South African legal provisions for public participation in environmental decision-making and specifically for post-licensing monitoring and access to information in the waste sector will be analyzed. How does another jurisdiction ensure public participation and access to information in post-licensing monitoring of waste management facilities?
THEORETICAL BACKGROUND
- The challenges to defining public participation
- Defining access to information mean and its importance in public participation
- The objectives of public participation
- The importance and benefits of public participation
- The importance of public participation in post-authorisation monitoring Public participation in the environmental impact assessment process should not stop
- Community participation in post-authorisation monitoring of a landfill site
19 regarding the lack or inadequacy of the public participation process and are thus built on the concept of public participation. Second, public participation must be adequate, meaningful (see the Moutse Demarcation and Olivia Street cases) and reasonable (see the Land Access Movement and Olivia Street cases) but will not always reflect the will of the people, when that will is in conflict with the government. policy (see Merafong and Moutse Demarcation cases).
THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996
The public's right to participate in matters that concern them and to access information derives from four main sources: international protocols, constitutional law and general regulatory statutes, local regulations and policy guidelines. 32 one of the most advanced human rights recognized by the constitution is that a healthy environment is a basic human right. 134. Sections 24, 32135, and 33136, of the Bill of Rights are generally considered a resource for enacting environmental governance and thus for public participation in environmental decision-making.
South Africa has made clear its intentions in the Constitution regarding public participation by adequately ensuring that the public can influence the outcomes of government policies so that they reflect the 'will of the people'. 142. A review of the statutory provisions of PAJA regarding public participation falls outside the scope of this research and will not be discussed further.
NATIONAL ENVIRONMENTAL MANAGEMENT ACT, 1998
34 comprehensive framework legislation for dealing with environmental issues giving effect to Article 24 of the Constitution. 144. Important to environmental management in general, is s2(4)(b) of NEMA which provides:. b) Environmental management must be integrated, recognizing that all elements of the environment are connected and interconnected, and must take into account the effects of decisions on all aspects of the environment and all people in the environment, following the choice of the most practical benefits. environmental option. According to the General Objectives of Integrated Environmental Management148 s23(2)(d) NEMA requires that "suitable and appropriate opportunities are created for public participation in decisions that may affect the environment". Section 24 further specifies that when applying for an environmental authorization, “interested and affected parties, including all governmental bodies that may have jurisdiction over any aspect of the activity, shall be informed and participate in the proceedings by being given a reasonable opportunity to participate in these information and participation procedures." 149.
36 Investigating and formulating measures for monitoring and managing the consequences or impacts on the environment, and evaluating the effectiveness of such arrangements after their implementation. Public participation is mandatory as part of the Environmental Authorization (EIA) process,150 and is the only requirement that cannot be exempted, it is the most critical aspect of the environmental authorization process.151.
ENVIRONMENTAL IMPACT ASSESSMENT REGULATIONS, 2014
IAPs must be notified of the outcome of the environmental approval, but there is no provision on how much information must be disclosed. It is significant that section 26(d) of the EIA regulations156 allows for monitoring after approval of the content of the environmental approval, as it states:. The EIA regulations emphasize the importance of ongoing consultation of interested and affected parties by providing additional opportunities for public participation after approval and access to information in regulations 32(1)(a)(aa) and 37(2)159, which respectively . for a public participation process for any significant changes to the environmental approval, any recommendations to change the environmental management program (EMPr) as a result of an audit and finally any proposed changes to the impact management results of the EMPr.
Most importantly, an appeal process is provided for in section 37(9)(c)161 and appeals can be filed against a decision made in accordance with the National Appeal Regulations. 39 Landfilling of waste was, at one point, included in the list of activities specified by the Minister of Environmental Affairs for which an environmental authorization had to be obtained in terms of the EIA Regulations before the activity could begin.162 However this changed with the promulgation of the National Environmental Management Law: Waste, No.
THE NATIONAL ENVIRONMENTAL MANAGEMENT: WASTE ACT, 2008 Waste management in South Africa is regulated by, inter alia, the National
59 of 2008 and the publication of the list of waste management activities that have, or are likely to have, an adverse effect on the environment.163 The construction of facilities or infrastructure, including associated structures or infrastructure, for the final disposal of waste is listed. in Listing Notice 2,164 which required a full scoping and environmental impact assessment under the EIA regulations. THE NATIONAL ENVIRONMENTAL MANAGEMENT: WASTE ACT, 2008 Waste management in South Africa is regulated by, among others, the National. Section 51(2) provides additional content that can be included in the waste management licence, for example s51(2)(c) requires the holder of a waste management license to establish committees for the participation of interested and affected parties.
718 in GG.32368 of July 3, 2009 List of Waste Management Activities that have or are likely to have a harmful effect on the environment. 55(4) If the environment or the rights or interests of other parties are likely to be adversely affected, the licensing authority must, before deciding on the application, require the applicant to carry out such consultation process as may be appropriate in the circumstances to bring the application for the renewal of the waste management license to the attention of the relevant state bodies, interested parties and the public.
PROMOTION OF ACCESS TO INFORMATION ACT (PAIA), 2001
42 Section 64 of NEMWA states that access to information contained in the national or provincial waste information systems must be made available subject to the Promotion of Access to Information Act (PAIA).175. Information contained in the national waste information system or a provincial waste information system established in terms of section 60 or 62, as the case may be, must be made available by the Minister or MEC, subject to the Promotion of Access to Information Act, 2000 ( Act No. 2 of 2000). 43 (c) access to that record is not refused in terms of any ground for refusal contemplated in Chapter 4 of this Part.
The Constitution provides that “National legislation shall be enacted to realize this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the State.”180 However, it is unclear whether PAIA has actually achieved this. Enforcement of PAIA has so far been through the legal system, which has placed and will continue to place a significant burden on the courts and civil society to pursue remedies through costly legal action.181 The recent establishment of the Information Regulator, a independent A body that has within its mandate the promotion of access to information in accordance with PAIA should reduce the burden on the courts in this regard.
SUMMARY
And while the Waste Management Licensing process184 provided for in NEMWA closely resembles the EIA process in terms of public involvement in decision-making plans, it unfortunately has none of the post-authorization public requirements for participation and access to information. mentioned in the EIA Regulations. 185. Even the request for the creation of a monitoring committee is subject to the discretion of the licensing authority using the word "may" include this in the content of the license. 186. A system that includes the three pillars of the Aarhus Convention is one that would have the most hope of succeeding.
To meet the objective of the study, which was to analyze the role the community played in the ongoing monitoring of a landfill and what legal action was available to them, an overview of the media reports on the case study of the landfill saga was provided of the past two years. been undertaken for years. The landfill's permits and licenses, as well as the mandate of the monitoring committee and the minutes of the monitoring committee meetings were reviewed and analyzed to understand what happened.
DESCRIPTION OF THE PROBLEM
50 independent health consultant, to determine the source of odors and related health impacts. In October 2016, the Department of Environmental Affairs issued a compliance notice to the Company in relation to section 31L of NEMA, following an inspection by it. People's lives are at stake." and ordered the Company to immediately submit a copy of the toxicology report to the court.215.
The current ToR gave the board broad powers to oversee the operation of the landfill along with monitoring compliance with permit conditions. 224 Minutes of SLSMC meeting of 14 December 2017 (via Enviroserv email) at para 61.
ANALYSIS OF THE PROBLEM
There are no provisions in the terms of the license to provide any information to the public or to allow access to it through the licensee's website. This would ensure that the members of the supervisory board remain relevant and representative of all parties involved. Instead, as part of the transition from the s20 permit to the WML, licensing authorities have decided to carry out a waste management permit review.
249 At the time of the transition to the WML, the Environmental Impact Assessment Regulations 2010 (GNR. The Department should not have hidden agendas, other than those of the Licensee and the communities.
LEGAL PROVISIONS FOR PUBLIC PARTICIPATION AT THE PLANNING PHASE
LEGAL PROVISIONS FOR PUBLIC PARTICIPATION IN THE OPERATIONAL PHASE
It is obvious that access to information as an allied right to public participation is essential to realizing this right where lack of transparency is being fought. The South African environmental legislative framework provides sufficient public participation in the planning phase of most developments, but could improve provisions for post-approval monitoring. Public participation should be a mandatory requirement at all stages of the approval process, from scoping to decision-making and community participation in the compliance and monitoring phase of development.
Gunningham, N., (1995) Beyond Regulation: proactive environmental management. 2003) South African challenges to the theory and practice of public participation in environmental assessment. O'Faircheallaigh, C., (2010) Public participation and environmental impact assessment: purposes, implications and lessons for public policy making. US EPA “Public Participation Guide: Introduction to Public Participation” online www.epa.gov/international-cooperation/public-participation-guide-introduction-public-participation [Accessed: September 15, 2018].
Convention on access to information, public participation in decision-making and access to legal protection v.
