Amendment bills shock for landowners and environmentalists

Environmentalists are gravely concerned about proposed legislative amendments before Parliament – by two government departments - they say will take away any control of landowners over their own land and also deny the public any participation in environmental impact assessments (EIAs).

If a key element in proposed amendments to legislation is accepted, hugely positive environmental gains made since the advent of democracy in 1994 could be reversed, the Botanical Society of SA has warned, and result in an effective blanket exemption from environmental authorisation being published for public comment.

Angela Andrews of the Legal Resources Centre has described the amendment proposed by the Minister of Environment and Tourism to chapter 5 of the National Environmental Management Act (NEMA), the Environmental Impact Assessment (EIA) Regulations, 2006, as: “one of the worst pieces of legislation I have seen in a long time.”

“It completely undermines the whole system of environmental impact assessment legislation and leaves it in the hands of officials to exercise discretion as to whether they will apply NEMA section 23 and 24 at all. No guidance is given as to how to exercise this discretion and no provision is made for public participation.”

Of particular concern to land owners, is the Department of Minerals and Energy (DME) introduction on 9 May 2007 to Parliament of the Mineral and Petroleum Development Amendment Bill (MPRDA). If passed, it will effectively give anyone the ability to apply for a prospecting or mining licence on your land without even having to inform you.

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The Bill inserts into the MPRDA a new section 39 entitled ‘Environmental Authorisations’ as well as several new definitions of terms used in NEMA EIA procedures (e.g. ‘basic assessment report’). Applicants for various mining authorisations will in future need to apply for an environmental authorisation. However, these environmental authorisations will not be issued by the provincial or national organs of state responsible for the environment in accordance with the NEMA EIA regulations, but by the DME, in accordance with regulations made under the MPRDA and after considering comments from State departments responsible for administering environmental laws.

The environmental justice group groundWork stated in its submission on this bill that “it is clear from the experience of people and as witnessed by groundWork that peoples’ land is still in the present dispensation being taken away from them in order that mining operations can take place.”

“The consultation in terms of section 4(c) calling upon ‘notifying and consulting with the land owner or lawful occupier of the land in question’ is critical to enable people to secure their rights. Changing this to the present formulation of ‘giving the land owner or lawful occupier of the land in question at least 21 days written notice’ allows for companies and government to act unilaterally in confiscating peoples’ land and therefore their livelihoods. groundWork opposes such a change and believes that the original phrasing should be maintained.”

June 4 was the closing date for comments on Environmental Minister Marthinus van Schalkwyk EIA amendments. The amendments seek to provide decision-makers with greater flexibility when considering applications for environmental authorisations. It is particularly concerning to note that the amendments are designed to allow the authorities to grant exemption from not only the EIA Regulations, 2006 but also from provisions of the Act that deal with environmental authorisations.

The legislation does not give guidance on the criteria to be applied in deciding whether or not to grant an exemption. The proposed amendments to the EIA Regulations, 2006, also do away with the need to obtain the landowners consent where a third party intends to undertake a listed activity on that owner's land. And, they attempt to streamline the number of activities that may require basic assessment or scoping and EIA.

According to environmental law specialists Winstanley and Cullinan, while the attempts to refine and streamline the EIA process is welcome, there is a real danger that the largely unfettered powers of exemption will create a major loophole through which inappropriate and unsustainable development projects will slip.

“It seems that not only the DME, but also the DEAT who is supposed to protect the environment, are creating inappropriate loopholes with the kind of flexibility that, if given to government organizations verges on dictatorship - stripping people of their rights to participatory governance,” said a statement from the environmental group Earthlife Africa.

“Are South Africans aware that these proposed amendments will do away with their rights as landowners since landowners' consent is not required where a third party intends to undertake a listed activity on that owner's land?”

The statement added that it was also shocking to learn that the government has delayed between two and three years in producing very important strategic planning reports: the National Environmental Outlook (formerly the State of Environment Report) and the National Framework for Sustainable Development (formerly the National Strategy for Sustainable Development).

Despite lobbying from six large environmental groups (the Endangered Wildlife Trust, BirdLife South Africa, Botanical Society of SA, Wilderness Foundation South Africa, Wildlife and Environment Society of SA and WWF South Africa) government has not yet released these reports that could have huge significance in relation to planning and use of South Africa's natural resources.

“Does the government assume that these resources are infinite?” asked the Earthlife Africa statement. “The Department of Environmental Affairs and Tourism needs to speak up on behalf of the natural resources of South Africa as a protector - not allow this nation to be plundered by foreign industries and left destitute.”

The NGOs have called on government to release the reports as these studies represent independent, objective reviews of the opportunities and constraints to development, based on the country’s natural resource base, reports the Sunday Tribune.

In the absence of these reports, plans are being made which assume our natural resources are infinite. The lack of access to information contained in the two reports often inhibited NGOs and officials from the DEAT from achieving their reasonable goals. The NGOs also demanded reasons for the delay, a time frame and written commitment for the release of the reports.

The department has responded by saying the sustainable development framework will be publicly released after a final set of stakeholder consultations, probably by end of July, and the outlook report by the end of June.

Both these departments are actively involved in the government’s R150bn nuclear plan for 36 Nuclear Pebble Bed Modular Reactors plus another 10 to 15 conventional nuclear reactors countrywide, as well as a large scale resurgence of uranium mining.

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