Environmental Law Update | Werksmans Attorneys | 21 November 2012

ENVIRONMENTAL
LAW UPDATE

One & Only, Cape Town
21 November 2012

Latest legal
developments in the
environmental regulation
of prospecting,
exploration, mining and
production

Justin Truter
Director: Environmental Law

PRESENTATION OUTLINE

 The origins of the dispute between the environmental and minerals authorities

 A tale of two sand dunes…

 The legal position following MaccSand

 Implications for new and existing mining operations

 Hypothetical case study applied in the context of hydraulic fracturing in the Karoo

 The proposed reform of the MPRDA

 The ideal legal framework

 Conclusion and questions

ORIGINS OF THE DISPUTE
 1998 - DEAT’s legal opinion and support for DEADP’s interpretation

 DME’S position and conduct

 Turf battle – Cooperative governance?

 Intervention by DEAT - discussions with DME at a national level around 2007

 Mining/Environment Task Team — aim: integration of mining and environmental
requirements.

 2007 — 2008 - Protracted negotiations between DME and DEAT ‘negotiated’ MPRDA
Amendment Act and NEMA Amendment Act enacted and assented to on 19 April 2009
and 5 January 2009 respectively.

 The NEMA Amendment Act came into operation on 1 May 2009.

 MPRDA Amendment Act has still not come into operation.

Origins of the dispute (cont)

 Effect: S14(2) of the NEMA Amendment Act stipulates that provisions relating to
prospecting, mining, exploration and production and related activities comes into operation
18 months after the commencement of either the NEMA Amendment Act or the MPRDA
Amendment Act, whichever commences last.

 Since the MPRDA Amendment Act has not yet come into effect the commencement of the
18 months to in section 14(2) will depend upon the date of commencement of the MPRDA
Amendment Act.

 To give effect to the amendment Acts, the national Mining Task Team must still work on
the transitional arrangements respect of environmental management of mining from the
MPRDA to NEMA. This Task Team was reconvened in about May 2009 and has yet to
complete its work. June 2012?

 The reason for this may have something to do with two sand dunes in Mitchells Plain,
Cape Town...

ATALE OF TWO SAND DUNES:
MACCSAND (PTY) LTD V CITY OF CAPE TOWN AND OTHERS

Maccsand (cont)
 The facts giving rise to the decision of the W/Cape High Court in City of Cape Town and
others v Maccsand and others 2010 (6) SA 63 (WCC)

 Central dispute - whether a right to mine granted in terms of the MPRDA exempts the
holder of that right from having to obtain authorisation for its mining activities in terms of other
laws which regulate the use of land and in particular the LUPO and NEMA.

 The WCHC upheld the contentions of the City and the Provincial Minister and granted an
interdict.

 The SCA upheld those contentions in respect of LUPO, but declined to decide the NEMA
issue because the particular environmental Iisting notice had in the interim been replaced
by another notice.

 Constitutional Court judgment (12 April 2012):

 Land use (zoning) requirements: CC confirmed the need to rezone or obtain a departure
where land not zoned to permit mining. Zoning = exclusive municipal competence (Gauteng
Development Tribunal case and compare with Lagoon Bay)

Maccsand (cont)

 Environmental Authorisation under NEMA:

 The WCHC interdicted Maccsand from conducting mining activities until an environmental
authorisation had been granted in terms of NEMA for the carrying out of identified listed
activities.

 Those listed activities were not mining, but specific activities which the mining company
was proposing conduct, such as clearing a certain area of indigenous vegetation and
transforming public open space.

 The SCA set aside those interdicts as the listed activities concerned had been repealed
by the time that Davis, J handed down his judgment. The SCA declined to address the
more general question of the relationship between NEMA and the MPRDA by issuing a
general declaratory on an application by the Province.

Maccsand (cont)

 The Province cross-appealed to the Constitutional Court in this regard.

 The Court held as follows:

 “[53] The MEC’s application for leave to cross-appeal must fail because it is not in the
interests of justice to grant leave. The cross-appeal has no prospects of success. The
declaratory order sought is based on an assumption that mining is listed in an operational
notice as an activity which may not commence without an environmental authorisation. This
assumption is wrong. Since the repeal of Government Notice R386, on which the interdicts
granted by the High Court were based, the Minister for Water Affairs and Environment has
not as yet put into force the listing of activities relating to mining. Section 24C(2A) of NEMA
requires that the Minister for Mineral Resources be made a competent authority responsible
for granting authorisations in respect of mining activities. At present there is no listing in
operation which authorises this Minister to grant authorisation.”

Maccsand (cont)

 CC’s finding proceeds from an erroneous assumption.

 The Court was also mistaken in its assumption that section 24C(2A) is applicable. In
fact, it has not yet been put into operation. It will only come into effect 18 months after
the commencement of the MPRDA Amendment Act, the date of commencement of which is
still to be proclaimed.

 This leaves it open to a party to argue in another case that the Province’s correctly stated
case is valid.

 May be overtaken by legislative amendments considering Minister Shabangu’s recent
confirmation re. legislative reform.

 The anticipated date for the publication of the draft amendment law (sometime in June 2012)
has come and gone.

THE CURRENT LEGAL POSITION

 LAND USE PLANNING REQUIREMENTS:

 The Maccsand judgment has similar effects in other provinces to its effects the Western
Cape and Eastern Cape, where LUPO applies.

 In each instance, a person with mining rights must comply with the applicable land use
zoning laws. This is the case whether the mining rights were previously granted, or are now

granted.

 In Gauteng, Mpumalanga, Limpopo and the North West Province, land use is regulated by
the Town-Planning and Townships Ordinance 15 of 1986 (T) (the Transvaal Ordinance).

 In KwaZulu-Natal, land use is regulated by the Town Planning Ordinance 27 of 1949 (N)
(the Natal Ordinance) read with the Kwazulu-Natal Planning and Development Act 6 of

2008 (the KZN Act).

THE CURRENT LEGAL POSITION (cont)

 In the Free State, land use is regulated by the Townships Ordinance 9 of 1969 (O) (the Free
State Ordinance).

 In the Northern Cape, land use is regulated by the Northern Cape Planning and

Development Act 7 of 1998 (the Northern Cape Act).

The current legal position (cont.)

 PROSPECTING AND EXPLORATION

 Will the reasoning in Maccsand also apply to prospecting and exploration activities?

 Prospecting rights are granted by the Minister in terms of section 17(1) of the MPRDA.
Like mining rights and mining permits, they are granted subject to any other relevant law

- section 17(6). (Exploration exception)

 In paragraph 45 of the Maccsand judgment the Court held that LUPO is a “relevant law”
within the meaning of the MPRDA, and that rights granted under the MPRDA must be

exercised subject to LUPO (and thus other land use planning legislation by means of

which local authorities regulate land use).

 Prospecting and exploration activities may in some cases be less invasive than mining
activities. However, this does not justify the conclusion that prospecting and exploration

activities do not in principle constitute land use.


 NWA: It is commonly accepted that various water uses in a mining context require water use
licences under the National Water Act. The MPRDA expressly refers to the NWA and

incorporates its requirements and the Act includes its own set of regulations dealing with

mine water use.

 What about other laws that govern activities and impacts that may be associated mining?

 NHRA: Section 38? Transformation of an area > 5000m2

 NEMWA and list of Waste Management Activities (GN R718 of 1 July 2009):

 “industry” is defined in NEMWA and expressly includes mining activities


 The definition of waste includes waste generated by the mining sector, but

 Significantly, NEMWA does not apply to, inter alia -

 radioactive waste that is regulated by the Hazardous Substances Act 1973 ( Act
15of 1973 ) the National Nuclear Regulator Act 1999 (Act 47 of 1999 ), and the
Nuclear Energy Act, 1999 (Act 46 of 1999);

 residue deposits and residue stockpiles that are regulated under the Mineral and
Petroleum Resources Development Act, 2002 (Act 28 of 2002)

 “Residue stockpile” is not defined in NEMWA but is defined in the MPRDA to mean:

 Any debris, discard, tailings, slimes, screening, slurry, waste rock, foundry sand,
beneficiation plant waste, ash or any other product derived from or incidental to a mining
operation and which is stockpiled, stored or accumulated for potential re-use, or which is
disposed of by the holder a mining right, mining permit or production right.


 Waste Management Licence (EIA)

 Proposed waste notices: contaminated land register etc.

 NEM:AQA?

IMPLICATIONS FOR NEW AND EXISTING
MINING OPERATIONS

 Current unlawful land use

 On land which is not appropriately zoned this constitutes an offence in terms of the
municipal planning legislative instruments outlined above.

 Local authorities are entitled to follow the steps set out in the applicable legislation (e.g.
investigating, issuing a directive, initiating a prosecution, etc.). They are also entitled to
apply to court for an order interdicting the continued infringement unless and until zoning
approval has been obtained.

 NWA, NEMWA, NEMBA, NEMPAA, NEMAQA & NHRA

 NEMA?

Implications (cont )

 Proposed unlawful land use where rights have been granted under the
MPRDA

 If a person holding a prospecting, exploration or mining grant is about to
commence that activity on land which has not been zoned for that use, a local
authority (or affected party) can apply to court for an order interdicting the
commencement of the activities unless and until zoning approval has been
obtained.


 NEMA?

HYPOTHETICAL CASE STUDY -
HYDRAULIC FRACTURING IN THE KAROO

 Decision to lift the moratorium on hydraulic fracturing.

 Additional hurdles to be cleared by the applicants.

 Unlike other forms of exploration, there is little difference between the exploration and the
actual production processes when it comes to fracking.

 Exploration and production will constitute a land use for the purposes of the Land Use
Planning Ordinance (LUPO) which, if inconsistent with a property’s zoning, will

necessitate that it be rezoned to an appropriate zoning or that a temporary departure from

the designated zoning be granted, notwithstanding any exploration right held under the

MPRDA.

 > 200 000 km2 exploration area mostly zoned rural or agricultural which does not permit
fracking as a land use.

Fracking case study (cont)
 Under LUPO only a land owner may apply for a temporary departure to permit a land use
which is inconsistent with the land’s zoning. Ordinarily it is also only a land owner who
may apply to rezone his land.

 Without the cooperation of the landowners, companies wanting to explore for shale gas
through fracking have three other options — none of them easy.

 Applicants or the Minerals Minister can approach the provincial government to amend the
zoning scheme regulations.

 Another alternative is for the mining company or Minerals Minister to request the Provincial
Minister or municipality to invoke their powers to rezone land.

 This could be achieved, but involves a lengthy and thorough process of consultation with
land owners and affected communities as well as stakeholder and public participation

processes.

Fracking case study (cont)

 The third alternative is for the Minerals Minister to invoke her powers under
section 55 of the MPRDA and expropriate the land if it is necessary for the

achievement of the objects of the Act. Highly unlikely considering the size of the

exploration areas.


 NEMA?

 The Constitutional Court is likely to be the final arbiter on the matter.

THE PROPOSED REFORM OF THE MPRDA

 The latest version of amendments to the Minerals and Petroleum Resources Development
Act — containing measures for a streamlined mining rights application process — was to

be placed before Cabinet “early in June” according to Minister Susan Shabangu.

 The key changes proposed in the latest version of the amendments are attempts to 'co-
ordinate’ the numerous application processes at different government departments

so that applications, “for water licences, environmental approval and mining licences, are

dealt with simultaneously.”

 The Bill will also deal with situations where mines are awarded mining rights, but not a
water use licence.

 According to Minister Shabangu the Maccsand findings in relation to zoning requirements
would also be “incorporated” into the latest version of the Bill.

THE IDEAL LEGAL FRAMEWORK

 A ”one stop shop”— MPRDA, NEMA, municipal zoning requirements, NWA,
NEMWA, NHRA and NEMAQA!

 Difficulties? Different spheres of govt. each with their own constitutional
competencies.

 Integrated process — truncate timeframes, public participation and stakeholder
engagement processes, limit opportunity for objection and appeal.

 Integrated record of decision??

CONCLUSION

 Challenges and opportunities…

THANK YOU
Justin Truter
21 November 2012

Nothing in this presentation should be construed as formal legal
advice from any lawyer or this firm. Readers are advised to consult
professional legal advisors for guidance
on legislation which may affect their businesses.

© 2011 Werksmans Incorporated trading as Werksmans Attorneys.
All rights reserved.

Wind Energy
Opportunities and
Threats

Candice Pillay
Director, Werksmans Attorneys

Points that will be covered

Global trends in Wind Energy

Advantages and disadvantages of Wind Energy

The South African context

Questions

Renewable energies are gaining global relevance

Global investment in energy sources
$ billion

Investment in renewable energy exceeds fossil fuels in 2010

Source: Tracking Clean Energy Progress, IEA

Wind energy is a renewable energy source

Wind energy is intrinsically a form of solar energy

Leveraging wind energy is critical to reducing
CO2 emissions
Share of power sector CO2 emissions by 2050
%

Wind power accounts for 12% CO2 emissions reduction by 2050

Source: Technology Roadmap; IEA

Wind energy in particular has grown rapidly

Increase in wind energy capacity installed
GW

20-30% annual growth in installed capacity, >120GW installed to date


..and will continue to do so over the next 4
decades
Increase in power generated from renewable sources
TWh/year

Wind production increases 20x in 2050, relative to 2008

China will become the world’s largest producer
of wind energy
Contribution of wind electricity production by country
TWh/year

Leading producers will be China, OECD Europe and the US

Overview of advantages and disadvantages

Advantages Disadvantages


Abundant & freely available


Wind is abundantly available for free


Low cost renewable source



Wind energy is among the lowest cost renewable
energies
Cost to produce equivalent energy as 1MW of PV solar
Rands (present value)

* CSP Plant with no storage; Capital is cost of infrastructure, installation and commissioning, FOM is fixed operating maintenance, VOM is variable operating
maintenance, Fuel is additional fuel needed in running the plant (e.g. during shut down periods
Source: Review of renewable energy feed in tariffs, NERSA


Declining cost




Cost of wind energy is declining

Estimated cost reduction in renewable energy technologies
Levelised cost of energy in 2008 cents

Source: Assessing the effectiveness of national solar and wind energy policies in SA (UCT, Max Edkins et al, 2010)


Do not sterilize the land

Declining cost






Declining cost


Abundant & freely available Noise pollution


Noise pollution from wind energy turbines due to
size

Noise from a wind turbine equivalent to a jet turbine




Declining cost

Low cost renewable source High capital outlay



High capital outlay




Declining cost Unsightly




Unsightly

Roscoe Wind Farm (781MW) has over 627 turbines over 400km2


Do not sterilize the land Inconsistent supply

Declining cost Unsightly




SA’s has large wind energy potential

Western and Eastern Cape are particularly attractive
Source: Areas with micro hydro potential in SA (DME, Eskom, CSIR, 2011)

Wind energy targets are ambitious

IRP stipulated required capacity by renewable source by 2030
MW

Wind to contribute nearly 50% of renewable energy production

Proven concept

Total capacity of 3.16MW

Shifting regulatory landscape
Legislation Primary objective

1998 White paper on Energy Diversify supply and carriers of energy
Policy

2003 White paper on Outlined national goals and objectives for
Renewable Energy promotion of renewable energy

2006 Electricity Regulation Governs the generation and sale of
Act electricity in SA

2009 REFIT guidelines Regulated feed-in tariffs of wind, landfill
gas, small hydro and concentrated solar

2011 ERA regulations on To facilitate, inter alia, the planning and
new energy capacity establishment of new generation capacity

2011 Integrated resource Provides content direction to policy set
plan (IRP 2010) out in 1998 and 2003 White papers

2011 Renewable energy DOE abandons REFIT policy in favour of
bidding competitive bidding process

THANK YOU
Candice Pillay
21 November 2012



The obligations of an
Environmental Assessment
Practitioner and the risk in
terms of Regulation 71 of the
NEMA EIA Regulations

Sahndya Naidoo
Associate, Werksmans Attorneys

Legal Framework
 NEMA is the framework legislation governing environmental management
 NEMA came into force in January 1999
 It repeals the majority of the ECA
 Regulations governing environmental activities in terms of GNR 385 of
NEMA came into force in 2006 (2006 Regulations), prior to that the
regulations of the ECA were used

 The 2006 Regulations were repealed and replaced by 2010 Regulations
(GNR 543)

 In terms of NEMA if you wish to undertake a “listed activity” a Basic
Assessment (BA) Report or an Environmental Impact Assessment and
Scoping Report (EIA) must be undertaken, depending on the listed activity

 BA – minor impact
 EIA – possibility of significant impact, therefore more detailed
 These reports must be compiled by an EAP and submitted to the authority
 EA is granted if the authority is satisfied that all environmental impacts
have been properly assessed

Importance of the BA/EIA report

 Aids sound decision-making
 Assists in achieving environmental sound sustainable development
 The EIA helps the decision maker in assessing the environmental
impacts of the proposed activity and to put in place informed
conditions as part of the EA

 This shows the importance of:
 The ability of the EAP to conduct an EIA and produce a reliable
report; and
 The ability of the decision maker to understand the content and
translate that into effective conditions to include in the EA

Objectivity of the EAP

 The obvious concerns are that:
 The applicant appoints the EAP
 The applicant pays the EAP

 “EAP shopping” may occur
 Because applicant pays EAP, the EAP may be under
pressure to favour the applicant

What about the decision maker?

 Competent to understand the EIA?
 Is there capacity to comprehensively consider the EIA?
 Are the same “cut and paste” conditions added to all
EA’s?
 Rubberstamping without proper conditions being
imposed?

NEMA Regulation 17
 An EAP or person compiling a specialist report or undertaking a specialised process
appointed must-

a) be independent;
b) have expertise in conducting environmental impact assessments, including knowledge
of the Act, these Regulations and any guidelines that have relevance to the proposed
activity;

c) perform the work relating to the application in an objective manner, even if
this results in views and findings that are not favourable to the applicant;

d) comply with the Act, these Regulations and all other applicable legislation;
e) take into account, to the extent possible, the matters referred to in regulation 8 when
preparing the application and any report relating to the application; and

f) disclose to the applicant and the competent authority all material
information in the possession of the EAP or person compiling a specialist
report or undertaking a specialised process that reasonably has or may have
the potential of influencing-
i. any decision to be taken with respect to the application by the competent authority in terms of
these Regulations; or

ii. the objectivity of any report, plan or document to be prepared by the EAP or person compiling
a specialist report or undertaking a specialised process in terms of these Regulations for
submission to the competent authority

 What if the information put before a decision maker is incorrect?

S v Frylinck (April 2011)

 A recent case in the North Gauteng High Court
 Highlighted the importance of the EAPs understanding their duty under
NEMA and its Regulations
 Concerned the development of the Pan African Parliament
 Mpofu Environmental Solutions CC - Frylinck (Director) was appointed to
compile a BA report

The plan

Identify a site to build the Pan African Parliament

S v Frylinck cont.
 Frylinck compiled a BA report indicating that there was no wetland within
500m of the development and that a wetland delineation study was not
necessary
 In 2007 and EA was granted relying on the “objective and honest opinion” of
the EAP
 Development stopped because construction company was having water
seepage difficulties and concerns were raised regarding possibility of there
being a wetland in the area
 Provincial and local government informed the DEA of their concerns that the
development was in a wetland area
 The DEA took action:
 Panel of specialists appointed (by Dept. of Public Works) to confirm
whether there was a wetland
 Development was to be halted
 Criminal investigation initiated against the EAP and Mpofu Environmental
Solutions CC by the Green Scorpions
 It was subsequently discovered that there was a wetland in the area

Representations by the DEAT

 Explanation for wetland-like conditions = leaking sewer
pipe? Yes – but was not the only cause
 Environmental Officer stated that wetland delineation
was necessary as part of the EIA
 If a wetland was found, it does not mean that the
development would have been halted
 Conditions would have been attached to the EA to
protect the wetland
 Excluded the wetland from the development area

Charges
 Fraud - Section 103 of CPA – Not guilty
 Finding that there was no wetland was based on his own method and
not the DWAF guidelines (a well-used tool by EAPs)
 Did not understand his mandate as an EAP (he thought it was not his
duty to determine if a wetland existed)
 Did not apply his mind
 Court concluded that it could not be proven without a doubt that
Frylinck knew of the wetland and purposefully did not disclose it
 Offence - Regulation 81 of 2006 Regulations – Guilty
 Because wetland was not included in the BAR, the BAR was incorrect
and misleading to the decision maker
 Wilful disregard of the required standard of conduct of the specialist
 BAR was not of the standard expected of a reasonable EAP
 Both Frylinck and Mpofu Environmental Solutions CC were found guilty
in terms of Reg 81

Sentence
Frylinck:
2 years imprisonment or a fine of R80 000

Mpofu Environmental Solutions CC
 Fine of R80 000

Half of the fines suspended for 5 years (must not contravene
Regulations again)

S v Frylinck cont.

 The Frylinck decision emphasised the fact that
consultants conducting EIA’s must apply a reasonable
standard of conduct in taking into account the specialist
nature of their work and the reliance placed on the
reports that they produce
 They must be independent and objective
 Precautions taken in respect of the Pan African
Parliament development:
 A NEMA section 24G application was submitted
 This to ensure that informed decision-making takes place
 Temporary measures were put in place to mitigate the
negative impacts of the development on the wetland

Criminal sanctions are drastic, how did we
get to this stage?
 In the news:
 Johannesburg Water - built a
sewerage plant in the centre of Blue
Hills wetland area
 Johannesburg Roads Agency - built a
temporary road through an
endangered bullfrog pan in Glen
Austin
 Exxaro - mining in a wetland area
and depleting water resources
 S v Frylinck – incorrect information
provided to the authorities
 Golfview Mining – damaging a water
resource (discussed later)
 Plettenberg Bay – Politician David
Malatsi accepted a bribe to push for a
development in an environmentally
sensitive area

Does using threat of criminal charges help?

 Punitive - does not address the environmental harm caused
 Criminal charges can be used to stop a development – like in S v Frylinck
 Ideal situation is a combination of criminal and administrative sanctions
 Example:
State v Golfview Mining (Pty) Ltd (2012)
 Coal mining
 Unlicensed activities undertaken
 diversion of water resources (including the Holbankspruit)
 mining within 100 meters of a water resource
 mining within a flood line
 the failure to have pollution management mechanisms on site
 the dumping of waste rock materials into a water resource
 mining within a wetland
 aside from the imposition of fines, the court also ordered rehabilitation
and remediation of the affected environment

Current position

 Regulation 81 in terms of the 2006 Regulations has
been replaced by Regulation 71 in 2010 Regulations

 Regulation 71(1)(a)
 A person is guilty of an offence if that person provides
incorrect or misleading information in any document
submitted in terms of these Regulations to a competent
authority

 A person convicted of an offence in terms of the above is
liable to a fine not exceeding R1 million or to
imprisonment for a period not exceeding 1 year, or to both
such fine and such imprisonment

How will Regulation 71 affect you?

 Very broad that therefore covers all information submitted
to the authority – other specialists are also covered
 Creates strict liability (liability without fault) – charges can
be brought regardless of culpability
 Risk – EAPs sometimes rely on information provided by the
applicant (client)
 Possible solution:
 as part of the terms of engagement the applicant must state
(under oath) that all information provided to the EAP is correct
 Indemnity clause in the terms of engagement

Environmental law constantly evolving
 NEMA:
 From the ECA Regulations, the short comings were addressed in the more
detailed 2006 NEMA Regulations
 2010 NEMA Regulations now include Listing Notice 3 GNR 546
 Identifies activities that do not fall within the thresholds of Listing Notices
1 (BA) and 2 (EIA), but owing to the sensitivity of the area in which they
will be conducted require an assessment to be undertaken

 Environmental Management Investigators (Chapter 7 of NEMA)
 EMI’s visit sites to ensure compliance

 Environmental Assessment Practitioners’ Association of South Africa
 started in April 2011
 to provide an operating structure for the certification of EAPs
 improve the quality of EAPs
 prevent unprofessional and unethical behaviour

International comparisons

 International Association for Impact Assessment (IAIA) - 1980
 leading global network on best practice in the use of impact assessment for
informed decision making regarding policies, programs, plans and projects
 to bring together researchers, practitioners, and users of various types of
impact assessment from all parts of the world
Code of ethics:
 To conduct my professional activities with integrity, honesty, and free from any
misrepresentation or deliberate bias
 To conduct my professional activities only in subject areas in which I have
competence through education, training, or experience. I will engage, or
participate with, other professionals in subject areas where I am less competent
 To check that all policies, plans, activities, or projects with which I am involved are
consistent with all applicable laws, regulations, policies and guidelines

 Africa
 Along with a growing international trend, three countries in the SADC region
(Botswana, Mozambique and Tanzania) require EAPs to be registered in those
countries before they can act as a lead consultant

How has S v Frylinck and
Regulation 71 affected how you
conduct your practice?

THANK YOU
Sahndya Naidoo
November 2012



THANK YOU



THE ROLE OF
INTEGRATED AND
COORDINATED DECISION-
MAKING IN ACHIEVING
INTEGRATED
ENVIRONMENTAL
MANAGEMENT

Justin Truter
Director: Environmental Law
One & Only, Cape Town
21 November 2012

INTRODUCTION

 DEAT’S overview of Integrated Environmental Management which formed part
of the Integrated Environmental Management Information Series

 “The purpose of the document is to inform all stakeholders who are involved in
making decisions that could have an impact on the environment about the range
of tools available to align their endeavours with the principles of sustainable
development.”

 IEM provides a way of thinking that can either be used to underpin a stand-
alone process (e.g. EIA) or be integrated into existing complementary processes
(e.g. Integrated Development Planning).

 IEM provides a set of underpinning principles and a suite of environmental
assessment and management tools that are aimed at promoting sustainable
development.

 “Meeting the many challenges South Africa faces in achieving the goal of
sustainable development requires co-operation between all spheres of
Government, community based organisations, non-Governmental organisations,
researchers and academics, business and environmental practitioners.”

Introduction (cont)
 Evolution of Integrated Environmental Management in South Africa – IEM largely
misunderstood and misapplied (and abused).
 Useful point of departure for understanding IEM can be found in the IEM principles contained
in NEMA.
 Unfortunately despite the incorporation of IEM principles into subsequent legislation for the
management of biodiversity, mineral and petroleum resources and waste management IEM is
still applied differently by different organs of State, operating at different spheres of
Government – result = lack of coordination and integrated decision-making.
 The IEM Guideline lists 19 IEM principles which are:

 Accountability and responsibility;
 Adaptive;
 Alternative options;
 Community empowerment;
 Continual improvement;
 Dispute resolution;
 Environmental justice;
 Equity;
 Global responsibilities;
 Holistic decision-making;
 Informed decision-making;

Introduction (cont)

 Institutional co-ordination;
 Integrated approach;
 Polluter pays;
 Precautionary approach;
 Rigour;
 Stakeholder engagement;
 Sustainability; and
 Transparency.

Introduction (cont)

 Five principles hold the key to ensuring that decisions at various stages of the
process are taken in a manner which promotes integration, co-ordination and
ultimately sustainable development:

 Holistic decision-making;
 Informed decision-making;
 Institutional co-ordination;
 Integrated approach; and
 Transparency.

 First we need to look at how the Provincial Department of Environmental Affairs
are implying IEM and consider how this fits in with the 19 principles listed
above...

Clairisons v MEC and Bitou

 In Clairisons Judge Cloete referred to what the applicant termed “certain well publisized
comments” made by a Senior Official in the Minister’s Department, Mr C Rabie, during a
meeting of the South Cape Forum for Development Management held on 7 August 2009.

 Mr Rabie stated that the Department was concerned that although the Provincial Government
had approved the Western Cape PSDF this was not always correctly reflected in decision-
making at Provincial level. Mr Rabie stated further that it had accordingly been decided that
previous Planning Approvals which in the Department’s view were non-compliant with the
broader policy framework would not be set aside (allegedly due to the legal implications
thereof) but that the Provincial Government would use future applications required in respect
of a particular development (such as an Environmental Authorisation or a Rezoning as the
case might be) to refuse those applications which the Department considered should never
have received development approval in the first place.

 Mr Rabie concluded his remarks with an unfortunate statement that these developments (or
developers) would thus still be “snookered”. These allegations were not denied by the
Minister in Clairisons and laid the foundation for the Judge’s finding that the Minister was
guilty of bias.

 According to Judge Cloete “in these circumstances I agree with the Applicant that an
underlying reason for the dismissal of the appeal lies in the fact that the Minister did not
agree with the amendment of the Structure Plan in the present instance. He accordingly
used the opportunity presenting itself under the ECA in order to “snooker” the Applicant.”

IEM as Dept’s basis for taking planning decisions
in EIA phase
 Recent development refusals at the director level - Integrated Environmental
Management

 We have motivated in numerous appeals against such decisions that the
Department misinterprets IEM and oversteps its powers.

 A proper consideration of certain of these decisions reveals that where there are
no environmental impacts of significance and where the EAP’s recommendation
is that the development be approved, the Department looks to planning
considerations, fundamentally the broad brush PSDF to motivate for a refusal of
the development.

 Relevant tool in EIA phase?

 Even where the Municipal Spatial Development Framework makes provision for
a development, the Department arrogate for themselves the power to override
the Municipal SDF if they do not consider it to be a competent SDF.

IEM as Dept’s basis for taking planning decisions
in EIA phase (cont)
 Appropriate phase for planning considerations is at the rezoning and subdivision
phase.

 Cannot be an overriding consideration in the absence of significant environment
impact during an EIA phase.

 We submit that if Integrated Environmental Management is applied correctly the
approval of a structure plan/guide plan amendment application should inform
the context of the EIA process and EA which in turn should inform the planning
context and decisions.

 See Department’s own Circular 3 of 2008 which states as much.

 Lagoon Bay a model of “Unintegrated” decision-making.

CONCLUSION

 Meeting the challenges of IEM in South Africa requires
co-operation at various levels and sectors, most
fundamentally and as a starting point - between all
spheres of Government to ensure coordinated decision-
making.

 “Constructive interactions between all the stakeholders
in the spirit of continual improvement will ensure that
the country continues to play a leading role in
developing and implementing innovative approaches to
IEM.”

Environmental Law Update | Werksmans Attorneys | 21 November 2012

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