Policy Green Paper:

(1) the Bill does not adequately provide for "participation by, and consultation with, historically marginalised sectors in environmental policy and decision making"; and

(2) the Bill fails to create "an inclusive representative, statutory advisory body whose proactive advice on the identification and resolution of environmental governance matters will be more binding than previous bodies (like, for example, the Council for the Environment)."

The Environmental Advisory Council

A framework environmental management statute must create a strong consultative body representative of and accountable to the various sectors of civil society. EJNF opposes the failure to include such a body in the Draft Bill.

Every year since 1994, EJNF (along with COSATU and SANCO) has called upon DEAT to use existing funds to bring into existence the advisory council authorised under the Environmental Conservation Act. These calls have been ignored. In March 1997, EJNF was joined by representatives of business and labour at a meeting convened by DEAT. All parties agreed that the assorted consultative processes -- on issues as varied as desertification, biodiversity, climate change, and Integrated Pollution Control -- had been overly fragmented and that a national body was needed to advise government about setting priorities.

The resistance in some quarters to an advisory council apparently derives from misunderstandings of the role of the council. Such a body is not intended to threaten, challenge, supersede or delay government functions. EJNF has neither the wish nor the desire to take on the role of government. Rather, EJNF supports an advisory council that will expedite and facilitate the work of government by creating a space for addressing the concerns of civil society. These concerns will always arise. In the absence of a national council, government will be faced with a disjointed, uneven and less productive process -- as reflected in some of the consultative processes attempted in recent years. In contrast, an orderly setting of priorities and process of dialogue on key national issues will actively assist governance in the interests of and informed by the people.

Early drafts of the Bill required creation of a National Environmental Advisory Council to advise the Minister on a range of prescribed matters. The Minister was required to consider and respond to the advice of the Council. The current draft of the Bill demotes the Council to a "Forum" which the Minister may form at his pleasure and whose role is merely to inform the Minister of the views of interested and affected parties. (Section 3 [references are to sections of the Draft Bill].) EJNF supports returning to the earlier mandatory language. If the existence of the Council remains optional, there is every reason to believe it will remain moribund, just like its never invoked predecessor under the Environmental Conservation Act.

EJNF is troubled by the change of the Council’s role. No small body should pretend to substitute its voice for that of parties directly affected by a particular issue. EJNF takes seriously its own internal democratic processes, and as an organisation, we make every effort to ensure that a representative of EJNF is authorised to take a position before doing so. The same is surely true of representatives of labour, business, CBO’s and others. Thus, we draw an important distinction between serving on a Council that advises the Minister in terms of the general sense of setting priorities and structuring public participation, as opposed to a Council that "informs" the Minister of the views of member organisations. In the end, these organisations (with assistance from EJNF) need to speak for themselves, and the Council cannot serve as a means of short-cutting the necessary process of seeking direct public input from interested and affected parties on specific proposals.

In a number of instances, the current draft eliminates altogether the requirements of involving the Council in environmental decision making, e.g., the Minister is no longer required to consult with the Council regarding negotiation of international agreements or issuance of regulations. Rather than deleting the role of the Council, EJNF would like to see clarification of how the Council can productively act. For instance, the Council should not review or comment on every provision of every international agreement or regulation, nor should the Council purport to speak for the full range of interested and affected parties. Rather, the Council should regularly assist the Minister in setting priorities concerning which agreement or set of regulations to take up. Specifically, an earlier draft of the bill would have required the Director General to keep the Council informed of "all involvement in international environmental matters" -- a measure that would not require significant funds or inconvenience but would greatly increase the likelihood that civil society could have a meaningful voice in development of South Africa’s transnational environmental policies. In other words, the Council would act as a sounding board for the government to get a broad sense of pubic priorities and views, thereby helping create and coordinate the heretofore disjointed and uneven process of consultation on national environmental issues.

The composition and functioning of the Council have also been substantially weakened in the current draft as compared to earlier drafts. Earlier drafts of the bill required representation of specified sectors, including environmental NGO’s. In the current draft, each sector is invited to nominate members for the "Forum," but the Minister is free to appoint whomever he pleases. (Section 4.) EJNF supports some variety of the earlier drafts, providing for most seats being slotted to particular constituencies and a few seats open for the Minister to fill independently. EJNF does not support the notion of seats being filled by technical experts. To the extent that expertise is needed for the Council to fulfill its political role, the Council should be authorised to consult with appropriate experts.

Section 3 (1) The National Environmental Advisory Forum is hereby established. The Minister shall select members of this body and convene its firsts meeting within six months of the effective date of this legislation.

Requirements for issuing regulations

As noted above, EJNF does not believe that the national advisory council should review or approve every regulation related to the environment, but we do insist that the public be afforded a meaningful opportunity to have input into regulations affecting their interests. In that regard, the Council should be kept informed of the subjects of proposed regulations as one measure, among many, to give notice to the public of regulatory proposals. Equally important, the Bill needs to specify more effective means of soliciting comment on regulations. Publication of regulations in the Gazette is not sufficient to reach most communities. The Bill must provide for additional, realistic means of notice. The Bill also must address the limited capacity of many communities to give technical comments, providing for scientific and legal expertise in appropriate circumstances.

Environmental Co-operative Agreements

EJNF supports the concept of co-operative agreements that exceed existing requirements only if they require proper participation by recognized community groups. If the Bill remains in its present form, by which a government authority could secretly conclude a deal with industry and enforcement of breaches of the agreement have uncertain consequences, EJNF opposes inclusion of this provision in the Bill. Specifically, the Bill must require that community groups be signatories to any co-operative agreement; that the breach of the agreement be enforceable by the community groups as a defined offence with significant fines; and that all information in private or government hands related to the agreement must be provided directly to the community signatories.

Section 35 (3) The Draft Bill of the 28 August 1998, has removed the requirement that the agreement must go beyond existing standards. It is stated that the Bill "may" improve on existing standards. It is crucial that section 35 (3) is mandatory, and communities must be made parties; for this could be a backdoor for self-regulation, which is not in line with the principles in the White Paper on Environmental Management.

Access to justice and private enforcement of environmental standards

EJNF’s 1996 Resolution on the Environment Policy Green Paper provided that environmental legislation must:

(1) "facilitate access to legal assistance by historically marginalised sectors so that they may more effectively exercise their rights under the Constitution and the national environmental policy"; and

(2) "develop innovative and creative legal responses to the need to transform South African environmental law, especially with regard to regulatory mechanisms and compensation for environmental damage."

Access to judicial review is particularly important since the Bill does not provide for creation of an environmental inspectorate. If government lacks the resources and ability to enforce environmental laws, it becomes of paramount importance that private persons have the ability and incentive to do so. However, South African law has historically placed severe constraints on the ability to hold government and polluters accountable to existing environmental laws. Even if a company flouted the law or the government ignored its responsibilities, it has been nearly impossible to obtain a judicial remedy. The Draft Bill contains a number of important innovations regarding access to courts and judicial powers to enforce environmental law, as well as incentives for attorneys to take on environmental cases. Many of these provisions have been weakened in the current draft, and some important reforms have been left out altogether.

In order for the bill to live up to the directives of the White Paper and the Constitution, it must provide the tools to block serious environmental transgressions. Suppose an industrial facility consistently emitted pollution in excess of its permitted levels, causing damage to overall air quality and to the health of local residents. Would the Draft Bill provide the tools for the affected community to halt the pollution? The following hypothetical example helps illustrate where the bill falls short:

Ideally, the community would need to secure legal and technical assistance in order to assess the source and extent of the problem. It would need to get access to information about the polluter. Having secured evidence that the polluter has caused the specified harm to human health and the environment (and in the absence of government action against the polluter), the community would bring an action against the polluter. The court or other decision maker would order the polluter to clean up, would assess a penalty against the polluter to deter future violations, and would compensate the community and its technical and legal team for their work.

In the paradigm proposed by the Draft Bill, the community would first face a serious obstacle in securing assistance. A handful of environmental experts and attorneys are currently available to represent communities without charge. Other experts and attorneys, who operate in a for-profit commercial environment, will not take on the case unless their compensation will be competitive with compensation paid by existing clients. A costs award at tariff rate, while a welcome reform, will not attract most commercial attorneys or experts. Next, the community will not be able to obtain information in the company’s sole possession (as discussed below in the "access to information" section). In seeking to bring its claim, the community would benefit from the private standing provisions in the bill, but they would still face the obstacles of bringing a criminal action. The violation of the company’s permit would probably not constitute an offence. For instance, under the Atmospheric Pollution Prevention Act, operating without a permit is an offence, but exceeding a permit is merely grounds for the Chief Air Pollution Control Officer to consider revoking the permit. Even if permit violation were an offence, the community would face the extremely difficult task of proving beyond a reasonable doubt that the violation took place. Environmental issues are invariably technical and involve scientific disputes or uncertainty. Where it is often possible to show a violation by a balance of the probabilities, eliminating any reasonable doubt about the violation can prove extremely difficult. Supposing the community did manage to secure a conviction, the fine under existing statutes (between R500 and R2 000 for air pollution) will not serve to deter future violations. And the costs award, as mentioned above, will not compensate the attorneys and experts at the rate they would have earned if they had chosen had spent an equivalent effort on behalf of commercial clients.

The barriers to effective private enforcement of the law -- as illustrated by the above example -- are not insurmountable. Indeed, this bill must tear down those barriers since, in the absence of a governmental inspectorate, private enforcement is the primary bulwark against environmental degradation and harm to human health. The following sections address the specific changes needed to create an effective private enforcement mechanism.

Environmental Tribunal

Earlier drafts of the bill created an Environmental Tribunal, a court specifically dedicated to resolving environmental cases. The Tribunal would offer expertise and the ability to handle cases on a more timely and affordable basis. Apparently due to funding considerations, the Tribunal has been eliminated in the final bill. EJNF would like to see the inclusion of the Tribunal, given the lack of expertise and the growing backlog in the judicial system. But in the absence of the Tribunal and with elimination of the ability of private parties to invoke mediation, it becomes all the more important that private enforcement of the law be made workable.

Standing

The Bill offers a much needed expansion of the legal concept of standing, allowing individuals or groups to bring suit in the public interest or in the interest of the environment, as opposed to the traditional concept of having to show a personal (usually economic) interest in a matter in order to bring suit. The bill appears to intend that standing be conferred for a breach of any environmental statute, but the current drafting is ambiguous in that regard. For clarity, a comma should be inserted in section 31(1) following the phrase "contained in Chapter 1."

We are concerned about the omission from section 33 of standing to bring a private prosecution in a person’s own interest or the interest of others, as provided under section 31. The difference between the two sections could lead perversely to a view that a private prosecution cannot be brought when a person does have some material interest -- as is often true, even in bona fide public interest litigation. Section 33 should have the same broad standing as section 31 or, at a minimum, should clarify that a personal interest in a matter will not bar a person from prosecuting under the criteria of section 33(1)(a) and (b).

Costs

Reform in costs awards is an absolute prerequisite to providing access to the judicial system. The bill recognizes the centrality of costs reform, but a close analysis must be made of precisely how the bill will effect provision of legal services. Otherwise, a legal framework with no environmental inspectorate and limited legal representation for private parties will perpetuate and entrench the history of ignoring harm to the environment and human health.

The first obstacle to most environmental suits today is fear of an adverse costs order. Earlier drafts of the bill specified that a court "shall" not award costs against a public interest litigant. The current draft states that such costs "may" not be awarded. Concern of judicial independence might suggest hesitancy to dictate when or on what terms a court must award costs, but there should be no concern about delineating circumstances in which costs awards are prohibited, at least where the litigation is not vexatious or frivolous.

A related concern is raised by the shielding from costs awards only for action in the public interest or for the protection of the environment. This provision puts at issue the motivation and material circumstances of any person bringing an environmental action, suggesting that a litigant with a modicum of personal interest (e.g., use and enjoyment of a natural area or a possible impact on property values) will not enjoy the benefit of the provision. For instance, if the people living downstream of Thor Chemicals brought suit, it would certainly be in the public interest, but it would also be in their private, material interests. Would they be subject to a costs order if they lost their suit? Clarification is needed in this regard.

Finally, concerning protection from costs awards, the current draft contains a new, fatally flawed addendum. A litigant will be exempt from a costs award only upon showing that "no other means had been reasonably available for obtaining the relief sought." Exhaustion of existing remedies will sometimes be an element of a court’s jurisdiction over a case, but it should not play a role in costs awards. Otherwise, a litigant will have to go through an entire case before facing an argument that a remedy lay in mediation, arbitration, administrative petitions, the political process, or some other means. If the intent here is to prevent improper resort to litigation, the traditional rules against vexatious and frivolous litigation will suffice. This new provision threatens to undermine the salutary effects of the well-intended costs reform measures.

Turning from protection against adverse costs awards to the provision of costs to a prevailing litigant, we also have concerns about details of the bill. The goal of this provision is to attract attorneys into taking on meritorious environmental cases on behalf of clients who cannot afford to pay a normal hourly fee. This goal is paramount given the reliance on private prosecutions for enforcement in the absence of an inspectorate. The measure of success of this section will be whether sufficient attorneys bring sufficient cases to collectively enforce environmental laws.

Even with the proposed reforms in costs awards, it will remain very difficult to find an attorney to bring environmental cases. The handful of non-profit legal organisations cannot bring all the needed cases, and commercial firms will not litigate based on the prospect of a favourable costs order alone. For this reason, the Bill needs to follow the example of other countries which provide market-rate costs to attorneys who prevail in environmental litigation. EJNF suggests a meeting be held with ourselves, private attorneys and representatives of the DEAT drafting team to explore ways of structuring costs awards in a way that will realistically attract private firms to take on environmental enforcement case.

Section 32 (3) introduces for the first time, the idea of being awarded "appropriate costs," suggesting something in addition to the usual cost award. This is an important advance, but Parliament needs to clarify what "appropriate" means. It should at the minimum be understood and meant as "market-rate or some other formulation that will attract competent attorney’s.

Section 32 (3) (a) It is CRUCIAL that favourable costs awards not be limited only to attorneys providing FREE legal assistance; if the point is to attract good lawyers to these cases, we shouldn't force them to take the case for no fee at all if they want to get compensated for winning; rather, they should be able to charge whatever modest amount the party can afford, and if they win, then they can collect a more substantial fee.

Criminal burden of proof

Punishment of environmental violations currently depends entirely on criminal law. Providing for private criminal prosecutions is a step in the right direction, but it will remain quite difficult to show "beyond a reasonable doubt" that a violation has taken place, especially where there are areas of technical and scientific uncertainty. Even if a conviction is won, the current fines are grossly insufficient -- e.g., the maximum fine for a massive air pollution violation by a multi-billion rand industry is R500. The Bill must provide for the ability to hold polluters accountable for significant fines when a violation can be shown by the civil burden of proof ("the balance of probabilities").

Civil fines for environmental violations are the norm in many other nations. If a polluter violates its permit, a substantial fine is immediately imposed. There is no protracted trial with virtually insurmountable burdens of proof resulting in payment of a pittance. The objection will be raised, however, that civil fines are contrary to the constitutional protection of the presumption of innocence. EJNF strongly contends that this issue needs to addressed directly, with advice of knowledgeable legal experts. At least two arguments are suggested in support of this change. First, there is some authority in recent decisions of the Constitutional Court for the proposition that regulatory offences are not subject to the same strict rules concerning burdens of proof. Second, one should consider that violation of a permit condition does result in cognizable damages, either because of harm to others or because profits are accrued illegally and should be disgorged. In either case, the state or private parties should face no constitutional obstacle in being allowed to sue for civil damages caused by a permit violations. The problem with imposing damages is that they are extremely difficult to quantify in these circumstances. A possible solution could be found in shifting the onus of proving quantum of damages onto the polluter, with the law presuming statutory damages of a fixed amount (e.g., R25 000 per violation) and allowing the polluter to prove that some lesser amount is appropriate. Again, EJNF urges the Department to convene a meeting of appropriate experts and interested parties to work out a means of achieving this highly desirable end.

Conciliation and mediation

Litigation should be a tool of last resort for organisations with limited resources. The Bill tasks the public with playing a significant role in enforcement of environmental norms, yet fails to provide workable tools for alternative dispute resolution. Contrary to earlier drafts, the current version of the bill gives the Minister the sole power to invoke conciliation or mediation. This one-way power denies communities the ability to invoke mediation, yet perversely gives government to power to impose mediation upon communities, even as a bad faith delaying tactic. These sections should be reworked considerably, with a view that mediation and conciliation are desirable, cost-saving tools that should be available to all.

Right to Information

EJNF’s 1996 Resolution on the Environment Policy Green Paper provided that environmental legislation must provide:

"greater access to information required to enable meaningful participation."

The White Paper supports the necessity of access to information. EJNF’s workshops on the Draft Bill resulted in a particularly strong call for an expanded right to environmental information -- one reaching privately held information and one making the most useful forms of information automatically available in an understandable format. EJNF applauds the progress represented by the current section 32 and urges that it not be dropped in the anticipation that the Open Democracy Bill might be enacted into law. Given the slow progress of that bill, its enactment should not be presumed.

EJNF also urges that this Draft Bill go further. The Draft Bill provides for access to environmental information held by the state. (Section 32(1).) The Minister "may" make regulations for access to privately held information, but there is no requirement that this take place. (Section 32(4).) The enactment of regulations should be mandatory on a fixed time schedule.

EJNF also urges inclusion of a mandate that the Minister enact regulations creating a data bank of particularly useful environmental information, looking to existing models for a Toxic Release Inventory (TRI), also known as a Pollution Release and Transfer Registry (PRTR). TRI is a system of mandatory reporting of routine pollution releases to all environmental media and transfers of wastes to treatment and disposal sites. TRI also includes dissemination of the information collected by the government to the public in an easily understandable and accessible format. The Bill should also provide for workers’ right-to-know about the use of potentially harmful chemicals in their workplaces and the appropriate precautions they should take to avoid harmful exposures.

A TRI system would greatly further the objectives of the Environmental Management Bill and White Paper of collecting and providing public access to environmental information and facilitating public participation in environmental decision-making. As experience from other countries has shown, a TRI system would also be a great benefit to industry by shining a light on its inefficient production practices, thus creating economic and public relations incentives to become more efficient by reducing emissions. TRI thus benefits both business and the environment. TRI has also served as an aid to governments in evaluating the success of existing pollution control and reduction policies and developing new, more effective policies. Moreover, TRI is not only effective at promoting these objectives, but is also cost-effective; all that is required is to collect and disseminate information. TRI is not a regulatory mechanism but relies on the power of information to stimulate improved environmental performance.

Government accountability

EJNF’s 1996 Resolution on the Environment Policy Green Paper provided that environmental legislation must:

"Set minimum environmental, health, and other standards which are binding (and not mere guidelines) and which . . . reflect current ‘internationally best’ practices."

Under current law, government officials have broad discretion to make environmental decisions as they see fit. Specific standards for matters such as air or water pollution will have to await enactment of sectoral legislation, but this current Bill must not succumb to replacing every "shall" with "may" -- that is, if the provisions in the Bill are worth enacting, they should be mandatory, binding and enforceable.

The Draft Bill makes central the function of well considered principles set forth in section 2. In early drafts, the bill required that all government entities "shall adhere to" the principles. This mandatory language was replaced with a weaker provision that principles will serve as a "framework" and "guidelines." This raises a serious concern that the bill fails to fulfill the constitutionally mandated protection of environmental rights. The bill continues, however, to provide standing for private persons to enforce the principles, suggesting an intent that they be binding. EJNF urges clarification that the principles are binding and mandatory. In addition, participants in some EJNF workshops advocated that the principles apply to private entities when they take actions that may affect the environment.

In a number of instances, the current draft of the Bill makes discretionary certain government functions that would have been mandatory in earlier drafts. For instance, the Bill requires government entities to draft plans to coordinate and focus their environmental functions and lists the elements that the plans "may" contain. (Section 14(2).) In earlier drafts, the elements of the plans were mandatory. Likewise, in earlier drafts the public had the right to bring suit to require organs of state to comply with their environmental plans; currently, the role of the public is eliminated, leaving only the Director General of DEAT with the non-reviewable authority to seek compliance with a plan. (Section 17(3)&(4).) In other examples too numerous to detail here, the Bill gives government officials broad, often unreviewable discretion in environmental matters. These provisions should be systematically reviewed throughout the bill and made mandatory unless a persuasive reason to the contrary can be clearly articulated.

Additional issues

The term "Best Practicable Environmental Option" appears to contain a typographical error. The Atmospheric Pollution Prevention Act uses two distinct terms for measures required to control certain forms of pollution: "best practicable means" and "best practical environmental option." The former is less protective of the environment and mandates only those measures that do not interfere with a firm’s ability to make a profit. The latter is more protective of the environment. According to the leading environmental law text, this latter term means:

the result of systematic consultation and procedures that stress the protection and preservation of the environment as a whole -- ie air, land and water. This option results in the great benefit for, or least damage to, the environment at an acceptable cost in both the long and short term.

Fuggle & Rabie, Environmental Management in South Africa (2d ed. 1992), at p. 439.

The drafters of the bill appear to have modelled the definition of "best practicable environmental option" on the usage of the term "best practical environmental option" under the Atmospheric Pollution Prevention Act. For the sake of consistency and clarity, this latter term should be used in the bill. In addition, the definition of this term needs to be broadened in at least two ways. First, technology based controls need to account for the degree of harm from a particular activity. Costs that might be excessive in one case will be necessary where the activity is more harmful. Comparative law provides numerous examples of this tiered approach to technological controls. Second, it is crucial that the bill establish that all technological standards will be subject to periodic review for compliance with current international standards.

A number of comments at EJNF workshops criticised the definition of "environment" in the Draft Bill. Generally, participants called for a broader definition that includes social, political, cultural and economic factors determining peoples place in and influence on the environment.

In section 2(2)(c), there appears to be the following typographical error: "diverse" should be "adverse".

Regarding the Committee for Environmental Co-ordination, EJNF is concerned about the Minister’s unbounded authority to appoint private persons to sit on subcommittees. A mechanism should ensure that non-governmental appointments be balanced among sectors to prevent dominance or special access by any particular sector. We also seek clarity that the Committee minutes will be publicly available.

EJNF is concerned with several aspects of the Environmental Management and Implementation Plans. First, the Department of Agriculture should be considered to have environmental management functions and should comply with all applicable provisions. The issue of pesticide use, which falls largely under that Department’s jurisdiction, is notoriously neglected yet is of major importance to farm workers, farm neighbours, and consumers of agricultural products. Second, the bill lacks any provision for review of Environmental Management Plans (as compared to Environmental Implementation Plans), even though these plans will be particularly important to environmental governance. Third, the bill contains a detailed list of requirements for Environmental Implementation Plans, but in the Draft Bill, it has become merely a recommended list rather than a binding list as provided in earlier drafts. Finally, the plans should be binding and enforceable by private parties, as provided in earlier drafts. Without these changes, the plans will risk becoming a pro forma exercise by government entities, with no standards, no outside scrutiny, and no accountability.

Rules for Environmental Impact Assessments (EIA’s) are one of the few areas of South African law that have been developed, and we certainly do not want to take a step backward in this area. On the one hand, the Draft Bill appears to broaden the type of activities for which an EIA must be performed, providing that an EIA "must" be done for any activity that "may significantly affect the environment." There are, however, several potential problems with the EIA provisions of Chapter 5. First, the responsibility for drafting new EIA regulations is fragmented among almost every national department and every province, and there is no binding obligation on any of the relevant organs of state to ever issue such regulations. Second, there is no requirement, as in the current regulations, that activities which require an EIA must, in addition to any authorisations required under other laws, also be separately authorised in terms of the sufficiency of the EIA. Third, the list of required elements of any new EIA regulations (§ 26(7)) does not adequately deal with the procedures for completing an EIA and the substantive content of an EIA. (e.g., complete public participation, independent consultants, access to data even if not in report, which party completes and pays for EIA, erring on the side of caution). Fourth, the bill could be more explicit as to exactly which activities require an EIA, and when such EIA’s must be completed. Finally, and most significantly, the bill must provide that existing EIA rules (statutory and regulatory) will not be repealed until the Minister determines that the new EIA rules of at least the same scope and stringency have taken effect, and this determination must be in consultation with sectoral representatives and subject to independent review.

The list of entities consulted should include EJNF.

Environmental Monitoring Group

ENVIRONMENTAL MONITORING GROUP

14 September 1998

Supplementary Comments on the Draft Environmental Management Bill (Recent Revised Draft)

Further to our submission dated 21st July, we would like to advance an idea to you which, albeit at a late stage in the discussions, we feel may provide a useful catalyst for focusing the Bill - and through it the Government - on the critical issue of sustainable development. We present the idea in four parts:

1. A justification for including in the Bill a process that will lead to a governmental commitment to sustainable development;

2. The core idea being proposed;

3. A summary of the key issues surrounding the evolving concept of sustainable development;

4. A suggested new wording for the final draft Bill.

1. A justification for including a process that will lead to a greater commitment to sustainable development in South Africa

We note with some dismay that the proposals to form a Commission for Sustainable Development have been dropped in the revised draft Bill. Not to include any reference to an institutional form that will promote sustainable development in such an important Bill means that this notion may not receive any legislative attention for at least three more years. We recognise that the Bill does include important references to the principles of sustainable development. Indeed we also recognise that the duty of care contained in Section 28 could be seen to cover some aspects of sustainable development. But the fact remains that there is no institutional focus contained within the new draft that provides any effective governmental commitment to promoting the practice.

Accordingly, we propose the inclusion of an additional section to the Bill that will provide some initiative at a comprehensive governmental level. It is important to devise a mechanism at this late stage that does not incur avoidable opposition. We understand that a Commission with vague powers but with a potentially threatening right of scrutiny over all government departments is unlikely to pass the parliamentary process. This is particularly the case when the concept of sustainable development is not yet fully understood by all parties. Furthermore, we understand that it is not good legislative practice to create a concept or an organisation without giving them very clear objectives and operating remits. Given the genuine lack of agreement as to what sustainable development is all about, it seems sensible to look at this issue another way.

2. The Core Idea

The proposal suggested here is that the Bill includes a duty on government as a whole to promote its international obligation to Agenda 21. This is the sustainable development process that all countries have signed up to following the UN Conference on Environment and Development held in Rio de Janeiro in June 1992. Indeed only last year, at a special UN Session, the Deputy President reaffirmed the commitment of this government to Agenda 21.

Accordingly EMG proposes that the Bill contain a duty on government, spearheaded by DEAT, to produce an annual Performance Report on Sustainable Development. This Performance Report would be the responsibility of DEAT to produce but would require the co-operation of all government departments. The idea of the Performance Report would be that it would create an annual audit of all the duties of care and associated responsibilities of the government as a whole to promote the cause of Agenda 21.

This proposal is advanced because the Bill in its present form is too ambivalent over the application of sustainable development either in the functions of the National Environmental Forum or in the application of the duty of care. Indeed, even in the new Section 2 the phrase ‘sustainable development’ only appears with the word ‘environmentally’ in front of it. This is not in the spirit of Agenda 21. We recognise that in Section 2(2) there is the phrase that "development must be economically, socially and environmentally sustainable". We also understand that this principle is implicit in any further reference to Section 2 in the Bill. What is missing is a mechanism for defining this phrase, for ensuring that all government departments address it in a comprehensive and co-ordinated manner, and for guaranteeing that the concept evolves in a creative way. This is the spirit of Agenda 21. It is also the spirit of this submission.

Despite the wide-ranging principles contained in the new Section 2, which we fully support, nevertheless the Bill as a whole still does not contain any explicit reference to sustainable development within the procedures of audit and management.

3. A summary of the key issues surrounding the evolving concept of sustainable development.

Sustainable development is a process and not an end in itself. Its aim is to create a popular awareness and supporting behaviours that allow development to proceed in such a away as to safeguard the life-supporting systems of the planet, while ensuring that all citizens are enabled to meet their fundamental needs for a dignified livelihood. Underlying the principle is a triple process of:

• sharing responsibility;

• enabling effective wealth-creation to continue; and

• ensuring that the natural fabric of the planet is maintained.

South Africa has already embarked on this process through its commitment to political and social empowerment for all its citizens and to widening the basis for economic entrepreneurship, again for everyone. This important Bill carries these principles into the third realm, namely sustainable environmental management.

The key to sustainable development is that it changes the approach to economic growth by ensuring that all economic activity takes into account its own potential for damaging the natural fabric or disrupting the dignified livelihoods and community well-being of all its citizens. In addition, sustainable development requires long-term and reliable bases for management and planning across policy arenas and government departments. It is this inter-connectedness of policy and of budget that gives sustainability its particular flavour. That is why a procedure for ensuring that new approaches to economic analyses, social justice and fully inclusive participation by empowered interests is so important.

The proposal for a Performance Report on Sustainable Development is designed to promote such a procedure. Indeed, without such a process, it is difficult to believe that the notion of sustainable development will ever develop into a common language across government. This in turn means that imaginative innovations in environmental management involving such things as ecological tax reform, empowerment for community-driven monitoring and research, and the creation of local economic activity through sustainability-oriented small businesses may never get off the ground.

4. A suggested new wording for the Bill.

Page 1, line 8, following "Whereas development must be economically, socially and environmentally sustainable;" add:

WHEREAS the government of South Africa has committed itself to promoting the cause of Agenda 21;

In Section 1(1) add the following definition:

"|Agenda 21" is the commitment to an evolving process of creating economic wealth and dignified livelihoods in such a way as to maintain the fundamental life-support processes of the planet, while enhancing social justice and community well-being for both present and all future generations."

CHAPTER 2

We suggest a new Part 3: Annual Performance Report on Sustainable Development

And a new Part 11:

(1) The Minister shall initiate an Annual Performance Report on Sustainable Development to meet the government’s commitment to Agenda 21.

(2) The Annual Performance Report shall be the responsibility of the whole of the Government but shall be co-ordinated by the Minister.

(3) The Minister shall appoint such persons as he/she deems necessary to act as a Secretariat to ensure production of the Report.

(4) The purpose of the Report shall be to:

provide an audit and a report of the government’s performance as a whole in respect of Agenda 21;

review procedures for co-ordinating policies and combining budgets to meet the objectives of Agenda 21;

review arrangements for the promotion of Agenda 21;

review progress on a public educational programme to support the objectives of Agenda 21.

Peter Willis

Programme Manager, Environmental Policy

Eskom

ESKOM SUBMISSION TO PORTFOLIO COMMITTEE ON ENVIRONMENTAL AFFAIRS AND TOURISM ON THE DRAFT NATIONAL ENVIRONMENTAL MANAGEMENT BILL

31 AUGUST 1998

Eskom fully supports the Department of Environmental Affairs and Tourism’s initiative to embark on a comprehensive and integrated programme of environmental law reform. The draft National Environmental Management Bill (Bill) is of particular significance in that it is envisioned to be the definitive regulatory framework for environmental management and governance in South Africa.

Eskom’s support for the effective management of the social, economic and natural environment has been evident in its long standing application of Integrated Environmental Management to all areas of its business. We are indeed proud of our performance in this area and have been pleased to share our experiences with this committee in the past. In making this submission we hope to enable Eskom a future which enhances our historical performance, whilst operating within a well defined and relevant legislative and regulatory framework

The cornerstone of government’s macroeconomic strategy, GEAR is sustainable development. The objectives of GEAR can only be achieved if the three pillars of sustainable development, namely, social, economic and environmental factors are appropriately managed within the context of a developing nation. This needs to be effected without compromising our aspirations to perform to defined standards whilst celebrating our uniqueness as an African nation. Legislation is thus enjoined to seek the appropriate scale within the aforementioned framework.

Eskom is committed to improving the quality of life for millions more South Africans through its RDP electrification programme, set at a target of 1.75 million homes by the year 2000. By the end of 1997 we had achieved 1.15 million connections and we are currently electrifying a thousand homes every day.

Eskom is determined to maintain its vision of being the world’s lowest-cost producer of electricity, generating significant benefits to the South African economy and making electricity affordable to a larger number of people. In particular, reductions in the real price of electricity can provide a major boost to the international competitiveness of South African industry and commerce.

In addition to this Eskom has numerous commitments which will contribute substantially to reconstruction and development in South Africa. Amongst these is the protection of the environment. To achieve all of these commitments implies that a holistic approach is taken to our business. In this regard the implications of any legislative changes should be carefully studied and modeled for potentially negative impacts on the sustainability of our business and hence on the contribution we make to South African society.

Such a study of the Bill indicates several areas of substantial concern which could materially impact both our business including our environmental performance. Whilst we accept the broad intent of the Bill, it would appear that it may compromise the goals inherent in GEAR, nor does it complement the notion of Integrated Environmental Management in the context of sustainable development.

Our concerns are detailed below. We have included constructive and workable alternatives which we feel address our concerns without detracting from the intent of the Bill.

CHAPTER 1 DEFINITIONS

SECTION 1

"Commercially Confidential Information" The exclusionary proviso in respect of "emission levels" and "waste products" lends itself to wide interpretation. We fully understand the need to access such information to the extent that the level and detail required is not commercially sensitive. In any event access to such information is set out in various sector specific laws (e.g. Atmospheric Pollution Prevention Act 45 of 1965 and the Open Democracy Bill (a constitutional process, section 32 of the Constitution). In effect the reference to "not withstanding any provision of this and other law" ousts the application of the aforementioned laws. At the same time information in these areas can be business confidential – for example research and product development related to the use of fly ash which can result in patentable products.

Proposal We submit the following changes:

1. Deletion of [to an unusual degree]

2. Deletion of [provided that details of emission levels and waste products shall not be considered to be commercially confidential notwithstanding any provision of this and other law]. The provisions of Section 31 (1) (a) and 3 (1) (c) address the matter sufficiently.

Environment

The White Paper on Environmental Management Policy for South Africa (Policy) defines the environment in a holistic manner, [Reference: Policy Introduction pg. 9] in that it includes the natural and social dimension. This Bill specifically excludes "humans".

Proposal We submit the following change in keeping with the definition in the Policy:

Environment refers to the biosphere in which people and other organisms live. It consists of renewable and non-renewable natural resources such as air, water, land and all forms of life: natural ecosystems, habitats and spatial surroundings modified or constructed by people. People are part of the environment and are at the center of concerns for its sustainability.

Organs of State

The Bill refers to organs of state as the three tiers of government, National, Provincial and local. It also uses the term to refer to executive functions reserved for government.

The term, however, has a wide application in its interpretation. It includes any functionary or institution exercising a public power or performing a public function in terms of legislation (for e.g. Eskom, Telkom, Transnet, Science Councils, etc). This implies that certain provisions of the Bill, by default, apply to a far broader base than is intended. This additional burden is clearly unintended – especially given the context in which it is used in the Bill.

It should be noted that it is necessary for Public Enterprises which are required to operate on a commercial basis to be treated in a manner which does not prejudicially affect their competitive position with respect to other players in that sector. Public Enterprises such as Eskom and Telkom cannot be treated like a governmental body, if this results in additional obligations (and costs) that the private sector competitors are not subject to. There should be a level playing field between public enterprises operating on a commercial basis and private sector participants in a particular market. It is respectfully submitted that the failure to recognise this will compromise the Governments vision of making public enterprises internationally competitive.

Proposal We submit the following changes in order to maintain absolute clarity:

"Organ of State" means those organs set out in Schedule 1 and 2 to this Bill unless specifically indicated otherwise.

In the actual context of the Bill, clear differentiation must be made between:

• Government (National, provincial, local)

• Executive Organs of State charged by law with authoritative powers (CNS, SATRA, NER etc)

• Commercial Public Enterprises (Eskom, Telkom, Transnet etc.)

We propose that the terms be used as stated above, i.e. government, executive organs of state charged by law with authoritative powers (Schedule 1 and 2 institutions).

However should the Bill intend to refer to commercial Public Enterprises then reference must be specifically made thereto. It should be noted that, in effect, the Bill refers in the main to Government and in Chapter 3 to both government and executive organs of state charged with authoritative powers.

Should the above proposal not be accepted the application of the concept "organ of state will result in interpretation and practical difficulties as illustrated in the following sections of the Bill:

1. Sub-sections 7 (2) and 3 © Committee for Environmental Coordination

It is clearly the intention herein to refer to Schedule 1 and 2 institutions of government. The jurisdiction of the Committee for Environmental Coordination is intended to include the activities of "relevant organs of state" and those charged with licensing authority.

2. Sub-section 11 (4)) Environmental Implementation Plans and Management Plans

The intention herein is clearly to regulate the activities of Schedule 1 and 2 government in submitting the above plans. This reinforces our proposal above that organs of state are intended to refer to Schedule 1 and 2. However, throughout Chapter 3 continuous interpretation difficulties and incorrect application of the term "organs of state" will prevail.

3. Sub-section 28 (4) Duty of Care and Remediation of Environmental damage

The Director-General or a provincial head of department is required to consult with "any other organ of state" prior to issuing a directive should a person fail to exercise its duty of care in terms of Section 28 (1).

4. Sub-section 34 (4) Criminal Proceedings

Costs may be awarded to an organ of state for reasonable costs incurred by same. It is again evident that the reference in intended to be to organs of state with executive and authoritative powers.

CHAPTER 1 NATIONAL EVIRONMENTAL MANAGEMENT PRINCIPLES

Section 2 (3) (g)

The decision-making process may be delayed considerably should all forms of knowledge be taken into account. The Integrated Environmental Management process in Chapter 2 of this Bill adequately addresses this.

Proposal We submit the following change:

Recognising [all forms of knowledge, including] scientific and traditional knowledge [and ordinary knowledge]

CHAPTER 2 COMMITTEE FOR ENVIRONMENTAL CO-ORDINATION (CEC)

The functioning of the CEC is largely dependent on effective and relevant participation.

PROPOSAL We submit that in view of the important role which parastatals can play in terms of value added that the Director-General: Public Enterprises also be represented on the CEC.

CHAPTER 5 INTEGRATED ENVIRONMENTAL MANAGEMENT (IEM)

General Comment

The Department of Environmental Affairs has already initiated the National Strategy for Integrated Environmental Management with a view to legislating same. IEM is an enabling tool to facilitate environmental management rather than an enforcement mechanism to achieve compliance. This chapter appears to cross-refer to Environmental Impact Assessments (EIA’s a subset of IEM).

The current EIA procedures in terms of Sections 21, 22 and 26 of the Environmental Conservation Act have met with considerable constraints both in terms of its application and the resource capacity from an administrative viewpoint. It would be prudent for us to learn from our experience with the EIA Regulations (which are intended to be eventually repealed as stated in this Bill) and set realistic goals for us to achieve in a phased manner.

By international standards IEM is a highly sophisticated tool with various elements in terms of environmental management. Indeed the Standards Act sets out a process similar to the IEM, that of environmental management systems, ISO 14000.

This chapter should then focus on the framework within which Environmental Impact Assessments (EIA) Regulations may be promulgated by a Minister or MEC. It is of particular importance that clear guidelines are set for these regulations. We thus strongly recommend that extensive consideration be given to strengthening and enhancing Sub-section 24 (7). In this regard the Minister must promulgate a National Framework Regulation on EIA’s which will inform all other sector regulation and the Committee for Environmental Co-ordination.

Proposal We submit the following change:

1. That the entire chapter be refocused to refer to EIA’s as an initial focal point. The understanding of the application of EIA is extremely complex and requires both institutional capacity and growing expertise from a South African perspective.

2. In addition, that the Bill should set a strategic framework which will inform DEAT’s National Strategy for IEM process. This will then allow the opportunity for significant input into the detail in respect of IEM as set out in the national strategy document.

CHAPTER 7 COMPLIANCE, ENFORCEMENT AND PROTECTION

Section 29 Protection of Workers Refusing to do Environmentally Hazardous Work

An employee’s right to a safe working environment is of paramount importance. (Refer to comments on the definition of Environment.) The Occupational Health and Safety Act and the Labour Relations Act have strengthened the employee’s rights in the working environment. However, the reference to "not withstanding the provisions of any law" effectively oust the application of these laws.

Proposal We submit the following change:

Deletion of [notwithstanding the provisions of any other law] as the wording as it stands effectively amends legislation such as the Labour Relations Act which refers to an equitable process for an employee to exercise his/her rights.

The right to refuse to perform work must be exercised within a well defined process which allows for the employer to respond. This is evident in terms of our well-known audi-alteram partem rule in common law (both sides must be heard). We suggest that this section be enhanced to address the need for an employer to be informed of such refusal in order to allow him/her an opportunity to respond / act appropriately. However, clearly this should be done in a manner, which would facilitate the employee’s ability to exercise his/her right.

Proposal We submit the following:

A process which could be used as a starting point is the inclusion of a proviso that such employee must in the first instance report the circumstances to the chief executive officer/owner, unless the employee, in good faith, believes that such disclosure would defeat the object of the intended disclosure, or in any way prejudice the rights of such person. Should the internal process prove futile, the employee may then report the threatening circumstances to the Public Protector or the Attorney General. Should such persons not act within a reasonable time, having regard to the nature of the threat the employee is then entitled to such refusal.

CHAPTER 7 COMPLIANCE, ENFORCEMENT AND PROTECTION

The policy refers to due process in that government must integrate environmental considerations with social, political and economic justice and development, in addressing the needs and rights of all communities, sectors and individuals (Policy Chapter 3 Principles, page 22).

Chapter 3 of the Constitution, 1996, and chapter 3 of this Bill calls for co-operative governance, inter-government institutions. The ethic of co-operative governance should be further instilled between private persons.

Proposal We submit the following:

Conflict resolution procedures which promote alternative dispute mechanisms must be followed prior to accessing our judicial system. The courts should be used as a final remediation measure should such conciliation, mediation and arbitration prove futile. In this regard the comprehensive procedures outlined by the Arbitration Foundation of South Africa (AFSA) could be used as a guideline. A further proposal is that we build on and enhance existing institutions, for example the Commission for Conciliation, Mediation and Arbitration (CCMA) as forums to address remedial measures.

In terms of regulatory mechanisms we recognise the resource constraints facing government with regard to setting up new institutions. To this end we propose that full use be made of existing institutional capacity to monitor, enforce and report on the environment. In addition the value of the Committee for Environmental Co-ordination (CEC) and the National Environmental Forum should be maximised.

Proposal We submit that consideration be given to enhancing the following :

A Local and Provincial representative be delegated as the single point of entry to the public regarding matters of concern. Such delegation will ensure role clarity and assign responsibility to an identified person/function. Such person would, depending on the nature of the matter, refer the matter internally or refer it for further follow-up to the National Environmental Forum. In terms of sub-section 6(3) such forum is required to submit an Annual Report to Parliament. A further requirement could be that if a matter is of a grave and imminent nature, that it also be reported to the CEC.

It should be noted that significant value can also be gleaned from existing committees within the Department Environment Affairs and Tourism, such as the Committee of the Provinces and MINMEC.

CONCLUSION

In general the Bill requires substantial review in order for it to promote environmental management and regulation in South Africa. Adequate consultation on this legislation that potentially impacts the lives of all South Africans is crucial. Eskom would appreciate the opportunity to work together with the Department of Environmental Affairs and Tourism and other stakeholders in reshaping this important piece of legislation.

Group for Environmental Management

GROUP FOR ENVIRONMENTAL MANAGEMENT (GEM)

COMMENTS ON THE DRAFT NATIONAL ENVIRONMENTAL MANAGEMENT BILL

This submission is divided into a section on general comments, followed by a section detailing specific suggestions related to each chapter.

GENERAL COMMENTS

Four issues stand out as significant concerns in this draft Bill:

1. Restitution and management of past environmental damages

2. Public participation and access to information

3. Implementation: practicality, effectiveness and the role of lead agency

4. Links with other policy and legal processes

Restitution and management of past environmental damages

This draft Bill emphasises future actions, as though we are starting from a clean slate in South Africa. It does not address what has happened in the past, neither in terms of ecosystem damage nor in terms of environmental injustice. In the principle of environmental justice, the White Paper, among other things, states that:

" Policy, legal and institutional frameworks must redress past and present environmental injustice."

This need to redress is critical and has been lost in the current writing of the draft Bill. It should be included both as a principle and in the section on integrated environmental management, which presently outlines how to address possible future impacts, rather than existing damages.

Public participation and access to information

We are concerned that the national environmental forum has been considerably weakened since earlier drafts of the Bill. It is critical that this forum is established by this Bill and has representatives from a wide range of stakeholder groups. The function of the forum should be to advise the Minister, not just inform. The Minister should be required to provide reasons, in writing, why he or she might take an action that differs from that recommended by the forum. Throughout the Bill, there needs to be stronger requirements for the Minister to consult with the forum before significant decisions are made. Specific suggestions as to where these should be included are presented under the relevant chapter headings, which follow.

The clauses on access to information are critical and good. However we don’t believe that they go far enough. Not only should people have access to information, but they should also be supplied with information in instances where there is an existing or potential threat to their health or environment. Suggestions for specific changes are detailed under chapter seven of this submission.

Implementation: practicality, effectiveness and the role of lead agency

While we are encouraged that a new act is being drafted which contains many important elements, we are concerned that the implementation costs (both financial and in terms of human resources) might be too high for effective enforcement. Thus while it will be possible for civil society to have recourse to the law by taking government (or others) to court, government might not be able to proactively implement the Act. For example, section 48 (3) allows the Director-General to assist municipalities with the preparation of by-laws. Given that there are approximately 850 local councils, this is likely to be difficult in reality. If government does not have the resources to implement the act, enforcement will be left largely in the hands of civil society, which is also a problem in terms of the human resource and financial cost implications. There is therefore a need to revisit the role of a lead agency.

The role of lead agency is extremely important for the effective implementation of this Bill. We don’t believe that this role has been clearly defined in the current draft of the Bill. Most importantly, there is lack of provision for an independent regulatory organ. Even though civil society will have recourse to the law, there should still be a government funded, but independent regulatory organ, as civil society might not have capacity to tackle all issues.

Links with other policy and legal processes

Although it is not the function of a Bill to state how and where other policy and legal processes fit, nowhere in this draft Bill is it stated what it sets out to do and what it does not set out to do. This would be helpful as it would allow comment to be kept to what can usefully be incorporated in this Bill and what will be addressed through other policy and legislation, such as integrated pollution control and integrated environmental management (IEM). Chapter Five lays out a framework for IEM but doesn’t say how the current DEA&T initiative to revise the 1992 IEM guidelines will add value or possibly amend this section.

COMMENTS ON CHAPTERS

Chapter One : Principles

• In general, GEM is positive about the incorporation of these principles into law. In particular, it is good to see that environmental justice, the rights of all groups (including future generations), participation, transparency and global concerns are recognised as being crucial to sound environmental management. However, the following points are raised as a concern:

• (c) this principle has been simplified and is not as strong as it was in the white paper. There is a need to include social, political and economic justice as elements of environmental justice.

• (d) Equity is not defined. It needs to include equity both within and between generations.

• (f) replace "encouraged" with "ensured" or "actively facilitated"

• (h) workers must also have the right to be informed of potential and actual dangers.

• (k) allocation of functions must be in such a way as to avoid conflict of interest.

• (m) add "with due regard for international agreements and policies".

• women are mentioned as a marginalised group in Goal 4 of the white paper. A principle dealing with gender equity should be included.

In addition, the following critical points have been lost when translating the White Paper into a Bill. We believe that they are important and should not be omitted from the principles of the new Act:

• polluter pays

• redressing past inequities (as a component of environmental justice)

• accountability of government

Wording of these principles should be taken directly from the white paper. For example: "Those responsible for environmental damage must pay the repair costs both to the environment and human health, and the costs of preventive measures to reduce or prevent further pollution and environmental damage."

Chapter Two : Institutions

As outlined in the section on public participation under general comments above, it is of great concern that the national advisory council has been so severely weakened as to render it virtually meaningless. It is recommended that clauses from earlier drafts of this Bill relating to the advisory council be readopted in order to give effect to several of the principles, in particular: "(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."

The composition of the forum is important. It is essential that the forum consist primarily of people who have directly experienced poor environmental practices. They should be representative of society. Technical advisors should not sit on this forum, unless they are representing a particular stakeholder group. Technical advice should be sought by the forum through ad hoc task teams that are set up to deal with specific issues. We recommend that section 4 (2) be rewritten to incorporate these views.

It is commended that the national environmental forum should have a gazetted legal constitution.

Section 3 (4): should the minister’s decision be different to that of the forum, the minister shall be required to state the reason for this in writing, as a public document.

Chapter Three : Procedures for Co-operative Governance

This Chapter is seen as a positive starting point for co-operative governance. However we are concerned that the implementation costs might be so high as to render this section unimplementable.

The role of local communities in giving input to environmental management and implementation plans is important. This is captured as a principle in section 2(g), but needs to be recognised in this chapter.

Chapter Four : Fair Decision-Making and Conflict Management

This section provides some positive mechanisms for fair decision making and conflict management. We support the legal right that civil society is given to participate in decision-making. We are also encouraged that government must show that consideration of demands for conciliation has taken place, even if government decides not to opt for conciliation.

Chapter Five : Integrated Environmental Management

It is encouraging to see that four levels of decision making, namely policies, programmes, plans and projects are considered in this chapter.

However, we are concerned that this chapter only addresses future actions, thereby ignoring the vast range of significant environmental problems that currently exist. It is essential that this Bill not only look forward to future decision making, but also provide mechanisms to address the existing problems, resulting from past policies which deliberately excluded most people from access to natural resources and exposed them to various forms of pollution and environmental situations which affected their health negatively. This aspect of environmental justice, which was clearly articulated in the White Paper, has been totally omitted from this draft Bill. The concern was raised in chapter one as well, where the redress of past inequities has been omitted from the principles.

This chapter also has a relatively limited definition of IEM in that it advocates impact assessment and, to a lesser extent, management plans as two important tools of IEM, but does not address the holistic nature of environmental management. The cradle-to-grave principle is not adequately incorporated.

Section 26 (2): replace "regulations" with "guidelines" so as not to prejudice one activity over another. This Act should contain the regulations that all new activities (policies, programmes, plans and projects) need to adhere to. Ministers and MECs may then set out guidelines as to how activities falling within their competence should adhere to the regulations.

Section 26 (3): will not be relevant if the above recommendation is taken into account. If it is not, this paragraph, while aiming to streamline development, could make things complex as it does not resolve the issue of potentially conflicting regulations that could arise out of the different departments.

Section 26 (7) (b): we are heartened to see that the need to investigate cumulative impacts has been retained in this Bill, despite its omission in the September 1997EIA regulations.

Chapter Six : International Obligations and Agreements

This chapter is basically fine as it stands, although there will need to be clarity (either in this Act, or in inter-departmental agreements) as to who takes the role of lead agency on international agreements that could fall under more than one department, for example climate change. The lead agency should be one where there is no conflict of interest.

Section 27 (1): replace "may" with "shall"

Section 28 (3) (a): add "through, for example, a multi-stakeholder forum"

Chapter Seven : Compliance and Enforcement

In general, we believe this chapter offers good opportunities for civil society and government to take action against harmful environmental practices, although some of the clauses need to be strengthened to ensure that the onus of responsibility lies with the polluter.

Section 32: we believe that every person should not only "have access to information" but also has the right to be informed where there is a threat to their health. For example, people living near to a pollution source, or near to an industrial process where there is a high risk of exposure in the event of an accident, must know what possible impacts it could have on them and their environment. This will put the onus on companies to provide information on emissions.

Section 32 (3) (a): this condition prejudices communities that are affected by poor environmental practices and do not have the capacity to ask for specific information. No community directly affected by another parties actions should be refused information, even if their request is formulated in "too general a manner".

Section 32 (3) (b): the definition of "public order" must be very specific for this condition to be acceptable. The fact that people might get angry and demonstrate against a company or action should not be used as an excuse not to provide information.

Section 32 (3) (d): this clause should not be used to hold information on trade in fauna and flora confidential; nor should information on hunting permits be withheld from the public. It should only apply to location of species.

Section 34 (5): we fully support the personal liability clause embodied in this section.

Section 35 (1): the duty of care should be extended so that information on actions and their impacts is readily and publicly available. We suggest the following clause be added: "and provide information on the nature and extent of impacts that could harm the environment".

Section 35 (3): we suggest the addition of a fifth point: "(e) disseminate information to directly affected parties." This will give affect to everyone’s constitutional rights of access to "any information that is held by another person and that is required for the exercise or protection of any rights." In this case it would refer to everyone’s right to an environment that is not harmful to their health or well-being.

Chapter Eight : Environmental Management Co-operation Agreements

We support this chapter as a way in which industry can improve their environmental practices provided that legal standards are set by government as a minimum requirement.

Section 37 (2) (d): replace "existing legal standards" with "all existing and future legal standards".

All: no trade off should be allowed between standards, e.g. if a company is exceeding standards for atmospheric emissions significantly, it should not be allowed to increase its pollution of water.

And future: Co-operative agreements must be revised when new standards are enacted. This will prevent companies from signing co-operative agreements just prior to the enactment of new standards that will effectively exclude them from compliance.

Chapter Nine : Administration of the Act

Section 44 (1) and (5): there should be a restriction on the level of position to which the Minister and Director-General may delegate power.

Section 48: this section needs to set minimum requirements for model environmental management by-laws.

In this light, the following amendments are suggested:

(1): replace "may" with "shall"; add the sentence: "these model by-laws should act as minimum requirements for municipalities".

(4): add a fourth point: "(d) ensure that polluting companies don’t take advantage of weak or non-existent by-laws in certain municipalities."

Cape Metropolitan Council

EXECUTIVE COMMITTEE 17 August 1998

Item : COMMENTS ON THE DRAFT NATIONAL ENVIRONMENTAL MANAGEMENT BILL

(K Wiseman)

1. EXECUTIVE SUMMARY

The recently published draft National Environmental Management Bill contains a number of provisions which, if passed into law, will affect Councils duties and functions regarding environmental management. Some of the key aspects of the draft Bill in this regard are:

• Local authority representation on the various proposed forums for cooperative governance is either not considered or subject to the discretion of the Minister

• Key functions of local government, such as the preparation of IDPs, would be subject to compliance with environmental implementation plans and environmental management plans approved by provincial and national government.

Other key provisions of the draft Bill include the establishment of locus standi which could allow the decisions and functions of local government to be tested by interested parties concerned for the environment. Provisions contained in the draft Bill could allow local authorities to promulgate their own procedures for Environmental Impact Assessment (EIA).

A request for an extension of the July 28 deadline for comment on the draft Bill, in order to allow for the Committees of Council to consider the draft Bill, was unsuccessful. These comments on the draft Bill are therefore presented for the consideration of the Executive Committee. It is recommended that the comments be adopted by Council and presented by Council to the Parliamentary Portfolio Committee on Environmental Affairs. Hearings of the Committee are scheduled for 31 August and 1 and 2 September.

2. INTRODUCTION AND BACKGROUND

A draft National Environmental Management Bill has been published for comment by the Department of Environmental Affairs and Tourism (DEAT). The draft Bill was published in the Government Gazette on 1 July 1998. The procedure and timing for comment on the draft Bill is described in section 2.1 below.

An extension to the comment period, in order to allow for consideration of the draft Bill by Council, was requested on 15 July 1998. This request and the response received, which did not address the request made, are attached (Annexure A). Although no extension to the deadline was granted, Council is able to present its comments to hearings of the Parliamentary Portfolio Committee on Environmental Affairs (section 2.1).

Annexure B contains the cover page, schedule to the draft Bill and contents pages. Copies of the complete draft Bill are available from the Environmental Management Department by calling Naomi Higham on 487 2284.

2.1 The procedure and timing for review and enactment of the Bill

DEAT propose the following time frame for review and revision of the draft Bill, culminating in the enactment by Parliament of a National Environmental Management Act:

28 July 1998 : Deadline for comment on the draft Bill

31 August and 1, 2 September: Public hearings of the Parliamentary Portfolio Committee on Environmental Affairs

A ‘final draft’ of the Bill will then be submitted to the National Council of Provinces (NCOP). Six of the seven Provinces must support the Bill if it is to be ‘fast tracked’ to approval by NCOP and published as a Bill for consideration by Parliament.

The hearings of the Parliamentary Portfolio Committee are the final opportunity for Council to comment on the draft Bill.

2.2 Historical Background to the draft Bill

In 1995, the Department of Environmental Affairs and Tourism (DEAT) initiated a Consultative National Environmental Policy Process (CONNEPP). This involved extensive public and stakeholder participation over more than two years. CONNEPP resulted in the publication and acceptance by cabinet of a White Paper on Environmental Management Policy (DEAT, 1997).

CONNEPP included a vision of DEAT as an "environmental lead agent" with regard to the functional responsibilities of national departments and constitutional powers of provinces. These aspects, as well as an overall revision of the already existing Integrated Environmental Management procedure (DEAT, 1992), were then addressed in a discussion document entitled "A National Strategy for Integrated Environmental Management in South Africa" (DEAT, 1998).

The White Paper and Discussion Document therefore form the basis for the current draft Environmental Management Bill. These aspects should, nevertheless, be interpreted in the context of the new constitution (Act 108 of 1996). In order to facilitate this, the attached Annexure C contains a summary of some of the key constitutional requirements with regard to environmental management.

3. COMMENTS ON THE DEFINITIONS AND PRINCIPLES OF THE DRAFT BILL

3.1 Definition of the environment

The definition contained in the existing Environmental Conservation Act 73 of 1989 is compared to the definition proposed in the draft Bill below.

Environmental Conservation Act 73 of 1989

draft National Environmental Management Bill of 1998

"The aggregate of surrounding objects, conditions and influences that influence the life and habits of man or any other organism or collection of organisms."

"The aggregate or any component of the plants, living organisms other than humans, land, water and atmosphere of the earth and interrelationship that exists among and between the foregoing, and includes their physical and aesthetic properties that influence the health and well-being of humans."

(Emphasis added)

Comment:

The definition of the environment contained in the draft Bill is inconsistent with accepted international definitions and the definitions contained in the existing White Paper and legislation for environmental management. The proposed definition contained in the draft Bill is also vague and difficult to interpret and does not promote the principle of integrated environmental management,

The exclusion of "humans" from the proposed definition of the environment would have the effect of narrowing the ambit of the proposed Bill to the physical and ecological aspects of our environment. Whilst the proposed definition is narrow in its focus, a number of provisions in the draft Bill refer to a wider range of environmental issues. These include sections 2(2)(b), (c) and (d), for example. Section 2(2)(i) specifically refers to the assessment of the "full social and environmental impacts" which must be considered in decision-making.

The vague wording of the definition could be interpreted to mean that social, economic, cultural, historical, archaeological and palaeontological aspects of the environment would not be included in the scope of the draft Bill. Other aspects that would appear to be excluded are the built environment, transportation systems and welfare. Similarly, several tools such as Cost-Benefit Analyses and Social Impact Assessment (SIA) that are regularly used in Environmental Impact Assessment (EIA), would be excluded from the definition of the environment proposed in the draft Bill.

3.2 Principles for a National Environmental Policy (Chapter 1)

The draft Bill (s2) contains a number of principles which are intended to guide environmental management. These are based on the policy contained in the approved White Paper (DEAT, 1998). Some 14 principles are contained in the draft Bill, including the following:

"Development must be sustainable such that the needs of the present generation are met without compromising the ability of future generations to meet their own needs" (2(2)(a))

"Environmental justice shall be pursued so that diverse environmental impacts shall not be distributed in such a manner as to unfairly discriminate against any person, particularly vulnerable or disadvantaged persons" (s2(2)(c))

Comment:

The principles contained in the draft Bill reflect many (but not all) of those in the White Paper which are the result of an extensive process of public and stakeholder participation. The CONNEPP process and the principles that have resulted provide a necessary foundation for equitable and sustainable government for environmental management.

The inclusion of policy principles in legislation, however, is inconsistent with the more usual practice of establishing government policy which is then put into effect through legislation which in turns creates the institutions and standards necessary to achieve the policy. A precedent exists in this case since the Environmental Conservation Act 73 of 1989 also contains policy principles. Some of the proposed principles contained in the draft Bill are nevertheless inconsistent with the principles contained in the White Paper. It is recommended that the principles be amended to ensure consistency between policy documents and resulting legislation.

Some shortcomings of the principles contained in the draft Bill are:

Scope: It is implied (s2) that the principles apply only to organs of state in the exercise of their duties. This section should be amended in order to clearly include the private and NGO sectors into the ambit of these principles.

BPEO: The Best Practiciable Environmental Option (BPEO) is proposed to be a guiding principle in the selection of options (s2(2)(b)). In practice, the BPEO criterion is often narrowly interpreted to be the most cost-effective option. It is recommended that the BPEO principle should be elaborated further to ensure that the best option with regard to the goals of environmental management can be chosen.

Polluter pays: The ‘Polluter Pays Principle’, a widely accepted cornerstone of environmental management for sustainable development, is not addressed in the draft Bill. It is recommended that this principle be added to those which will underpin any future national environmental management legislation.

4. PROPOSED INSTITUTIONS FOR ENVIRONMENTAL MANAGEMENT (Chapter 2)

The draft National Environmental Management Bill proposes the establishment of three key institutions which are intended to give effect to cooperative government in environmental management. These are briefly described below.

4.1 The National Environmental Forum (Chapter 2, Part 1)

The Minister of Environment Affairs may establish a National Environmental Forum (NEF), the purpose of which is to inform the Minister "of the views of interested and affected parties" (s3(2)). The draft Bill proposes that nominations to the NEF be invited from labour, business, NGOs and CBOs, as well as from the public via advertisements in national newspapers.

Comment:

Whilst ambitious in its intent, the proposed NEF would not be an effective substitute for real participation in the processes of democratic government. This is because neither the composition nor the function of the NEF would effectively represent all interests and sectors, or all competing views within those interests and sectors.

In effect, the NEF could be little more than a ‘talk shop’, comparable to a number of ‘advisory’ forums established in the past, such as the Council for the Environment. This is because the NEF has no functions other than ‘advisory’ and since the Minister is not bound to either establish or take account of the views of the NEF. It is therefore recommended that the draft Bill be amended to ensure that the NEF is established and that the Minister or delegated authority be required to take account of its’ views.

4.2 The Commission for Sustainable Development (Chapter 2, Part 2)

The Minister may establish a Commission for Sustainable Development (CSD), the function of which would be to "promote the principle of sustainable development" (s7(1)). The functions of the CSD can be prescribed by the Minister and may include:

• Development of a national development strategy which is economically, socially and environmentally sustainable

• The establishment of sustainable development indicators

• Education and communication

• The development of "multi-stakeholder approaches"

• Reporting on the national state of the environment.

The draft Bill does not prescribe the composition or constitution of the CSD. However, the Bill does require that the Minister of Environment Affairs consult with relevant Ministers and the President in establishing and determining the functions of the CSD.

Comment:

As a result of the lack of specific measures in the draft Bill, it is unlikely that consensus could be reached on the effective composition and functioning of a CSD. The establishment of a new forum to undertake the development of strategies which are already the function of existing parliamentary and other institutions appears to be over-ambitious. It is therefore recommended that the functions of a CSD be limited to monitoring and reporting on the state of the environment and the performance of individual departments within government in the achievement of the principles of sustainable development. The performance of these functions alone would represent a significant step towards cooperative and transparent governance with regard to environmental management.

4.3 The Committee for Environmental Coordination (Chapter 2, Part 3)

In contrast to the NEF and CSD, establishment of a Committee for Environmental Coordination (CEC) is not contingent upon the Minister’s discretion but is instead established by virtue of the provisions of the Bill (s8(1)). The objects of the CEC are to promote the integration and coordination of environmental functions of the state, specifically with regard to environmental implementation plans (EIPs).

Environmental Implementation Plans (EIPs) are described in section 5.1 of this report. The functions of the CEC include:

• Reviewing and reporting on EIPs submitted to it

• Commenting on proposed environmental management cooperation agreements

• Advising on the delegation of functions under this law or any other law

• Advising on the establishment of ‘one stop shops’ in each Province where applications and authorisations from more than one organ of state are required

• Ensuring coordination of the functions of environmental management, including the implementation of regulations and ensuring compliance with the principles contained in the Bill.

Comment:

The proposed CEC is a critical institution for cooperative governance in environmental management. However, the proposed composition of the CEC is limited to the Director-Generals of relevant national departments and provincial heads of departments (s9(1)). Representation by local government is subject to the "due consideration" (s9(3)) given by the Minister to the ‘local sphere of government’.

The draft Bill relegates participation by local government in the CEC to the discretion of the Minister. This is surprising given the express purpose of the CEC to "promote the integration and coordination of environmental functions" (s8(2)) and since the CEC may advise on the establishment of Provincial ‘one stop shops’ for applications and authorisations required by more than one organ of state (including local government).

The promotion of provincial and national spheres of government, to the exclusion of local government, is further entrenched in later sections of the draft Bill. These aspects therefore appear to be inconsistent with the constitutional provisions for both autonomous local government and the delegation of authority to the local level wherever capacity exists.

Given the key role that the CEC would play in achieving the goals of cooperative governance as required by the constitution, it is recommended that the discretionary aspect of local government participation be removed from the Bill. Alternative ways to ensure effective participation by local government and the delegation of functions where capacity exists in local authorities should be investigated and appropriate measures included in future environmental management legislation.

5. PROPOSED PROCEDURES AND MECHANISMS FOR COOPERATIVE GOVERNANCE AND ENVIRONMENTAL MANAGEMENT (Chapter 3)

The draft Bill proposes a number of procedures and other mechanisms which are intended to promote cooperative governance for environmental management. These include the CEC which has already been discussed above.

5.1 Environmental Implementation Plans and Management Plans (Chapter 3, section12)

The draft Bill requires that certain national departments and all provincial governments prepare an Environmental Implementation Plan (EIP), Environmental Management Plan (EMP) or both (s12(1)and (2)). The purposes of EIPs and EMPs include:

to "coordinate and harmonise" environmental policies, plans, programmes and decisions of the various national, provincial and local spheres of government in order to minimise duplication and promote consistency (s13(1)(a)).

Comment:

Whilst the purpose of EIPs and EMPs includes the coordination of all three spheres of government, the content and specific provisions for these mechanisms do not refer to local government. Instead, reference is made only to the way in which national and provincial departments will ensure that municipalities conform to the principles and standards contained in the draft Bill. This is both contrary to the provisions of the constitution regarding the role of local government and inconsistent with the goals of cooperative governance.

The Bill also makes provision for the promulgation of regulations to give effect to the objects of EIPs and EMPs (s14(2)). Possible regulations include measures regarding:

• The manner in which municipalities are required to adhere to the principles of the Bill in the preparation of any policy, programme or plan, including IDPs and LDOs (s14(2)(h)).

Later sections of the draft Bill (s44(1)) allow the delegation of these functions to municipalities at the discretion of the Minister.

Compliance with EIPs and EMPs includes provisions which state that they "shall be binding" on all organs of state (s17(1)), that "every organ of state shall exercise every function it may have" in accordance with EIPs and EMPs (s17(2)(b)) and "shall consider every EIP and EMP" when exercising any function (s17(2)(c)). The draft Bill further authorises provincial government to "ensure that the relevant provincial (EIP or EMP) is complied with by each Municipality" (s17(5)).

Comment:

These provisions would have a significant effect on local authority functions, particularly the preparation and implementation of IDPs. Approval of IDPs, for example, would be subject to review by the CEC, on which forum local government representation is subject to the discretion of the Minister (section 4.3).

The draft Bill, if enacted in its present form, would effectively require Council to conform to plans established at provincial and national level, with no guarantee of local government participation in the formulation or approval of such plans. These provisions are therefore inconsistent with the constitutional duties of local government and contrary to the constitutional requirement to devolve functions to the local sphere of government wherever possible.

It is recommended that the draft Bill be revised in order to ensure that the preparation of EIPs and EMPs is undertaken by local government, where the capacity exists for this to occur. In addition, the procedures for the preparation and approval of Provincial EIPs and EMPs should be revised in order to remove the discretionary nature of local government participation in these processes.

5.2 Authorisation and the control of specified activities (Chapter 5, sections 25 and 26)

The draft Bill contains a number of provisions which would allow the scope of current provisions regarding Environmental Impact Assessment (EIA) to be extended. These include:

• Measures for the assessment of the environmental impact of proposed policies, plans and programmes for development.

• Every Minister and MEC can promulgate regulations regarding the procedure for EIA (s26(2)).

• Both the Minister and the MEC can (if they agree) specify activities which cannot be commenced without authorisation or specify areas in which certain activities may not occur (s26(4)).

Comment:

The draft Bill would allow for multiple systems of procedures and approvals to be established. Delegation by the Minister would allow local authorities to establish their own systems of authorisation and control in respect of environmental management. Given the local preparation of EIPs and EMPs recommended above, these provisions could enable more effective environmental management by local government.

However, national and provincial government could subsume the municipal planning function of local authorities with regard to certain areas and activities if the powers created by the draft Bill are not delegated. This could clearly lead to confusion and inconsistency nationally and from province to province.

As a result, the Bill includes a schedule of "minimum procedures" that must be included in any provincial or departmental regulations for EIA (s26(7)). These minimum procedures, however, are comparable to the ingredients needed for a recipe: Mixed and cooked in different ways, they could result in very different and even conflicting results.

It is recommended that the draft Bill be revised to allow for a consistent range of tools and procedures that can be applied to all government departments and other activities. In addition, the draft Bill should be revised to allow for the determination of areas or activities that require authorisation to be identified in consultation with local government and for the delegation of these functions as required by the constitution.

5.3 Compliance and enforcement (Chapter 7)

The draft Bill contains extensive provisions regarding locus standi to bring civil or criminal charges in terms of the Bill, for the recovery of costs or assessment of illegally obtained gains and for access to information. These provisions grant certain rights to individuals and groups to bring proceedings to court where it is considered in the interest of the environment.

The draft Bill does not, however, specify what financial or other penalties could be imposed in terms of the Act. Instead, these are retained in the existing Environmental Conservation Act 73 of 1989. Further offences and penalties are left to the Minister to promulgate in regulations (s46(3)).

Comment:

The draft Bill is consistent with and expands upon the rights and duties contained in the constitution. The rights and duties created would appear to allow individuals and groups to bring court action against government, including local government, to perform duties in regard to environmental management. This could result, for example, in decisions or programmes made by Council being tested by groups or individuals through judicial review.

The absence of specified penalties and other charges in the draft Bill is a concern for two reasons. Firstly, regulations have been slow and infrequent in terms of both past and currently existing environmental legislation. For example, the promulgation of regulations for EIA in terms of the Environmental Conservation Act 73 of 1989 occurred some eight years after the Act came into effect. Those regulations address only a part of the discretionary authority allocated to the Minister under that Act.

Secondly, DEAT have not established effective enforcement or compliance in terms of existing legislation in their control. Compared to, for example, the Department of water Affairs and Forestry, DEAT have done little to train or otherwise empower state prosecutors to enforce compliance, punish offenders or establish a culture of protection for the environment by law.

Given these concerns, it is foreseeable that the Bill could become law, but with penalties relegated to a remnant section of the old Environmental Conservation Act. Enforcement in that case would probably be even less effective than at present. It is recommended that the draft Bill be amended to include a schedule of penalties and that the scale and nature of penalties be chosen such as to be an effective deterrent.

6. SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS TO COUNCIL

The draft National Environmental Management Bill represents a potentially far reaching attempt by DEAT to establish themselves as the lead agent for environmental management in all sectors of government. The Bill creates a number of institutions and mechanisms for cooperative governance in environmental management. Whilst these aspects appear consistent with the accepted National Environmental Management Policy and the constitutional principles of cooperative governance, the draft Bill is weighted heavily towards centralised management systems at central and provincial government level.

Local government is excluded from representation on the various institutions which are proposed to be established, except in a few instances where the participation of local authorities is subject to the discretion of the Minister. The draft Bill proposes a hierarchical system in which the provinces assume authority in ensuring compliance by municipalities. These provisions are inconsistent with the constitutional rights and duties of local government and the requirement that functions be delegated to a local level where capacity exists.

Further concerns exist with regard to the lack of capacity and resources within DEAT and the provinces to effectively fulfill the roles and responsibilities proposed in the draft Bill. This could result in many potentially desirable features of the Bill not being enacted, as has occurred with the provisions of the Environmental Conservation Act 73 of 1989.

Recommendations

6.1 It is recommended that this report be adopted by Council.

6.2 It is further recommended that the concerns and issues noted by Council be presented to the Parliamentary Portfolio Committee on the environment.

REFERENCES

DEAT, 1997. White Paper on Environmental Management Policy for South Africa. Government Gazette No. 18164. Government Printer, Pretoria.

DEAT, 1998. Discussion Document: A national strategy for integrated environmental management in South Africa. Government Printer, Pretoria.

ANNEXURE A

ANNEXURE B

ANNEXURE C

THE CONSTITUTION AND ENVIRONMENTAL MANAGEMENT

3.1 Summary of Constitutional Requirements

The constitution (Act 108 of 1996) contains a number of references to environmental management and the rights and responsibilities of individuals and state organs in this regard. For the purposes of this review, only selected aspects of the constitution regarding environmental management are described below:

S.24: provides everyone to the right to an environment that is "not harmful" to their health or well being, the right to have the environment protected through reasonable legislative and other measures and to "secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development".

S.44: allocates areas of concurrent national and provincial competence. The environment is a concurrent competency in this regard, as well as nature conservation, pollution control and soil conservation. Interpretation of the scope of competency regarding "environment" is difficult, however, since the term is not defined in the constitution.

S.156 allocates certain powers and functions to municipalities. These include air pollution, municipal planning and public works, stormwater management and certain water and sanitation services. In addition, s156(4) of the constitution states that national and provincial government must assign to a municipality those functions which are most effectively administered locally and which the local authority has the capacity to administer.

CSIR

COMMENTS ON DRAFT NATIONAL ENVIRONMENTAL MANAGEMENT BILL

Issued by: Division of Water, Environment and Forestry Technology

CSIR

July 1998

SUMMARY OF RECOMMENDATIONS

1.PURPOSE OF ENVIRONMENTAL MANAGEMENT

1.1 The Draft Bill clearly state the purpose of environmental management throughout South Africa.

1.2 Such a purpose be stated as ‘environmentally sustainable development’.

1.3 Environmentally sustainable development be defined through the statement of principles in Chapter 1 (section 2) of the Draft Bill.

1.4 The definition of ‘sustainable’ in section 1(1) be deleted.

2. SCOPE OF DRAFT BILL

The definition of ‘environment’ be broadened to include people and the social, economic and institutional factors which affect their relationship with the environment.

3. PRINCIPLES OF ENVIRONMENTAL MANAGEMENT

3.1 Section 2(1) be rewritten to make it clear that the principles are binding on all organs of state which impact directly or indirectly on the environment.

3.2 Section 2(2) be rewritten so that all the principles are linked to the purpose of environmental management, which needs to be explicitly stated.

3.3 Additional principles be included addressing:

• Conservation of biological diversity

• Maintaining the quality of the living environment

• Managing natural resources to promote social and economic development while keeping within ecological limits

• Integrating environmental considerations into all aspects of government decision making

• Polluter pays

• Recognition of the instrinsic value of the environment

• The obligation on government to provide basic services to enable people to minimise their impact on the environment

• The need to consider cumulative impacts and impacts occurring over in the long as well as short term.

A suggested redrafting of Section 2 is contained in Appendix 1.

4. MECHANISMS FOR CO-ORDINATION AND INTEGRATION OF ENVIRONMENTAL MANAGEMENT

Environmental responsibilities

4.1 The Draft Bill clearly delineate environmental responsibilities between different government bodies.

Commission for Sustainable Development

4.2 Provision be made for the Commission for Sustainable Development to be established by the President or Deputy President.

4.3 The Commission’s functions include monitoring progress towards sustainable development.

4.4 Other issues related to the Commission’s composition, functions, powers, level of independence and relationship with government bodies be resolved through a consultative process prior to the Commission being established.

Committee for Environmental Co-ordination

4.5 The membership of the Committee for Environmental Co-ordination be extended to include the Director-Generals of Health and Labour.

Environmental Management and Implementation Plans

4.6 Chapter 3 be redrafted so that all government departments which exercise functions which have a significant impact on the environment, and all provinces, be required to prepare an Environmental Plan.

4.7 Environmental Plans be required to contain five components:

• Description of the functions exercised by the department or province which significantly impact on the environment

• Description of the extent to which the department or province currently complies with the principles in section 2

• Identification of priority areas of non-compliance

• A plan of action to ensure compliance in these priority areas within a specified time period

• A mechanism to monitor progress towards implementing the action plan and achieving compliance with section 2.

4.8 All Environmental Plans be approved by an independent party such as the Commission for Sustainable Development.

Integration with land use and development planning

4.9 The Draft Bill address in more detail how environmental management with be integrated with land use and development planning.

Integrated Environmental Management

4.10 Provision be made for one generic IEM process, which can be applied at different levels (project, plan or policy), and which has multiple entry points for different stages of activity.

4.11 When an activity requires consent, an Authorisation Committee be established, with representatives from all government bodies required to issue permits for the activity, which will be required in respect of the activity:

• To apply a single IEM procedure

• To jointly consider applications for all authorisations required

• To jointly grant consent.

4.12 The IEM procedure require that final approval to a proposal is only given once an Environmental Management Plan has been prepared and approved by the decision making authority.

5. OTHER ISSUES

The role of the National Environmental Forum be more carefully defined to ensure that it does not overlap with the scoping and public participation components of IEM procedures.

Provision be made, either as part of the Forum, or elsewhere, for the views and interests of scientists to be represented and made known to the Minister.

Consideration be given to the establishment of an Environmental Research Commission to prioritise and co-ordinate research to support environmental management.

1.INTRODUCTION

1.1 CSIR - Division of Water, Environment and Forestry Technology

As the Division of Water, Environment and Forestry Technology (Environmentek) of the CSIR, we focus on developing science and technology, and transferring it to support policy development, integrated environmental management (IEM) and natural resource management.

As a Science Council, we are committed to promoting the national priorities for science and technology identified in the White Paper on Science and Technology. These are:

• Promoting competitiveness and employment creation

• Enhancing quality of life

• Developing human resources

• Working towards environmental sustainability

• Promoting an information society.

1.2 Basis for assessing Draft Bill

Our comments on the Draft National Environmental Management Bill (Draft Bill) are primarily based on whether it promotes the national priorities for science and technology described above. Given the subject matter of the Draft Bill, we have particularly considered how it will assist in working towards environmental sustainability, and how it could be improved in this regard.

We have also considered the Draft Bill in the context of the:

• Constitution which sets out the framework for environmental management in South Africa including providing environmental rights in section 24.

• White Paper on Environmental Management Policy for South Africa (White Paper) which was developed after a very extensive nationwide consultative process and approved by cabinet.

1.3 Introductory comments

Environmentek supports the development of the Draft Bill to establish the framework for environmental management throughout the country. Such legislation is necessary and urgent to overcome the considerable problems with the current environmental management system. In particular we support the provisions which:

• Broaden legal standing to enforce environmental laws (s31)

• Enable private prosecutions (s 33)

• Provide greater access to environmental information (s32 and the definition of ‘commercially confidential information’ in s1(1))

• Impose criminal liability on directors and managers (s34)

• Establish a duty of care to prevent harm to the environment and to remedy environmental damage (s35)

• Provide for environmental management co-operation agreements (s37).

However, we consider that the Draft Bill falls short in a number of substantive areas:

• It fails to clearly state a purpose to which environmental management in South Africa is to be directed.

• The scope of the Draft Bill is too narrow, focussing primarily on the biophysical environment, and fails to include the driving forces behind environmental degradation.

• The principles identified for environmental management fail to address a number of significant issues and are not binding on government decision making.

• The Draft Bill fails to provide effective mechanisms for co-ordination and integration of environmental management throughout South Africa. In particular it fails to provide a framework to ensure that South Africa’s limited environmental management resources are mobilised in the most efficient and effective manner.

These issues are discussed in more detail in the sections below:

Section 2: comments on the purpose of environmental management

Section 3: comments on the scope of the Draft Bill

Section 4: comments on the principles governing environmental management

Section 5: comments on the mechanisms for co-ordination and integration of environmental management.

Section 6: raises some additional matters not dealt with above.

2. PURPOSE OF ENVIRONMENTAL MANAGEMENT

A significant problem with environmental management in South Africa is that different government agencies are managing different parts of the environment for different purposes. This has resulted, not only in an inefficient use of our environmental management resources, but also in a continuing deterioration in the environment as a whole.

Effective environmental management requires the mobilisation of our fragmented and limited environmental management skills and financial resources towards a common goal. The Draft Bill fails to clearly state such a common goal. This, in our view, is a significant omission which should be rectified.

This raises the issue of what the common goal should be. Such a goal can be identified from the provisions of the Constitution and the White Paper. The environmental right contained in section 24 of the Constitution (shown in Box 1) requires, amongst other things, that the environment be protected through reasonable legislative and other means to secure ecologically sustainable development and use of natural resources.

Box 1: Constitutional Environmental Right (s24)

Everyone has the right:

(a) to an environment that is not harmful to their health or well-being; and

(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that-

(i) prevent pollution and ecological degradation;

(ii) promote conservation; and

(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development development.

The White Paper indicates that the aim of the Environmental Management Policy is ‘to promote environmentally sustainable development’ (p16). Some elements of environmentally sustainable development, as identified in the White Paper, are shown in Box 2.

Box 2: Elements of environmentally sustainable development as identified in the White Paper on Environmental Management Policy (s13)

A new model of sustainable development based on integrated and co-ordinated environmental management must promote the environmental health and well-being of the nation’s people by addressing:

• People’s quality of life and their daily living and working environments

• Equitable access to land and natural resources

• The integration of economic development, social justice and environmental sustainability

• More efficient use of energy resources

• The interaction between population dynamics and sustainable development

• The sustainable use of social, cultural and natural resources

• Public participation in environmental governance

• The custodianship of our environment

We recommend that the Draft Bill follows the approach taken in the Constitution and White Paper and adopt, as the goal of environmental management, ‘to promote environmentally sustainable development’. This raises a second issue of how ‘environmentally sustainable development’ is to be defined. We recommend that it be defined through the statement of principles that apply to environmental management, which could include the following key requirements:

• The impacts of human activities are kept within ecological limits

• The quality of the living environment is maintained to protect human health and well-being

• Physical and natural resources are managed in order to promote social and economic development while keeping within ecological limits

• Environmental management is carried out in an equitable manner

• Environmental management is carried out in a participatory manner

• Decision making on environmental management is open, transparent and well-informed

• Environmental governance is based on co-operation and integration

• Every person is responsible for his or her impacts on the environment

• Government is responsible for providing the basic services necessary to enable people to minimise their impacts on the environment.

We discuss some of these principles in more detail in section 4 below. A proposed rewording of section 2 of the Draft Bill is contained in Appendix 1.

The Bill contains a definition of sustainable development in Section 1 (1) which states:

‘‘Sustainable’, when used in relation to development, indicates development that:

a. does not reduce the availability of renewable resources to future generations; and

b. minimises the rate of depletion of a non-renewable resource.’

This is a restrictive definition of sustainable development and does not include important issues such as the quality of the living environment, equity and participation as discussed above. It also contradicts the definition of sustainable development set out as a principle in section 2(2)(a) of the Draft Bill.

RECOMMENDATIONS ON THE PURPOSE OF ENVIRONMENTAL MANAGEMENT

• The Draft Bill clearly state the purpose of environmental management throughout South Africa.

• Such a purpose be stated as ‘environmentally sustainable development’.

• Environmentally sustainable development be defined through the statement of principles in Chapter 1 (section 2) of the Draft Bill.

• The definition of ‘sustainable’ in section 1(1) be deleted.

3. SCOPE OF DRAFT BILL

The scope adopted for environmental management is important, as it determines what is to be managed at what level. The scope of environmental management can include managing (moving from a narrow to a broad focus):

• The biophysical environment (such as artificially breaching an estuary which has silted up because of soil erosion)

• Impacts of human activities on the biophysical environment (such as building a retention wall to stop soil being washed into the river)

• Human activities which impact on the biophysical environment (such as changing cultivation methods to reduce soil erosion)

• Government policies which impact on human activities which impact on the biophysical environment (such as subsidies which encourage cultivation of marginal, erodible land)

• Social and economic factors which impact on human activities which impact on the biophysical environment (such as unemployment and population growth which increase the need to cultivate land).

A broader scope for environmental management is likely to be more effective as it enables management and decision making to address the driving forces behind environmental degradation, such as government policies and social and economic factors, rather than solely trying to address the environmental impacts (silted up estuary) or symptoms (soil erosion).

The Draft Bill adopts a narrow scope for environmental management as shown in Box 3, defining ‘environment’ in section 1(1) excluding people and the social, economic and institutional factors which affect people’s relationship with the environment.

Box 3: Definition of Environment in Draft Bill (s1(1))

Environment means the aggregate component of the plants, living organisms other than humans, land, water and atmosphere of the earth and the interrelationship that exists among and between the foregoing, and includes their physical and aesthetic properties that influence the health and well-being of humans.

This is contrary to the definition contained in the White Paper which includes people and recognises that cultural, economic and social considerations are important. The White Paper states:

Box 4: Definition of Environment in White Paper on Environmental Management Policy (p9)

In this policy the word environment refers to the biosphere in which people and other organisms live. It consists of:

• renewable and non-renewable natural resources such as air, water (fresh and marine), land and all forms of life

• natural ecosystems and habitats and

• ecosystems, habitats and spatial surroundings modified or constructed by people, including urbanised areas, agricultural and rural landscapes, places of cultural significance and the qualities that contribute to their value.

People are part of the environment and are at the centre of concerns for its sustainability. Culture, economic considerations, social systems, politics and value systems determine the:

• interaction between people and natural ecosystems and habitats

• use of natural resources and

• values and meanings that people attach to life forms, ecological systems, physical and cultural landscapes and places.

In order to ensure that the scope of environmental management in South Africa is broad enough to address the driving forces of environmental degradation, we recommend that the definition of ‘environment’ be broadened to include people and social, economic and institutional factors affecting their relationship with the environment.

RECOMMENDATION ON THE SCOPE OF DRAFT BILL

The definition of ‘environment’ be broadened to include people and the social, economic and institutional factors which affect their relationship with the environment.

4. PRINCIPLES GOVERNING ENVIRONMENTAL MANAGEMENT

Chapter 1 of the Draft Bill sets out a range of principles intended to apply to environmental management throughout the country. We have several concerns with these as follows.

4.1 Application of principles

Section 2(1)(a) states that the principles set out in the section ‘shall apply alongside other appropriate and relevant considerations to the actions of all organs of state affecting the environment’. There is no definition or explanation of what ‘other appropriate and relevant considerations’ may be. This phrase is so broad as to enable an extremely wide range of considerations, at every level of government, to override the environmental management principles set out in the Draft Bill. As a result, government is effectively not bound by the principles. In practice, the principles may not be applied at all, or if applied, done so in a very inconsistent manner, depending on the circumstances of each situation and the priorities of the government body concerned.

This means that:

• The Draft Bill provides no effective means of promoting environmentally sustainable development. Issues such as minimising environmental degradation and ensuring environmental justice, equitable access and participation can be easily overridden by any other ‘relevant’ considerations.

• There will continue to be considerable uncertainty as to the ‘rules of the game’ which will apply to environmental management in South Africa. This is likely to be of particular concern to business which needs certainty in order to make effective management decisions.

As a result of failing to provide binding principles, the Draft Bill fails to protect the minimum environmental rights of all South Africans, to have the environment protected through reasonable legislative and other measures that ‘secure ecologically sustainable development and the use of natural resources’. While ‘justifiable economic and social development’ is to be promoted at the same time, the wording of section 24 makes it clear that this must not be at the expense of the environment.

The Draft Bill is also in direct contrave