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Tuesday, 08 March 2011 15:53

Issue List (Public Participation)

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The “issue list” collated from comments which pertain to this theme include:

•    A list of recommendations from the PPP must have a dedicated section in the RoD.
•    Broad based, inclusive + informed decision making
•    Consultants think they understand the public participation. They don’t. PP needs to be done independently with a real attempt to engage, answer, understand and continue to subscribe to “Batho Pele) by understanding South African people. Why does DEAT so loosely define public participation requirement? How does the DEAT monitor the PPP and ensure that consultants are not in control over it.
•    EAPs need help in public participation especially on who to contact at various departments in government. It is time consuming to find the correct person at the departments and municipalities.
•    Effective public participation - Ensure better and more effective public participation
•    Engage more seriously and listen to people in the industry such as IAIAsa, EAPSA, ICB as well as other industries such as engineers, planners, etc.
•    Executive reports must contain personal perspectives gathered from PPP including an indication of the prevalence of different opinions.
•    Greater levels of public participation
•    I would like to know why in this review the two issues that seem to have worked the worse, first of all the public participation process in the beginning and the compliance in terms of the construction operational component at the end, why are those two sections at the beginning and the end? It would appear that that data was not used in the review and I would be interested to know whether I’m wrong.
•    In reference to the 40% response, no timeframes must be given to the PPP as history has shown that this has limited and constricted the people who are at the centre of this process
•    Lack of communication between competent authorities and I&APs.
•    Less public participation in EIA
•    Mediation in EIA must be strengthened. Where public participation is adversarial, early intervention may prevent litigation, especially SLAPP. It would be vital to compel developers to attend mediation under independent facilitation, should the public participation process disintegrate. I suggest that there be a checklist to assess the PPP so that the need for mediation/ intervention does not become another issue of dispute.  Mediation in early stages could prevent protracted and expensive processes later and avoid going to court
•    Often EIA’s facilitate a resurgence of historical disputes between developer and I&AP’s. Even if based on valid grounds, the EIA process should limit Public Participation to the project in question. Developers and IAP’s need to be encouraged to resolve disputes outside of the EIA process.
•    The appropriate level of participation, tailor made to circumstances and so on and so forth
•    The DEAT must appoint an independent judge or ombudsman who will hear and investigate the complains of private citizens against developments and final record of decisions
•    The DEAT must ensure that the ROD is distributed to communities.
•    The duplication of public participation process in EIAs in the NEMA regs.
•    The public participation regulations at least forces projects to be made public
•    The right of participation must be retained in new tools and approaches
•    Understand what the word ‘transparency’ means.
•    Why are the public excluded from pre-screening and screening?
•    Why is the RoD not sent to the public?
•    A platform is suggested on DEAT’s website or elsewhere to advertise projects for public participation purposes.
•    Advertisements must subscribe to a DEAT standardized format to eliminate vague a non-specific portrayal of developments. Ads must be vetted CBOs to remove elusive and deceptive tactics and ensure strong realistic appeal.
•    Adverts must appear in all newspapers with approved flyers sent through churches, high schools and local tertiary institutions as well as door –to-door drop off system.
•    Area specific public meetings must be followed by workshops in which each comment and question is specifically addressed.
•    As an anthropologist I want to know in terms of public participation, how can we involve non-governmental organisations and community based organisations for assisting in the public participation process.
•    Assessments that are simpler to comment on. Different communication.
•    How can a form of synergy between all the different stakeholders to efficiently drive the message of an eco-friendly sustainable society to the masses be established?
•    Informative pamphlets must be distributed for the benefit of those who cannot attend meetings or do not have access to traditional information channels such as telephones and newspapers.
•    Need to use intelligent appropriate communication methods (in terms of language, level of understanding) to enable effective participation. This relates to information given out by the EAPs (eg on the proposed development) and also to reports produced. Use the K.I.S.S principle.
•    Regardless of the development taking place, the EIA documents must be fully translated from English to a minimum of 3 languages most used in the affected areas. These must be provided simultaneously with the release of English documents.
•    DEAT must legally bind the need for the introduction of a concise 2 page document.  Specific documents that offer a layman’s understanding of the EIA must be vetted by local readers and community based organisations.
•    DEAT must include NGO’s from affected areas in the scoping phase.
•    DEAT must legally bind that 40% of the people in the affected areas must be consulted. Consultation would not mean attendance at a meeting, therefore registers are not to be included imports. Consultation must be understood as full engagement where a comment/ question are issued, a response is elicited from consultants and a further comment is noted.
•    DEAT must legally bind that if 10% of the affected community has not been reached by advertisement, the EIA process must be restarted
•    DEAT must officially appoint consultants based on suitability according to rating reports and engagements with community based organisations.
•    EIA documents and specialist reports are seldom user friendly to the general public, making it difficult for meaningful public participation .Public participation is currently viewed as a hindrance to the developer and in many instances valid comments and input by the public are brushed aside as inconsequential.
•    Engagement of community leaders must show inclusion of a wide spectrum of people (i.e. religious leaders, councillors, traditional leaders, school headmasters) as legislated by the DEAT.
•    Local groups and interested CBOs should have equal representation and forum to offer opinions on the PPP.
•    Meetings must occur at times suitable to most of the people, taking into account specific needs of the community including transport.
•    The public is often bullied and because they are ill-informed and under-resourced, they quit. A process by which the public can have representation if needed, information and legal assistance is required

Last modified on Tuesday, 08 March 2011 16:37
Tuesday, 12 April 2011 20:05

Report

Published in Public participation Written by Administrator
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Report by Phelamanga Projects: Rod Bulman - PDF version of 1.1MB

(The revision of reports follows after Sector comments - including organs of state, academia, NGOs, BUSA, SAPOA, Law Society, Chamber of Mines, the Advisory Group, Peer Review comment (selected themes), IAIA)

 

Last modified on Monday, 22 August 2011 08:13
Thursday, 14 April 2011 14:30

Status quo

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Legislative Requirements in South Africa

Besides the specific requirements imposed by various legislation certain overarching principles and roles have been identified.

Role of public participation[1]

In South Africa public participation is described as a process that is used to provide sufficient and accessible information to any I&AP in an objective manner to

  • assist them to identify issues of concern,
  • identify alternatives,
  • suggest opportunities to reduce potentially positive impacts, and
  • verify that issues and the inputs have been captured and addressed during the assessment process.

The public participation process provides members of the public with the opportunity to suggest ways of avoiding and reducing negative impacts of an activity and for enhancing positive impacts.  It also enables the applicant to incorporate the needs, preferences and values of affected parties into the activity.

Public participation enhances transparency and accountability into decision-making. This provides an opportunity for all I&APs to obtain clear, accurate information about the proposed activity, the alternatives and the environmental impacts. I&AP s will also get an opportunity to indicate their views, points, issues and concerns regarding the activity, alternatives and the decision made.

The Public Participation Guideline in support of the EIA regulations published in 2006, states that public participation is one of the most important aspects of the environmental authorisation process. Every one has a right to be informed about decisions that affect them and that they must be offered an opportunity to have an influence to those decisions made. An effective Public Participation also improves the ability of the competent authority to make well-informed decisions.

Principles of public participation[2]

The following principles of the public participation process have been identified[3].

Involvement of all the stakeholders: All the stakeholders are to be involved in all the initiatives.

Awareness creation: Creating awareness in communities will result in an empowered society.

Good quality feed back to and from the stakeholders: Flow of information in the public participation process is important, as it will establish trust and assurance among stakeholders.

Monitoring and evaluation: Monitoring and evaluation will minimise mistakes and risks to the process both in the present and the future by applying lessons learnt from past experiences.

Accessibility of information: These will enable effective public participation by supporting stakeholders to be well informed and more knowledgeable.  Also timely access to information is required in order for the public to participate effectively. The information should be accessible in terms of the language and terminology to build capacity understanding and knowledge of stakeholders and the way stakeholders will make meaningful contributions. Materials should be easily obtained, copies should be available in an appropriate language and stakeholders should be supported in distributing it to the public.

Transparency: An open, honest and equitable approach to public participation encourages trust and can help to show that the decision is fair.

Integration: Best practice in public participation brings together public issues, technical assessment and a consideration of local and traditional knowledge.

Continuity in participation: Participation of the role players throughout the initiative is important to ensure continuity in participation.

Centrality of public participation

The central role of public participation in environmental decision making is summarised and highlighted in the diagrams shown in Figure 1 and Figure 2.

EIA Regulations 2010: National Environmental Management Act (NEMA)

The new Environmental Impact Assessment (EIA) regulations 2010 framed in terms of the National Environmental Management Act as amended provide some guidance on the conduct of public participation processes, but this is generally limited to providing for when public participation is required. The only detail specified concerns the forms of notification and the keeping of registers of I&APs and their issues and comments[4].

Notification

In particular Regulation 54 deals with means of notifying I&APs, Regulation 55 and 56 deal with the keeping of a register of I&APs and their rights to access and comment on reports.  Regulation 57 provides for the keeping of a register of comments and responses. It does make reference to making alternative arrangements for those who may be hampered by “(i) a lack of skills to read or write; (ii) disability; or (iii) any other disadvantage” (Reg 57.(2)).

The need to notify I&APs is clearly of paramount importance and the regulations require that proof of public participation must be submitted to the department. This includes proof of the placing of notice boards, advertisements, notices sent to those specified in Reg 54.(2)(b) and other methods of notifying of I&APs.  Notices are to be sent to:

  • Owners and occupants of the site of the proposed activity;
  • Owners and occupants of land adjacent to the site of the proposed activity;
  • The municipal councillor for the area in which the proposed activity will take place;
  • Any ratepayers associations in the area;
  • The municipality;
  • Any organ of state having jurisdiction in respect of any aspect of the activity; and
  • Any other party as required by the competent authority.

Placing newspaper advertisements is required and the content of these and the notices is specified.

However the regulations do not specify how this proof should be made. The Guidelines suggest that a copy of the newspaper advertisement that was placed, which indicates the name of the newspaper and the date of publication should be provided and a site map showing where the site notices were placed including photographs showing the notice on site.  The guidelines also suggest that a list of all the mails that where sent should also be available, showing all the names of persons the mail was sent to, with the address of that person, and the date the mail was sent. For all hand deliveries of information to I&APs, signatures and the name of the person who received the information together with the address of the person must be included in the register.

Registers

Register of interested and affected parties

The current regulations require that a register of I&APs is kept in which is recorded the names, contact details and addresses of all those who have submitted comments or attended meetings those who have requested registration and the organs of state with jurisdiction.[5]

Register of comments and responses

A Comments and Responses Register (CRR) is also required in which are recorded all comments made by I&APs and the responses made to these. It is implied that the comments should be written although reference is also made to attaching records of all meetings.  It is assumed that these records will include an adequate record of the verbal comments made at these meetings.[6]

Access to and commenting on reports

Provision is also made for all registered I&APs to have access to these comments and responses and to comment on any written submissions as well as to comment on any reports.[7]

The provisions outlined above are intended to ensure that everyone has sufficient opportunity to engage in the IA process and to engage with the opinions and assessments made by the EAP and specialists.

EMF Regulations 2010: National Environmental Management Act (NEMA)

The regulations issued by the Department of Environmental Affairs (DEA 2010) regarding public participation in an Environmental Management Framework (EMF) require that a draft EMF must be made available to the public for comment.  I&APs involvement must be invited by means of advertisements in a local newspaper, and other appropriate ways of notifying I&APs. Appropriate steps need to be taken to ensure that reasonable means have been implemented to engage with I&APs who are illiterate, disabled or have any other constraints to participation. A comment and responses report needs to be prepared for the EMF report to be complete.

An EMF can differ in context and in size from one area to another. The requirements of the regulations should therefore be regarded as a minimum requirement and in most cases; it will be necessary to conduct a broader public participation process that takes place during the entire development of the EMF. The three main goals of the public participation process in the development of EMF are, first to inform all I&APs about an EMF process and what the objectives are. Secondly is to provide an opportunity for inputs from I&APs, and give the stakeholders and I&APs an opportunity to comment about the EMF. Lastly is to give feedback to I&APs with the opportunity for them to respond. This will enable flow of information between the authorities and the public, being the stakeholders and I&APs.

Phases in an EMF

There are different phases of public participation in an EMF; with the emphasis being to distribute information about the EMF and gather information to guide its development. These are discussed below.

Phase 1: Preparation

The first phase is the preparation phase, this phase involves meeting with the authorities that have jurisdiction in the study area. A preliminary compilation of all the necessary documents for the public participation process is made. These documents include a Background Information Document (BID) about the EMF approach and process, BIDs should be distributed to I&APs in languages appropriate for the area. A project advertisement should be prepared and placed in the local newspaper to inform the public about the development of the EMF, how they can become involved in the process, and the details about public meetings to be held.  Invitations to the community to attend open days and public meetings should also be distributed and/or published.

Phase Two: Stakeholder consultation

The stakeholder consultation process focuses on the interaction with I&APs. This is to ensure that I&APs are afforded sufficient opportunity for engagement in the EMF development. The extent of consultation will greatly depend on the extent and the sensitivity of the specific EMF. For a large scale or regional EMF, an extensive consultation process will be required at various levels. The approach to consultation should be flexible and the levels of literacy should influence the approach in engagement. The effective approach to consultation includes preparation, an open day, focused group and subject specialist meeting and interviews with local leaders and councillors.

I&APs should be engaged on an ongoing basis to ensure that they are informed of the project progress and that they are able to communicate issues and concerns to the project team. These issues and comments should be captured in the Public Participation Report (PPR) that forms part of the draft EMF. The PPR must include the description of the strategy and the process followed, the list of the registered I&APs. Minutes and all the comments during the Public Participation Process should also be included.

Phase Three: Public review and report writing

The last phase involves the finalisation of the EMF development process and Public Participation Process. The EMF must be made available for public review, and all the comments must be integrated into the final report, which will be submitted to the authorities for final review. The final document should also be made available to the public in an accessible location such as public libraries, and also in an appropriate format, that is easy to understand. If the EMF report is very large it might be difficult to provide multiple copies for everyone, therefore a full electronic version should be made available for those who have access to internet.

SEA:  National Environmental Management Act (NEMA)

Strategic Environmental Assessment (SEA) refers to the process that integrates sustainability consideration into the formulation, assessment and implementation of Policies, Plans and Programmes also known as PPP.  The PPP are then tied in with the project in the EIA process. EIA is applied at project level where the SEA’s main focus is at the level of policies, programmes and plans. An SEA helps to identify and addresses potential areas of conflict between PPP early on in the formulation of new PPP. It also enables stakeholder engagement which   includes a public participation process. NGOs, government departments, institutions and the public are the stakeholders, and they must be included at a strategic level in the planning and policy making processes.

The use of SEA and many other SEA tools are prompted in policy and framework legislation. NEMA chapter 5 makes provision for the development of procedures for the assessment of PPP, for the SEA to be successful. Effective stakeholder involvement is important.  It requires commitment from a variety of stakeholders such as the public, I&APs, community representatives and NGOs. Stakeholders’ participation in the SEA process may be difficult. It is therefore reasonable that stakeholder engagement is initially undertaken by a group of representatives such as the authorities and community based organisations (CBOs) who form a steering committee to coordinate the participation of a wider group of stakeholders. It is recommended that the stakeholders be divided into two groups to ensure effective participation.

The first group being the key stakeholders, these stakeholders will receive all the documents during the SEA process, and they will attend all the meetings and workshops to provide a constructive input into the process. The second group will then be general stakeholders; they will also receive all documentation so that they will also be well informed of the SEA process and be able to comment when necessary. Stakeholder engagement should be undertaken not only during the scoping phase but throughout the entire SEA process. Specialist skills in the communication, facilitation and engagement are required, because if it is not done properly, the public may feel frustrated, and this may result in reluctance to contribute to yet another process.

Common techniques used to ensure effective Public Participation and consultation in an SEA process include:

  • Public meetings
  • Printed materials such as the BIDs
  • Media adverts and articles
  • Radio and TV interviews
  • WEB information
  • Small meetings
  • Focus group discussion
  • Workshops
  • Interviews .

The levels of public participation for an effective SEA

The levels can be summarised as follows:

  • Involvement and consultation: This could be a formal or informal dialogue to identify issues of concerns through focus group discussion and workshops.
  • Extended involvement : Participants must be able to contribute to the formation of a plan and influence a decision through group discussion or forums
  • Information feedback: This involves the provision of information with a request for feedback to supplement knowledge and gain a better understanding of issues, through surveys, displays and adverts.

Overlap with Mineral and Petroleum Resources Development Act Regulations

Part III, Regulations 47 to 62 of the 2004 Mineral and Petroleum Resources Development Act (MPRDA) Regulations make provision for Environmental Reports to be conducted in specific circumstances.  An Environmental Report is referred to as a Scoping Report and as an Environmental Impact Assessment Report.  In particular the contents of environmental impact assessment reports are detailed in S 50 (1) and include:

d)        a comparative assessment of the identified land use and development alternatives and their potential environmental, social and cultural impacts;

and

f)          details of the engagement process of interested and affected persons followed during the course of the assessment and an indication of how the issues raised by interested and affected persons have been addressed (emphasis added).[8]

Clearly there is an intention for public participation to form part of the processes.  This is provided for in the Mineral and Petroleum Resources Development Act, 2002 Chapter 4 - Mineral and Environmental Regulation at S 38A. Environmental authorisations, where it is stated that

1)        The Minister is the responsible authority for implementing environmental provisions in terms of the National Environmental Management Act, 1998 (Act No. 107 of 1998) as it relates to prospecting, mining, exploration, production or activities incidental thereto on a prospecting, mining, exploration or production area.

2)        An environmental authorisation issued by the Minister shall be a condition prior to the issuing of a permit or the granting of a right in terms of this Act.

The issue that arises from this is the overlapping responsibilities of the Ministers for Environmental Affairs and for Mineral Resources. The tensions caused by this are outside the scope of this report except where the public participation process is concerned.

In the 2010 EIA Regulations a similar overlapping is demonstrated for example in Regulation 6 which provides for “[c]onsultation between competent authority and State departments administering a law relating to a matter affecting the environment”.  In the subsections it becomes quite clear that the mandated consultation will most often be with the Department of Mineral resources and its structures. It should be noted that apart from the references in S 50 (1) of the MPRDA Regulations noted above and the reciprocal provisions of the 2010 EIA regulations there are apparently no other legislated prescriptions for public participation.

The MPRDA Regulations makes provision for an Environmental Risk Report, which presumably requires an assessment (see for example Regulation 60), but there is no requirement for a public participation process.

Other processes

However there are a number of other processes that imply environmental decision making or have an impact on Integrated Environmental Management.  Some of the most obvious are described below.  These are presented in no particular order.

Integrated Development Planning (IDP)

All municipalities in South Africa are required to prepare IDP, for their areas in terms of the Municipal Systems Act, 2000 (Act no 32 of 2000). Integrated Development Planning (IDP) is considered to be one of the processes whereby sustainability can be addressed at a local level.  In the process of preparing an IDP stakeholder involvement is very crucial. The Act stipulates that when the municipalities are preparing their IDP they must consult local communities on the development needs and priorities. The local community must participate in the drafting of the IDP, and traditional authorities and other role players must be identified and consulted on the drafting of the IDP.  Consultation and participation are considered key principles of an IDP.

Development Facilitation Act No. 67 of 1995

The Development Facilitation Act (DFA) introduced measures to facilitate and speed up the implementation of the Reconstruction and Development Programme and projects in relation to land; and in so doing to lay down general principles governing land development throughout the Republic. The Development Facilitation Act provided for general principles governing land development nationally. The general principles for land development state that policy, administrative practice and law should promote both efficient and integrated land development:

promote land development which is within the fiscal, institutional and administrative means of the Republic;

promote the establishment of viable communities;

promote sustained protection of the environment;

meet the basic needs of all citizens in an affordable way; and

ensure the safe utilisation of land.[9]

Regulation 31 of the Regulations promulgated under the Act provides that the land development applicant must include in his or her application an Environmental Scoping Report, which will include a report on the public participation process that was used, prepared in accordance with the environmental impact assessment guidelines or other requirements which are from time to time issued or amended by the National Department of Environmental Affairs and Tourism (DFA Regulation 31). It is important to note that in addition to the Development Facilitation Act, at provincial and local government level, policies, provincial legislation, ordinances and by-laws regulate land development planning processes.

Spatial Development Framework

A Spatial Development Framework (SDF) is a framework that forms part of the Integrated Development plan and Strategic Environmental Assessment (SEA), which is required by all municipalities. The SDF is a useful tool that is used to manage and monitor developments in cities. It helps investors assess what they are buying and where development opportunities exist in municipal areas. The SEA can be used to assess the application by investors and property developers, and guide changes in land uses and public investment in infrastructure. An SDF indicates both to the public (land owners) and to municipalities (councillors and the officials) where certain activities are not allowed and where curtailed land uses are permitted.

Municipalities must ensure integrated land development and mixed land use areas that will make it easier for people to live closer to economic opportunities and work places, and they must ensure that urban sprawl is avoided. Public participation and stakeholder involvement that includes the general public is very important in the planning process. This can be achieved through steering committee meetings and workshops. General community meetings must also be arranged for communication to the broader stakeholders within the area.

Conservation Planning (CP)

Public participation is not required in a Conservation Planning exercise, however it should be noted that where CP is included in an SDF, EMF or SEA it will be included on the public participation process.

Including CP in the IDP process will also be beneficial, especially if the IDP is truly participatory in its development and compilation.

Ecological Risk Assessment (ERA)

Ecological Risk Assessment is a tool that “evaluates the likelihood that adverse ecological effects may occur or are occurring as a result of one or more stressors”

Risk management is the process of “implementing specific actions in response to the risk”.          The ERA framework can be integrated with the generic environmental impact assessment (EIA) procedure. There is an overlap in the basic principles of the generic EIA procedure and the ERA framework.  This overlap leads to the ERA being scrutinised in the public participation process and the risks being communicated to I&APs.

The two processes are complementary in that the EIA addresses all the identified issues in a specific development, whereas the ERA is a structured approach to dealing with ecological impacts. Because the ERA is based on the general principles of risk assessment, the approach is already relevant at the planning stage, where potential risks are identified. The risk-based approach followed in an ERA ensures that the process is rigorous and scientifically sound.

Cumulative Effects Assessment (CEA)

Cumulative Effects Assessment is the process of systematically analysing and assessing cumulative environmental change. The purpose of CEA is to ensure that the full range of consequences of actions is considered.  Cumulative impacts can occur over different temporal and spatial scales by interacting, combining and compounding so that the overall effect often exceeds the simple sum of previous effects. The spatial scale can be local, regional or global, whilst the frequency or temporal scale includes past, present and future impacts on a specific environment or region.  Cumulative effects can simply be defined as the total impact that a series of developments, either present, past or future, will have on the environment within a specific region over a particular period of time.

There are two ways in which cumulative effects can be assessed. These are the application of CEA as an independent and stand-alone process; or the assessment of cumulative effects could be incorporated as part of existing environmental assessments (e.g. as part of the EIA or SEA process).

There is no requirement for public participation to be included in a CEA however where it forms part of an EIA or SEA it will be scrutinised in the public participation processes associated with those tools.

Life Cycle Assessment (LCA)

Life Cycle Assessment (LCA) is the calculation and evaluation of the environmentally relevant inputs and outputs and the potential environmental impacts of the life cycle of a product, material or service (SABS ISO,1998). Environmental inputs and outputs refer to demand for natural resources and to emissions and solid waste.

The life cycle consists of the technical system of processes and transport routes used at, or needed for, raw materials extraction, production, use and after use (waste management or recycling). LCA is sometimes called a "cradle-to-grave" assessment.

LCA has no legal standing in South Africa.  However, the tool has been proposed by DEAT as a means to ensure that the NEMA Chapter 1 principles are considered in decision making.

During the analysis phase the public participation process can provide insight on the dynamics and causes of priority issues. During the project phase it could indicate the environmental implications of certain proposed developments. The input from I&APs can guide the prioritising of projects in terms of environmental protection and pollution prevention.

There is no legislated provision for public participation, but it is potentially very important both for the quality of the final product and for the level of acceptance by I&APs.

Cost Benefit Analysis (CBA)

Cost Benefit Analysis (CBA) is a tool used either to rank projects or to choose the most appropriate option. The ranking or decision is based on expected economic costs and benefits. The rule is that a project should be undertaken if lifetime expected benefits exceeds all expected costs.

In a perfect world, the market would ensure that land, labour and capital were allocated in a way that would maximize both profits, and the welfare of society. Ours is an imperfect world, but Social CBA is a tool that allows the analyst to mimic the welfare optimising behaviour of the market.

Social CBA is used to appraise the social merit of projects or policies. The projects may be public or private, and the analysis is typically used to inform public decision makers. This type of CBA is the form typically used in EIAs. As such it is of importance in the public participation process.

Environmental Management Plan (EMP)

The EMP provides a description of the methods and procedures for mitigating and monitoring impacts. The EMP also contains environmental objectives and targets which the project proponent or developer needs to achieve in order to reduce or eliminate negative impacts. The EMP document can be used throughout the project life cycle. It should be regularly updated to remain aligned with the project as it progresses from construction to operation and, finally to decommissioning.

An EMP will typically contain:

  • Summary of Impacts
  • Description of mitigation measures
  • Description of monitoring programme
  • Institutional arrangements where responsibilities for mitigation and monitoring actions are clearly defined
  • Legal enforceability
  • Implementation schedule and reporting procedures
  • Cost estimates.

From the point of view of I&APs the benefits of including the EMP as part of an EIA are important for a number of reasons.  These have been summarised as

  • Encouraging applicants to be more systematic and explicit in the design and development of mitigation measures and the intended means of implementation;
  • Encouraging authorities to check the practicality and likelihood of implementation of mitigation and monitoring measures;
  • Ensuring that the mitigation measures are properly incorporated into the project design and contract documentation after authorisation is granted;
  • Encouraging the project proponent to meet the requirements of the EMP which now form the basis for the conditions attached to authorisation of the project; and
  • Forcing the project proponent to internalise environmental impacts that would otherwise become a social cost.

Ecological Footprint

The Ecological Footprint is a resource management tool that measures how much land and water area a human population requires to produce the resources it consumes and to absorb its wastes under prevailing technology. However there is currently no legal mandate for Ecological Footprinting in South Africa.   It is a resource accounting and management tool that potentially could add great value to the IDP and other tools by addressing underlying sustainability questions.

Integrated Environmental Programme (IEP)

An Integrated Environmental Programme (IEP) is most often prepared as a sector plan within a municipal IDP. The need to integrate environmental considerations in a council’s planning is required in terms of the National Environmental Management Act (NEMA) S 16.(4)(a).  A municipal IEP consists of two components:

  • The Strategic Environmental Assessment which is issues and strategy based; and
  • The Environmental Management Plan which is more spatial and area specific in context.

IEP’s are a pro-active management tool used to ensure sustainability at strategic (planning and implementation) level. An IEP aims to integrate natural environmental concerns into the planning process at the same level at which social, economic and institutional considerations are addressed. The IEP serves as a tool for the practical translation of the idea of sustainability into programmes and projects in the IDP process.

This management tool does not make specific provision for public participation; however a robust public participation process would enhance the value of the IEP and its level of acceptance.

Standards

South Africa's national environmental management legislation allows the delegation of lawmaking powers to the Minister and Provincial MECs, including that of setting "norms" and "standards" that contribute to the achievement of aims of legislation are neither new nor novel. Examples of such norms and standards include, for instance, the setting of tariffs for water services in terms of S 10(1) of the Water Services Act, 108 of 1997 as promulgated in July 2001; National norms and standards for the management of elephants in South Africa which were also promulgated in terms of S 9 of the National Environmental Management: Biodiversity Act, 10 of 2004 in February 2008.

The National Environmental Management Act, 107 of 1998

Section 24(10) of the National Environmental Management Act, 107 of 1998 ("NEMA") (effective as from 1 May 2009) allows for the development by the Minister (or Provincial MECs) of norms and standards for activities or any parts or combinations of such activities that may commence without environmental authorisation in terms of the Act. The Minister may also prescribe the use of developed or adopted norms and standards in order to meet the objectives of the Act, prescribe reporting and monitoring requirements and prescribe procedures and criteria to be used by the competent authority for the monitoring of such activities in order to determine compliance with the prescribed norms and standards.[10]

The National Environmental Management: Waste Act, 59 of 2008

The National Environmental Management: Waste Act, 59 of 2008 (the "Waste Act") also allows norms and standards to be set.

Role of public participation in norms and standards

Rabie and Cameron[11] believe that

[s]cience and technological innovation have a significant impact on norms and standards, as have societal perceptions, values and priorities. In this regard it is insightful to bear in mind the standard of "best practicable environmental option" entailing the option that provides the most benefit or causes the least damage to the environment as a whole, at a cost acceptable to society, in the long term as well as in the short term (emphasis added).

Norms and standards are therefore inherently subjective in a number of ways, but are often not subjected to a public participation process, although it is acknowledged that the case of the norms and standards for “elephant culling” created a great deal of public debate and was the subject of numerous submissions.


 



[1] Basterfield; Hadi; Makara M. (ed) 2007; Marzuki 2009

[2]; Brooklyn National Lab; Makara M. (ed) 2007

[3] Makara M. (ed) 2007

[4] See for example Regs 22.(2)(f), 21.(8)(h), 31.(2)(e), 39.(3)(a), 44.(1), 46.(4) et seq,

[5] Regulation 55

[6] Regulation 57

[7] Regulation 56

[8] Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002): Mineral and Petroleum Resources Development Regulations. Department of Minerals and Energy, Government Notice No. R. 527 of 23 April 2004

 

[9] DFA 1995 S 3.(1)(h)

[10] Rabie and Cameron. 2009.

[11] op cit

Last modified on Sunday, 24 April 2011 12:01
Thursday, 14 April 2011 14:34

Background

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1.1      Introduction

Decision making in the environmental area is required to take into account the requirements of various pieces of legislation. The foundation legislation is the Constitution (as amended) which provides at S 24 that:

[e]veryone has the right-

(a)              to an environment that is not harmful to their health or well-being; and

(b)             to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that-

(i)            prevent pollution and ecological degradation;

(ii)           promote conservation; and

(iii)          secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development

The notion that people, the public, have a role to play in decisions that affect their life circumstances and particularly those aimed at promoting justifiable economic and social development is relatively new.

The proviso that economic development must be justifiable is also a recent development.  During the 1970s the realisation that the development theories of the 1960s were not doing much to alleviate poverty gave rise to the need to reassess (Coetzee et al 2001).  The critique of capitalism that First World countries had developed at the expense of Third World countries “led to a focus on basic needs and poverty alleviation through people centred approaches” (Wassermann 2001).

Wassermann suggests that there has arisen an underlying

postulate of participation, that is, the universal idea that the supposed beneficiaries of development interventions should control and own as many aspects of the interventions as possible so that they may go it alone on the development route when expert assistance is withdrawn [emphasis added] (Wassermann 2001: 172).

The difficulty with this view of participation is that, although it represents a major advance on previous approaches to development, the caveat shown in italics in the quote above continues to reinforce the view of poor people as the subjects of development.  It assumes the independent existence of an outside group of (usually remote) experts who have the knowledge and wisdom, missing among local people, to discern the problem, its solution and the manner in which the solution is to be applied.  For this reason a different participation paradigm is proposed.

1.2      Participation and Sustainability

Wassermann (2001) puts forward five contentious assumptions about participation by the community in development decisions, viz.

  1. Communities consist of harmonious interest groups;
  2. All communities members desire change;
  3. All community members have the self-confidence to participate;
  4. All community members may take free, democratic decisions; and
  5. Community leaders necessarily serve community interests.

Having ‘demonstrated’ how inaccurate she believes these assumptions to be, she proceeds to propose that

[w]ith regard to poverty alleviation (income generating) projects, an approach is proposed in which less emphasis is placed on the amorphous masses that are referred to in the literature as a ‘community’, and more emphasis placed on the individual who displays personal initiative (2001: 177)

This prescription however falls into the neo-liberal trap of putting personal advantage ahead of communal benefit and proposes escape from poverty through winning the competition for resources, which is ultimately unsustainable.  The key to appropriate public participation lies in its use as a tool for discerning narratives and counter-narratives and as a method of involving a range of community representatives, often characterised as ‘civil society’.  In this way issues of sustainability can be examined and the appropriate development path shaped.  This is especially relevant when scarce natural resources are in contention.

There is general consensus in the international society that development and environmental protection are interrelated.  However, and despite some advancements, there has been an inadequate level of integration of environmental and social considerations into the mainstream economic decision making (Ryan 2001).

Careful management of the participation process can best counter the problems that Wassermann outlines, including the problem of the inadequate voice of the marginalised or disadvantaged members of a group.  Techniques to promote better participation and the inclusion of minority voices are available.  These techniques provide both participants and observers with reassurance that participation is more than just token.

In this context, public participation is one of the keys to better sustainable development governance at the international – as well as the national – level.  Opening the political processes and institutions to the participation and monitoring of civil society, will strengthen the presence of underrepresented interests and concerns within the decision making process, enhancing the possibilities of environment and development integration and, overall, improving international governance (Ryan 2001).

1.3      Environmental decision making as policy

Policy is defined by Pressman and Wildavsky (1973) who view “policy as a hypothesis containing initial conditions and predicted consequences.  If X is done at time t1, then Y will result at time t2” (1973: xiv), i.e. describing policy as the causal link between the two conditions. This definition fits neatly into the purpose of environmental decision making, which can be regarded as gathering information about the current situation and then make a prediction about what will happen over time if certain actions are undertaken. To this extent the research around policy processes is relevant to this study.

1.3.1                Policy space

An important function of the participatory process is the way in which it opens up space for alternative views to be heard.

Participatory processes can provide a means by which ‘policy space’ (Grindle and Thomas 1991) can be levered open for the emergence of alternative interpretation of ‘needs’, and with this, alternative policy solutions.  Yet processes geared at simply asking people for their views on social policy issues can serve to produce ‘echoes’ of the dominant discourses, rather than alternative framings of policy issues.  The role of deliberative and critically reflective knowledge generation processes becomes crucial in enabling citizens to analyse and articulate their own concerns, which may lie beyond the frames of reference of pervasive policy discourses (Cornwall and Gaventa 2001: 14; emphasis added).

Cornwall and Gaventa’s contention that the process should go beyond providing ‘echoes’ of the dominant discourse requires a further analytic tool to expand our understanding of the policy process outlined by Kingdon (1995).  This tool could be Roe’s narrative policy analysis (Roe 1994).

One of the difficulties of the public participation process is that policy makers are often constrained by their own interpretation of, and concern with, “their political interests and the policy networks they are part of ...  [and] by the frames of reference within which the particular policy issue is interpreted” (Cornwall and Gaventa 2001: 14).

In contrast to this, in the context of this study the concern is with the evidence that comes from the stories told by the poor who are ostensibly the ‘subjects’ of environmental decision making.  This methodology was adopted precisely because the decision makers are not in a position to assess the impact of their decisions, whereas those most affected by the decisions have first hand experience.

This approach also privileges peoples’ interpretations of their experiences, … [it] prioritizes the assumption that narrative is a way of knowing: People use stories to draw knowledge explicitly from their lived experience (Dodge, Ospina and Foldy 2005: 292).

1.4      Participation and Democracy

A further important influence on the decision making process is that of interest groups.  In this connection a distinction is often made between elite and democratic forms of participation.  Elite participation usually consists of people outside of government who are granted a “role in decision-making because they possess professional expertise that is needed by decision makers” (Fiorino 1996: 194).  In a democratic form of participation “people take part as citizens, not as experts or interest advocates” (op cit: 195).  The two forms presuppose the existence of very different types of interest groups.

One of the motives for democratic participation is to make government decisions more legitimate.  However it has been suggested that

the more government agencies try to make their decisions legitimate by relying on scientific advice and analysis without the benefit of democratic participation, the wider will be the gap between the expectations of citizens and their ability to influence decisions.  As that participation gap widens confidence in democratic institutions and addresses they make will decline (Fiorino 1996: 197).

One reason advanced for the importance of public participation is its contribution to the furtherance of democracy.  So, for example, van der Zwiep (1994) contends that:

In a democratic society openness, and therefore, public participation are of major importance.  They guarantee that the decision making process of the government is checked and thus prevent arbitrary rule.

The extent to which people feel able to, and actually do take part in decision-making about society and the environment is widely felt to be an important measure of the “health” of a democratic society.  It reflects the strength of political and social institutions.

The importance of debating alternatives in a public forum, and especially debate that can influence decision making, is reflected by Furedi (undated) who argues that it is vital to explore alternatives, otherwise

[h]umanity is forced to acquiesce to a worldview that former British Prime Minister Margaret Thatcher aptly described as TINA - There is No Alternative. If there is no alternative to the status quo, the notion that we can control the future at all ceases to apply.  Instead, it is assumed that all we can do is try to limit the damage that is threatened by a destructive system.

In a world governed by TINA, politics can have little meaning.  Without alternatives, debate becomes empty posturing about trivial matters.

Participation theorists however, are critical of what they regard as an elite democracy theory and especially of its basis in group pluralism, pointing out that this approach assumes that everybody will have an opportunity to participate.  This in turn, begs the question of the form of participation or the form of democracy that prevails.  Mansbridge, for example, distinguishes ‘adversarial democracy’ (based on self-interest, secret voting and majority rule) from ‘unitary democracy’ (based on common interests, the search for consensus and face-to-face contact)” (cited by Fiorino 1996: 199).

The supporters of group pluralism believed that public policy is the “equilibrium reached in the struggle among competing group interests at a given moment” (Majone 1998: 610).  The general consensus was that “all active and legitimate groups in society would be able to make themselves heard at some stage in the process” (Majone 1998: 612).  This view has been contested, and the new emphasis on efficiency and rational policy-making has given rise to the view that policy credibility can be gained through public participation.  For example Majone suggests that “unanimous agreement, freely reached, guarantees that the solution is the Pareto-efficient”[1] (1998: 619).  In other words Majone is suggesting that a credible policy, obtained through optimal public participation, will create a situation where no one person can gain any more except at the expense of another.  The difficulty with this description is that it assumes that public participation and policy-making are zero-sum games[2].  The essence of democratic participation in policy-making is that the game is positive-sum, and I propose to show that, by using the critical discourse analysis proposed by Roe (1994), it is possible to take account of the different viewpoints, in effect making it a positive-sum game.

1.5      The participatory ideal

Fiorino has described a participatory ideal, which includes the following

allows for the direct participation of amateurs;
enables citizens to participate with administrators and experts on a more equal basis;
creates a structure for face-to-face interaction over time; and
allows citizens to share in decision-making (Fiorino 1996: 200).

Given the existence of this participatory ideal, it is important to distinguish what forms of democratic participation are appropriate at which stages of policy development.  Participation is possible at three stages of policy-making: “(1) setting the policy agenda; (2) developing the frameworks used to make policy choices; and (3) making policy choices” (Fiorino 1996: 203).

Majone has advanced the view that policy making has become dominated by the imperatives of efficiency, which he describes as “the process by which the diffuse, ill-organised, broadly encompassing interests sometimes succeed in overcoming particularistic and well-organised interests” (Majone 1998: 620).  To this extent it is going to be important to examine the mechanisms and the effects by which these interests interact with each other in the policy-making process.

1.6      Expert vs. popular participation

When considering the type of participation, especially in the formulation of policy, a number of factors have to be taken into account.  These include: quantity or quality and sampling, going to scale, how much participation is required, time factors and, frequently, the need to reinvigorate the process (UNDP 2000).  Each of these factors is in fact a decision on whether participation is to be by experts or by individuals.  Expert participation favours quality over quantity, smaller numbers within a shorter timeframe.  ‘Expert’ participation does not always mean technical expertise; in many cases the expertise is the necessary skill to understand the policy process and participate in it.

The classification of participation into expert and individual is problematic, as it does not allow for a gradation of expertise, suggesting that participants are either ‘experts’ or ‘lay’ people.  In the policy process a number of non-governmental organisations (NGOs), or other organs of civil society, can become involved.  These groups are characterised by their voluntary nature and are not often regarded as expert in the sense described above.  However they frequently possess a great deal of knowledge that goes beyond that of the ‘man in the street’ in their particular field of interest

[1] Maurice Allais offers a neat description of Pareto-efficiency, or a Pareto-optimal position, as an allocation between alternatives where there is an “absence of distributable surplus” (e.g.  Allais 1943, p.610).

[2] A zero-sum game is a game in which one player’s winnings equal the other player’s losses (McCain 2002).

Last modified on Tuesday, 30 November 1999 02:00
Thursday, 14 April 2011 14:39

Best practice in Public Participation

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This section outlines best practice in public participation as described by a variety of authors, international and Southern Africa.  The purpose is to highlight the tools and approaches that are readily available to improve and strengthen public participation in South Africa.

IAIA Best Practice

The ideal, or ‘best practice’, in public participation for impact assessment proposed by André et al is in terms of tiers. They label these as Basic and Operational (with a third, Developing Guidelines, which is not relevant here.

Basic Principles apply to all stages of PP in IA processes from strategic to operational levels. It is important to recognize that these levels are interdependent and, in some cases, may conflict. A balanced approach is critical when applying the PP Principles to ensure that IA fulfils its purpose and is carried out in what would constitute best practice. Operating Principles describe how the Basic Principles should be applied to the main steps and activities of the IA processes.[1]

The principles are stated as follows.[2]

Basic Principles

  • Adapted to the context – Understanding and appreciating the social institutions, values, and culture of the communities in the project area; and respecting the historical, cultural, environmental, political and social backgrounds of the communities which are affected by a proposal.
  • Informative and proactive – Recognizing that the public has a right to be informed early and in a meaningful way in proposals which may affect their lives or livelihoods. Increased interest and motivation to participate occur by diffusing simple and understandable information to the affected and interested public.
  • Adaptive and communicative – Recognizing that the public is heterogeneous according to their demographics, knowledge, power, values and interests. The rules of effective communication among people, in the respect of all individuals and parties, should be followed.
  • Inclusive and equitable – Ensuring that all interests, including those non-represented or underrepresented are respected regarding the distribution of impacts, compensation and benefits.  The participation or defence of the interests of less represented groups including indigenous peoples, women, children, elderly and poor people should be encouraged. Equity between present and future generations in a perspective of sustainability should be promoted.
  • Educative – Contributing to a mutual respect and understanding of all IA stakeholders with respect to their values, interests, rights and obligations.
  • Cooperative – Promoting cooperation, convergence and consensus-building rather than confrontation. Engaging conflicting perspectives and values as well as trying to reach a general acceptance of the proposal toward a decision that promotes and supports sustainable development should be pursued.
  • Imputable – Improving the proposal under study, taking into account the results of the PP process; including reporting and feedback to stakeholders about the results of the PP process, especially how their inputs have contributed to decision-making.

Operating Principles

With respect to the Basic Principles previously identified, public participation should be:

  • Initiated early and sustained – The public should be involved early (before major decisions are made) and regularly in the IA process. This builds trust among participants, gives more time for PP, improves community analysis, improves screening and scoping of the IA, increases opportunities to modify the proposal in regards to the comments and opinions gathered during the PP process, reduces the risk of rumours, and improves the public image of the proponent. It can also give the regulator more confidence in the approval decision they must make.
  • Well planned and focused on negotiable issues – All IA stakeholders should know the aims, rules, organization, procedure and expected outcomes of the PP process undertaken. This will improve the credibility of the process for all involved. Because consensus is not always feasible, PP should emphasise understanding and respect for the values and interests of participants, and focus on negotiable issues relevant to decision making.
  • Supportive to participants – The public should be supported in their will to participate through an adequate diffusion of information on the proposal and on the PP process, and a just and equitable access to funding or financial assistance. Capacity-building, facilitation and assistance should also be provided particularly for groups who don’t have the capacity to participate and in regions where there is no culture of PP, or where local culture may inhibit PP.
  • Tiered and optimised – A PP program should occur at the most appropriate level of decision-making (e.g., at the policy, plan, program or project level) for a proposal. The public should be invited to participate regularly, with emphasis on appropriate time for involvement. Because PP is resource consuming (human, financial, time) for all the IA stakeholders, PP optimisation in time and space will ensure more willing participation.
  • Open and transparent – People who are affected by a proposal and are interested in participating, whatever their ethnic origin, gender and income, should have access to all relevant information. This information should be accessible to laypersons required for the evaluation of a proposal (e.g., terms of reference, report and summary). Laypersons should be able to participate in relevant workshops, meetings and hearings related to the IA process. Information and facilitation for such participation should be provided.
  • Context-oriented – Because many communities have their own formal and informal rules for public access to resources, conflict resolution and governance, PP should be adapted to the social organization of the impacted communities, including the cultural, social, economic and political dimensions. This shows respect for the affected community and may improve public confidence of the process and its outcomes.
  • Credible and rigorous – PP should adhere to established ethics, professional behaviour and moral obligations. Facilitation of PP by a neutral facilitator in its formal or traditional sense improves impartiality of the process as well as justice and equity in the right to information. It also increases the confidence of the public to express their opinions and also to reduce tensions, the risk of conflicts among participants, and opportunities for corruption. In a formal context, the adoption of a code of ethics is encouraged.

There is a large degree of overlap between these principles and those described by the Southern African Institute for Environmental Assessment (SAIEA) quoted below.

SAIEA Best Practice

SAIEA have developed the following set of principles that articulate best practice for public participation in an environmental assessment process[3].

  • Adding Value: The process must add value to the assessment exercise, and not merely provide the appearance of participation;
  • Inclusivity: The process must include all relevant stakeholders;
  • Accessibility: The process must be conducted in a way that will give stakeholders easy access to participation;
  • Transparency: The process must be transparent with fair and equitable access to information for all stakeholders;
  • Fairness: The process must ensure that all stakeholders are treated in a fair and unbiased way;
  • Accountability: The process must ensure that all involved are accountable for their behaviour and actions;
  • Co-operation: The process should seek to manage conflict and promote the public interest;
  • Equity and Justice: The process should be designed so as to redress social inequity and injustice;
  • Capacity Development: The process should acknowledge the capacity limitations of stakeholders and seek ways to constructively address these;
  • Flexibility: The process should be designed and implemented in a way that is flexible and can accommodate process changes;
  • Co-ordinated: The process should be implemented in a rational and co-ordinated fashion; and,
  • Constant Improvement: The process should build on lessons from previous activity, and be reflected on to develop lessons for future activity.[4]

These principles of best practice together with the analysis described in Section 6 form the basis for the recommendations outlined in the next section.

IAP2 Core values

The International Association for Public Participation (IAP2) have developed a set of Core Values for the Practice of Public Participation. In presenting the Core Values, the organisation described them as being

developed over a two year period with broad international input to identify those aspects of public participation which cross national, cultural, and religious boundaries. The purpose of these core values is to help make better decisions which reflect the interests and concerns of potentially affected people and entities[5].

These Core Values are as follows

  • Public participation is based on the belief that those who are affected by a decision have a right to be involved in the decision-making process.
  • Public participation includes the promise that the public's contribution will influence the decision.
  • Public participation promotes sustainable decisions by recognizing and communicating the needs and interests of all participants, including decision makers.
  • Public participation seeks out and facilitates the involvement of those potentially affected by or interested in a decision.
  • Public participation seeks input from participants in designing how they participate.
  • Public participation provides participants with the information they need to participate in a meaningful way.
  • Public participation communicates to participants how their input affected the decision.

Assessment of process

In the following sections the criteria for assessing a participatory process and the nature of the analytic technique used in this report are offered. This is intended to provide an example of how the public participation process can be assessed by all the participants: proponent, authorities, EAP and specialists, and I&APs.

Criteria for Assessing a Process

In evaluating a participatory process a number of issues, or evaluation criteria, have evolved.  Petts (2001)[6] has produced the following criteria for assessing a process.  He suggests the questions shown in Table 14 are posed.

If a process meets these criteria it:

  • Ensures that the participants are representative of the full range of people potentially affected and that barriers, which may bias representation, are minimised.
  • Allows participants to contribute to the agenda and influence the procedures and moderation method.
  • Enables participants to engage in dialogue, and promote mutual understanding of values and concerns.
  • Ensures that dissent and differences are engaged and understood.
  • Ensures that ‘experts’ are challenged and that participants have access to the information and knowledge to enable them to do this critically.
  • Reduces misunderstanding and ensures that the authenticity of claims is discussed and examined.
  • Makes a difference to participants, e.g. allows for development of ideas, learning and new ways of looking at a problem.
  • Enables consensus about recommendations and/or preferred decisions to be achieved.
  • Makes a difference to decisions and provides outcomes which are of public benefit.
  • Ensures that the process is transparent and open to those not directly involved but potentially affected.

 



[1] André et al 2006, 3.

[2] Op. cit.

[3] SAIEA 2004

[4] Commonground. 2004.

[5] IAP2 2007.

[6] Petts, J. 2001.

Last modified on Tuesday, 30 November 1999 02:00
Thursday, 14 April 2011 14:44

Proposals

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Issues and problems with public participation have been raised in the course of this research, at the 10 years of EIA Conference, in interaction with the Subtheme task team, and at the Theme Coordinating Committee.  These have been captured as best as possible and are reflected in the following sections in which methods of addressing the issues are discussed and some time frames suggested.

The quickest and simplest way to address some of the shortcomings of the public participation process is to update the Guidelines and for the national and provincial environmental authorities to insist that they are followed.  Other remedies will require more time consuming amendments to both the Regulations and to policy.

The issues are listed, in alphabetic order, together with the recommendations, instruments and timeframes:

Table 13: Proposed remedies to improve public participation

Issue

Recommendation

Instruments

Short-term

Long-term

  1. 1. Assessment of each public participation process

The complaints about the conduct of public participation processes are valid in certain cases. 

It is recommended that to address this each public participation process is assessed using the criteria suggested by Petts (2001)[1]. (see  section 7.4.1)

Guideline

 

  1. 2. Access to information

Access to information, reports, and the process itself is often problematic for I&APs. 

To remedy this it is recommended that all

  • preliminary information, e.g. BIDs, are written in plain language and available in the majority language of the area,.
  • reports are supplemented by an Executive Summary in plain language in the majority language of the area that is made freely available to all I&APs,
  • all reports are made available in full at convenient places identified by the community,
  • all reports are presented at feedback workshops with I&APs.

Guideline

 

  1. 3. Alternatives

The exploration of alternatives is often neglected.

Any public participation process for environmental purposes must actively canvass proposals for alternative sites, uses of the land, and processes.  These must be documented and assessed with the same rigour as the original proposal.

Guideline

 

  1. 4. Capacity building

Proposals are often presented in a manner that does not promote a clear understanding of the proposed development and the environmental implications.

Workshops for I&APs should be held at the at the commencement of any environmental assessment to explore what the associated public participation process can achieve, what its limitations are and the methods of engagement agreed upon.

EAPs and public participation practitioners  could also be granted Continuing Professional development points in return for providing assistance with capacity building workshops for civil society.

Guideline

 

  1. 5. Competence

There is a commonly held view that public participation  is often undertaken by those with scientific expertise but without the required public participation skills.

The competence of those undertaking public participation should be verified by membership of a recognised professional association.  Registration as an EAP with EAPASA does not of itself indicate competence in public participation.

Guideline

Regulation

  1. 6. Ethics

It is impossible to legislate for ethics, however it is possible to require adherence to a Code of Ethics.

All persons undertaking public participation should be required to explicitly bind themselves to a Code of Conduct and a Code of Ethics.

Guideline

 

Regulation

  1. 7. Independence

The independence of EAPs and public participation practitioners cannot be guaranteed by financial criteria only.  The best way to improve independence is to make provision for peer review on demand.

The independence of EAPs and public participation practitioners cannot be guaranteed by financial criteria only.  The best way to improve independence is to make provision for peer review on demand.

It is recommended that this be implemented in two ways:

  1. Voluntary

Any practitioner should be entitled to include peer review of their report(s) and underlying activities as part of their terms of appointment.

  1. Required

On request by a stakeholder to the EAP or relevant authority any practitioner’s report(s) or activities should be peer reviewed by a person acceptable to all parties.

Guideline

Regulation

  1. 8. Inclusivity

A number of exclusionary practices have been mentioned. These are often unthinking and unconscious and have to be confronted.  They include insensitive choice of

  • language and technical terminology in documents such as BIDs, notices and advertisements,
  • venues for meetings that are remote from places where I&APs live,
  • times for meetings and events that clash with community timetables.

It is recommended that all public participation processes should include preliminary engagement with the affected community to jointly plan the public participation process.

Guideline

 

  1. 9. Meetings

Meetings are often unproductive ways of achieving meaningful public participation.

Some of the barriers to be effective engagement in meetings can be remedied by

  • planning meetings in conjunction with local community members or leaders,
  • conducting meetings and other events either in the majority language of the area or with ready translation,
  • conducting workshops rather than meetings,
  • using local people as facilitators and/or translators at meetings,
  • using easily accessible venues in communities.

Guidelines

 

  1. 10. Methodology

Some of the shortcomings in the methodology followed in current public participation processes stems from a lack of understanding of the nature of the affected communities. 

It is recommended that before any process is undertaken or planned a preliminary social probe is undertaken.  This should be used to ascertain the

  • predominant language in the community or area,
  • the governance structures in the area,
  • the names and contact details of the leadership, both civic and traditional if applicable,
  • the names and contact details of any organs of civil society (established NGOs and CBOs) in the community or area.

This information should then be used to guide the development of a Public Participation Plan for the project in conjunction with the leadership and identified organs of civil society.

Guideline

 

  1. 11. Mediation

Mediation and alternative conflict resolution mechanisms could possibly be used, especially in situations where feelings are running high.

The use of mediation and conciliation is provided for in NEMA S 17.

However it is important that these techniques are not used in an attempt to mask flaws in the process or the proposed development. Neither should they be used to “sell” a particular development to the community.

It is recommended that alternative dispute resolution techniques should be used with caution and only to develop mutually acceptable

  • public participation processes for the assessment of the proposed development,
  • goals and outcomes for the assessment process,
  • goals and outcomes for the community’s desired state of the environment.,
  • mitigation measures.

Guideline

 

  1. 12. Notification and communication

The often erratic and apparently selective methods of communication are often troublesome. 

It is recommended that flaws in notification and communication practices are remedied by a few fairly easily applied requirements.

  • Use of appropriate language medium.
  • Avoidance of technical language unless absolutely necessary and then accompanied by an explanation in plain language.
  • Using appropriate media, such as local radio, local community newspapers.
  • Communicating at regular intervals to keep I&APs abreast of developments.
  • Using community structures to disseminate information.

Guideline

 

  1. 13. Principles

There is a perception that the practice of public participation is not governed by any principles.

Both the basic principles and operating principles of best practice in public participation outlined by IAIA and SAIEA’s Best Practice (see sections 7.1 and 7.2) should be adopted and rigorously applied.

Guideline

 

  1. 14. Public participation specialist

Public participation is becoming increasingly problematic for all concerned.

Given the difficulties experienced by some I&APs as discussed above it is recommended that a public participation specialist is appointed in the same way as other specialists are appointed to provide an EAP with relevant services.

Guideline

 

  1. 15. Regulator competence

There is no quick fix for the shortage of capacity in the environmental departments in all three spheres of government.  However the recommendations regarding competence and ethics outlined above are equally applicable to government officials.  

The competence of those reviewing public participation should be verified by membership of a recognised professional association.  Registration as an EAP with EAPASA does not of itself indicate competence in public participation.

 

Policy

  1. 16. Time frames and timing

There is confusion over the time periods to be observed particularly by I&APs, EAPs and proponents. 

To remedy this it is recommended that the time periods for all processes other than those already stipulated in the regulations are negotiated at the commencement of an assessment by the authority, the proponent, representatives of civil society and the consultant team.

Guideline

 

  1. 17. Screening and flexibility

The issue of screening and flexibility is an issue that requires a great deal more discussion and investigation. 

It is recommended that this is undertaken as part of a more comprehensive review of the environmental legislation.

Guideline

Regulation

Summary of proposals

The proposals outlined above can be summarised as follows.

  1. Require practitioners to follow the principles set out by IAIA (section 7.1).
  2. Require practitioners to follow the criteria for best practice described by SAIEA (section 7.2).
  3. Institute assessment of all public participation processes by both I&APs and practitioners using Petts’ criteria (section 7.4.1).
  4. Urgently review and update the Guidelines for Public Participation issued by the Department of Environmental Affairs.
  5. Embark on a process of updating the Regulations.

 



[1] Petts, J. 2001.

Last modified on Tuesday, 30 November 1999 02:00
Tuesday, 10 May 2011 06:22

Summary: Problems and Recommendations

Published in Public participation Written by Angela Andrews
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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.
Last modified on Thursday, 12 May 2011 18:30
Monday, 16 May 2011 08:47

Problems Identified

Published in Public participation Written by Administrator
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The Specialist report by Rod Bulman of Phelamanga Projects delved into the responses to a questionnaire and lists 17 issues against which proposal are made.  Here, these issues are listed first, and a subset of bullet points are collated from the comments submitted to the Ten Year Review of EIA and this process.

1.    Assessment of each public participation process
The complaints about the conduct of public participation processes are valid in certain cases

2.    Access to information
Access to information, reports, and the process itself is often problematic for I&APs.  

3.    Alternatives
The exploration of alternatives is often neglected.
o    Inadequate exploration of alternatives leads to a poor understanding of the opportunity costs which go with an authorisation

4.    Capacity building
Proposals are often presented in a manner that does not promote a clear understanding of the proposed development and the environmental implications.

5.    Competence
There is a commonly held view that public participation is often undertaken by those with scientific expertise but without the required public participation skills.
o    A lack of professional facilitation skills by those conducting the process

6.    Ethics
It is impossible to legislate for ethics, however it is possible to require adherence to a Code of Ethics.
o    Doubt in the independence, ethics and conduct of the EAP

7.    Independence
The independence of EAPs and public participation practitioners cannot be guaranteed by financial criteria only.  The best way to improve independence is to make provision for peer review on demand.

8.    Inclusiveness
A number of exclusionary practices have been mentioned. These are often unthinking and unconscious and have to be confronted.  They include insensitive choice of

•    language and technical terminology in documents such as BIDs, notices and advertisements,
•    venues for meetings that are remote from places where I&APs live, times for meetings and events that clash with community timetables

o    Barriers to access include language, format, volume, means of dissemination,  complexity (ease of understanding)
o    Meetings convened in languages, at times and in places which are insensitive to the affected community
o    Means of communication not appropriate to the community profile
o    Inadequate means of identifying and reaching communities, leaders, NGO, CBO, PBO and interest groups.
o    Public participation fails to reach the youth, and they are a significant demographic and the part of society that will be impacted by decisions for the longest time

9.    Meetings
Meetings are often unproductive ways of achieving meaningful public participation.
o    Meetings are not tailored to be productive and to achieve meaningful public participation

10.    Methodology
Some of the shortcomings in the methodology followed in current public participation processes stems from a lack of understanding of the nature of the affected communities.  
o    Lack of objectivity in reporting / too much emphasis on the proponent’s needs
o    The process fails to ensure fair and sufficient engagement
o    The requirement for public participation in strategic tools is inadequately defined and applied.
o    The quality of the process is not assessed and there is no effective recourse when the process is poor
o    The engagement has no lifespan beyond authorisation; the public live with the impacts during and after and a platform for continued engagement is required
o    Professional findings and opinions are not adequately integrated into decision making
o    Consultation and communication between departments and spheres of governments is inadequate and not transparent
o    The public is not adequately informed of the probable and potential impact on the environment, nor are the implications of those impacts given context which are relevant to them (vs the proponent/development)

11.    Mediation
Mediation and alternative conflict resolution mechanisms could possibly be used, especially in situations where feelings are running high.
The use of mediation and conciliation is provided for in NEMA S 17.
However it is important that these techniques are not used in an attempt to mask flaws in the process or the proposed development. Neither should they be used to “sell” a particular development to the community.

o    The process is open to abuse, and conflict resolution or mediation is not effectively used

12.    Notification and communication
The often erratic and apparently selective methods of communication are often troublesome.  

13.    Principles
There is a perception that the practice of public participation is not governed by any principles
o    The purpose and principles of public participation are misunderstood / misrepresented

14.    Public participation specialist
Public participation is becoming increasingly problematic for all concerned.
o    I&APs suffer from participation fatigue, community resources are stretched thin, and there is little consideration for parallel demands on the community resources
o    Proponents experience the process as dragged out and used as a platform for unrelated issues.

15.    Regulator competence
There is no quick fix for the shortage of capacity in the environmental departments in all three spheres of government.  However the recommendations regarding competence and ethics outlined above are equally applicable to government officials.   

16.    Time frames and timing
There is confusion over the time periods to be observed particularly by I&APs, EAPs and proponents.  

o    Timeframes are not transparent, especially when there are delays  (largely a communication problem)

17.    Screening and flexibility
The issue of screening and flexibility is an issue that requires a great deal more discussion and investigation.
Last modified on Tuesday, 30 November 1999 02:00
Sunday, 22 May 2011 08:36

Summary of Proposals

Published in Public participation Written by Administrator
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A compilation of the proposals made in the specliast report by Phelamanga Projects: Rod Bulman:

Ensure that the participants are representative of the full range of people potentially affected and that barriers, which may bias representation, are minimised

Allow participants to contribute to the agenda and influence the procedures and moderation method

Enable participants to engage in dialogue, and promote mutual understanding of values and concerns.

Ensure that dissent and differences are engaged and understood.

Ensure that ‘experts’ are challenged and that participants have access to the information and knowledge to enable them to do this critically.

Reduce misunderstanding and ensures that the authenticity of claims is discussed and examined.

Make a difference to participants, e.g. allows for development of ideas, learning and new ways of looking at a problem

Enable consensus about recommendations and/or preferred decisions to be achieved.

Make a difference to decisions and provides outcomes which are of public benefit.

Ensure that the process is transparent and open to those not directly involved but potentially affected.

Reports are made available in full at convenient places identified by the community

Reports are presented at feedback workshops with I&APs

Preliminary information, e.g. BIDs, are written in plain language and available in the majority language of the area,.

Reports are supplemented by an Executive Summary in plain language in the majority language of the area that is made freely available to all I&APs,

Any public participation process for environmental purposes must actively canvass proposals for alternative sites, uses of the land, and processes.  These must be documented and assessed with the same rigour as the original proposal.

Workshops should be held at the commencement of assessment to explore what public participation process can achieve, what its limitations are and the methods of engagement agreed upon.

EAPs and public participation practitioners  could also be granted Continuing Professional development points for providing assistance with capacity building workshops

The competence of those undertaking public participation should be verified by membership of a recognised professional association

All persons undertaking public participation should be required to explicitly bind themselves to a Code of Conduct and a Code of Ethics.

Improve the independence of the EAP/Public Participation Practitioner by providing for peer review

Times and venues for meeting should be appropriate to the community

Plan meetings in conjunction with local community members or leaders,

Conduct meetings and other events either in the majority language of the area or with ready translation,

Conduct workshops rather than meetings,

Use local people as facilitators and/or translators at meetings,

Use easily accessible venues in communities.

Start public participation process with a social probe

Establish the predominant language, LITERACY LEVEL, PREFERRED MEANS OF COMMUNICATION, CENTRALLY ACCESSIBLE POINTS OF COMMUNICATION E.G. SCHOOLS

Determine governance structures in the area

Obtain the names and contact details of the leadership - civic and traditional - and include them in the public participation process

Obtain the names and contact details of any civil societies in the community (NGO, CBO) and include them in the public participation process

Use conflict resolution or mediation as needed to agree on mitigation measures, desired state of the environment, goals and outcomes for the assessment process

Use appropriate language to communicate

Where technical language is needed there should be an explanation in plain language, and should include an explanation of the implications on the environment and the I&APs

Communication should be at regular intervals and should keep I&APs informed.  The requirement should be for a communication to be sent to I&AP every quarter, whether there has been progress or not.  I&APS should be informed of all events (including meetings with officials and negotiations)

Use community structures to disseminate information; this should not be to shift the cost, responsibility or accountability.

A public participation specialist is appointed in the same way as other specialists are appointed to provide an EAP with relevant services.

Officials should have the same competency requirements as EAPs

Adopt best practice principles and apply rigorously, including  -

  • Accountability -  The process must ensure that all involved are accountable for their behaviour and actions;
  • Adapted to the context
  • Adaptive and communicative
  • Capacity Development - The process should acknowledge the capacity limitations of stakeholders and seek ways to constructively address these
  • Constant Improvement -  The process should build on lessons from previous activity, and be reflected on to develop lessons for future activity
  • Context-oriented
  • Cooperative
  • Credible and rigorous
  • Educative - Contributing to a mutual respect and understanding of all IA stakeholders with respect to their values, interests, rights and obligations
  • Equity and Justice - The process should be designed so as to redress social inequity and injustice;
  • Imputable - Improving the proposal under study, taking into account the results of the PP process; including reporting and feedback
  • Inclusive and equitable  - he process must ensure that all stakeholders are treated in a fair and unbiased way;
  • Informative and proactive
  • Initiated early and sustained
  • Open and transparent  -  The process must be transparent with fair and equitable access to information for all stakeholders;
  • Supportive to participants
  • Tiered and optimised  - PP program should occur at the most appropriate level of decision-making
  • Well planned and focused on negotiable issues
Last modified on Sunday, 22 May 2011 08:41

Procedures

Articles on the theme "Procedures and Organisational Structures"

Problems identified
Revised Report

Highlights

Information

Articles on the theme "Knowledge and Information"

Problems identified
Revised Report

Highlights

Participation

Articles on the theme "Public Participation"

Problems identified
Revised Report

Highlights

Enforcement

Articles on the theme "Monitoring & Enforcement"

Problems identified
Revised Report

Highlights

 

Independence

Articles on the theme "Quality assurance and Independence of EAP’s"

Problems identified
Revised Report

Highlights

Demographics

Articles: "Representative demographics in service providers & civil society"

Problems identified
Revised Report

Highlights

Marginalised

Articles: "Empowerment of marginalized communities"

Problems identified
Revised Report

Highlights

Skills of EAPs

Articles: "Skills of EAPs and Government Officials"

Problems Identified
Revised Report

Highlights

Tools

Articles: "Existing & New EIM Tools"

Problems Identified
Revised Report

Highlights

Governance

Articles: "Co-Operative Governance: EIM Tools"

Problems Identified

Revised Report

Highlights

Quality

Articles: "Quality Management: EIM Tools"

Problems Identified
Revised Report

Highlights