EIAs - Is The Public Able To Participate?

Originally published in Business Brief - October/November

2008

Environmental Impact Assessments (EIAs) have been part of South

African environmental law since the enactment of the EIA

Regulations under the Environmental Conservation Act in 1998. These

have been amended and streamlined since the new EIA Regulations

were introduced in 2006 under the National Environmental Management

Act and are currently undergoing further amendments.

Rubber Stamping?

Public participation, and the public's right to information

by interested and affected parties (IAPs), is a fundamental

cornerstone of participatory environmental democracies around the

world. However, an allegation which is frequently levelled at the

EIA process is that it is merely a rubber stamping exercise carried

out by the applicant's consultant and given credence by the

regulators.

If the allegation is correct then participation by the IAPs

(particularly those representing public interests such as

non-governmental organisations and environmental action groups) is

completely ineffective. Furthermore, the applicants, often large

corporations with considerable resources, merely ride roughshod

over the IAPs' rights, objections and legitimate participation

in the EIA process.

Not The Case?

While it is easy to understand why public interest groups may

feel that way towards EIAs, it is submitted that this is not the

case either factually or as interpreted by our courts.

This is evidenced by judgments such as Director: Mineral

Development Gauteng Region and another v Save the Vaal Environment

and Others and more recently Earthlife Africa (Cape Town)

v Director General: Department of Environmental Affairs and Tourism

and another. In the former case the court confirmed the basic

principle of audi alteram partem, whereby it stated that

all parties must be given the right to a fair hearing during public

participation on matters relating to decisions taken by the

authorities. In the more recent Earthlife Africa case, the

court again confirmed the importance of public participation and

stated that all information in the public domain and in the

possession of the authorities must be distributed to the public in

order for the public to participate meaningfully in the

process.

Meaningful

These two cases, as well as some others, lend support for the

contention above that public participation is not a mere rubber

stamping process. In fact, it is a meaningful part of the EIA and

the failure by applicants and...