Bureaucratic inefficiencies persist, but access to decision makers by NGOs is improving compared to the earlier part of the last decade. Brief details of the individual chapters are provided as a rough guide to the content of this paper.
THE SETTING
Apartheid Legislation and National Strategic Significance Consequences for South Durban
Mondi in response hired consultants to show that the waste was in the category of 'general' waste. The community appealed to DWAF and after a site visit by Minister Kader Asrnal, it then began its own review of the Company's results.
THE ACTORS
The Community and Non Government Organisations
International involvement and support from the United States of America and Northern Europe can be identified with American organizations generally organized around two themes (a) issues of environmental racism and (b) active resistance to the abuses of the chemical and oil industries. City Health's interventions led to the formation of the Island View Forum, a joint stakeholder body involving community, industry, local and national authority.
The Corporate's
Intense competitive pressure set against a backdrop of economic desperation allows trade negotiators to offer developing country environmental goods into the bargain. Air and water resources being public goods are often the big losers in the developing country.
THE FORMATION OF AN ENVIRONMENTAL ALLIANCE
This undoubtedly led to the formation of the South Durban Community Environmental Alliance (SDCEA) in early 1997. Strategic responses to development pressures are discussed by the SDCEA and then communicated to affiliated organisations.
COMMUNITIES, SUSTAINABILITY AND A PARADIGM SHIFT SOME THOUGHTS AND DEFINITIONS
COMMUNITIES
This provision is important because a common tactic used primarily by industry and government is to discredit locally based environmental groups and their initiatives on the grounds that they do not fully represent the views of their entire community. The information is removed from the community and advisors are enriched in the process. The community, on the other hand, feels that they are worse off because they gain little or nothing and have sacrificed their time and energy to attend such trials.
SUSTAINABILITY AND SUSTAINABLE DEVELOPMENT
SUSTAINABILITY AND THE GLOBAL COMMONS
- Re-establishing the boundaries
Garrett Hardin described this flaw in human behavior as the "tragedy of the commons." He notes that market forces will continue to concentrate economic power in the hands of a few, with disastrous results for the Earth.
SUSTAINABLE DEVELOPMENT IN SOUTH DURBAN
Atmospheric emissions are approaching (or may have reached) the safe assimilation capacity of the atmospheric environment in certain parts of the world. One community member noted that “at this rate there is no future for future generations.” Adding to the concern are the preliminary findings of the Island View Health Risk Assessment that there is indeed a veritable chemical soup in South Durban.
ENVIRONMENTAL ORGANISATIONS
- ADVOCACY ORGANISATIONS
- NGO DEVELOPMENT, ORGANISATION AND VALUES
- THE ALINSKY MODEL AND LOBBYING
- POLICIES AND POLITICS
Of course, there is always public apathy, with public attitudes varying depending on the profile of the issue at hand. A key element of the model is payment for services, which distinguishes it from similar socialist models. Much of the blame for South Durban can be placed on the apartheid state and its program of oppressing the people.
SOME CHALLENGES AND PROBLEMS IN DEALINGS WITH AUTHORITY
- ENFORCEMENT AND COMPLIANCE
- ACCESS TO DECISION MAKERS
- CO-OPERATIVE MANAGEMENT
- SCIENTIFIC VERSUS NON SCIENTIFIC OPINION
Most striking is the local authority's difficulty in embracing the concept of participatory democracy. A consistent feature of interactions with purported 'experts' in South Durban is their inexperience with local conditions and ignorance of local community knowledge of the environment. Empangeni (2002) and the ongoing Umdloti lagoon debacle are all examples of the failure of science.
ENVIRONMENTAL LAW AND THE COMMUNITY ORGANISATION
CONTEXTUALISING THE LEGAL EXPERIENCE
Therefore, accusations can be made that legislation such as the Atmospheric Pollution Prevention Act serves very narrow interests rather than protecting the public interest.236 Fortunately, much has been done to remedy these shortcomings with the enactment of the National Water Act and the national environmental management. Act (NEMA), which are examples of the modernist approach.237 Concepts such as equality, integration and sustainability have been introduced and the definition of environment has been expanded to include the social and economic dimension. Non-compliance and non-compliance invite legal challenges which, it is argued, if settled through the courts, would pose an economically crippling threat to the state's ability to regulate. As mentioned above, there is an inherent conflict in a system that seeks to provide environmental protection while promoting the extraction of environmental assets.240 The national focus on redistribution, job creation and economic growth coupled with poor enforcement and monitoring of environmental legislation can lead to significant negative resuhs for the environment.
LITIGATION AND THE COMMUNITY EXPERIENCE
Now look at the second interdict - the action to prevent further construction of the gas pipeline.249. The learned judge referred to the provisions of the Administration of Justice Act in his determination.265. After the upset of the previous case, this was a significant victory for MEAC and the community.
LITIGATION AND THE INTERNATIONAL EXPERIENCE
The community has indicated that it will pursue the regulator for reasons of environmental justice and will not accept unequal treatment. The grassroots organizations also express concern about the perceived "colonization" of the environmental justice field by inexperienced lawyers and legal groups. A feared outcome is the potential for reallocation of funds away from grassroots action in favor of 'environmental justice projects with a national bias'.
ENFORCEMENT AND CRIMINAL SANCTION
In terms of the public welfare doctrine, if the offense involves the violation of a statute designed to protect the public health or safety, the mens rea requirement will apply only to the defendant's knowledge that the act was committed and not that the act itself was illegal. 281 Most US district courts hold that the mens rea requirement applies only to the defendant's awareness of the commission of an act and not to any element of the alleged crime. Second, environmental groups in the US often receive, albeit indirectly, a component of the sentence imposed.
INFLUENCING THE LEGISLATIVE PROCESS
The environmental community in South Durban literally discovered this bill the day the comment period expired and had to get an emergency extension of the comment period. In this case, as in others, there was no debate or other consultative procedure with the proponents of the legislation. It is noted that both the development of the Air Quality Bill (which will repeal the APPA) and the amendments to Chapter 5 of NEMA have been off limits to the public although preliminary drafts are said to have been made available to selected industrialists before the official release. 287 The operation of the Joint Development Framework (JDF) - a consortium of chemical, oil refinery and government officials can relate to this.
SOME POSSIBILITIES FOR URBAN COMMUNITIES IN SOUTH AFRICA
NEGOTION & MEDIATION - SOME LESSONS
The failure of the 1996 Engen negotiations led to a change of tactics for environmental groups in South Durban. Mediation as opposed to negotiation implies the use of a mediator to achieve management of the negotiation process. Second, the protest organizers (Wentworth Development Forum) chose to invite both the 'white' Bluff Ridge Conservancy and Bluff Ratepayer Association to meet with President Mandela, a move that (a) undermined the prospects for unity among environmental and civic groups affected and (b) ) indicated to the government the transboundary nature of the pollution problem.
HUMAN RIGHTS BASED APPROACHES TO CAMPAIGNING
- An International Court and Tribunal
Offs.'305 Secondly, a human rights approach may be preferable to examining the issue from a criminal or administrative law approach, as evidence of causation and technicalities often nullify the legal actions that may result from such a campaign.306 The third advantage lies in the fact that the broader public will mobilize around 'a general statement of the good...(rather)...than a highly technical~bureaucratic arrangement.'307 The fourth advantage lies in its 'global' nature of perceived environmental traffic when expressed as a human phenomenon. violation of the law.308 It also delocalizes the issue and enables broader political mobilization around the issue. Finally, it is possible that an environmental campaign would be better served by reframing the negative right to an environment not harmful to health and well-being to the more positive 'right to life' embodied in our Constitution.309. This has led DWAF personnel to largely abandon the command and control approach, preferring to pursue negotiated solutions as the preferred method of ensuring compliance. (Telephone interview with author).
DEVELOPMENT OF ENVIRONMENTAL INDICATORS
For the community there are fears that setting standards at a local level raises the question of the extent of influence that big industry has over the local authority. Furthermore, the imposition of monetary awards for environmental damage as provided for in terms of 534(1) is very welcome as are the provisions of 534(3) which allow for the recovery of any monetary advantage gained as a result of the infringement. 314 See a paper by Durning entitled 'The Environmental Passage of Apartheid' in Worldwatch Paper95 (1990) for a concise overview of the topic.
VOLUNTARY AGREEMENTS AND EMCA's
The concept of the Environmental Management Cooperation Agreement (EMCA) was first put forward by business and industry during the 3-year CONNEPP process. 321JDF document entitled 'Conclusion of Environmental Management Cooperation Agreements in terms of Section 35 of the National Environmental Management Act' dated. 322 Arguments against community participation rely on the use of the word 'or' in S35(1), ..any person or community' to indicate a distinction between agreements made between government and industry and agreements which between the government and communities.
AN ENVIRONMENTAL TRIBUNAL
This would be a refreshing departure from the more traditional approach to the appointment of judicial officers and assessors. 331 Note that in terms of the Constitution of South Africa, Act 108 of 1996, Section 180(c) authorizes the promulgation of national legislation allowing the participation of people other than judicial officers in judicial decisions. International experience reveals that environmental courts are less successful in promoting environmental awareness among the public where laws and jurisdictions are fragmented.334 Consequently, it is argued that the constant review and reformulation of our laws through the process of legal reform is a fundamental prerequisite for the creation of such a court.
ENVIRONMENTAL IMPACT ASSESSMENT, RISK ASSESSMENT AND THE MAJOR HAZARD INSTALLATION REGULATIONS
This time SDCEA chose to participate in the EIA after the failure of the previous walkout as a strategy. At some point in the EIA SDCEA requested the full risk assessment for the facility insight. Current planning decisions defer to the interests of the chemical and oil refinery industry, with the community currently bearing the brunt of the environmental costs of the site.
CONCLUSION
The activities of environmental CBOs and NGOs continue to be the primary catalyst for change. Certain provisions of these latter laws have already come under legal challenge after the provincial environment minister refused (a) the right of reply and (b) access to documents. This unfortunate disregard for the provisions of the National Environmental Management Act is not a particularly inspiring precedent for the affected community.
TABLE OF CASES
TABLE OF STATUTES
CONSUMER SOCIETY AND THE EARTH'S FUTURE World Watch Environmental Alert Series 1992 APARTheid'S ENVIRONMENTAL TOLL Worldwatch Paper 95 1990. ENVIRONMENT AND THE THIRD WORLD World Resources Institute Duke University Press 1987 PUBLIC INTEREST PERSPECTIVES IN ENVIRONMENTAL LAW WHey Chancery 1995 PROTECTION OF HUMAN RIGHTS IN A NEW ZONE UID AFRICA Oxford University Press 1990.
REPORTS AND POLICY DOCUMENTS
