LEGAL RESOURCES CENTRE SUBMISSION

NEMA SECOND AMENDMENT BILL B36B 2007

Legal Resources Centre

• Public interest non profit law firm representing rural and urban communities affected by mining and industrial pollution. Provides legal services to the vulnerable and disadvantaged including poor, homeless and landless people.

• WESSA, Habitat Council, Captrust, Geasphere, Federation for Sustainable Environment

South Durban-legacy of apartheid planning

CONSTITUTIONAL CONCERNS

THE BILL REMOVES CONSTITUTIONALLY

MANDATED PROTECTIONS CONTAINED IN NEMA

QUESTIONALBLE PROVISIONS

• Mitigation of impacts is no longer mandatory: section 24(4)(b)

• No impact assessment needed where there are norms and standards: 24(2)(g)

• EXEMPTIONS – no appeal: section 24M• Merger of NEMA and MPRDA provides weaker

protection for the environment than the MPRDA• S 24F allows unlawful activities to continue• S 24 G (rectification) undermines the EIA system

of regulation

SECTION 24- Minimum requirements for eia’s

• NEMA: public participation, consideration of alternatives, mitigation measures mandatory

• Creates certainty about minimising pollution in new developments

• NEMA amendment bill: consideration of alternatives, mitigation measures

is now discretionary “must and where applicable”

Pristine stream

Sulphuric Acid Coal Mine Water Pollution

Sources of the law

• Rio declaration 1992

Principle 10: Public participation, access to information, access to justice;

Principle 14: environmental impact assessments

UNITED NATIONS ENVIRONMENT PROGRAM• PRINCIPLES• “Principle 4• “An EIA should include, at a minimum:• (a) A description of the proposed activity;• (b) A description of the potentially affected environment, including • specific information necessary for identifying and assessing the • environmental effects of the proposed activity;• (c) A description of practical alternatives, as appropriate;• (d) An assessment of the likely or potential environmental impacts of • the proposed activity and alternatives, including the direct, indirect, • cumulative, short-term and long-term effects;• (e) An identification and description of measures available to mitigate • adverse environmental impacts of the proposed activity and alternatives, • and an assessment of those measures;• (f) An indication of gaps in knowledge and uncertainties which may be • encountered in compiling the required information;• (g) An indication of whether the environment of any other State or areas • beyond national jurisdiction is likely to be affected by the proposed • activity or alternatives;• (h) A brief, nontechnical summary of the information provided under the above, [sic]

headings.

Nigeria• “An environmental impact assessment shall include at least the following • minimum matters, that is - • (a) a description of the proposed activities; • (b) a description of the potential affected environment including specific information necessary to identify

and assess the environmental effects of the proposed activities;•  (c) a description of the practical activities, as appropriate;•  (d) an assessment of the likely or potential environmental impacts on • the proposed activity and the alternatives, including the direct or • indirect cumulative, short-term and tong-term effects:•  (e) an identification and description of measures available to mitigate • adverse environmental impacts of proposed activity and assessment of • those measures;•  (f) an indication of gaps in knowledge and uncertainly which may be • encountered in computing the required information:•  (g) an indication of whether the environment of any other State, Local • Government Area or areas outside Nigeria is likely to be affected by the • proposed activity or its alternatives;•  (h) a brief and non technical summary of the information provided under • paragraph (a) to (g) of this section.•  5. The environmental effects in an environmental assessment shall be • assessed with a degree of detail commensuration with their likely • environmental significance.”• Nigeria -- Environmental Impact Assessment Decree No. 86 (1992), secs. 4-5.

Gambia•  “Without prejudice to the generality of what may be included in an • environmental impact study conducted according to subsection (2), the • environmental impact statement shall state:• (a) a description of the proposed activity or project and of the • activities it is likely to generate;• (b) a description of the potentially affected environment including • specific information necessary for identifying and assessing the • environmental effects of the activity;• (c) a description of the technology and processes that will be used;• (d) reasons for selecting the proposed site and rejecting alternative sites;• (e) environmental impacts of the proposed activity including the direct, indirect, cumulative, short-

term and long-term effects and possible alternatives;• (f) an identification and description of measures proposed for • eliminating, minimizing, or mitigating adverse impacts;• (g) an identification of gaps in knowledge and uncertainties which were encountered in

compiling the required information;• (h) an indication of whether the environment of any other state or areas beyond the limits of

national jurisdiction are likely to be affected and the alternatives and mitigating measures;• (i) a brief description of how the information provided for in this • regulation has been generated; and• (j) any other matter relevant to environmental assessment that may be • prescribed.”• Law no. 13 of 1994, Part V 23(3)(a)-(j).•  

Consequences

• Inadequate or no guidance for the exercise of discretion as to which minimum requirements should still apply

• No assurance of even standards for impact assessment• Uncertainty as to levels of monitoring and enforcements of

findings• Lack of protection of environment from future impacts• Poor communities most at risk of increased pollution

South Durban

24(2)(d)

• No impact assessment needed where there are norms and standards

• 1.Norms and standards must protect health

• 2. SA has weak norms and standards

• 3. Cumulative impacts

Mondi Paper Mill: South Durban: 2 oil refineries and a paper mill

MINING :watering down of MPRDA provisions for impact assessment

• MPRDA: Mandatory environmental management programs, mitigation, monitoring of impacts. No exemptions or rectification of unlawful activities

• NEMA Amendment Bill: these provisions are discretionary, exemption and rectification allowed

• Loss of oversight of mining related activities by the Provinces.

Exemptions

• Lack of criteria for the exercise of the discretion to grant exemptions.

• No right of appeal against exemptions

S 24 F allows continuation of unlawful activities

• Minister may direct person to stop the activity but only after rectification is sought.

• Provision should be made for notice to cease unlawful activities

Section 24 G

• Allows unlawful conduct to be rectified• Inadequate provision to stop unlawful

conduct. (Provision only once application is made for rectification)

• Weaker provisions for rectification than eia’s

• May be cheaper to start unlawful activity than do an eia.

Consequences of amendments

• No guarantee of uniform procedural fairness levels provided in NEMA in particular public participation

• Applicants may forum shop for authorisations using exemptions, assessments under other laws, or applications under NEMA

• Decision makers may be subject to greater pressures to grant authorisation to questionable developments without adequate assessment, mitigation and monitoring

Constitutional concerns

(i) Dawood v Minister of Home Affairs 2000(3) SA 936 (CC)Constitutional Court examined

• statutary provisions which give officials a broad unconstrained discretion in circumstances where

• the exercise of that discretion may result in the infringement of a constitutional right.

• A statute that does not give the necessary guidance to decision makers to ensure that the discretion would be exercised in a manner which would protect the constitutional right concerned might be declared unconstitutional

Reasonable measures to protect the Environment s24

• NEMA as framework legislation for the fulfilment of obligations contained in section 24

• Measures which do not meet the requisite standard could put the state at risk of being found not to have met its constitutional obligation

• In the light of the above considerations it is suggested that the above provisions of the Bill are reconsidered by the Committee.