The Custodian Project

The current regulatory and policy framework relating to IEM involves an investigation of a number of tools, one of which is Environmental Impact Assessment (“EIA”).  EIA has been used as a tool for environmental management for over 30 years, is applied internationally and is a legal requirement in many countries.  Project-specific environmental assessment is referred to as the “first generation EIA”.

As a result of limitations in the project-specific approach, impact assessment methodologies evolved, with Strategic Environmental Assessment (“SEA”) becoming prominent in the 1990s.  SEA has been prominent in addressing environmental concerns in relation to policies, programmes or plans and is referred to as the “second generation” of environmental assessment.

In recent years, there has been increasing recognition of the need for environmental assessment tools to be adapted so as to become effective in contributing to sustainable development objectives.  Thus, Sustainability Assessment (“SA”) has emerged as the “third generation” of environmental assessment.

In South Africa, EIA has been a legal requirement since 1997, initially in terms of the regulations under the Environment Conservation Act 73 of 1989 (“ECA”) and subsequently in terms of EIA Regulations under NEMA.  The most recent EIA Regulations, (accompanied by three Listing Notices), came into effect on 2 August 2010. Any activity which is listed in Listing Notice 1, Listing Notice 2, or Listing Notice 3 (and which is to take place in a geographic area that is identified in that list), is subject to environmental authorisation.  The process that needs to be followed differs, depending on which Listing Notice is involved.  Activities in Listing Notices 1 and 3 require a Basic Assessment (“BA”), while those in Listing Notice 2 require the more comprehensive Scoping and Environmental Impact Report Assessment (“S&EIR”) procedure.  (Note however that for ease of reference, the term EIA process is used throughout this sub-theme, whenever the information provided is relevant to both processes (i.e. BA and S&EIR)).

Since the overarching purpose of the EIA process is to determine, assess and evaluate the consequences (positive and negative) of a proposed development, activity or project, virtually any significant impact on the surroundings within which we live, including impacts on the built environment and socio-economic impacts that affect human health or well-being, must be assessed during the EIA process. As a result, the national or provincial department of Environmental Affairs (whichever is specified in the Listing Notices as the competent authority[1] to decide on a particular application for authorisation to commence a listed activity), will not necessarily be the only decision-making authority involved. The environmental permission will often be only one of a number of permissions that must be obtained before the project can commence. This is because there are a number of pieces of legislation other than NEMA, which regulate activities that may significantly impact on the environment.

These additional pieces of legislation operate under their own structures and procedures. The other governmental structures that may be involved in the EIA process are dealt with in more detail in Section 3 below, firstly by identifying where the permitting powers lie and secondly by identifying what procedures are already in place that appear to encourage co-operative governance and integrated decision-making.  In some instances the government departments concerned may be directly involved as decision makers, while in others their role may be solely to comment.

[1] Whether the competent authority is the national or provincial department depends on the nature of the activity and also in which Listing Notice it is listed.