The Custodian Project

Subtheme 1:  Procedures and Organisational Structures

* 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 Prepared by Enact International.

Problem Statement

The National Environmental Management Act 107 of 1998 (NEMA) works with many other laws to regulate the environment in South Africa.  This means many different government offices are involved in environmental decisions, which can cause confusion and repetitive processes, as well as fragmented decisionmaking.  The subtheme report has identified problems in the EIA system’s procedures and offered some solutions.

Problem Areas

1. Short term focus:  EIAs often focus on the immediate harm a project will cause rather than any benefits it might create in the long term to sustainable development.
2. Lack of uniform criteria:  Because many different departments are involved in decisions affecting the environment, decisions can be inconsistent.
3. Repetitive and fragmented:  Many projects must go through several different approval processes at once, and authorities may make their decisions based on just one specific goal rather than the full picture.
4. No coordination with municipalities:  Municipalities should be involved in environmental decisions because their city planning decisions significantly impact the environment.
5. Enforcement issues:  The government should spend more time monitoring a project after it has been authorised to make sure it continues to comply with the authorisation.

Principles Underlying Department Proposals

1. Uphold the Constitutional right to ecologically sustainable development.
2. Monitor activities to ensure that environmental policies and procedures actually do lead to ecological sustainability.  Before projects can be effectively monitored, it will be necessary to clarify what ecological sustainability means and to set indicators to measure performance.
3. Make ecological sustainability part of the government’s vision as a whole, such that human well being and ecological sustainability indicators replace GDP growth as the primary development indicator.

The subtheme report believes that simply issuing permits that include measures to minimize damage is not enough to ensure ecological sustainability.  Activities should be monitored over long periods to determine how it affects sustainability and environmental decisions must be made with strategic policies in mind.

Proposals

Improving existing measures

1. Require EIA reports to explain how the proposed development will contribute to ecological sustainability, whether it meets legislative objectives, and if not, explain why not.

Risks:  Resistance from or lack of capacity of environmental assessment practitioners (EAPs – those who complete the EIA reports); majority of reports are returned for noncompliance, drawing out the approval process even further.

1. Utilize Memoranda of Understanding (MOUs) to better coordinate different government offices.

Risks:  Lack of resources may result in MOUs not working in practice; lack of political will; shifting responsibility onto other offices.

1. Use planning tools and maps to determine what is needed and desired for particular land areas so that development applications can be considered strategically.

Risks:  Effective use of planning tools and maps will depend on many factors such as scale and detail of the maps, quality and reliability of the data, and skill required to interpret and apply the information.  May also increase administrative burden.

1. Set performance targets for sustainability and integrated decisionmaking goals.

Risks:  Management crisis in municipalities and lack of resources may make this difficult to achieve.

Minor changes

1. Develop and prioritise guidelines to improve consistent interpretation and application of NEMA principles across all government sectors.

Risks:  Officials may not understand how to use and interpret the guidelines and apply them inconsistently; officials may not agree on which guidelines take priority.

1. Develop and use norms and standards instead of an EIA in areas that are not sensitive and for activities whose impact is known and can be avoided by following the standards.

Risks: Interested and affected parties will be concerned that this will exclude several activities from the EIA process (and thus the public participation requirement).

1. Develop and implement a monitoring system to measure whether sustainability goals are being achieved.

Risks:  Inadequate resources to implement such a system.

1. Amend existing environmental laws to a) get rid of duplication and b) add a substantive requirement to refuse an application in certain instances.

Risks:  Legislation takes time and can lead to uncertainty.

1. Include environmental considerations in town planning.

Risks:  Resistance from local authorities, environmental and planning priorities may be different.

1. Strengthen government capacity so various offices can fulfill their duties to coordinate with each other to achieve ecological sustainability.

Risks:  Lack of political will; lack of resources.

Major changes

1. Shift the focus of the authorisation process from authorising specific activities to looking at the outcome of projects as a whole.  Rather than considering how to least damage the area, the process should focus on identifying new opportunities and alternatives that enhance sustainability.  This would require amending legislation.

Risks:  Authorities and developers may not fully understand the shift; it may take time before successfully implemented.

1. Identify government policies and programmes that damage the environment and recommend changes so that those policies can contribute to sustainable development.

Risks:  Resistance from government and interest groups; disagreement on how to achieve the policy shift; lack of resources.

1. Integrate environmental policy into general government budget, planning, and auditing processes.

Risks:  Lack of political will, cost of environmental programmes may exceed budgeted amount.

1. Establish an environmental commissioner or ombudsman, such as the one described in the Western Cape Constitution.  Such a commissioner should be independent from existing government departments and the final arbiter of all environmental issues, subject only to the courts.

Risks:  Will require new legislation; may not be supported by Department of Treasury if it requires establishing new state organ; other government departments may not cooperate with new institution.