Amendments in No Way Weaken Public Participation and Community Involvement

Article excerpt

BYLINE: Joanne Yawitch

The Federation for Sustainable Environment's (FSE) spokesperson Koos Pretorius ("Bills threaten to draw teeth of EIAs", March 24) provides an interesting, but seriously misguided and factually incorrect, interpretation of the amendments to the National Environmental Management Act (Nema) discussed in the portfolio committee last week.

The amendments proposed for Nema focus on five broad areas, namely: provisions to include tools other than environmental impact assessment (EIA) as regulatory options; provisions to manage environmental impacts through norms and standards; provisions to increase the use and legal standing of strategic spatial tools such as strategic environmental assessments and environmental management frameworks; provisions to improve intra-governmental co-operation and co-ordination; and finally to bring mining into the environmental management regime of Nema.

Before the proposed amendments, although titled integrated environmental management, Chapter 5 of Nema in essence only allowed for regulation of environmental impact management through EIA and did not follow international use by allowing for a wide range of environmental management tools. EIA, although useful for a wide range of activities, is not in all instances the most appropriate tool as it is, in its nature, site specific and pre-development focused.

There are a wide range of tools available that are, in some instances, more appropriate to determine and manage the environmental impacts or environmental management requirements of activities than EIA.

The amendments to Nema, therefore, introduce the ability to develop and regulate tools other than EIA to identify, avoid or manage environmental impacts.

The amendments still allow the minister (or MEC) to identify activities that may not take place before an environmental authorisation has been obtained, but now further allow the minister, in addition or instead of EIA, to stipulate the process (tool) that must be undergone before such authorisation may be obtained or refused.

Because these potential tools differ, the amendment in Nema stipulates in section 24.4(a) minimum requirements that must (there is no "may" as alleged by Pretorius) be incorporated in regulations enabled by the Act, regardless of the tool to be used, and a second set of requirements in section 24.4(b) that "must, where applicable" be adhered to.

There is an onus of proof on the authority regarding the applicability of the requirements in 24.4(b).

Translated into laymen's terms, this means that the minister may identify activities that require environmental authorisation (as he did through the schedules to the EIA regulations of 2006). He must then regulate the process (or tool) to be followed and, in such regulations, give effect to 24.4(a) and 24.4(b) (as he did with the Nema EIA regulations).

The Nema EIA regulations already include all the requirements stipulated in 24.4(a) and 24.4(b) as all these requirements are applicable to EIA as a tool.

It is incorrect and not based on fact to state that the amendments will have the effect that certain requirements currently applicable in the EIA process will no longer be applied to companies and developers. The requirements listed in the article relating to public participation, mitigation measures, reporting on gaps in knowledge, monitoring of impacts, and investigation of alternatives are all applicable to EIA as a tool and are in the current EIA regulations and will remain to be required for activities subjected to EIA. The Act and amendments are enabling and specify what the minister may regulate and are not a menu for applicants to choose from as has been suggested.

The allegations made in terms of environmental management of mining introduced by the amendment bill really came as a surprise to the Department of Environmental Affairs and Tourism. …