Centre for Environmental Rights – Advancing Environmental Rights in South Africa

Access to information and environmental rights

The right to an environment that is not harmful to our health and wellbeing, as well as the right to have the environment protected for the benefit of present and future generations guaranteed in the Constitution, cannot be realised without access to information. Without access to information held by government and private enterprises, the public does not know:

• that decisions affecting the environment are in the pipeline so that they can raise concerns;
• what decisions that affect the environment have already been made;
• what conditions have been imposed on those whose actions impact on the environment;
• whether there is compliance with those conditions, and whether enforcement action has been taken against violators or not; and
• what threats are facing the environment and natural resources on which we rely for our lives, health and wellbeing.

Current obstacles to access to information

As things stand, civil society organisations and communities already face enormous obstacles in gaining access to environmental information.

In our experience, government departments make the absolute minimum information about the issues raised above available voluntarily to civil society. Instead, departments typically insist that civil society organisations submit requests in terms of the Promotion of Access to Information Act 2 of 2000 (PAIA), even if it relates to information that should be in the public domain, like permits and environmental management programmes.

To make matters worse, many government departments and private enterprises fail to comply with PAIA themselves, with many PAIA applications going unanswered or only responded to after delays that significantly exceed the timeframes in PAIA. We have examples of cases where it has taken more than a year for a community to confirm whether a particular facility has a permit or not.

In addition, we see a failure of leadership on creating a culture of transparency and accountability around environmental governance. For example:

• The Minister of Mineral Resources recently refused to provide details to Parliament about enforcement action taken against mining companies for environmental non-compliance, “due to the sensitiveness relating to information and the potential impact it could have on e.g. share prices of listed companies”.[1] This information is crucial to civil society organisations and the public who have the right to know whether mining companies are complying with their permits, whether they are polluting the natural resources on which we rely, and whether the Department of Mineral Resources is enforcing environmental legislation. One may also ask whether shareholders of those companies are not entitled to this information to protect their economic interests.

• Similarly, the Minister of Water and Environmental Affairs recently refused a request in Parliament to make public the compliance of all wastewater treatment plants with permitted discharge standards.[2] Civil society needs this information not only to protect their health, but also to facilitate interventions from civil society.

• Just last week, the Inter-Ministerial Task Team on Acid Mine Drainage declined to make public a report by a team of experts on acid mine drainage (AMD) to the Task Team.[3] Considering the scope of the threat that AMD poses to the people of South Africa,[4] it is vital for civil society to know what exactly experts have told the Task Team.

The Protection of Information Bill

As it stands, the Protection of Information Bill (B6-2010) will not only not improve the dismal situation described above, but make it easier for the state to classify environmental information and to refuse civil society access to such information. Along with our counterparts in the private sector, represented by the International Association of Impact Assessment of South Africa, the Centre for Environmental Rights opposes the Protection of Information Bill and calls on Parliament to refuse to pass this legislation.

Instead, we call on Parliament and our Constitutional institutions like the South African Human Rights Commission and the Public Protector to hold to account all government departments that hold environmental information and to ensure that they comply with the requirements of PAIA.

CENTRE FOR ENVIRONMENTAL RIGHTS

27 OCTOBER 2010

[1] National Assembly Internal Question Paper 18, Question number 2022, 30 July 2010

[2] National assembly Internal Question Paper 23, Question number 2187, 20 August 2010

[3] http://www.polity.org.za/article/mine-water-report-under-wraps-for-now-2010-10-22

[4] See, for example, http://www.engineeringnews.co.za/article/rising-mine-water-could-be-catastrophic-for-joburg-parliament-told-2010-07-21