7. Ex post facto EIAs
7.3. Ex post facto authorisations
The Environmental Management Amendment Bill of 2003 sought to amend NEMA so as to enable the system of environmental impact assessment to be regulated in terms of NEMA rather than the ECA.552 It was recognised that in order to do so, certain improvements, such as the introduction of enforcement measures and streamlining of the environmental assessment process had to be introduced to the system of environmental impact assessments.
The draft Bill was tabled before Parliament on the 28 August 2003 for consideration. The Minister of Environmental Affairs and Tourism (DEAT), Mohammed Valli Moosa had the
548 FJ Kruger, BW van Wilgen, A Weaver and T Greyling ‘Sustainable Development and the environment:
lessons learnt from the St Lucia Environmental Impact Assessment’ (1997) 93 South African Journal of Science 23.
549 FJ Kruger et al n 548 above 25. The EIA was initiated by the cabinet in 1989, following the publication of an initial impact assessment by the proponent of mining option (Richards Bay Minerals, RBM), and a public outcry. Specialist reports were circulated to the leading I&Aps during September 199, and comments were addressed in the Specialist Reports Prior to publication. An environmental impact report was for public view on 18 March 1993, for 14 weeks. A response report was published in August 1993. The review panel held public hearings during November 1993 and released their recommendation in December 1993. The final decision by the government, in May 1996 was that no mining should be allowed.
550 FJ Kruger et al n 548 above.
551 FJ Kruger et al n 548 at 28. The conclusion was reached, first, by recognition of the Greater St Lucia area as a special and unique place. The panel perceived and emphasised the intrinsic value of this larger conservation area as a whole, with its marine, beach, lake, estuary, wetlands, dune and inland ecosystems, in terms of its biodiversity and values. The second important factor, which grew in prominence as the EIA ran its course, was the sense of place associated with the Greater St Lucia area. A sense of place was found to prevail among a wide variety of commentators including representatives of the communities who lived there before. Most expressed concern that this sense of place would be violated if mining were to proceed. Because the Greater St Lucia area was so uniquely special, because the area proposed to be mined fell into this area, and despite it amounting to only 0.5% of the total area, the integrity of the larger area and the people’s concept of it should not be violated. The panel viewed the economic benefits associated with mining with scepticism. First they did not consider mining and eco-tourism to go concurrently…
552 National Environmental Management Act: Second Amendment Bill in Government Gazette No. 25289 of 1 August 2003.
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following to say: ‘it has been said that we have a comprehensive and excellent set of environmental laws on the Statute Books, but there has been a concern that there is not sufficient teeth for enforcement of the legislation that we have’.553 The Minister continued to state that the amending Bill accordingly beefed up the enforcement of DEAT. The Bill was unanimously approved by the house and members showed great support for the implementation and enforcement measures introduced by the Bill.
Consequently, the amendment Act554 inserted s 24G- rectification of unlawful commencement or continuation of listed activity. This section was applicable where a person had commenced or continued a listed activity without prior authorisation from the competent authority. Apparently, s 24G was intended to be applicable as a provision applicable to the transition from authorisation under the ECA to environmental authorisation under NEMA, for a brief period of six months.555
The subsequent amendments to s 24 of NEMA, although their wording is different, still maintain that the potential consequences for or impacts of activities that require authorisation by law be considered, investigated and assessed prior to their implementation. The amendments556 went even further to make it an offence for anyone to undertake a listed activity without first seeking environmental authorisation from the relevant activity. Under the 2004 amendment, the offence was punishable by a payment of a fine or imprisonment.557
7.3.1. Rectification of unlawful commencement of activity
Any person who has committed an offence of continuing with a listed activity without prior authorisation may apply to the Minister, or the competent authority as the case may be to have the commencement of the unlawful activity rectified.558 The competent authority may direct the applicant to compile a report containing an assessment of the nature, extent,
553 Proceeding of the National Council of Provinces, Thursday 28 August 2003.
554 National Environmental Management Amendment Act No. 8 of 2004.
555 http://www.cer.org.za/wp.content/uploads/2013/02/130212proposedamend accessed 29 March 2014 Centre for Environmental Right’s (CER) submission to the Portfolio Committee and the Department of Environmental Affairs. CER submitted that s 24G was only ever intended to be applicable as a provision applicable to the transition from ECA to NEMA. This was not refuted by either the Portfolio committee or DEA.
556 National Environmental Management Amendment Act 8 of 2004 s 24F; and the National Environmental Management Amendment Act 62 of 2008.
557 S 24F(4).
558 S 24G(1).
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duration and significance of the consequences for or impacts on the environment of the activity, including the cumulative effects,559 description of mitigation measures undertaken,560 public participation process followed,561 in short an environmental impact assessment report or basic assessment report as the case may be.
This section is regressive because EIAs in South Africa have been mandatory since 1997 with three regimes governing EIAs having been introduced by the end of 2010. The ECA EIA Regulations introduced the procedure for performing a mandatory EIA.562 The ECA Regulations were published together with a list of activities which may have a substantial detrimental effect on the environment.563 Any person undertaking a listing activity was required under the ECA regulations to undertake a full environmental impact assessment notwithstanding the fact that ‘some relatively large developments will have little effect on the environment in which … activity may occur’.564 For instance, an applicant seeking to have the land use changed from agricultural use to any other use was required to complete both the scoping and environmental assessment phases of the EIA.565 According to Couzens and Lewis, ‘the EIA process was not clearly spelt out and it was left largely to the environmental consultants to add content’.566
Consequently, the 1997 ECA EIA Regulations were later repealed in 2006 when the Minister of Environmental Affairs and Tourism promulgated EIA Regulations in terms of s 24 of NEMA. The 2006 NEMA EIA regulations and their associated listing notices introduced BAR. Under the 2006 EIA regulations BAR was to be applied to smaller activities, which would have little effect on the environment on which they would be implemented.567 The 2006 EIA regulations changed the terminology of persons undertaking tasks for environmental assessments from ‘consultants’ to ‘environmental assessment practitioners’
(EAPs).
559 S 24G(1)(a)
560 S 24G(1)(a)(ii).
561 S 24(1)(a)(iii).
562 GN R1183.
563 GN R1182 in GG 18261 of 5 September 1997.
564 T Winstanley ‘Environmental impact assessments: one year later’ (1998) 5 SAJELP 386.
565 GN R1182 item 2 (c).
566 J Ridl and E Couzens n 11 above at 81/189. See also Couzens Ed, Lewis Melissa. ‘South Africa’. In International Encyclopedia of Laws: Environmental Law, edited by Kurt Deketelaere. Alphen aan den Rijn, NL:
Kluwer Law International, 2013 at 397.
567 See GN R386 of April 2006.
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Following the restructuring of the institutional and administrative structure of the then Department of Environmental Affairs and Tourism (split into the Department of Water and Environmental Affairs and Tourism), a new set of regulations had to be passed to reflect the shift in the administration of environmental matters including environmental impact assessments. The restructuring necessitated the publication of the 2010 EIA Regulations and their associated listings.568 Another reason for publishing the 2010 EIA Regulations might have been to align the regulations with the 2008 National Environmental Management Amendment Act.569 In addition to the BAR the 2010 EIA Regulations introduced a third category of activities requiring basic assessment. Under this category activities which would not in the ordinary cause of events require either a basic assessment or a full environmental assessment are listed as activities to which a BAR should be applied where such an activity is implemented in an environmentally sensitive area.570
Section 24G has been criticised and attacked by academics and interest groups. CER, a non- profit company and a law clinic in Cape Town, has since its inception in 2009 fought against the incorporation of s 24G into NEMA. CER has said this insertion is a thorn in the flesh of wide group of different stakeholders, from authorities to civil society organisations to innocent and aggrieved violators of NEMA and has dubbed the section “a monster”. Kohn calls s 24G ‘a legislative invitation to offenders to attempt an unscrambling of the egg: it invites those in breach … to ask for forgiveness, instead of permission through an application for ex post facto authorisation for illegally commenced listed activity’.571 The common criticism is that the section has become a potential tool in the hands of wrongdoers to buy their way out of criminal prosecution and avoid lengthy EIA processes.572
568 See Environmental Impact Assessment Regulations GN R543, R544, R545 and R546 in GG33306 of 18 June 2010
569 For instance, see reg 6 of the 2010 EIA Regulations. The contents of reg 6 are different from that of their predecessor. See also M Kidd Environmental Law
570 See GN R546 in GG33306 of June 2010. Although the 2010 EIA Regulations are in place, the EIA process remains the same as provided by the 2006 EIA Regulations.
571 L Kohn ‘The anomaly that is section 24G of NEMA: An impediment to sustainable development’ (2012) 19 SAJELP 1-24 at 2.
572 National Environmental Management Amendment (NEMA) Laws Bill: Public Hearings 21 August 2012 available at http://www.pmg.gov.za accessed 24 April 2014.
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The reason among developers to apply for s24G rectification might be to evade the lengthy decision-making process inherent under the EIA. This is given credence by Couzens and Gumede, writing about the attitude of politicians towards the role of EIA for development, on one hand; 573 and what Retief, Welman and Sandham say about the backlog of applications EIA applications awaiting authorisation on the other hand.574 Developers not willing to undergo the lengthy process preceding environmental authorisation might seek to take advantage of this section. What they would do is to start with the ground works for whatever project they intend to undertake and seek authorisation later.