Subtheme 3: Public Participation

* Angela Andrews of the Legal Resource Centre compiled this summary of the Specialist Report.
The following constitutes a summary of a report written by consultants to the EIAMS process and does not reflect the views of the Legal Resources Centre.

Original Report by Phelamanga Projects: Rod Bulman

Problem & Objective

To ensure effective, successful, and fair public participation during the environmental impact assessment and management process.

Background

Within affected communities, there are clashing views, differing levels of desire or ability to participate, and leaders who do not always serve community interests.  Effective public participation should make sure that the process includes minority voices and is not just an echo of the dominant ones.  Public participation comes in three main types:  expert, civil society, and individuals.  These groups can then participate in three main ways:  right to know (information disclosure and distribution), right to be heard (comment and hearings on proposed policies), and right to affect decisions (decisionmakers must provide reasoned bases for decisions and respond to comments).

Status Quo

The 2010 EIA Regulations (Regulations 54–57) require notification of interested and affected parties (I&APs) and the keeping of registers with the contact details of those who have submitted comments or attended hearings.  A Comments & Responses Register must also be kept in which all comments and responses to the comments are recorded.  All registered I&APs must have access to these comments and responses.

The following environmental management tools include a public participation requirement (descriptions of the tools can be found in Subtheme 9):  Environmental Management Framework (EMF), Strategic Environmental Assessment (SEA), Integrated Development Planning (IDP), Spatial Development Framework (shows where certain activities are allowed and not allowed), land development programmes governed by the Development Facilitation Act, and the Environmental Impact Assessment (EIA).

Some regulations and tools do not explicitly contain a public participation requirement but may be part of an EIA or other tool that requires public participation.  These include certain activities under the Mineral and Petroleum Resources Development Act, Conservation Planning, Ecological Risk Assessment (ERA), Cumulative Effects Assessment (assessment of environmental change over time and multiple projects), Life Cycle Assessment (evaluation of environmental impacts of an activity’s life cycle), Cost Benefit Analysis (CBA), Environmental Management Programme (EMP), and Integrated Environmental Programme (IEP).

Many environmental laws also grant Ministers power to set norms and standards for certain activities, which are usually not subject to a public participation process.

Questionnaire

A questionnaire about public participation processes was submitted to various participants in environmental management, including environmental assessment practitioners (EAPs), government officials, NGO workers, academics, journalists, and members of the public.  A total of 149 responded.

General perceptions on the status quo

Ninety-nine percent of respondents believed public participation (PP) to be necessary in environmental decisionmaking, as both a source of local knowledge and new ideas and as a democratic practice.  Most believed that PP provides information on local needs and preferences, ensures that affected people are informed, protects environmental rights, leads to better informed responses, and promotes transparency.  About half the respondents rated the EIA process as “excellent” or “moderate[ly]” effective, fair, and protective of I&APs.  EMFs rated slightly less favorably, with around 40% rating it as excellent or moderately fair, effective, and protective.

Preferred methods of communication

Public meetings ranked the highest, especially among I&APs, followed by posted notices and newspaper ads.  I&APs preferred radio and posted notices after public meetings.  Interestingly, SMS was ranked second to last.

Best practices and improvements

The practice most requested by interested and affected parties was for clear information and appropriate language, meaning both the appropriate home language of the participants as well as an appropriately clear style, free of technical jargon so that a layperson may understand.  There were also many requests for more transparency and for independent practitioners to facilitate public participation.

The most frustration was expressed at the feeling that one voice dominates the discussion.  Technical language and difficulty in obtaining the reports also ranked highly, especially among I&APs.   The most popular suggestions for improving the current system were multi-lingual meetings, executive summaries of reports in plain language, and for workshops rather than meetings.  There was also significant support for peer review of reports and standard notification methods.

The following are suggestions for new measures to improve the process:  improve I&AP understanding of the process, stronger ethical and competence requirements for EAPs and other professionals, more independent EAPs and practitioners, inclusivity balanced against stakeholder fatigue, meetings at times convenient to the community, public participation specialists or EAPs trained in community dynamics to refine methods used to include the public, changing EAP role to that of mediator rather than just reporter of technical issues, improving regulator competence, screening to narrow the sheer volume of projects requiring public participation and identifying those for which public participation would be meaningful.

Proposals

The fastest way to incorporate changes would be to amend the NEMA Guidelines.  Some proposals will require amendments to existing guidelines and to policy.

1. Assess the effectiveness of each public participation process.
2. Notification and communication:  Use appropriate language in appropriate media (public notice, radio), avoid technical language, communicate regularly.
3. Access to information:  An Executive Summary of all reports should be written in plain language and made available in convenient locations.
4. Methodology:  Before any process is started, the practitioner should understand the community’s governance structures and gather the names and contact details of leadership and established civil society.
5. Capacity building and inclusivity:  Preliminary workshops should be held to decide what PP can achieve and the methods that should be used to engage the community.
6. Meetings:  Meetings should be planned with local community leaders, conducted in the majority language of the area, and held in a convenient location.  Workshops should be preferred over the meeting format.
7. Alternatives:  The PP process should include actively seeking proposals for alternative sites.
8. Mediation:  Alternative dispute resolution techniques may be used, but not to manipulate the community into accepting a development.
9. Public participation specialists should be appointed to assist EAPs.

10.  Competence:  EAPs and other practitioners (including government officials making the decisions) should be part of recognised professional organizations.

11.  Ethics:  PP practitioners should bind themselves to a Code of Ethics.

12.  Independence:  To ensure the independence of EAPs and other practitioners, they should have the option to voluntarily include peer reviews of their reports and be required to submit a report to peer review upon request by a stakeholder.

13.  Screening and Flexibility:  Screening in order to decrease PP to those projects in which it would actually be meaningful should be explored.

14.  Best practices:  Practitioners should be required to follow best practice principles as laid out by the International Association of Impact Assessment (IAIA) and Southern Africa Institute for Environmental Assessment (SAIEA).  These include the following:

1. Respect and work within the social, cultural, historical, and political context of the communities in the project area.
2. Inform early and regularly in a meaningful way, seeking ways to address language barriers and other capacity limitations.
3. Include all stakeholders, especially the less represented groups.
4. Focus on negotiable issues, not non-starters.
5. Optimise so that public participation occurs at the most appropriate stage of decisionmaking.
6. I&APs should have access to all information.  Laypersons should be able to participate in meetings and hearings.
7. Public participation processes should adhere to professional ethics.  Independent facilitators may make the process more neutral.