Centre for Environmental Rights – Advancing Environmental Rights in South Africa

Tracey Davies

On 17 August 2016, the head of CER’s Corporate Accountability & Transparency Programme, Tracey Davies, delivered the keynote address at the annual national conference of the South African affiliate of the International Association for Impact Assessment in Port Elizabeth. The theme of the 2016 conference was “Environmental Change & Challenges: Resilience, Adaptation & Sustainability”.

The address speaks powerfully about the importance of inclusive and participatory decision-making, objectivity and independence, and the ways in which Environmental Assessment Practitioners (EAPs) can both hinder and promote the realisation of environmental justice. We publish the address in full below.

“Good morning. It’s great to be here, and to have this opportunity to speak to you all today.

“The Centre for Environmental Rights, which some of you have probably heard of, or even dealt with, is a group of public interest environmental lawyers that help South African communities and other NGOs defend our Constitutional right to a healthy environment. While our work covers a broad spectrum of advocacy, research and litigation, our attorneys spend a considerable amount of time commenting on environmental impact assessment reports. Usually, this is with a view to objecting to a particular development which will have a severe negative impact on the environment, and therefore on the health and well-being of affected communities. In many of our cases, for example those involving mining in strategic water source areas or the construction of new coal-fired power stations, the impacts of these developments will have consequences far beyond the immediate vicinity of the project: consequences for the health and well-being of all South Africans, and for our ability to mitigate the effects of, and adapt to, climate change.

“When I was reading the programme for this year’s conference, which is packed with sessions with extremely interesting titles, it nevertheless struck me that almost all of the session topics are extremely technical in nature. Which is not, of course, surprising, given that the field of impact assessment is so heavily reliant on technical and scientific expertise. But I was saddened to see that there are really no sessions discussing what I will call the human element of environmental impact assessment: firstly, inclusive and participatory decision-making, and secondly, objectivity and independence. These foundational pillars of our environmental regulatory system are pivotal: when they are absent, we cannot hope to achieve “sustainable development”.

“So I would like to set aside the scientific and technical elements of impact assessment for half an hour, before you immerse yourselves in those over the next 3 days, and, if you will bear with me, to take you back to the legal principles which form the foundation of all of our professions, and of course the constitutional environmental right – on which these legal principles have been based. I would also like to share with you some of our perceptions and experiences of environmental impact assessment in the work that we do, and appeal to you to bear these in mind when you are out in the field.

“The first national environmental management principle in the National Environmental Management Act is that:

Environmental management must place people and their needs at the forefront of its concern, and serve their physical, psychological, developmental, cultural and social interests equitably.

“The NEMA principles also require that “sustainable development must include the participation of all interested and affected parties, and that decisions must take into account their interests, needs and values”.

“The Environmental Impact Assessment Regulations make it the first requirement of an environmental assessment practitioner that he or she be independent. They also require that the work of an EAP is performed in an objective manner, even if this results in views and findings that are not favourable to the application.

“The Code of Ethics to which all members of the IAIA subscribe requires that members must “at all times place the integrity of the natural environment and the health, safety and welfare of the human community above any commitment to sector or private interests”.

“It is clear then that people, and objectivity, are at the core of effective environmental management. And yet in our work we see so many cases where the people whose environment and well-being will be negatively affected by a development have been relegated to a footnote, a box to be ticked, and where the requirement for objectivity and independence has been discarded altogether.

“Our overriding goal at the Centre for Environmental Rights is the achievement in South Africa of environmental justice. Environmental justice is commonly defined as “the fair treatment and meaningful involvement of all people regardless of race, colour, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”

“South Africa’s history is partly a story of the denial of environmental justice to the vast majority of the country’s population: those who have suffered the brunt of the negative environmental impacts of industry, mining and agriculture are also those who were denied their basic human rights under apartheid.

“Our Constitution makes the right to an environment not harmful to health or well-being a fundamental human right. This was a hugely progressive move – there are not all that many places in the world where this is the case. Unfortunately though, for very many South Africans, this right is far from being realised, and, in some cases, is increasingly being eroded.

“Environmental justice is also a prerequisite for sustainable development: we cannot ensure that development serves present and future generations, which is the goal of sustainable development, if the poorest and most vulnerable of our people are denied environmental justice.

“You may ask why the goals of an environmental justice organisation are relevant to you. You may see yourselves as technical experts, whose job has nothing to do with achieving justice. But in fact, you are the gateway to environmental justice, and therefore to sustainable development, because of the crucial role that you play in decisions about development in South Africa. This role gives you an extraordinary power over the fate of the environment, and of people affected by development, and with that power comes a great responsibility: the responsibility to set the stage for environmental governance that treats all people fairly and equally.

“Of course it is our government decision-makers who have the ultimate say on what development happens where. They too have a great responsibility, and are obliged by law to realise and protect the right to a healthy environment in a way that you are not. But we have to be realistic about the capacity and resources of these decision makers. The conclusions and recommendations of an environmental impact report hold enormous sway – we very seldom see examples of decisions in which an EIA report has been critically and meaningfully assessed, and its recommendations and conclusions rigorously tested or challenged by decision makers.

“This is particularly the case in the mining industry, and the introduction of the so-called “one environmental system” will only exacerbate this problem – we have already seen examples of this in our work. Governance weaknesses, unfortunately, increase the burden on you, and on civil society, to ensure that decisions are based on fair and objective assessments which properly incorporate the concerns and knowledge of interested and affected parties. The decision-makers in government who are empowered to make these decisions rely on you for the technical expertise to inform them: if you tell them that something will have no serious impact on the environment, or that any impact can be mitigated, they are almost certain to act accordingly.

“It is simply not enough to say that if people are unhappy with a decision, they can appeal it or review it in court: these processes are insanely resource and time intensive, completely unfeasible for most people, and even when they are successful, by the time they are resolved, whatever damage to the environment they are aimed at preventing has already taken place.

“So, let me get back to those two crucial elements of EIA: public participation, and objectivity and independence.

“In our experience, too many environmental consultants approach the issue of public participation in a cursory and defensive manner. Instead of seeing interested and affected parties as valuable contributors to the EIA process, they see them as a frustrating obstacle to the completion of their task. It is, of course, much more difficult to deal with people than it is to deal with an environment that cannot speak up for itself, especially when those people are scared and confused about what might happen to the places where they live. But we seem to have forgotten that it is not the people with the most impressive degrees or most extensive technical experience who can fully anticipate the impact of a development on its receiving environment; rather, it is the people who have lived there for decades or generations, and who understand the ebbs and flows of the natural systems around them. It is also often these same people who are least equipped to deal with the technical complexities of EIA, and who most require the help of the assessors to guide them through the process.

“And yet, time and again, we see public participation registers that form part of environmental impact assessment reports where the comments of interested and affected parties have simply been recorded and “noted” in the comment and response report, but have clearly played no part whatsoever in the final conclusions and recommendations of the report. I cannot emphasise enough how much resentment and distrust this practice creates: across the country there are communities whose members have spent enormous resources of time and energy trying to ensure that their input is properly taken into account in EIA processes, but who have absolutely no faith in the system or its practitioners because they have experienced first-hand the contempt for their views and values. And the poor practices of those EAPs who do approach public participation in this way have a devastating effect on the reputation and credibility of those who are committed to the principles of inclusive environmental governance.

“And then there is the question of independence and objectivity. In this respect, our system of environmental impact assessment places those who are responsible for EIAs in a very difficult position: they are required to be independent, and to express their conclusions regardless of whether or not they favour the application, and yet they are commissioned and paid by the applicant, and their chance of future work depends on the product they produce for those who are paying them.

“Out of this system has arisen the situation in which we now find ourselves: where it is distressingly rare to see an EIA report in which the conclusion is that a development should NOT go ahead, or at least should not go ahead in a particular location. Often, the specialist studies which form part of the report, when taken together, clearly point in this direction. Notwithstanding this, the conclusion is that any and all environmental harms can be mitigated to the extent that there is no reason why the development can’t go ahead. And everyone sitting in this room knows firstly, that not all impacts and harms can be mitigated and secondly, that the kind of close monitoring of compliance required to make sure that mitigation measures are continually implemented is remote. Of course development must happen, and there are many instances in which harmful impacts can and must be accepted.  But sustainable development demands that we do sometimes say “no”: no to another mine, another road, another power station, another factory, another mall.

“I will give you two examples that we have come across in our work – without mentioning any names of course – to illustrate the problem.

“Firstly, in a case that the CER is currently involved in, the EAP appointed by a company applying for multiple prospecting and mining rights states on his CV that he was previously employed by the company applying for the rights. His role with the company was as its “Principal Geologist and Superintendent”, and he was responsible, in his words, for “directing company decisions and implementing strategies with the managing director.” But neither the EAP, nor the DMR, see this as an obstacle to independence.

“In another of our current cases, the Department of Mineral Resources has granted a mining right to a company that wants to develop an underground coal mine in a protected environment. The land which is the subject of the right is situated in an area of critical hydrological importance and biodiversity, composed mostly of wetlands, pans and endangered grassland ecosystems that support endangered species. It is also the source of three major rivers, and has been classified as a strategic water source area, a national freshwater ecosystem priority area, and an aquatic critical biodiversity area.

“The environmental impact assessment report which was submitted as support for the mining right application concluded the following in relation to the application: “the impact on biodiversity due to an underground mine is limited to surface infrastructure and some depletion of water” and that “coal mining will provide a welcome relief in terms of the current account balance, job creation and poverty alleviation”.

“Even more extraordinarily, the mining company had actually previously commissioned a different consultant to do the EIA. This consultant had carefully considered the potential impacts of this application, and the cumulative impacts of similar future applications in the same area, and concluded that the area should be designated a “no go” for mining.

“Imagine a world in which this was a common occurrence. Imagine a world in which the proponents of that mining project could not discard this first report, and go out and hire someone who would come to a different conclusion. Imagine a world in which we could be secure in the knowledge that our nature reserves, world heritage sites, wetlands, marine protected environments, strategic water source areas etc., would remain protected, instead of being under constant threat of destruction. A world in which those of us – all of us here – who work in the environmental field could dedicate our time and energy to valuable projects aimed at achieving sustainable development, rather than spending all of our time and energy fighting the fires of inappropriate development.

“The private sector, of course, also has an essential role to play if we are to realise the goals of sustainable development. Unfortunately though, corporate South Africa is not yet anywhere near the “responsible environmental citizen” it so often claims to be. The CER’s corporate accountability programme released a report last year called Full Disclosure: the truth about corporate environmental compliance in South Africa. The report assessed the extent of environmental compliance of 20 listed companies with serious environmental impacts. All twenty of these companies had regularly appeared on the JSE’s “Socially Responsible Investment Index”, which purports to recognise companies that manage their environmental, social and governance impacts well. All of these companies also make lofty claims to their shareholders and their customers about their commitment to sustainability and environmental compliance. Despite all of this, we found that many of these companies had committed multiple serious breaches of environmental laws, and furthermore, had failed to disclose these breaches to their shareholders.

“It is clear that initiatives like the JSE’s Socially Responsible Investment Index, the Mining & Biodiversity Guideline, and the multiple other voluntary codes and initiatives that the private sector signs up to, have in fact made very little difference to the actual behaviour of many of South Africa’s most environmentally damaging companies: they continue to break environmental laws and they continue, at what seems to be an ever increasing rate, to expand their operations in ways that severely compromise our ability to achieve sustainable development or even begin to adapt to and mitigate the effects of climate change.

“No-one can deny the multiple constraints under which you work: short time-frames, poor decision-making, weak compliance monitoring and enforcement of environmental compliance, difficult locations, demanding clients – to name but a few. Certainly, it is neither your responsibility, nor is it even possible, for you to fix all of our environmental governance problems.

“But I would ask you to think beyond just the current contract that you are involved in, and to conceptualise the fact that at any given moment there are thousands of assessments going on all over South Africa, and that the cumulative impact of all of those recommendations will fundamentally transform the nature of our country: whether this transformation is for the better or for the worse, depends in large part on the extent to which inclusivity and integrity inform the conclusions of each of those assessments.

“My plea to you today is also that you always bear in mind that the role you play in environmental governance is crucially important, and that if you take the views of affected people seriously, and incorporate them into your conclusions and recommendations meaningfully and respectfully, and if you maintain your independence, and express your true conclusions regardless of their impact on the application, you will already be contributing to vastly improved environmental governance in South Africa.

“Thank you.”