86
In their words, ‘it boggles the mind how the environmental risks of one filling station could in any way affect the sustainability of other filling stations in close proximity’.435
87
However, the international community began to take notice of the human activities affecting the environment and the resolution was the adoption in 1972 of the UN Declaration on the Human Environment (the ‘Stockholm Declaration’).440 In 1987, the World Commission of Environment and Development issued the Brundtland Report.441 It was in that report that the concept of sustainable development was first endorsed at the highest level, and came to world attention.442 The international community reconvened at Rio to reaffirm and build upon the Declaration.443
In Rio states present adopted Agenda 21 which enjoined member states to develop, in every situation, a policy of sustainable development.444 Agenda 21 also imposed on members an obligation to submit to the UN Commission on sustainable development a progress report of measures developed towards sustainable development. In 1997, South Africa submitted its report to the commission. Examples of policy and legislative responses included;
constitutional environmental right; environmental management (NEMA) with its prime aim being cooperative governance and establishing principles for decision-making on the guiding principles of sustainable development and requirements for mandatory EIA for activities that may significantly affect the environment.445
Having agreed to the global blueprint for sustainable development adopted at the United Nations Summit Rio 1992 - Agenda 21- sustainable development became part of South Africa’s environmental policy. To fulfil the commitment under Agenda 21, s 26 of NEMA enjoins the Minister responsible for international environmental instruments to report, annually to Parliament her participation in international meetings concerning international instruments,446 progress in implementing international environmental instruments to which South Africa is a party447 among other things. In particular, the section enjoins further the Minister to initiate an Annual Performance Report on Development to meet the government’s commitment to Agenda 21.448 Sustainable development was imported into South African law
440 Declaration of the United Nations Conference on the Human Environment 1972.
441 Report of the World Commission on Environment and Development: Our Common Future (Brundtland Report) 1987.
442 See M Kidd n 39 above at 85-86.
443 Declaration of the United Nations Conference on the Human Environment 1972.
444 Report of the United Nations Conference on Environment and Development 1987.
445 See s 2 of NEMA.
446 S 26(1)(a).
447 S 26(1)(a).
448 S 26(2)(a).
88
as containing the concept of need, in particular the essential needs of the world’s poor, to which overriding priority should be given.449
Arguably, the mischief that the legislature was trying to curb by including socio-economic factors in an environmental management statute (NEMA) was to prevent setting of overly high environmental standards that would put excessive constraints on social and economic development. According to Preston, Robins and Fuggle
… an approach to environmental evaluations in South Africa is needed which is reflective of these conditions (economic growth and development), taking account of both the limitations and requirements of this country. Of utmost importance is that the choice in environmental evaluation should differ from the stop/go approach in industrialised countries’.450
Therefore the s 2 principles are a reflection of this recognition and are a constant reminder to authorities to consider the needs of the poor when making decisions under NEMA and to
‘formulate an appropriate compromise, with the emphasis on identifying options and facilitating a choice between options, rather than detailing the negative impacts of a development’.451
Against this background, the role of environmental authorities could be examined. EIA was developed to ‘focus on the biophysical environment or conservation’.452 Based on the pretext, arguably, that every development is pursued in the name of economic growth, EIA became a trade-off between economic growth and environment conservation. According to Ridl and Couzens, ‘prior to the provision of mandatory EIA, strategic business decisions were determined by two factors: technical feasibility and financial viability. Environmental considerations were largely excluded’.453 The inevitable consequence of affording greater consideration to the environment would be that environmental authorities would be forced to reject activities based on the significance of its impact on the environment and this would
449 White Paper on Environmental Management Policy. Department of Environmental Affairs and Tourism July 1997.
450 G Preston, N Robins and R F Fuggle ‘Integrated environmental management’ in R Fuggle and M A Rabie eds Environmental Management in South Africa (1992 Juta & Co Ltd) 749.
451 Ibid.
452 M Kidd and F Retief ‘Environmental Assessment’ in HA Strydom and ND King (eds) Fuggle and Rabie’s Environmental Management in South Africa 2ed (Juta 2009)971-1045 at 973.
453 J Ridl and E Couzens n 11 above at 4.
89
lead to a total ban of certain activities such as mining and construction of filling stations.454 This would place serious constraints on South Africa’s economy and development.
Bearing in mind that environmental impact assessment addresses environmental issues with specific development proposals455 the rationale was that the assessment of environmental issues should not be decided in isolation as this would stand in the way of economic growth but be balanced with the social and economic gains. Not all development activities have to undergo an environmental impact assessment. EIA is triggered only when a proposed activity may significantly affect the environment is proposed.456