Environmental Law Update | Werksmans Attorneys | 21 November 2012


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Environmental Law Update | Werksmans Attorneys | 21 November 2012

  1. 1. ENVIRONMENTALLAW UPDATEOne & Only, Cape Town21 November 2012
  2. 2. Latest legal developments in theenvironmental regulation of prospecting, exploration, mining and production Justin Truter Director: Environmental Law
  3. 3. PRESENTATION OUTLINE The origins of the dispute between the environmental and minerals authorities A tale of two sand dunes… The legal position following MaccSand Implications for new and existing mining operations Hypothetical case study applied in the context of hydraulic fracturing in the Karoo The proposed reform of the MPRDA The ideal legal framework Conclusion and questions
  4. 4. ORIGINS OF THE DISPUTE 1998 - DEAT’s legal opinion and support for DEADP’s interpretation DME’S position and conduct Turf battle – Cooperative governance? Intervention by DEAT - discussions with DME at a national level around 2007 Mining/Environment Task Team — aim: integration of mining and environmental requirements. 2007 — 2008 - Protracted negotiations between DME and DEAT ‘negotiated’ MPRDA Amendment Act and NEMA Amendment Act enacted and assented to on 19 April 2009 and 5 January 2009 respectively. The NEMA Amendment Act came into operation on 1 May 2009. MPRDA Amendment Act has still not come into operation.
  5. 5. Origins of the dispute (cont) Effect: S14(2) of the NEMA Amendment Act stipulates that provisions relating to prospecting, mining, exploration and production and related activities comes into operation 18 months after the commencement of either the NEMA Amendment Act or the MPRDA Amendment Act, whichever commences last. Since the MPRDA Amendment Act has not yet come into effect the commencement of the 18 months to in section 14(2) will depend upon the date of commencement of the MPRDA Amendment Act. To give effect to the amendment Acts, the national Mining Task Team must still work on the transitional arrangements respect of environmental management of mining from the MPRDA to NEMA. This Task Team was reconvened in about May 2009 and has yet to complete its work. June 2012? The reason for this may have something to do with two sand dunes in Mitchells Plain, Cape Town...
  7. 7. Maccsand (cont)
  8. 8. Maccsand (cont)
  9. 9. Maccsand (cont)
  10. 10. Maccsand (cont) The facts giving rise to the decision of the W/Cape High Court in City of Cape Town and others v Maccsand and others 2010 (6) SA 63 (WCC) Central dispute - whether a right to mine granted in terms of the MPRDA exempts the holder of that right from having to obtain authorisation for its mining activities in terms of other laws which regulate the use of land and in particular the LUPO and NEMA. The WCHC upheld the contentions of the City and the Provincial Minister and granted an interdict. The SCA upheld those contentions in respect of LUPO, but declined to decide the NEMA issue because the particular environmental Iisting notice had in the interim been replaced by another notice. Constitutional Court judgment (12 April 2012): Land use (zoning) requirements: CC confirmed the need to rezone or obtain a departure where land not zoned to permit mining. Zoning = exclusive municipal competence (Gauteng Development Tribunal case and compare with Lagoon Bay)
  11. 11. Maccsand (cont) Environmental Authorisation under NEMA: The WCHC interdicted Maccsand from conducting mining activities until an environmental authorisation had been granted in terms of NEMA for the carrying out of identified listed activities. Those listed activities were not mining, but specific activities which the mining company was proposing conduct, such as clearing a certain area of indigenous vegetation and transforming public open space. The SCA set aside those interdicts as the listed activities concerned had been repealed by the time that Davis, J handed down his judgment. The SCA declined to address the more general question of the relationship between NEMA and the MPRDA by issuing a general declaratory on an application by the Province.
  12. 12. Maccsand (cont) The Province cross-appealed to the Constitutional Court in this regard. The Court held as follows: “[53] The MEC’s application for leave to cross-appeal must fail because it is not in the interests of justice to grant leave. The cross-appeal has no prospects of success. The declaratory order sought is based on an assumption that mining is listed in an operational notice as an activity which may not commence without an environmental authorisation. This assumption is wrong. Since the repeal of Government Notice R386, on which the interdicts granted by the High Court were based, the Minister for Water Affairs and Environment has not as yet put into force the listing of activities relating to mining. Section 24C(2A) of NEMA requires that the Minister for Mineral Resources be made a competent authority responsible for granting authorisations in respect of mining activities. At present there is no listing in operation which authorises this Minister to grant authorisation.”
  13. 13. Maccsand (cont) CC’s finding proceeds from an erroneous assumption. The Court was also mistaken in its assumption that section 24C(2A) is applicable. In fact, it has not yet been put into operation. It will only come into effect 18 months after the commencement of the MPRDA Amendment Act, the date of commencement of which is still to be proclaimed. This leaves it open to a party to argue in another case that the Province’s correctly stated case is valid. May be overtaken by legislative amendments considering Minister Shabangu’s recent confirmation re. legislative reform. The anticipated date for the publication of the draft amendment law (sometime in June 2012) has come and gone.
  14. 14. THE CURRENT LEGAL POSITION LAND USE PLANNING REQUIREMENTS: The Maccsand judgment has similar effects in other provinces to its effects the Western Cape and Eastern Cape, where LUPO applies. In each instance, a person with mining rights must comply with the applicable land use zoning laws. This is the case whether the mining rights were previously granted, or are now granted. In Gauteng, Mpumalanga, Limpopo and the North West Province, land use is regulated by the Town-Planning and Townships Ordinance 15 of 1986 (T) (the Transvaal Ordinance). In KwaZulu-Natal, land use is regulated by the Town Planning Ordinance 27 of 1949 (N) (the Natal Ordinance) read with the Kwazulu-Natal Planning and Development Act 6 of 2008 (the KZN Act).
  15. 15. THE CURRENT LEGAL POSITION (cont) In the Free State, land use is regulated by the Townships Ordinance 9 of 1969 (O) (the Free State Ordinance). In the Northern Cape, land use is regulated by the Northern Cape Planning and Development Act 7 of 1998 (the Northern Cape Act).
  16. 16. The current legal position (cont.) PROSPECTING AND EXPLORATION Will the reasoning in Maccsand also apply to prospecting and exploration activities? Prospecting rights are granted by the Minister in terms of section 17(1) of the MPRDA. Like mining rights and mining permits, they are granted subject to any other relevant law - section 17(6). (Exploration exception) In paragraph 45 of the Maccsand judgment the Court held that LUPO is a “relevant law” within the meaning of the MPRDA, and that rights granted under the MPRDA must be exercised subject to LUPO (and thus other land use planning legislation by means of which local authorities regulate land use). Prospecting and exploration activities may in some cases be less invasive than mining activities. However, this does not justify the conclusion that prospecting and exploration activities do not in principle constitute land use.
  17. 17. The current legal position (cont.) NWA: It is commonly accepted that various water uses in a mining context require water use licences under the National Water Act. The MPRDA expressly refers to the NWA and incorporates its requirements and the Act includes its own set of regulations dealing with mine water use. What about other laws that govern activities and impacts that may be associated mining? NHRA: Section 38? Transformation of an area > 5000m2 NEMWA and list of Waste Management Activities (GN R718 of 1 July 2009): “industry” is defined in NEMWA and expressly includes mining activities
  18. 18. The current legal position (cont.) The definition of waste includes waste generated by the mining sector, but Significantly, NEMWA does not apply to, inter alia -  radioactive waste that is regulated by the Hazardous Substances Act 1973 ( Act 15of 1973 ) the National Nuclear Regulator Act 1999 (Act 47 of 1999 ), and the Nuclear Energy Act, 1999 (Act 46 of 1999);  residue deposits and residue stockpiles that are regulated under the Mineral and Petroleum Resources Development Act, 2002 (Act 28 of 2002) “Residue stockpile” is not defined in NEMWA but is defined in the MPRDA to mean: Any debris, discard, tailings, slimes, screening, slurry, waste rock, foundry sand, beneficiation plant waste, ash or any other product derived from or incidental to a mining operation and which is stockpiled, stored or accumulated for potential re-use, or which is disposed of by the holder a mining right, mining permit or production right.
  19. 19. The current legal position (cont.) Waste Management Licence (EIA) Proposed waste notices: contaminated land register etc. NEM:AQA?
  20. 20. IMPLICATIONS FOR NEW AND EXISTINGMINING OPERATIONS Current unlawful land use On land which is not appropriately zoned this constitutes an offence in terms of the municipal planning legislative instruments outlined above. Local authorities are entitled to follow the steps set out in the applicable legislation (e.g. investigating, issuing a directive, initiating a prosecution, etc.). They are also entitled to apply to court for an order interdicting the continued infringement unless and until zoning approval has been obtained. NWA, NEMWA, NEMBA, NEMPAA, NEMAQA & NHRA NEMA?
  21. 21. Implications (cont ) Proposed unlawful land use where rights have been granted under the MPRDA If a person holding a prospecting, exploration or mining grant is about to commence that activity on land which has not been zoned for that use, a local authority (or affected party) can apply to court for an order interdicting the commencement of the activities unless and until zoning approval has been obtained. NWA, NEMWA, NEMBA, NEMPAA, NEMAQA & NHRA NEMA?
  22. 22. HYPOTHETICAL CASE STUDY -HYDRAULIC FRACTURING IN THE KAROO Decision to lift the moratorium on hydraulic fracturing. Additional hurdles to be cleared by the applicants. Unlike other forms of exploration, there is little difference between the exploration and the actual production processes when it comes to fracking. Exploration and production will constitute a land use for the purposes of the Land Use Planning Ordinance (LUPO) which, if inconsistent with a property’s zoning, will necessitate that it be rezoned to an appropriate zoning or that a temporary departure from the designated zoning be granted, notwithstanding any exploration right held under the MPRDA. > 200 000 km2 exploration area mostly zoned rural or agricultural which does not permit fracking as a land use.
  23. 23. Fracking case study (cont) Under LUPO only a land owner may apply for a temporary departure to permit a land use which is inconsistent with the land’s zoning. Ordinarily it is also only a land owner who may apply to rezone his land. Without the cooperation of the landowners, companies wanting to explore for shale gas through fracking have three other options — none of them easy. Applicants or the Minerals Minister can approach the provincial government to amend the zoning scheme regulations. Another alternative is for the mining company or Minerals Minister to request the Provincial Minister or municipality to invoke their powers to rezone land. This could be achieved, but involves a lengthy and thorough process of consultation with land owners and affected communities as well as stakeholder and public participation processes.
  24. 24. Fracking case study (cont) The third alternative is for the Minerals Minister to invoke her powers under section 55 of the MPRDA and expropriate the land if it is necessary for the achievement of the objects of the Act. Highly unlikely considering the size of the exploration areas. NWA, NEMWA, NEMBA, NEMPAA, NEMAQA & NHRA NEMA? The Constitutional Court is likely to be the final arbiter on the matter.
  25. 25. THE PROPOSED REFORM OF THE MPRDA The latest version of amendments to the Minerals and Petroleum Resources Development Act — containing measures for a streamlined mining rights application process — was to be placed before Cabinet “early in June” according to Minister Susan Shabangu. The key changes proposed in the latest version of the amendments are attempts to co- ordinate’ the numerous application processes at different government departments so that applications, “for water licences, environmental approval and mining licences, are dealt with simultaneously.” The Bill will also deal with situations where mines are awarded mining rights, but not a water use licence. According to Minister Shabangu the Maccsand findings in relation to zoning requirements would also be “incorporated” into the latest version of the Bill.
  26. 26. THE IDEAL LEGAL FRAMEWORK A ”one stop shop”— MPRDA, NEMA, municipal zoning requirements, NWA, NEMWA, NHRA and NEMAQA! Difficulties? Different spheres of govt. each with their own constitutional competencies. Integrated process — truncate timeframes, public participation and stakeholder engagement processes, limit opportunity for objection and appeal. Integrated record of decision??
  27. 27. CONCLUSION Challenges and opportunities…
  28. 28. THANK YOU Justin Truter 21 November 2012 Nothing in this presentation should be construed as formal legaladvice from any lawyer or this firm. Readers are advised to consult professional legal advisors for guidance on legislation which may affect their businesses.© 2011 Werksmans Incorporated trading as Werksmans Attorneys. All rights reserved.
  29. 29. Wind Energy Opportunities and Threats Candice PillayDirector, Werksmans Attorneys
  30. 30. Points that will be coveredGlobal trends in Wind EnergyAdvantages and disadvantages of Wind EnergyThe South African contextQuestions
  31. 31. Points that will be coveredGlobal trends in Wind EnergyAdvantages and disadvantages of Wind EnergyThe South African contextQuestions
  32. 32. Renewable energies are gaining global relevance Global investment in energy sources $ billion Investment in renewable energy exceeds fossil fuels in 2010Source: Tracking Clean Energy Progress, IEA
  33. 33. Wind energy is a renewable energy source Wind energy is intrinsically a form of solar energy
  34. 34. Leveraging wind energy is critical to reducing CO2 emissions Share of power sector CO2 emissions by 2050 % Wind power accounts for 12% CO2 emissions reduction by 2050Source: Technology Roadmap; IEA
  35. 35. Wind energy in particular has grown rapidly Increase in wind energy capacity installed GW 20-30% annual growth in installed capacity, >120GW installed to dateSource: Technology Roadmap; IEA
  36. 36. ..and will continue to do so over the next 4 decades Increase in power generated from renewable sources TWh/year Wind production increases 20x in 2050, relative to 2008Source: Technology Roadmap; IEA
  37. 37. China will become the world’s largest producer of wind energy Contribution of wind electricity production by country TWh/year Leading producers will be China, OECD Europe and the USSource: Technology Roadmap; IEA
  38. 38. Points that will be coveredGlobal trends in Wind EnergyAdvantages and disadvantages of Wind EnergyThe South African contextQuestions
  39. 39. Overview of advantages and disadvantages Advantages Disadvantages
  40. 40. Overview of advantages and disadvantagesAbundant & freely available Advantages Disadvantages
  41. 41. Wind is abundantly available for free
  42. 42. Overview of advantages and disadvantagesLow cost renewable sourceAbundant & freely available Advantages Disadvantages
  43. 43. Wind energy is among the lowest cost renewable energies Cost to produce equivalent energy as 1MW of PV solar Rands (present value)* CSP Plant with no storage; Capital is cost of infrastructure, installation and commissioning, FOM is fixed operating maintenance, VOM is variable operatingmaintenance, Fuel is additional fuel needed in running the plant (e.g. during shut down periodsSource: Review of renewable energy feed in tariffs, NERSA
  44. 44. Overview of advantages and disadvantages Declining costLow cost renewable sourceAbundant & freely available Advantages Disadvantages
  45. 45. Cost of wind energy is declining Estimated cost reduction in renewable energy technologies Levelised cost of energy in 2008 centsSource: Assessing the effectiveness of national solar and wind energy policies in SA (UCT, Max Edkins et al, 2010)
  46. 46. Overview of advantages and disadvantages Do not sterilize the land Declining costLow cost renewable sourceAbundant & freely available Advantages Disadvantages
  47. 47. Overview of advantages and disadvantages Do not sterilize the land Declining costLow cost renewable sourceAbundant & freely available Noise pollution Advantages Disadvantages
  48. 48. Noise pollution from wind energy turbines due to size Noise from a wind turbine equivalent to a jet turbineSource: Technology Roadmap; IEA
  49. 49. Overview of advantages and disadvantages Do not sterilize the land Declining costLow cost renewable source High capital outlayAbundant & freely available Noise pollution Advantages Disadvantages
  50. 50. High capital outlaySource: Technology Roadmap; IEA
  51. 51. Overview of advantages and disadvantages Do not sterilize the land Declining cost UnsightlyLow cost renewable source High capital outlayAbundant & freely available Noise pollution Advantages Disadvantages
  52. 52. Unsightly Roscoe Wind Farm (781MW) has over 627 turbines over 400km2
  53. 53. Overview of advantages and disadvantages Do not sterilize the land Inconsistent supply Declining cost UnsightlyLow cost renewable source High capital outlayAbundant & freely available Noise pollution Advantages Disadvantages
  54. 54. Points that will be coveredGlobal trends in Wind EnergyAdvantages and disadvantages of Wind EnergyThe South African contextQuestions
  55. 55. SA’s has large wind energy potential Western and Eastern Cape are particularly attractiveSource: Areas with micro hydro potential in SA (DME, Eskom, CSIR, 2011)
  56. 56. Wind energy targets are ambitious IRP stipulated required capacity by renewable source by 2030 MW Wind to contribute nearly 50% of renewable energy production
  57. 57. Proven concept Total capacity of 3.16MW
  58. 58. Shifting regulatory landscape Legislation Primary objective1998 White paper on Energy Diversify supply and carriers of energy Policy2003 White paper on Outlined national goals and objectives for Renewable Energy promotion of renewable energy2006 Electricity Regulation Governs the generation and sale of Act electricity in SA2009 REFIT guidelines Regulated feed-in tariffs of wind, landfill gas, small hydro and concentrated solar2011 ERA regulations on To facilitate, inter alia, the planning and new energy capacity establishment of new generation capacity2011 Integrated resource Provides content direction to policy set plan (IRP 2010) out in 1998 and 2003 White papers2011 Renewable energy DOE abandons REFIT policy in favour of bidding competitive bidding process
  59. 59. Points that will be coveredGlobal trends in Wind EnergyAdvantages and disadvantages of Wind EnergyThe South African contextQuestions
  60. 60. Questions
  61. 61. THANK YOU Candice Pillay 21 November 2012 Nothing in this presentation should be construed as formal legaladvice from any lawyer or this firm. Readers are advised to consult professional legal advisors for guidance on legislation which may affect their businesses.© 2011 Werksmans Incorporated trading as Werksmans Attorneys. All rights reserved.
  62. 62. The obligations of an Environmental Assessment Practitioner and the risk interms of Regulation 71 of the NEMA EIA Regulations Sahndya Naidoo Associate, Werksmans Attorneys
  63. 63. Legal Framework NEMA is the framework legislation governing environmental management NEMA came into force in January 1999 It repeals the majority of the ECA Regulations governing environmental activities in terms of GNR 385 of NEMA came into force in 2006 (2006 Regulations), prior to that the regulations of the ECA were used The 2006 Regulations were repealed and replaced by 2010 Regulations (GNR 543) In terms of NEMA if you wish to undertake a “listed activity” a Basic Assessment (BA) Report or an Environmental Impact Assessment and Scoping Report (EIA) must be undertaken, depending on the listed activity BA – minor impact EIA – possibility of significant impact, therefore more detailed These reports must be compiled by an EAP and submitted to the authority EA is granted if the authority is satisfied that all environmental impacts have been properly assessed
  64. 64. Importance of the BA/EIA report Aids sound decision-making Assists in achieving environmental sound sustainable development The EIA helps the decision maker in assessing the environmental impacts of the proposed activity and to put in place informed conditions as part of the EA This shows the importance of:  The ability of the EAP to conduct an EIA and produce a reliable report; and  The ability of the decision maker to understand the content and translate that into effective conditions to include in the EA
  65. 65. Objectivity of the EAP The obvious concerns are that:  The applicant appoints the EAP  The applicant pays the EAP “EAP shopping” may occur Because applicant pays EAP, the EAP may be under pressure to favour the applicant
  66. 66. What about the decision maker? Competent to understand the EIA? Is there capacity to comprehensively consider the EIA? Are the same “cut and paste” conditions added to all EA’s? Rubberstamping without proper conditions being imposed?
  67. 67. NEMA Regulation 17 An EAP or person compiling a specialist report or undertaking a specialised process appointed must-a) be independent;b) have expertise in conducting environmental impact assessments, including knowledge of the Act, these Regulations and any guidelines that have relevance to the proposed activity;c) perform the work relating to the application in an objective manner, even if this results in views and findings that are not favourable to the applicant;d) comply with the Act, these Regulations and all other applicable legislation;e) take into account, to the extent possible, the matters referred to in regulation 8 when preparing the application and any report relating to the application; andf) disclose to the applicant and the competent authority all material information in the possession of the EAP or person compiling a specialist report or undertaking a specialised process that reasonably has or may have the potential of influencing- i. any decision to be taken with respect to the application by the competent authority in terms of these Regulations; or ii. the objectivity of any report, plan or document to be prepared by the EAP or person compiling a specialist report or undertaking a specialised process in terms of these Regulations for submission to the competent authority What if the information put before a decision maker is incorrect?
  68. 68. S v Frylinck (April 2011) A recent case in the North Gauteng High Court Highlighted the importance of the EAPs understanding their duty under NEMA and its Regulations Concerned the development of the Pan African Parliament Mpofu Environmental Solutions CC - Frylinck (Director) was appointed to compile a BA report
  69. 69. The plan Identify a site to build the Pan African Parliament
  70. 70. S v Frylinck cont. Frylinck compiled a BA report indicating that there was no wetland within 500m of the development and that a wetland delineation study was not necessary In 2007 and EA was granted relying on the “objective and honest opinion” of the EAP Development stopped because construction company was having water seepage difficulties and concerns were raised regarding possibility of there being a wetland in the area Provincial and local government informed the DEA of their concerns that the development was in a wetland area The DEA took action:  Panel of specialists appointed (by Dept. of Public Works) to confirm whether there was a wetland  Development was to be halted  Criminal investigation initiated against the EAP and Mpofu Environmental Solutions CC by the Green Scorpions It was subsequently discovered that there was a wetland in the area
  71. 71. Possible result
  72. 72. Representations by the DEAT Explanation for wetland-like conditions = leaking sewer pipe? Yes – but was not the only cause Environmental Officer stated that wetland delineation was necessary as part of the EIA If a wetland was found, it does not mean that the development would have been halted Conditions would have been attached to the EA to protect the wetland Excluded the wetland from the development area
  73. 73. Charges Fraud - Section 103 of CPA – Not guilty  Finding that there was no wetland was based on his own method and not the DWAF guidelines (a well-used tool by EAPs)  Did not understand his mandate as an EAP (he thought it was not his duty to determine if a wetland existed)  Did not apply his mind  Court concluded that it could not be proven without a doubt that Frylinck knew of the wetland and purposefully did not disclose it Offence - Regulation 81 of 2006 Regulations – Guilty  Because wetland was not included in the BAR, the BAR was incorrect and misleading to the decision maker  Wilful disregard of the required standard of conduct of the specialist  BAR was not of the standard expected of a reasonable EAP  Both Frylinck and Mpofu Environmental Solutions CC were found guilty in terms of Reg 81
  74. 74. SentenceFrylinck: 2 years imprisonment or a fine of R80 000Mpofu Environmental Solutions CC  Fine of R80 000Half of the fines suspended for 5 years (must not contraveneRegulations again)
  75. 75. S v Frylinck cont. The Frylinck decision emphasised the fact that consultants conducting EIA’s must apply a reasonable standard of conduct in taking into account the specialist nature of their work and the reliance placed on the reports that they produce They must be independent and objective Precautions taken in respect of the Pan African Parliament development:  A NEMA section 24G application was submitted  This to ensure that informed decision-making takes place  Temporary measures were put in place to mitigate the negative impacts of the development on the wetland
  76. 76. Criminal sanctions are drastic, how did weget to this stage? In the news: Johannesburg Water - built a sewerage plant in the centre of Blue Hills wetland area Johannesburg Roads Agency - built a temporary road through an endangered bullfrog pan in Glen Austin Exxaro - mining in a wetland area and depleting water resources S v Frylinck – incorrect information provided to the authorities Golfview Mining – damaging a water resource (discussed later) Plettenberg Bay – Politician David Malatsi accepted a bribe to push for a development in an environmentally sensitive area
  77. 77. Does using threat of criminal charges help? Punitive - does not address the environmental harm caused Criminal charges can be used to stop a development – like in S v Frylinck Ideal situation is a combination of criminal and administrative sanctions Example: State v Golfview Mining (Pty) Ltd (2012)  Coal mining  Unlicensed activities undertaken  diversion of water resources (including the Holbankspruit)  mining within 100 meters of a water resource  mining within a flood line  the failure to have pollution management mechanisms on site  the dumping of waste rock materials into a water resource  mining within a wetland  aside from the imposition of fines, the court also ordered rehabilitation and remediation of the affected environment
  78. 78. Current position Regulation 81 in terms of the 2006 Regulations has been replaced by Regulation 71 in 2010 Regulations Regulation 71(1)(a)  A person is guilty of an offence if that person provides incorrect or misleading information in any document submitted in terms of these Regulations to a competent authority  A person convicted of an offence in terms of the above is liable to a fine not exceeding R1 million or to imprisonment for a period not exceeding 1 year, or to both such fine and such imprisonment
  79. 79. How will Regulation 71 affect you? Very broad that therefore covers all information submitted to the authority – other specialists are also covered Creates strict liability (liability without fault) – charges can be brought regardless of culpability Risk – EAPs sometimes rely on information provided by the applicant (client) Possible solution:  as part of the terms of engagement the applicant must state (under oath) that all information provided to the EAP is correct  Indemnity clause in the terms of engagement
  80. 80. Environmental law constantly evolving NEMA:  From the ECA Regulations, the short comings were addressed in the more detailed 2006 NEMA Regulations  2010 NEMA Regulations now include Listing Notice 3 GNR 546  Identifies activities that do not fall within the thresholds of Listing Notices 1 (BA) and 2 (EIA), but owing to the sensitivity of the area in which they will be conducted require an assessment to be undertaken Environmental Management Investigators (Chapter 7 of NEMA)  EMI’s visit sites to ensure compliance Environmental Assessment Practitioners’ Association of South Africa  started in April 2011  to provide an operating structure for the certification of EAPs  improve the quality of EAPs  prevent unprofessional and unethical behaviour
  81. 81. International comparisons  International Association for Impact Assessment (IAIA) - 1980  leading global network on best practice in the use of impact assessment for informed decision making regarding policies, programs, plans and projects  to bring together researchers, practitioners, and users of various types of impact assessment from all parts of the world Code of ethics:  To conduct my professional activities with integrity, honesty, and free from any misrepresentation or deliberate bias  To conduct my professional activities only in subject areas in which I have competence through education, training, or experience. I will engage, or participate with, other professionals in subject areas where I am less competent  To check that all policies, plans, activities, or projects with which I am involved are consistent with all applicable laws, regulations, policies and guidelines Africa  Along with a growing international trend, three countries in the SADC region (Botswana, Mozambique and Tanzania) require EAPs to be registered in those countries before they can act as a lead consultant
  82. 82. How has S v Frylinck andRegulation 71 affected how you conduct your practice?
  83. 83. THANK YOU Sahndya Naidoo November 2012 Nothing in this presentation should be construed as formal legaladvice from any lawyer or this firm. Readers are advised to consult professional legal advisors for guidance on legislation which may affect their businesses.© 2011 Werksmans Incorporated trading as Werksmans Attorneys. All rights reserved.
  84. 84. THANK YOU Nothing in this presentation should be construed as formal legaladvice from any lawyer or this firm. Readers are advised to consult professional legal advisors for guidance on legislation which may affect their businesses.© 2011 Werksmans Incorporated trading as Werksmans Attorneys. All rights reserved.
  86. 86. INTRODUCTION DEAT’S overview of Integrated Environmental Management which formed part of the Integrated Environmental Management Information Series “The purpose of the document is to inform all stakeholders who are involved in making decisions that could have an impact on the environment about the range of tools available to align their endeavours with the principles of sustainable development.” IEM provides a way of thinking that can either be used to underpin a stand- alone process (e.g. EIA) or be integrated into existing complementary processes (e.g. Integrated Development Planning). IEM provides a set of underpinning principles and a suite of environmental assessment and management tools that are aimed at promoting sustainable development. “Meeting the many challenges South Africa faces in achieving the goal of sustainable development requires co-operation between all spheres of Government, community based organisations, non-Governmental organisations, researchers and academics, business and environmental practitioners.”
  87. 87. Introduction (cont) Evolution of Integrated Environmental Management in South Africa – IEM largely misunderstood and misapplied (and abused). Useful point of departure for understanding IEM can be found in the IEM principles contained in NEMA. Unfortunately despite the incorporation of IEM principles into subsequent legislation for the management of biodiversity, mineral and petroleum resources and waste management IEM is still applied differently by different organs of State, operating at different spheres of Government – result = lack of coordination and integrated decision-making. The IEM Guideline lists 19 IEM principles which are:  Accountability and responsibility;  Adaptive;  Alternative options;  Community empowerment;  Continual improvement;  Dispute resolution;  Environmental justice;  Equity;  Global responsibilities;  Holistic decision-making;  Informed decision-making;
  88. 88. Introduction (cont)  Institutional co-ordination;  Integrated approach;  Polluter pays;  Precautionary approach;  Rigour;  Stakeholder engagement;  Sustainability; and  Transparency.
  89. 89. Introduction (cont) Five principles hold the key to ensuring that decisions at various stages of the process are taken in a manner which promotes integration, co-ordination and ultimately sustainable development:  Holistic decision-making;  Informed decision-making;  Institutional co-ordination;  Integrated approach; and  Transparency. First we need to look at how the Provincial Department of Environmental Affairs are implying IEM and consider how this fits in with the 19 principles listed above...
  90. 90. Clairisons v MEC and Bitou In Clairisons Judge Cloete referred to what the applicant termed “certain well publisized comments” made by a Senior Official in the Minister’s Department, Mr C Rabie, during a meeting of the South Cape Forum for Development Management held on 7 August 2009. Mr Rabie stated that the Department was concerned that although the Provincial Government had approved the Western Cape PSDF this was not always correctly reflected in decision- making at Provincial level. Mr Rabie stated further that it had accordingly been decided that previous Planning Approvals which in the Department’s view were non-compliant with the broader policy framework would not be set aside (allegedly due to the legal implications thereof) but that the Provincial Government would use future applications required in respect of a particular development (such as an Environmental Authorisation or a Rezoning as the case might be) to refuse those applications which the Department considered should never have received development approval in the first place. Mr Rabie concluded his remarks with an unfortunate statement that these developments (or developers) would thus still be “snookered”. These allegations were not denied by the Minister in Clairisons and laid the foundation for the Judge’s finding that the Minister was guilty of bias. According to Judge Cloete “in these circumstances I agree with the Applicant that an underlying reason for the dismissal of the appeal lies in the fact that the Minister did not agree with the amendment of the Structure Plan in the present instance. He accordingly used the opportunity presenting itself under the ECA in order to “snooker” the Applicant.”
  91. 91. IEM as Dept’s basis for taking planning decisionsin EIA phase Recent development refusals at the director level - Integrated Environmental Management We have motivated in numerous appeals against such decisions that the Department misinterprets IEM and oversteps its powers. A proper consideration of certain of these decisions reveals that where there are no environmental impacts of significance and where the EAP’s recommendation is that the development be approved, the Department looks to planning considerations, fundamentally the broad brush PSDF to motivate for a refusal of the development. Relevant tool in EIA phase? Even where the Municipal Spatial Development Framework makes provision for a development, the Department arrogate for themselves the power to override the Municipal SDF if they do not consider it to be a competent SDF.
  92. 92. IEM as Dept’s basis for taking planning decisionsin EIA phase (cont) Appropriate phase for planning considerations is at the rezoning and subdivision phase. Cannot be an overriding consideration in the absence of significant environment impact during an EIA phase. We submit that if Integrated Environmental Management is applied correctly the approval of a structure plan/guide plan amendment application should inform the context of the EIA process and EA which in turn should inform the planning context and decisions. See Department’s own Circular 3 of 2008 which states as much. Lagoon Bay a model of “Unintegrated” decision-making.
  93. 93. CONCLUSION Meeting the challenges of IEM in South Africa requires co-operation at various levels and sectors, most fundamentally and as a starting point - between all spheres of Government to ensure coordinated decision- making. “Constructive interactions between all the stakeholders in the spirit of continual improvement will ensure that the country continues to play a leading role in developing and implementing innovative approaches to IEM.”
  94. 94. THANK YOU Justin Truter 21 November 2012 Nothing in this presentation should be construed as formal legaladvice from any lawyer or this firm. Readers are advised to consult professional legal advisors for guidance on legislation which may affect their businesses.© 2011 Werksmans Incorporated trading as Werksmans Attorneys. All rights reserved.