Sunday Tribune, August 26, 2007 Edition 1

Jeremy Ridl

When an ill wind blows no good is an idiom used to describe a condition suggesting that when something bad happens, some good will come of it.

The proliferation of utterances by political leaders about the negative effects of environmental impact assessments (EIA), coupled with the threat of top down intervention to cut legal red tape perceived to be frustrating economic growth, is disturbing. It is difficult to see what good can come of this “ill wind”, but perhaps there is.

These politically motivated outbursts have provoked environmentalists to use language reminiscent of the great public campaign to stop dune mining at St Lucia between 1989 and 1994.

The proposed changes to mining rights legislation that include the transfer of control over environmental decision-making to the Minister of Minerals and Energy have been described as the “castration” and “disembowelment” of the National Environmental Management Act 107 of 1998 (Nema), South Africa’s principal framework environmental statute.

Civil society leaders have come out strongly against such moves. And one senses a mood shift - from people who embraced participative environmental governance, to a feeling of revulsion at what is being suggested.

The decision not to mine St Lucia was right for two reasons now articulated in our law. First, section 24 of the constitution gives everybody the right to an environment not harmful to their health or well-being.

Second, the so-called precautionary principle dictating that due to scientific uncertainty about some key impacts anticipated due to the mining it should not be allowed, is now to be found in section 2(4)(a)(vii) of Nema (which is binding on all organs of state). It requires “a risk-averse and cautious approach, which takes into account the limits of current knowledge about the consequences of decisions and actions”.

Nema was promulgated in direct response to the constitutional imperative imposed on the state to protect the environment for the benefit of present and future generations.

South Africa should be proud of having developed the most progressive environmental laws to be found anywhere in the world.

Constitutional Court Judge Albie Sachs probably articulated these new sentiments best (in an early 1990s paper titled Conservation and Third Generation Rights: the Right to Beauty), when he assured that despite strong arguments “against putting environmental rights on the already crowded agenda of struggle”, the “greening of our land is basic to its healing”.

He recognises the challenges facing a post-apartheid South Africa when he says “the recovery from apartheid will require advances on fronts well beyond the areas which in other countries have come to be associated with environmental law”.

So what has changed?

How should one react to President Thabo Mbeki’s attack on green laws? He suggested that they were causing “a quite considerable slowing down of economic activity”.

Or to Housing Minister Lindiwe Sisulu’s appeasement of an impatient construction industry that housing delivery would no longer be “held hostage by butterfly eggs”, much to the chagrin of environmentalists. Or to KwaZulu-Natal Premier, Sibusiso Ndebele’s statement that the focus on “snails and frogs” in environmental decisions was a deterrent to investment. This seems to have been the final straw, provoking an aggressive response from environmentalists.

What of the captains of industry or as the Mercury’s Tony Carnie prefers to call them “warlords or pirates of industry”, that were the premier’s audience at the Durban Growth Coalition?

A survey published by eminent scientists Preston, Fuggle and Siegfried in the South African Journal of Science in 1989 found that 97% of business leaders agreed that environmental evaluation should be a compulsory component of a development project. Has there been an about face from this sector too?

A cynical environmental lawyer would simply dismiss the complaints about the law, as being harmless political talk because of the entrenchment of environmental rights in the Bill of Rights and the very powerful effect of Nema on the ability of the government to carry out its threats.

The backtracking on the promise by Environmental Minister Marthinus van Schalkwyk on the new EIA regulations that mining governed by the regulations under his department, would come into effect on April 1, 2007, and the move to place the administration of the regulations under the control of the minerals and energy affairs minister, strikes a cord of disquiet.

The question is: is it legally possible to “castrate” or “disembowel” South Africa’s world-class environmental legislation with such disdain? Does this call for a response from civil society, protest action, civil disobedience or the use of any of the tools of the struggle to put the environment on the agenda of concern, or does one use the very products of the struggle to achieve this - the law itself?

“Environment” is termed a “concurrent competence” of national and provincial government. Environmental affairs as a ministerial competence is delegated to a minister by the president in terms of section 91 of the constitution.

Chapter 3 of the constitution sets out the principles of co-operative governance and intergovernmental relations. Section 41(1)(g) requires all spheres of government and all organs of state to “perform their functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere”.

EIAs are an environmental and not a mining, housing, trade and industry, agricultural, or any other “development” function.

To place responsibility for environmental competence in the hands of a minister whose primary portfolio is something else, particularly the promotion of activities that may conflict with environmental sustainability, creates a duality of functions that has inherent and inescapable conflicts of interests.

This militates against good corporate governance.

Although the constitution provides measures to deal with intergovernmental conflicts, it is submitted that to create the conflict in the manner proposed in the case of mining is unconstitutional.

If the president were to proceed with the notion that a “mining” minister should deal with mining EIAs, the minister would face this problem: Section 2(1) of Nema, serves as guidelines to any organ of state when taking any decision in terms of Nema or any statutory provision concerning the protection of the environment. It also guides the interpretation, administration and implementation of Nema and any other environmental law.

Moreover, the principles for sustainable development set out in section 2(4) would apply. This means the minister must deal with a mining portfolio subject to what are effectively the powers of an environment minister, with the mining legislation being subservient to Nema.

The remedy lies not in protests, lobbying against the changes, or mass action but to seek a Constitutional Court determination of these issues as a matter of urgency. Constitutional Court Judge Ngcobo may have overstated the effect of section 24 of the constitution in a recent judgment when he said that it “guarantees to everyone the right to a healthy environment”, but for the moment that is the most senior articulation of our environmental right. We should strike while the iron is hot. That is not to say all environmentalists should not answer the clarion call and speak out against this erosion of our hard-fought freedoms.

Jeremy Ridl is an environmental law specialist based in KwaZulu-Natal

Posted on August 26th, 2007
Filed under: Newspaper and Media