The Custodian Project

* 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: The Green Connection

Objective
To ensure suitable, acceptable, and efficient cooperative governance within the context of environmental impact assessment management.  
Context
Section 41 of the Constitution requires “all spheres of government and all organs of state within each sphere” to “cooperate with one another in mutual trust and good faith.”  Various sections of the National Environmental Management Act (NEMA) regulate inter-government coordination, requiring different departments’ environmental policies to be harmonised.
Methodology
Senior officials and EAPs working in the environmental management field at the national, provincial, and local levels were interviewed about the current state of cooperative governance.  The recommendations of this report were based on the results of these interviews and case studies.  This report notes that the DEA has taken steps to address cooperative government and has focused on building on the Department’s findings and initiatives.  
Status Quo
A legal audit of all environmental management legislative requirements showed many inefficiencies and duplicative processes in the environmental permitting system.  For example, as many as 20 different statutes could apply to a coastal issue.  In an effort to improve environmental coordination, the DEA published a draft guideline on cooperative governance (yet to be finalised) that puts forward measures to work more effectively within multiple, overlapping statutes.  For example, the guideline provides that when an activity requiring an EIA is also covered by other legislation, the two processes should be integrated into one or the more comprehensive process should be used.  With regard to memoranda of understanding (MOUs), cooperative agreements between state organs, the guideline suggests that they be non-binding as well as subject to a blanket confidentiality clause.  This report suggests that the guideline be amended to make MOUs enforceable, open, and transparent.  
Problems:  Barriers to cooperative governance
Legislative & Institutional
1.   Confusion as to which authority should take the lead:  Successful communication among government departments often depends upon a “champion” to take initiative and arrange meetings.  Often there is confusion over which department is the lead agent on an issue.
2.   Different institutional arrangements from province to province:  Provincial officials lack an understanding of the institutional arrangements associated with planning and development activities.      
3.   Failure to reach common understanding of sustainable development:  While all agree that the end goal is “sustainable development,” different departments have diverse, and sometimes conflicting, ideas of what the goal looks like.  
4.   Duplicative permitting processes lead to inefficiency, public participation fatigue, and tensions between government departments.  
5.   Inflexible application of tools (particularly the EIA):  The EIA has been used as a “one size fits all” tool with no room for exemptions or the exercise of discretion, such that a private developer building a luxury hotel in an environmentally sensitive area and a government housing project in an non-sensitive area are subject to the same EIA process.  The process often consumes much of the budget allocated for a development that could otherwise go to positive social development or conservation efforts.  
Capacity Issues
1.  Government agencies tasked with different aspects of environmental management are unfamiliar with EIA purpose and processes, which hinders alignment and cooperation.
2.  Overloaded officials do not have the time or resources to attend more meetings and coordinate with other departments.  
3.  Lack of resources such as email, phone lines, and transportation frustrates officials’ ability to communicate with other departments and attend joint meetings.  
MOU Issues
1.  MOUs are limited to procedural issues such as timeframes, roles, and responsibilities, and often have little effect in practice.  
2. MOUs can be slow, time consuming, and inflexible: Informal working arrangements or “gentleman’s agreements” are sometimes more effective than trying to formalise the existing relationships in writing in an MOU.  “Show stoppers” such as conflicting legal mandates or lack of will or capacity to participate in the MOU, can halt the EIA process.
3.  Lack of capacity cannot be compensated for by an MOU:  MOUs are not a cure-all solution to ensure cooperative governance – they must be supported by adequate staff and resources.  
Goals & Recommendations
Legislative & Institutional
1.   Environmental departments should champion the cooperative governance of environmental issues.  
2.   Ensure provincial officials are familiar with the key departments involved in planning and development to build relationships and work cooperatively.  
a.   Align planning and environmental departments in each province: The Western Cape has done so in their Department of Environmental and Development Planning.  That department then works with municipalities to ensure that strategic municipal planning takes into account environmental goals.  
b.   Avoid merging conflicting departments:  Combining economic development and environment is not as successful, as economic development often trumps environmental concerns and leads to flawed EIA decisions.
c.   Informal meetings between departments can be helpful, such as the regular meetings between the Departments of Agriculture, Environmental Affairs, and Rural Development in Kwazulu Natal.  
3.   Include environmental issues in planning at a strategic level:  Environmental Management Frameworks (EMFs – plans that detail an area’s environmental sensitivities) should be part of strategic planning tools at the provincial and local level, so developers can know ahead of time an area’s environmental status and the riskiness of their development application.  This can shape developers’ project decisions and reduce conflict at the project level.  
4.   Use the DEA’s draft guideline to identify situations where exemption from some parts of the EIA would be desirable.  Using other tools where the EIA is not suitable should also improve cooperative governance.   
Capacity Issues
1.  Develop one national education pack on environmental management and the EIA process and distribute it to all spheres of government and to citizens.  This would convey one consistent message as well as avoid duplicative awareness efforts.
2.  Provide resources to provincial environmental departments in need of capacity.
3.  Retain skills and institutional knowledge by providing Occupational Specific Dispensation, a salary structure based on performance, experience, and competence that encourages continuous professional development.
Cooperative Governance Mechanisms
1.   Use political pressure to encourage cooperative governance efforts:  While busy officials often cannot prioritise cooperative efforts, an instruction from a politician may force them to take action.  Committees appointed and directed by Ministers or premiers are more consistent and effective.  
2.   Adopt an outcomes approach to governance:  Because there are diverse interpretations of what sustainable development means, cooperative governance should focus on the outcome it wants to achieve and plan backwards.      
3.   Use whatever is working:  MOUs can foster cooperation, but not always.  Informal working arrangements can be just as or more effective.  The success of a cooperative governance arrangement is not tool-specific but depends on the resources and capacity of institutions and relationships that officials have built over time.  
4.   Use MOUs to encourage engagement and communication and clarify roles and responsibilities.  
5.   Establish cooperative working arrangements around particular issues, such as monitoring or compliance:  This can help the government present a united front as well as respond to problems in a consistent manner.  For example, in the Gouritz Water Management Area, officers from both the Department of Water’s Blue Scorpions (monitor and enforce water quality) and the DEA’s Green Scorpions (monitor environmental issues more broadly) meet once a month to discuss issues arising in the area and how to proceed.