LEGAL RESOURCES CENTRE SUBMISSION

1. LEGAL RESOURCES CENTRE SUBMISSION NEMA MENDMENT BILL B36 2007

2. Legal Resources Centre • Public interest non profit law firm representing rural and urban communities affected by mining and industrial pollution. Provides legal services to the vulnerable and disadvantaged including poor, homeless and landless people. • NKhuzi Development Association

3. CONSTITUTIONAL CONCERNS THE BILL REMOVES CONSTITUTIONALLY MANDATED PROTECTIONS CONTAINED IN NEMA

4. QUESTIONALBLE PROVISIONS • REMOVAL OF MINIMUM REQUIREMENTS FOR EIA’S – S 24 • EXEMPTIONS FROM EIA’S – S24M • RECOGNITION OF ASSESSMENTS UNDER OTHER LAWS AS COMPLIANT WITH NEMA- s24(8)(b) • SPECIFIC CONCERNS ABOUT MINING REGULATION

5. SECTION 24- Minimum requirements for eia’s • Mandatory: section 2 (principles) and s 23 (Integrated environmental management) • Discretionary: consideration of alternatives, mitigation measures, gaps in knowledge, monitoring

6. Sources of the law • Rio declaration 1992 Principle 10: Public participation, access to information, access to justice; Principle 14: environmental impact assessments

7. Minimum requirements for eia’s • Description of environment to be affected • Alternatives • Mitigation measures • Public participation and access to information • Reports on gaps in knowledge • Monitoring

8. UNITED NATIONS ENVIRONMENT PROGRAM 1987 • PRINCIPLES • “Principle 4 • “An EIA should include, at a minimum: • (a) A description of the proposed activity; • (b) A description of the potentially affected environment, including • specific information necessary for identifying and assessing the • environmental effects of the proposed activity; • (c) A description of practical alternatives, as appropriate; • (d) An assessment of the likely or potential environmental impacts of • the proposed activity and alternatives, including the direct, indirect, • cumulative, short-term and long-term effects; • (e) An identification and description of measures available to mitigate • adverse environmental impacts of the proposed activity and alternatives, • and an assessment of those measures; • (f) An indication of gaps in knowledge and uncertainties which may be • encountered in compiling the required information; • (g) An indication of whether the environment of any other State or areas • beyond national jurisdiction is likely to be affected by the proposed • activity or alternatives; • (h) A brief, nontechnical summary of the information provided under the • above, [sic] headings.

9. Nigeria • “An environmental impact assessment shall include at least the following • minimum matters, that is - • (a) a description of the proposed activities;  • (b) a description of the potential affected environment including specific information necessary to identify and assess the environmental effects of the proposed activities; •  (c) a description of the practical activities, as appropriate; •  (d) an assessment of the likely or potential environmental impacts on • the proposed activity and the alternatives, including the direct or • indirect cumulative, short-term and tong-term effects: •  (e) an identification and description of measures available to mitigate • adverse environmental impacts of proposed activity and assessment of • those measures; •  (f) an indication of gaps in knowledge and uncertainly which may be • encountered in computing the required information: •  (g) an indication of whether the environment of any other State, Local • Government Area or areas outside Nigeria is likely to be affected by the • proposed activity or its alternatives; •  (h) a brief and non technical summary of the information provided under • paragraph (a) to (g) of this section. •  5. The environmental effects in an environmental assessment shall be • assessed with a degree of detail commensuration with their likely • environmental significance.” • Nigeria -- Environmental Impact Assessment Decree No. 86 (1992), secs. 4-5.

10. Gambia • “Without prejudice to the generality of what may be included in an • environmental impact study conducted according to subsection (2), the • environmental impact statement shall state: • (a) a description of the proposed activity or project and of the • activities it is likely to generate; • (b) a description of the potentially affected environment including • specific information necessary for identifying and assessing the • environmental effects of the activity; • (c) a description of the technology and processes that will be used; • (d) reasons for selecting the proposed site and rejecting alternative sites; • (e) environmental impacts of the proposed activity including the direct, indirect, cumulative, short-term and long-term effects and possible alternatives; • (f) an identification and description of measures proposed for • eliminating, minimizing, or mitigating adverse impacts; • (g) an identification of gaps in knowledge and uncertainties which were encountered in compiling the required information; • (h) an indication of whether the environment of any other state or areas beyond the limits of national jurisdiction are likely to be affected and the alternatives and mitigating measures; • (i) a brief description of how the information provided for in this • regulation has been generated; and • (j) any other matter relevant to environmental assessment that may be • prescribed.” • Law no. 13 of 1994, Part V 23(3)(a)-(j).

11. Consequences • Inadequate or no guidance for the exercise of discretion as to which minimum requirements should still apply • No assurance of public scrutiny/participation • Uneven standards for impact assessment • Uncertainty as to levels of monitoring and enforcements of findings • Lack of protection of environment from future impacts

12. Parallel Processes s 24(8) • Competent authority can treat assessments under other laws as compliance with NEMA requirements for assessments • No criteria are given for the exercise of this discretion. • 24(8)(a) no longer requires public participation; needs compliance with NEMA ch 5, whereas 24(8)(b) does not.

13. Exemptions • Lack of criteria for the exercise of the discretion to grant exemptions. • Lack of clarity as to right to public participation

14. Consequences of amendments • No guarantee of uniform procedural fairness levels provided in NEMA in particular public participation • Applicants may forum shop for authorisations using exemptions, assessments under other laws, or applications under NEMA • Decision makers may be subject to greater pressures to grant authorisation to questionable developments without adequate assessment, mitigation and monitoring

15. Constitutional concerns • Dawood v Minister of Home Affairs 2000(3) SA 936 (CC) Constitutional Court examined • statutary provisions which give officials a broad unconstrained discretion in circumstances where • the exercise of that discretion may result in the infringement of a constitutional right. • A statute that does not give the necessary guidance to decision makers to ensure that the discretion would be exercised in a manner which would protect the constitutional right concerned might be declared unconstitutional

16. Right to Administrative Justice • Amendments replace environmental standards with discretion, the exercise of which could result in the infringement of constitutional rights to procedurally fair administrative action including: • The right to be heard (public participation, access to information) PAJA s 3(2)(b)(ii) • The right to a process where relevant considerations have been taken into account in administrative decision making. PAJA s 6(2)(e)(ii)

17. Reasonable measures to protect the Environment s24 • NEMA as framework legislation for the fulfilment of obligations contained in section 24 • Measures which do not meet the requisite standard could put the state at risk of being found not to have met its constitutional obligation • In the light of the above considerations it is suggested that the above provisions of the Bill are reconsidered by the Committee.