'The future cannot be predicted, but futures can be invented.'356
The primary aim of this paper has been to introduce the reader to the world of the environmental organisation and to demonstrate by way of a local South African organisation how it is possible for the CBO and NGO to influence the development of
lega~ political and technical mechanisms and thereby positively contribute towards achieving true sustainability of South Africa's people and natural processes. But in order to accurately assess sustainability there mustbesome identification of where the problem originates, for to continually treat the effect and not the cause will never resuh in a cure. To this end it has been necessary to understand the implications of rampant consumerism and of a world that has lost touch with itself and its surroundings. Acknowledging the inter-relatedness and fragility of the ecosphere is the first step to designing ahernatives that more adequately distribute the world's weahh and debt in both material and biological terms. Balancing conservation with utilisation of a finite global resource is no easy affair given the dictates ofa free market system. Dedicated to effecting change are environmental groups working from both within (such as those dealing with the physical externalities of free enterprise) and those who work without (such as those pursuing deep ecology and anti-consumerist objectives). The goal is nonetheless the same - to preserve what is left ofthe world's environmental capital and to ensure that we live only on its income.
356Dennis Gabor - an engineer philosopher as found in G Hardin's work op cit.
Pursuing the goal in South African terms are a number ofCBO and NGO groups who are pursuing the same quest - the quest to change lives and environments for the better. In a lot of respects they are coming off a far weaker base than Northern counterparts. Years of apartheid rule has left a fihhy legacy of polluting industries abutting marginalized communities. The previous regime designed a structurally weak environmental legal mechanism that placed the concerns of business at the forefront of its concern. The involvement of the NGO and CBO sector in initiatives such as CONNEPP created for a time a sense of shared responsibility and 'buy in' from those usually seen lobbying on the fringe. The end product, whilst in some respects laudable, does nonetheless occasion concern for it indicates the hijacking of the consensual and participative relationship by powerful elements unseen. This has occasioned calls for the legal machinations to beredefined and to be more transparent when it comes to legislative enactment. Hand in hand with these calls is the overriding requirement for greater involvement of non-industry stakeholders groups in environmental governance thereby providing greater legitimacy and acceptance by society as a whole. Involvement of civil society in monitoring, assessment, auditing and indicator design will provide access to environmental information and increase the overall effectiveness ofthose tasked with regulatory functions.
The primary catalyst for change continues to be the activities of the environmental CBO and NGO. They do this in a variety of ways, with lobbying, negotiation and legal precedent being some of the mechanisms available. Real change however is not measurable in the mere publication of environmental policy or in the promulgation of new standards. Real change itissubmitted, ismeasured at the coal face andis bottom
embrace the notion of environmental concern. It is, however, less a product of experience and more a consequence of education. Delivering on this aspect is perhaps the environmental CBO and NGO's greatest strength and task. Uncovering information and delivering this information to the masses in an understandable form encourages constructive debate, develops capacity and allows for more informed inputs to participative forums. Assisting the environmental group is the Constitution and a series of Acts it has recently spawned. Of these, the Promotion of Administrative Justice Act and the Access to Information Act are likely to assume significance in the quest for information and official accountability. Some of the provisions of these last named Acts have already been put to the legal test following the provincial environmental minister's refusal to (a) allow a right of reply and (b) access to documents. More lamentable was an earlier case where an award of costs was made against a community structure following the denial of an interdict. This unfortunate disregard for the provisions of the National Environmental Management Act does not set a particularly inspiring precedent for the embattled community.
In international terms the 'hard law' approach used by communities appears to garner political credibility as being a useful by-product of environmental law suits which is extremely important when you don't have economic power. 'Soft law' approaches such as that found in good neighbour agreements, permit setting and other co- operative arrangements are more likely to be effective where there is an existing atmosphere of compliance and where the community is adequately capacitated. These agreements and arrangements inform policy and attitudes and in this way are
incalculably important in informing the direction that our environmental law will take.
South Durban NOO's are unanimous in the demand for an empowering legal environment, (for regulator and community alike), with strict liability for specific environmental offences and aggressive fines linked to corporate earnings. It is suggested that the manner in which these laws are formulated should bereviewed so as to allow for greater public access in the pre-formulation phase so as to ensure greater acceptance and to prevent last minute hijacking of Bills. The judiciary could also consider allowing the entry of expert environmental assessors in environmental cases. Alternatively, specialised international NGO's could be brought in to prepare educational environmental law programmes for the judicial officer and prosecutor.
Other learning's uncovered during the course of this paper reflect upon the nature of the organisational structure itself: The formulation of the South Durban Environmental Alliance and the success it has thus far achieved demonstrates what is possible in this new rainbow nation. It i§ possible to cross the racial and cultural divide and to achieve consensus on issues and it is possible for a CBO to take these concerns to the heart of government itself: SDCEA has shown that armed with little else besides determination and public support, goals unthinkable a few years ago, are indeed achievable. In sum the ecological democratisation ofDurban South has resulted ina powerful and astute agency for pursuing injustice and demanding change and is a worthwhile model for other impacted and polluted areas. For success, however, SDCEA must be able to work with, and alongside, an effective and capacitated regulatory authority which has at its disposal regulatory devices ranging from sanction to voluntary instruments. Strategies and tools for compliance mustbepremised on (a)
technology. Authority must, however, develop co-operative mechanisms that will provide for the improved participation of civic structures and incorporation of their special skills and knowledge in the decision making process. This is particularly important when making planning and development decisions. Planning authorities who overlook or do not provide adequate weighting to the social impact of a project and who do not look to redistributive objectives in ameliorating adverse impacts will likely fall foul of the principles of the NEMA and render the project incapable of attaining an unsustainable outcome.357 The environmental group's primary strength lies in its versatility and neutrality with respect to political imperatives. Consequently the NGO and CBO groups are wary of being co-opted into multi-stakeholder systems ifthat means they are to be muzzled by the participatory process. The watch-dog must be allowed to bark, and so unconventional initiatives such as protest action, lobbYing, pickets and legal action will continue to bean important component of the environmental movement. The environmental movement is entering a new phase, a new paradigm, where success will be measured in health, happiness and diversity and not rands and cents. To a new beginning.
357This approach has elsewhere been described as 'compensatory equality' and approach that should arguablybe adopted in South Durban. See T Beatley op cit 89 -92.