The Custodian Project

Compilation of proposals from the report by MLA Sutainability Matters: Marlene Laros

Improving Competence
Establish the future Registration Authority as the Education and Training Quality Assurance Body for environmental assessment practice in terms of section 24 of NEMA
Engage institutions of higher learning in accrediting their relevant educational programmes in the environmental field.
Target planning and landscape architecture fields which are often associated with EA practice for inclusion in accreditation
Develop a content-specific skills development strategy and implementation plan for EAPs, starting with  capacity needs assessment focused on the outcomes of the EIAMS, needs in implementation phase of IEM and requirements in other related disciplines
Develop internship and mentorship programme aimed at addressing transformation in the sector and in facilitating the registration of new entrants.
Develop a long-term monitoring and research programme on a selected set of environmental assessment processes in order to review the effectiveness of the assessment, implementation of conditions of approval and environmental outcomes predicted.

Institutionalising Review
Identify and institute a set of performance indicators for the proposed Registration Authority
Review needs to be pursued as an essential component of quality assurance in ways that are meaningful in improving quality of practice. The effect could be two-fold, on quality of work and enable independent review.
Compile a ‘Listing Notice 4’ for activities or environments for which external peer review is mandatory.
Establish a Commission on Environmental Assessment or permanent national and provincial EA review panels which can be supplemented by relevant experts
Develop guidelines for the selection of reviewer
Undertake an evaluation of the existing review guidelines with a view to improvement of quality.
Develop a monitoring and research programme to establish the effectiveness of the instituted review system.

Ethics in Practice
Monitor all Regulation 50 – based exemptions from Regulation 17 and assess the impacts on quality of assessment work in terms of the application of objective professional judgment.
Consideration should be given to piloting on a trial basis alternative ways of enabling objectivity in cases where Regulation 50 is used for exemption to Regulation 17.
Support the implementation and enforcement of the proposed Code of Ethical Conduct and Practice of the Registration Authority (EAPASA).

Investigating Future Registration Needs

Investigate the addition of a technical-level EAP category with specific identification of work to be undertaken by such persons
Engage relevant professional registration bodies for specialists to explore ways of improving quality in EA practice
Investigate in the medium to long-terms the establishment of a Council for Environmental Professions, under which a range of generalist and specialist practitioners could be registered
The foundations of quality assurance in environmental assessment practice are competence (including academic training, experience and core competencies), ethical conduct, and review.
The identified need is for further focus on standards of practice for implementation, monitoring and evaluation in IEM. (Theme 11)

Compilation of proposals from the report by MLA Sutainability Matters: Marlene Laros.

Improving Competence
Establish the future Registration Authority as the Education and Training Quality Assurance Body for environmental assessment practice in terms of section 24 of NEMA
Engage institutions of higher learning in accrediting their relevant educational programmes in the environmental field.
Target planning and landscape architecture fields which are often associated with EA practice for inclusion in accreditation
Develop a content-specific skills development strategy and implementation plan for EAPs, starting with  capacity needs assessment focused on the outcomes of the EIAMS, needs in implementation phase of IEM and requirements in other related disciplines
Develop a content-specific skills development strategy and implementation plan for EAPs. This would involve a capacity needs assessment focused on the outcomes of the EIAMS, including identified needs in implementation phase of IEM and requirements in other related disciplines
Develop internship and mentorship programme aimed at addressing transformation in the sector and in facilitating the registration of new entrants.
Develop a long-term monitoring and research programme on a selected set of environmental assessment processes in order to review the effectiveness of the assessment, implementation of conditions of approval and environmental outcomes predicted.
Institutionalising Review
Identify and institute a set of performance indicators for the proposed Registration Authority
Compile a ‘Listing Notice 4’ for activities or environments for which external peer review is mandatory.
Establish a Commission on Environmental Assessment or permanent national and provincial EA review panels which can be supplemented by relevant experts
Develop guidelines for the selection of reviewer
Undertake an evaluation of the existing review guidelines with a view to improvement of quality.
Develop a monitoring and research programme to establish the effectiveness of the instituted review system.
Ethics in Practice
Monitor all Regulation 50 – based exemptions from Regulation 17 and assess the impacts on quality of assessment work in terms of the application of objective professional judgment.
Support the implementation and enforcement of the proposed Code of Ethical Conduct and Practice of the Registration Authority (EAPASA).
Investigating Future Registration Needs
Investigate the addition of a technical-level EAP category with specific identification of work to be undertaken by such persons
Engage relevant professional registration bodies for specialists to explore ways of improving quality in EA practice
Investigate in the medium to long-terms the establishment of a Council for Environmental Professions, under which a range of generalist and specialist practitioners could be registered

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

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

Objective
To ensure that the Environmental Impact Assessment and Management tools discussed in Subtheme 9 meet a specified quality standard.  
Background
The National Environmental Management Act (NEMA) sets out various tools that can be used to manage the environment.  The DEA has developed an Integrated Environmental Assessment Information Series and Guideline Series explaining the requirements for different environmental tools.  Other departments and organisations have developed guidance documents for various tools as well.  See the full report for a rundown of various tools’ content requirements and references to the guidance documents.  
Problems
1.   Content of EIA reports is too voluminous and unfocused:  The EIA process has become about cataloguing content rather than critical analysis of the merits and potential impacts of a project.  Reports deliver an overload of information without distilling it to its key points or organising it to support conclusions and recommendations.  
2.   Quality standards not enforced:  There are regulations governing the quality of environmental reports, yet they are poorly enforced.
3.   EIAs conducted without taking into account broader context of sustainability goals:  EIAs tend to generate mitigation measures rather than assess whether activities should be permitted at all.  Thus, EIAs often meet all the formal criteria (get all the boxes checked), but do not contribute to quality decisionmaking.
4.   Lack of good performance indicators:  Good indicators are needed to measure the effectiveness of environmental tools and policies.  There is no central information database to collect and interpret data that can then be used to set environmental goals and monitor performance.
5.   Not enough use of strategic tools:  Strategic tools such as the Strategic Environmental Assessment (SEA) and Environmental Management Framework (EMF) should be incorporated into Spatial Development Frameworks (SDFs), so that projects can be screened and determined to be suitable or unsuitable for certain geographic areas early in the process, before an expensive EIA is started.  Cumulative impact assessments are also under-utilised.
6.   Registration of environmental professionals is necessary to improve the quality of EIAs.  Independence and objectivity are particularly important.  
7.   Authorisations are poorly drafted, aggravating poor enforcement:  The conditions of approval of many applications are inappropriate, often cut and paste from other documents.  Because of delays, applicants do not appeal the conditions even when they do not make sense.  
8.   Environmental Managements Programmes (EMPs) are vague in content and legal status:  EMPs lack detail on how management and mitigation measures are to be implemented.  Many developers also view EMPs as a guideline rather than a legal requirement.
9.   Weak enforcement:  Once a project is approved, there is little monitoring or enforcement to make sure it complies with the conditions in the authorisation.  Some have suggested spot checks and administrative fines as a way to monitor with limited staff.
10.  Information systems outdated:  There is a lack of baseline environmental information, and decisions are often made based on old, outdated information.  
11.  Offsets:  The use of offsets, compensatory investment to offset development that has negative environmental impacts, is controversial.  They should not be allowed in areas of unique and irreplaceable biodiversity value.  
12.  Data availability and scale:  Small scale data is often used for detailed analysis.  See Subtheme 2 for more on data and information gaps.
Strategic Goals
1.  Operate effectively in all four phases of management:  The “Deming Cycle of Management” has been adapted to the Integrated Environmental Management (IEM) context.  The phases are Plan (planning & design), Do (commission & implementation), Check (monitoring & compliance), and Act (enforcement & feedback).  Tools should be linked to the appropriate stages of the cycle.  The cycle is designed to improve with every completed loop – the knowledge gained from a prior project will feed into the next.  
2.   Apply an outcome-based approach to environmental management:  Quality of environmental tools should be measured by an outcomes-based approach, moving beyond having the right content in the reports, or “ticking boxes.”  Tools should identify the desired state of the environment and set clear indicators, baselines, and targets to measure progress.
a.   Methodology (based on a model from Western Australia):
i.     Identify the environmental outcome to be achieved.  Desired outcomes may be an explicit condition (such as avoidance of a particular vegetation), a progressive rehabilitation of an area, or an environmental performance standard (such as an emission limit).
ii.     Identify how the outcome is to be measured and define acceptable degrees of impact.  Baselines must be known in order to measure levels of change.   
iii.  Identify reporting requirements  
iv.  Identify what is to be done if the outcome is not being met.  
3.   Align State of the Environment reporting:  The State of the Environment report should provide baseline information from which to develop desired environmental outcomes.
4.  Increase use of strategic planning and design tools to achieve desired outcomes.  
5.  Guideline documents and regulations should continue to be used to ensure quality of environmental tools:  Guidelines and regulations should include a list of required information and provide for clear terms of reference, defined scope, performance criteria, professional certification, independent review, accepted standards and formats for data, scale and accuracy of baseline information, and input from interested & affected parties.
6.  Employ other mechanisms to achieve environmental outcomes:  Different instruments include the following.  
a.  Command and control:  Standards linked to desired outcomes
b.  Market-based instruments:  tax relief, tax penalties, subsidies, fees.  
c.   Agreement-based instruments:  private agreements between organisations, international agreements.  
d.  Civil-based instruments:  Performance reporting, eco-labeling.
7.  Strengthen monitoring and enforcement tools:  This report recommends a new tool, the Compliance Assessment Report, to help in this regard.
Recommendations
Immediate
1.    Make guidelines easily accessible at a central database; ensure that government officials are familiar with them.
2.    Make authorisations clearer, allowing for effective monitoring and enforcement, and accessible to all interested and affected parties (I&APs).  
3.    Compile guideline documents on attaining the objectives of NEMA and selecting the proper tools in each stage of the environmental management cycle.
Short Term
1.    Compile a guideline document on an outcomes-based approach to environmental management.
2.    Develop indicators to measure progress towards desired outcomes and allow for public participation in establishing the criteria.      
3.    Change requirements for EIA reports.  Reports should include three perspectives:  the desired environmental outcome, the developer’s goal, and the desires of I&APs.  Reports should also explain how the proposed development will contribute to ecological sustainability.
4.    Compile guideline documents on the new format of the EIA report (described above) and the new Compliance Assessment Report tool.
5.    Clarify content of EMPs.  EMPs must explain how and when indicators of sustainability will be measured and reported, the actions to be taken if desired outcomes are not achieved, and a chain of escalation within the overseeing authority.
Intermediate
1.    Develop baseline data against which to measure performance.
2.    Develop a system to collect monitoring information, which can then inform strategic tools such as EMFs, SEAs, and SDFs.
3.    Compliance actions must be transparent and made known to stakeholders such as the complainant and other I&APs.  
Long Term
1.    Eliminate duplication and inefficiency in permitting.
2.    “Close the loop” in the management cycle by ensuring that information from one phase feeds into the next, so that the process is continually improved by new knowledge.  
3.    Audit tools more regularly to determine their effectiveness and efficiency.  
4.    Amend as necessary NEMA regulations to provide for an outcome-based approach to management and the full four stages of management.

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

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

EXISTING & NEW ENVIRONMENTAL IMPACT MANAGEMENT TOOLS
This section rephrases issues and constraints to resemble recommendations on what can be done to improve the use of environmental management tools, as well as the tools themselves, resulting in a single comprehensive set of suggestions and recommendations.
Issues are classified as either tool specific or generally applicable to the environmental management system.

SPECIFIC TOOLS

Screening: The environmental assessment and management process places onerous assessment requirements on projects that do not merit time and resource intensive investigation.  The current environmental assessment system can benefit from further ‘streamlining’ through additional levels of screening.

It is argued that there should be mechanisms to further reduce the requirements for the environmental assessments even if EIA authorizations are required e.g. different process requirements for large projects in brown field sites versus projects in green field sites.

There should be screening for compatibility with plans, standards and guidelines in the areas they are proposed, prior to the identification and assessment of impacts and alternatives.  This relies on  quality and content of the reference planning instruments e.g. Spatial Development
A more risky method of screening is the application of government discretionary power to enforce or waive EIA assessment requirements.

Norms and Standards: The use of Norms and Standards as a screening tool would result in additional assessments and authorizations being eliminated in favour of self-regulation and heavy penalties for non-compliance. The application of norms and standards further allow for the control of activities that do not ordinarily require environmental impact authorizations yet have the potential to impact on the environment.
A closely related tool, the use of ‘levels of acceptable change’ can also be applied , with less certainty due to the likelihood of differing opinions over acceptability and uncertainty with regards to cumulative impacts.

Environmental Management Programmes: EMPs are neglected and consequently the effectiveness of the entire environmental management cycle is eroded.
EMP compilation comes too late in the environmental assessment and management process. It is believed that many concerns of the public or government officials could be addressed in proper management of the environment as opposed to detailed investigation. EMPs could be used to describe the qualitative and quantitative environmental management measures to be employed during the actual development process, based on the information on environmental impacts and levels of acceptability established during the environmental assessment process. EMPs should be as practical and relevant as possible. There should be allowance for peer review by persons with experience in construction/implementation.
There has to be compliance or follow up to correct non-compliance or unanticipated environmental consequences. Monitoring of development impacts and compliance with the EMP should be a requirement, and should be used to inform Interested and Affected Parties about the environmental objectives and controls to be achieved, and the status of compliance.
EMPs need to be dynamic tools that can adapt to changing circumstances and conditions in order to ensure an optimal strategy for environmental management during project implementation. This becomes problematic when there are different stakeholders involved and amendment processes that take time to conclude. The principle and practice could therefore be at odds.

Environmental Management System:  A properly constituted EMS would establish procedures for day-to-day environmental management, environmental incidents as well as institutional procedures for continuous information management and iterative system improvements.  The role of International Standards Organisation (ISO) standards and certification, and other environmental management systems, can be expanded to allow for full life cycle environmental management.


Environmental Impact Assessment:  EIA is often confused with the full spectrum of IEM, thereby leading to the confusion over the role and function of EIA studies.
Concerns consequently relate to whether or not EIA is invoked in the correct instances, whether the process is robust, effective and efficient, whether EIAs lead to appropriate substantive outcomes, and whether there are enough linkages with other tools and processes. In addition, concerns are raised about the necessary levels of competence and skills for EAPs.

The relevance of the EIA process should be ensured if it is to remain a legitimate tool. Efficiency in process execution and administration is required.  Applicability would need to be ensured by eliminating the need for irrelevant (paper exercise) assessments and extraneous specialist investigations.

Effectiveness of the EIA process relates to both the constituent components of the EIA process being made more relevant, accurate and useful, and the completion of the environmental management cycle to ensure that the outcome of the EIA is environmental sustainability.
Ideas include more selective requirements for assessment of development alternatives, the increased use of class assessments, and closer links with related processes such as spatial planning.

The EIA process can be improved through a more rigorous impact investigation and assessment phase.  Failure include: absence or incorrect use of contextual issues, cumulative effects assessment, cost-benefit analysis, life cycle assessment and risk assessments (including health, social, ecological etc.) as well as poor linkages with EMPs.
Improved application and use of the EIA process and its constituent parts will require skills and capacity of the EAPs administrating the process.
Post-approval tools need to be implemented more rigorously - ensuring compliance with conditions imposed and recommendations made in the specialist reports and EMP.

Strategic Environmental Assessments : Various forms of SEA can be used to deal with off-site and cumulative impacts, and potentially create a framework through which detailed investigations can be streamlined; and to contextualize, precede and inform detailed and site-specific assessments.   
SEA is inherently flexible and applied to a myriad of different planning systems. It is not necessarily enforceable, nor can it be standardised.
Legislation instructs decision-makers to refer to and take guidance from relevant SEA (or EMF) guidance but does not make it compulsory to comply with the guidance provided.
There is inadequate legislative directive to ensure a wide application of SEA, and not much to guide non-environmental sectors and fields in the application of SEA.
Timelines can be long, stakeholder participation extensive and the appeal process vague. Public participation during an SEA can also be used or misused to reduce the opportunity for stakeholder engagement on more specific studies (such as an EIA falling within an EMF study area).  A similar concern relates to the possibility for prominent sector stakeholders to manipulate strategic planning processes for their sector.

Conservation planning informs more universal environmental management tools, and is usually the basis from which ecological base data is originated, and the framework against which ecological impacts are evaluated. It is also used as a layer of screening in the EIA process.
Because of its importance, there should be clear standards that allow ‘good’ conservation planning to be separated from ‘bad’ planning. Such standards should be set for the planning process (methodology) and the national, provincial and local conservation targets.
These standards will also structure how conservation planning can be challenged, addressing the potential to challenge site-specific inaccuracies arising from high level modelling.
Appropriate public participation must take place, which typically does not happen now. Stakeholder participation should be determined in accordance with the intended use of the conservation planning, and the requirements of common law.
More awareness need to be created on how the different tiers of conservation planning relate to each other, and to external environmental management tools. This could potentially be linked to legal requirements for compliance with conservation planning by environmentally destructive activities such as mining and urban expansion.

Cumulative Effects Assessment should be one of the basic information sources that informs EIA and SEA, since issues within a cumulative impact effect may result in different outcome as opposed to assessing only individual impacts. Cumulative effects are difficult to assess at project specific level and therefore represent a compelling argument for the increased use of strategic level assessments.

Life cycle assessment can allow for externalized and hidden effects to be discovered and factored into the assessment of development proposals.
It is common in business modelling as it allows economic advantages of a development to be measured and the most suitable technology selected.
Such considerations should inform environmental assessments and decisions as well, or alternatively, the life cycle environmental impacts of a project should be used to determine the nature and design of the project.
Life cycle assessment would add value particularly in assessment of mining applications where the environmental and social impacts over a long term can better inform the actual costs of the project and inform procedures and safeguards for mine closures.
Life cycle assessment may fail to assign a monitory value to environmental issues, and consequently the environmental costs cannot always be compared to non-environmental effects, especially if perceptions or value judgments are involved.
The life span of a project may not always be definable. Theoretically it should be possible to assign values to environmental resources and make a business case for green processes within an industry.  
Issues which should be subjected to life cycle assessment , include social and cumulative health impacts, long term effects on water resources (e.g. Acid Mine Drainage) and post-disposal effects.

Cost Benefit Assessment: Calculating the real cost of a development allows for a comparison of development benefits vs the real costs of the development.  It determines whether an activity will be able to meet environmental standards, and how environmental resources/ecosystem services may influence the feasibility and operational costs of developments.

APPLICATION OF TOOLS

Conservation Planning:  Recent advances in systematic biodiversity planning have brought about a significant improvement in the overall understanding of conservation requirements, and the opportunity for consistent application of base information in practice.  Provincial scale conservation plans can now inform spatial planning and EIA alike, improving the consistency of decision making in both fields of application.

Public Participation: The need to involve public stakeholders during the formulation of policies and plans that might affect their environmental rights is a constitutional imperative. However there is a risk of stakeholder fatigue , and sometimes there is limited value in involving laypersons in highly technical procedures.
Effort should be made to find meaningful channels of participation for public stakeholders, and potentially forums that can combine related participation processes.

Strategic Planning & Sustainability Objectives: Environmental planning on a strategic level, and planning that drives decision making towards stated sustainability objectives, has the potential to act as a unifying force in environmental management practice.  Benefits include:
o    The formulation a clear and shared vision, goals and direction for specified locations, areas or regions.
o    The opportunity to translate strategic objectives into practical measures to inform day-to-day decision such as competing land-uses or EIA applications.
o    The formulation of a sustainability framework that serves as reference for the critical review of decisions or planning.
o    Giving specific guidance to development planning, based on broader strategic considerations, to steer development away from sensitive areas.
o    The use of strategic tools can assist in raising the profile of environmental issues in non-environmental forums, or serve in an integrative role.
o    It provides information on the opportunities and constraints that the environment places on development.
o    SEA streamlines project level decision making and authorization processes such as EIA.

Cumulative Effects Assessment and Life Cycle Assessment: The study of possible cumulative effects is necessary to determine impacts that are detrimental to the long-term health of the environment and the people who rely on it.
Cumulative effects include those over the project’s life and the combined effects of different projects.
Full life cycle investigations will indicate the project’s contribution to environmental degradation, or to the required costs to offset the loss of ecosystem services over time.  
Accurate determination of the desirability of a project would be possible, or alternatively a more correct assessment of the issues of priority associated with a particular project or project area.

The article lists the problems identified by Sean O'Beirne of SE Solutions in the investigation of monitoring and enforcement.

Generally, the monitoring, reporting and enforcement stages in the management cycle are poorly attended to.  The particular are highlighted here:

•    Impacts of activities on the environment are inadequately identified.  The potential impacts are required to be identified at the stage of the project when uncertainty is high.  
•    There is no mechanism which requires reassessment of impacts or the optimisation of mitigation/rehabilitation as certainty improves.
•    There is no regulatory mechanism for revisiting the impacts that have manifested differently to what was described in the assessment; there is no adaptive measure required for the environmental management programme/plan to respond to different impacts.
•    Public participation is too limited.  In spite of the I&APs and the public having to live with the impacts, there is no mechanism for continued interaction and input (of consequence) after authorisation.
•    Environmental monitoring committees (EMC) are ineffectual because they are poorly attended, authorities have unclear mandates, documentation is not adequately reviewed in preparation, there is no action taken on reported transgressions of the authorisation conditions, the EMP and the law.
•    There is no process or procedure which requires reaction to environmental reporting.
•    It is unclear which agency may take enforcement actions when there is a contravention of an Act or condition of authorisation which is the domain of another agency e.g contravention of Water Act.  
•    Sanction is clumsy, slow and inappropriate to the severity of the infraction.
•    The authorisation makes the assumption that the environment and the context for the activities remain unchanged (i.e. both the diligence of the self-regulation and the receiving environment are assumed to be unchanging)
•    Environmental Management Programmes/Plans are inadequate, with scant attention to how the management and mitigation requirements would be implemented, the criteria for review in changing circumstance, and outcomes are vaguely defined, if at all.
•    The legally enforceable status of the Environmental Management Programmes/Plan is generally disregarded.
•    Environmental reporting records are inadequate to allow infractions to be identified, and legal action to be taken.
•    Developers are constrained in how they respond to environmental changes rather than being tightly bound to specific environmental indicators which monitor a desired outcome.
•    Mining activities will remain materially outside the jurisdiction of the compliance and enforcement functions that are held within the DEA
•    Effective monitoring and enforcement is hampered by the scale and numbers of activities which require compliance and enforcement functions.  
•    Inadequate capacity for compliance and enforcement at provincial government level and also possibly more importantly, at local authority level is obstacle.
•    Authorisations are poorly drafted, lacking clarity and at times having contradictory requirements.  This impedes enforcement.  
•    The function of compliance and enforcement may need to be extended to permits and licences.
•    The process of assessment is reduced to administrative “ticking of boxes” which discredits the overall objective of reducing risks to the development and to the environment.

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.

In this conclusion the report collates the most applicable actions, and assigns a suggested timeframe for the activities.

Immediate Actions

–         Accessibility of existing guidelines to be improved

–        Ensure officials (particularly in local government) are aware of the guidelines, how to use and interpret

–        Ensure all identified Guidelines are available at a central repository

–        Improve the quality of authorisations

–        Authorisations must be drafted in a manner which allows the compliance and enforcement function to be effectively and efficiently executed

–        Authorisations (including conditions) must be accessible to all registered I&APs, and changes to authorisations (at any time frame) must be communicated to I&APs within a tight time frame (days, not weeks)

–        Compile Guideline documents

–        For the application of the principles of NEMA

–        For attaining the objectives in Chapter 5 of NEMA

–        For tool selection within the management cycle, particularly where changes to the “default” tools (particularly EIA) are proposed

Short term Actions

The following immediate actions are proposed in order to move towards the Outcome based IEM model:

-          Compile Guideline document on Outcome-based approach that will lead to a regulated Outcome-based Management System

-          Establish and maintain indicators to measure outcomes linked to environmental priorities.  The process of identifying these criteria should include a robust public participation component

-          Compile Guideline documents

–        For the new format of EIA reporting described below

–        For the use of the new tool, Compliance Assessment Report

–        For the use of any other new tools which may be identified

-          Change the requirements for EIA reports

–        EAPs should include three perspectives in the EIA reports –

a) the biophysical environment in compliance with the regulations BUT specifically focussing on the desired outcome for the environment and how it will be achieved or supported as indicated in 5.3,

b) the motivation as articulated by the proponent focussing on the outcome based approach as determined in 5.3 and

c) collation of any number of needs/desires of Interested and Affected Parties in order to determine the desired state of the environment in line with strategic targets.

Note: The change (c) is to address the perception of subjectivity, and to clarify the position/s of the I&APs into the final EIR. For (b) the proponent (or a consultant other than the EAP) as the most qualified party, should author the motivation for the development.  These changes are to foster objectivity.

–        Suitably qualified EAPs should indicate how the proposed development will contribute to achieving ecological sustainability. The EAP must stipulate how, when and which indicators will be used to quantifiably determine ecological sustainability.  The measures should be integrated into the Environmental Management Programme (EMP), and reported using the format of the (newly described) Compliance Assessment Report.

-          Change the requirements for EMPs

–        The EMP must clearly demonstrate how and when specific indicators for ecological sustainability will be measured, captured and reported.

–        The EMP must clearly indicate the actions to be taken if ecological sustainability measures indicate failure, and should also indicate the priority of the action required, including time frames and resource allocation.

–        The EMP should indicate a chain of escalation within the organization and to officials, correlating the severity with seniority for the priorities identified above.

 

Intermediate Actions

-          Develop a system to collate monitoring information, provided by projects as described in EMPs (see above).  The collated information should conform to the requirement that may be identified by Subtheme 2: Information and Knowledge, and should be available to inform strategic processes – such as EMF, SDF, SEA,.

-          Develop baseline data, integrating with the requirement for data integrity and management as defined by Subtheme 2: Information and Knowledge.  The baseline data will be used to validate the information provided in Compliance Assessment Report (see above), and should align with the current and future needs of SoE reporting.

-          Compliance interventions (including site inspections and compliance notices) must be tracked and be transparent to stakeholders, including a complainant and I&APs.  It is envisaged that the National Environmental Assessment System (NAES) could be adapted to fulfill this function.

 

Longer term Actions

-          Eliminate duplication and inefficiency in permitting

-          Availability of information, and integrity (quality) of data must be improved. There is a two-fold intention – one, to make information about the local environment available to stakeholders.  Two, to make a level of “base data” for reports compulsory and also available.  This will allow the EAP and specialists to focus resources on ground truthing and adding value to data already available.  This intervention addresses the tendency to copy and paste report content, while also recognising that some geographic commonality infers a standard component to some of the content is possible without compromising validity or applicability.

-          “Close the loop” indicates the need to feed information from one phase of the management cycle into the next – so for instance, to take valuable learning from Enforcement as Feedback into Planning.

-          Draft guidelines for how to process, track and implement learning.  This will require close collaboration with other subthemes, particularly ST2 and ST1

-          Implement more regular auditing of tools to ascertain effectiveness and efficiency in measuring and attaining sustainable development and integrated impact management

-          Amend as may be required the Regulations in terms of Chapter 5 of the National Environmental Management Act as required to reflect the elements introduced in the guidelines wrt a) outcome-based approach and b) the full management cycle of an integrated environmental impact management system

Subtheme 7: Empowerment of Marginalized Communities

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

Problem Statement

Vulnerable and marginalised communities are not empowered to participate meaningfully in the environmental impact assessment and management strategy processes.

Status Quo

The Constitution guarantees all people the right to a safe and healthy environment.  NEMA states that environmental hazards should not be distributed in a discriminatory way and that everyone should have equal access to environmental resources.  NEMA also requires that all interested and affected parties (I&APs) be given the skills needed to effectively participate in environmental decisions.  Decisions must take into account their interests and values.

The current reality is that marginalised communities bear the greatest burden of pollution and are often unaware of the health risks they face or the rights they possess.  Environmental assessment practitioners (EAPs) conducting environmental assessments have not worked with communities to enable effective participation; rather, EAPs and government officials are widely distrusted and seen to be on the developer’s side.

Methodology

Three criteria were used to determine whether a community was marginalised:  geographic area (proximity to environmental hazards and distance from communication), dependency (dependency on land for survival, on EAPs for information, on development for jobs), and social standing (as measured by literacy, age, gender, health, culture, class, wealth).

The study was conducted by reviewing legislation, reading academic literature, and conducting interviews with people active in NGOs and CBOs (community based organisations) working with marginalised communities.

Fieldwork Results

The following are the common frustrations marginalised communities experience with the environmental management process.

1. Lack of environmental awareness and knowledge:  People living in these communities are focused on survival, with little spare time and energy to devote to activism, and often favor any development that might result in jobs.  EAPs tend to exploit the tension between community members concerned about the environment and those seeking jobs.  People expressed distrust of the government, which is seen as promoting development without listening to community concerns.  NGOs and CBOs were more trusted sources of information.  Schools often lack environmental programmes.
2. Lack of funds and resources to participate:  Community members lack spare time to attend meetings and read documents, spare cash to pay for transportation to and from meetings, stationary or writing skills to submit written comments, and access to the internet and other sources of information.  In short, marginalised communities are ill-equipped to participate through the channels set up by the current EIA process.  Public meetings are often alienating, with EAPs not taking questions and requiring comments in writing.
3. Lack of awareness of environmental rights:  Many community members are unaware of their environmental rights, or at least confused by constant amendments to the EIA regulations.  Community members had never experienced an EAP explaining their rights to them but instead relied on NGOs for information.  Most people believed that EAPs were biased but did not know that the government could take action against EAPs suspected of bias.  EAPs point out that developers will not be willing to pay EAPs to empower communities.
4. Technical language:  Most meetings are held in English with no translation provided.  Moreover, the reports are in technical language and often difficult to translate into local languages.  There is a need for creative ways to convey information – such as visual media – and for community specialists who have technical knowledge, are trusted by the community, and can interpret the information in a way the community can understand.  Public meetings, with question and answer periods, can help communities understand the issues better.  “Open days,” during which community members can approach EAPs for information, are seen as propaganda tools.
5. 5. Decisionmaking, monitoring, and compliance: Community members distrust the decisionmaking process, perceiving the rankings of various projects (as high, medium, or low impact) to be inaccurate and the EIA to be a rubber stamp.  Community members also often do not understand the final decision on the proposed development or the conditions of the approval.  Thus, they are unable to determine whether the development is in compliance with the authorisation.

Recommendations

Given that a large proportion of South African citizens fall into the marginalised category, public participation processes should be adjusted so that the standard is one suitable for maginalised communities, with some special methods (such as internet participation) available for the elite.  NGOs and CBOs play a key role in mobilising communities to stand up for their rights, raising environmental awareness, and organizing community-based environmental management.

1. Raising general environmental awareness:
   1. Use existing educational models (such as NGO-designed programmes) to raise awareness in schools.
   2. Work with interest groups and facilitators that are trusted by the community.  Faith communities can act as information hubs.
   3. Communicate through channels appropriate to the community, such as meetings called by traditional authorities and radio rather than TV or internet.
   4. Compile short environmental mini-programmes to be played over radio and on video in public buses.
   5. Hold meetings with sufficient notice, provide transport, and use an accessible language and format.
   6. Enable community groups to teach the information they learn to other community members (train the trainers).
   7. Tailor methods to the needs of particular groups (rural, youth, women, etc.)
2. Increasing training opportunities: 
   1. Continue and expand existing NGO courses and workshops on sustainable development and environmental awareness, such as Green Connection’s workshops that helped rural communities understand the environmental impact of climate change and the Abalimi Bezikhaya project promoting urban farming.
   2. Expand internship programs at NGOs for activists from marginalised communities.
   3. Design a training programme for EAPs, government officials, and local authorities that includes how to provide technical information in an accessible format, sensitivity to and appreciation for community context, and conflict management skills.
3. Empowering communities to effectively participate in environmental assessment processes:
   1. Communication: 
      1. i.      Information must be presented in the local language of the development site in an accessible format.
      2. ii.      Meetings must be mandatory, held at times and places convenient to the community, and barriers such as transportation should be removed.
      3. iii.      Open days should be discontinued.
      4. Working in areas of poverty without resources:
         1. i.      EAPs should use a social impact assessment to understand the needs of a community before the EIA process begins – such needs should then inform how to design the public participation process.
      5. Working to inform communities about the EIA process and their rights:
         1. i.      Workshops should be conducted covering the entire environmental management process.
         2. ii.      A rating system for EAPs, indicating their independence and track record, could be implemented to help inform the communities’ acceptance or rejection of an EAP.
      6. Overcoming technical language:
         1. i.      Specialist advisors should be appointed to assist the community in understanding technical data.
         2. ii.      NGOs should assist communities in preparing their own EIA submissions.
      7. Monitoring and Enforcement:
         1. i.      Community members should be trained to monitor developments and report violations.  They should be included in environmental monitoring committees.
         2. ii.      Developers should be required to report their monitoring results to the affected communities.
4. Improving access to resources and funding:
   1. The developer should not only pay EAPs but also allocate funds to NGOs that work with the community, which can then contract a specialist to help empower the community.  The developer should have no say over the specialist.
   2. Government must also ensure that marginalised communities get the expertise they need.
   3. Professional organisations could provide a database of consultants and specialists as well as implement a grading system.

Risks & Rewards

Expending resources to empower communities will likely increase the costs of environmental assessments and perhaps cause delays.  It may also result in less developments being authorised.  However, more input from communities will lead to better decisionmaking and many projects that should not go forward will be stopped, reducing negative impacts on the environment.  The principles of NEMA and the Constitution will also be better realised.