Proposed amendments threaten the constitutional right to public participation in environmental decisions

South Africa’s environmental laws provide for the right of interested and affected persons to be involved in environmental decisions that may affect them. Public participation (or stakeholder engagement) in environmental decision making is a key tool for environmental justice and it features strongly in the National Environmental Management Act, 1998 (‘‘NEMA’’) as well as other environmental legislation and regulations The includes the Section 24H Registration Authority Regulations (‘‘24H Regulations’’), published in terms of NEMA which establishes the Environmental Assessment Practitioners Association of South Africa as the authority responsible for the registration and regulation of environmental assessment practitioners (‘‘EAPs’’) and specifies tasks to be performed by an EAP in connection with an application for environmental authorisation.

On 31 December 2021, the Minister of Environment, Forestry and Fisheries published her intention to amend the Section 24H Regulations with the proposed amendments gazetted under government notice No. 849 in Government Gazette No. 40154 of 22 July 2016, as amended by Government Notice No. 906 in Government Gazette No. 43632 of 21 August 2020 (“Draft Regulations”).

Public discourse surrounding the Draft Regulations, as published, has largely centred on the potential impact on the effectiveness of public participation processes in environmental decision making under NEMA. In particular, the Draft Regulations propose the substitution of regulation 14 (‘‘Reg 14 Amendment’’) to provide, among other things, that:

‘‘No person other than a registered environmental assessment practitioner may perform tasks in connection with […] an appeal contemplated in section 43 of the Act, relating to an application, strategic, environmental assessment, environmental management programme or any other appropriate environmental instrument.’’

Various concerns have been raised in the public domain regarding the exclusionary effect of the Reg 14 Amendment on poor and marginalised communities and persons wishing to raise their objections, as interested and affected persons, to the granting of an environmental authorisation. The current public participation process allows for interested and affected parties to appeal a decision to grant an environmental authorisation by the minister and, if an internal appeal is dismissed, to have the right to a judicial review of the decision by the minister.

The Reg 14 Amendment, if it comes into operation in the proposed form, may potentially undermine the public participation principles of the Constitution of the Republic of South, NEMA and the procedures of the EIA Regulations and infringe on rights enshrined in the Bill of Rights in the Constitution.

PRACTICAL CONSIDERATIONS – TIME AND COST IMPLICATIONS

The National Appeal Regulations, which regulate the procedures relating to the submission, processing and consideration of, a decision on an appeal, provides for a timeframe of 20 days for submissions of appeals against the decision for an application for an environmental authorisation or a waste management licence by a competent authority. The 20 days runs from the date that the notification of the decision is sent to the interested and affected person concerned.

Should the Reg 14 Amendment come into operation, it will place onerous obligations on interested and affected parties, including communities, to appoint and fund an EAP to appeal a decision to grant an environmental authorisation and to prepare such appeal all within the prescribed time period of 20 days.

Given that most project development occurs in remote areas characterised by the habitancy of poor and vulnerable communities with lack of access to resources, goods and services, the costs of a registered EAP and lack of access to such services, will be in most instances prohibitive for such persons and groups.

There are a number of environmental NGOs (such as the Centre for Environmental Rights) and legal practitioners (acting either pro bono or on contingency) who take on these appeals on behalf of such persons and groups. If interested and affected persons are forced to lodge appeals through a registered EAP only, this will have the effect of excluding these NGOs and legal practitioners from doing so in the future, thus denying these interest and affected persons free and affordable legal services.

Another important practical consideration is that most cases of internal appeals against granting of environmental authorisations often involve and include complex legal considerations which EAPs are not necessarily equipped or best placed to deal with.

PUBLIC PARTICIPATION PRINCIPLES IN NEMA

The Reg 14 Amendment will render the internal appeal process, in terms of section 43 of NEMA, selective in its availability as an internal remedy.

The most vulnerable and poor communities and persons affected by administrative decisions under NEMA may likely be procedurally excluded from participating in such appeals. Not only is the requirement for interested and affected persons to procure the services of a registered EAP onerous but it is also inconsistent with the public participation principles of NEMA, which provide that:

Environmental management must be integrated, acknowledging that all elements of the environment are linked and interrelated, and it must take into account the effects of decisions on all aspects of the environment and all people in the environment by pursuing the selection of the best practicable environmental option.
The participation of all interested and affected parties in environmental governance must be promoted, and all people must have the opportunity to develop the understanding, skills and capacity necessary for achieving equitable and effective participation, and participation by vulnerable and disadvantaged persons must be ensured.
Decisions must take into account the interests, needs and values of all interested and affected parties, and this includes recognising all forms of knowledge, including traditional and ordinary knowledge.
The social, economic and environmental impacts of activities, including disadvantages and benefits, must be considered, assessed and evaluated, and decisions must be appropriate in light of such considerations and assessments.
The vital role of women and youth in environmental management and development must be recognised and their full participation therein must be promoted.

CONSTITUTIONALITY OF THE REG 14 AMENDMENT

Right to just administrative action

The Reg 14 Amendment also turns on administrative law considerations.

Section 7(2) of the Promotion of Administrative Justice Act, 2000 (‘‘PAJA’’) provides for the duty to exhaust internal appeal processes provided for in any other law, including NEMA and the specific environmental legislation.

By limiting section 43 appeals under NEMA to registered EAPs, the Reg 14 Amendment effectively precludes those who cannot afford the services of an EAP from bringing their grievances or objections (as interested and affected persons) against administrative decisions to the attention of the minister or MEC, as the case may be, and institute an appeal process under NEMA.

Interested and affected parties can therefore not request a judicial review unless they have exhausted the internal appeal process for an environmental authorisation.

The right to public participation before an adverse decision is made and to appeal is a fundamental requirement of procedural fairness. Section 33 of the Constitution guarantees everyone “the right to administrative action that is lawful, reasonable and procedurally fair’’.

Public participation is, therefore, a fundamental element of procedural fairness, that adverse decisions should not be made without affording the person to be affected by the decision a reasonable opportunity to make representations, including representations to appeal an administrative decision that adversely affects them.

Procedural fairness imports the element of fairness. Fairness demands that all interested and affected persons against whom a decision has been made must have ‘‘standing’’ to institute an internal appeal against an administrative decision that directly or indirectly affects them.

Therefore, the Reg 14 Amendment, by introducing a stringent and onerous provision limiting the ability to prosecute a section 43 NEMA appeal, unless done through a registered EAP, may be challenged on the basis that it violates the right to procedural fairness and infringes on the constitutional rights to just administrative action.

Right to access to courts

Section 34 of the Constitution guarantees everyone the right to have ‘‘any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum’’.

The consequence of the Reg 14 Amendment is that interested and affected persons, who cannot procure the services of an EAP for instituting internal appeal processes under section 43 of NEMA, will be prevented from exhausting internal remedies in the terms of NEMA: a prerequisite to have ''standing’’ in a judicial review before a court of law in South Africa.

Therefore, the proposed Reg 14 Amendment will have the effect of sterilising the rights to an effective remedy and access to justice for all citizens as implied by the right to access to courts and required by the rule of law. The proposed amendment potentially violates the constitutional right to access to courts for interested and affected persons (who cannot procure the services of an EAP).

CONCLUSION

The environmental impacts caused by a project often have direct consequences on individuals and communities where the project is located, including adverse socio-economic and environmental impacts.

The rationale of public participation favours democratic ideas and supports maximum participation. Its objective is to enhance the exchange of incumbent interests and give an opportunity to those who are affected by the decision to have an input in order to influence the outcome.

In order to guarantee that developments are facilitated in a sustainable manner, effective public participation must take place. As currently proposed, the Draft Regulations may well have the effect of preventing effective public participation at a critical stage in the environmental authorisation process.

Stephen Levetan

Natural Resources and Environment | Executive

slevetan@ENSafrica.com

Stephen Motsusi

Natural Resources and Environment | Trainee

smotsusi@ENSafrica.com