LEGAL RESOURCES CENTRE SUBMISSION

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LEGAL RESOURCES CENTRE SUBMISSION

• NEMA MENDMENT BILL B36 2007

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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.
• NKhuzi Development Association

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CONSTITUTIONAL CONCERNS

• THE BILL REMOVES CONSTITUTIONALLY MANDATED
  PROTECTIONS CONTAINED IN NEMA

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QUESTIONALBLE PROVISIONS

• REMOVAL OF MINIMUM REQUIREMENTS FOR EIAS S 24
• EXEMPTIONS FROM EIAS S24M
• RECOGNITION OF ASSESSMENTS UNDER OTHER LAWS AS
  COMPLIANT WITH NEMA- s24(8)(b)
• SPECIFIC CONCERNS ABOUT MINING REGULATION

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SECTION 24- Minimum requirements for eias

• Mandatory section 2 (principles) and s 23
• (Integrated environmental management)
• Discretionary consideration of alternatives,
  mitigation measures, gaps in knowledge, monitoring

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Sources of the law

• Rio declaration 1992
• Principle 10 Public participation, access to
  information, access to justice
• Principle 14 environmental impact assessments

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Minimum requirements for eias

• Description of environment to be affected
• Alternatives
• Mitigation measures
• Public participation and access to information
• Reports on gaps in knowledge
• Monitoring

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UNITED NATIONS ENVIRONMENT PROGRAM 1987

• 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

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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.

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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

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Consequences

• Inadequate or no guidance for the exercise of
  discretion as to which minimum requirements
  should still apply
• No assurance of public scrutiny/participation
• Uneven standards for impact assessment
• Uncertainty as to levels of monitoring and
  enforcements of findings
• Lack of protection of environment from future
  impacts

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Parallel Processes s 24(8)

• Competent authority can treat assessments under
  other laws as compliance with NEMA requirements
  for assessments
• No criteria are given for the exercise of this
  discretion.
• 24(8)(a) no longer requires public participation
  needs compliance with NEMA ch 5, whereas 24(8)(b)
  does not.

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Exemptions

• Lack of criteria for the exercise of the
  discretion to grant exemptions.
• Lack of clarity as to right to public
  participation

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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

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Constitutional concerns

• 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

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Right to Administrative Justice

• Amendments replace environmental standards with
  discretion, the exercise of which could result in
  the infringement of constitutional rights to
  procedurally fair administrative action
  including
• The right to be heard (public participation,
  access to information) PAJA s 3(2)(b)(ii)
• The right to a process where relevant
  considerations have been taken into account in
  administrative decision making.
• PAJA s 6(2)(e)(ii)

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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.