Developments in environmental law – ELA 2013 annual conference

October 1st, 2013
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By Angela van der Berg

The Environmental Law Association (ELA) held its annual conference at Salt Rock, KwaZulu-Natal in July. Approximately 80 people attended the event that was partially sponsored by publishers Juta and LexisNexis. The aim of the conference was to provide a platform for the discussion of a number of proposed legislative amendments, recent court decisions, policy changes, administrative procedures and new developments on international and regional level that may have potential implications for the direction and future of environmental law development and decision-making. These issues were addressed by an array of presenters representative of the academic fraternity and legal practice across South Africa.

The papers presented were divided into six sessions, namely –

  • environmental law and the judiciary;
  • biodiversity protection;
  • protected areas and genetically modified organisms;
  • planning and local government;
  • climate change and energy law;
  • implementation of environmental management instruments in practice; and
  • sustainable development.

The keynote address was delivered by former Chief Justice Sandile Ngcobo who reflected on the role of the judiciary in interpreting environmental law. In his address, Justice Ngcobo reiterated that the s 24 environmental right in the Constitution is a justiciable right and that the protection thereof should be one of the foremost concerns of the judiciary and legal society. He stated that the entire judiciary is a crucial partner in promoting compliance with environmental law. In examining the role of the judiciary with regard to environmental decision-making, Justice Ngcobo referred to Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC) and explained that the courts’ task are not to determine whether a decision-maker has reached a correct decision but rather to determine whether the decision reached is one that promotes an equilibrium between socio-economic and environmental considerations.

He further explained that the courts must not attribute themselves superior wisdom to complex environmental decisions but should give due weight to the integrity of such decision-makers. However, Justice Ngcobo pointed out that deference to environmental decision-makers does not mean that courts must rubber stamp a decision because of its complexity. The role of the courts is to determine whether decisions achieve the goal of protecting the environment while balancing socio-economic considerations, he said.

He concluded that there is still some way to go and that the courts are faced with the challenge of creating a new vision for developing an understanding of environmental law and development problems in the South African context.

In the presentations that followed, Andrew Muir from Austen Smith Attorneys discussed issues revolving on the determination of a buffer zone around the uKhahlamba Drakensberg Park World Heritage Site and the formulation of general policy to integrate the protection of cultural and natural heritage into comprehensive planning programmes within the buffer zone. Mr Muir highlighted that the determination of the buffer zone is complex as it will expand over a large area, covering two countries and at least three provinces.

Dr Odile Lim Tung, a post-doctoral fellow at the Faculty of Law of the North-West University and the University of Mauritius discussed issues regarding the labelling of genetically modified (GM) food products in South Africa. She argued that adequate monitoring of labelling obligations for GM food products placed on the market or released in the environment, is important to respect consumers’ right of access to information as well as to facilitate the withdrawal of unsafe products by producers, importers, distributors and retailers in case of scientific uncertainty on the adverse impacts of these products.

Professor Warren Freedman from the University of KwaZulu-Natal discussed the extent to which a municipal council can pass by-laws that aim to conserve and protect the environment. He referred to Le Sueur and Another v eThekwini Municipality and Others (KZP) (unreported case no 9714/11, 30-1-2013) (Gyanda J) where the court argued that the functional area of ‘municipal planning’ includes responsibility over some environmental affairs.

Further considering issues pertaining to local government, Themba Mathebula, lecturer at the University of Limpopo, presented a paper on the role and duties of municipalities in the enforcement of environmental law and emphasised the importance of competence, skills development and education.

Peter Kantor, chairperson of the ELA, critically discussed the recently approved Spatial Planning and Land Use Management Bill B14B of 2012. He, inter alia, argued that, despite inter-government cooperation being regarded as a firm constitutional value, in practice it has been a slow starter.

Professor Stephen de la Harpe from the North-West University presented a paper on the influence of environmental and similar rights on the balance of convenience in the granting of interim interdicts. He emphasised that these interdicts, inter alia, have consequences on the environment and discussed the recently decided case of WJ Building & Civil Engineering Contractors CC v Umhlathuze Municipality and Another (KZD) (unreported case no 4139/2013, 6-5-2013) (Lopes J).

Professor Werner Scholtz from the University of the Western Cape presented a paper on extraterritorial human rights and climate change. He highlighted that it is important to recognise the linkages in international environmental law and that parties should fully respect human rights in all climate change related actions. Professor Scholtz argued that the international community is not state centric and that the effects of climate change on humankind exceeds state boundaries and territorial sovereignty.

Mr Kamleshan Pillay, lecturer at the University of Kwazulu Natal, discussed the need for defined leadership hierarchies in environmental governance strategies on energy between the European Union (EU) and the emerging national economies of Brazil, Russia, India, China and South Africa (BRICS). In comparing the EU with BRICS, he suggested that there is a need for defined leadership hierarchies in environmental governance strategies for energy between the EU and BRICS because the EU seems to focus on sustainable development and BRICS on economic growth.

Professor Anél du Plessis from the North-West University and Reece Alberts, junior environmental legal specialist at the Centre for Environmental Management at this university, critically reflected on the increased tension with respect to uncooperative government that may arise against the background of the country’s pursuit of climate resilient development and South Africa’s recently adopted Infrastructure Development Bill, 2013.

Sibonelo Ndlovu from Smith Ndlovu & Summers Attorneys presented on recent case law on s 24G of the National Environmental Management Act 107 of 1998 (NEMA) and posed the question as to whether the recent case law may be regarded as ‘dismal jurisprudence’. In considering this question, he referred to the recently decided cases of Supersize Investments 11 CC v MEC of Economic Development, Environment and Tourism, Limpopo Provincial Government and Another (GNP) (unreported case no 70853/2011, 11-4-2013) (Fabricius J) and Interwaste (Pty) Ltd and Others v Coetzee and Others (GSJ) (unreported case no 23921/2012, 22-4-2013) (Horn J).

Further presenting on the implementation of environmental management instruments, Professor Ed Couzens from the University of KwaZulu-Natal, shared his concerns regarding innovative sanctions with regard to s 34 of NEMA. He highlighted that s 34 of NEMA provides for a number of innovative sanctions that could be used to improve enforcement of and compliance with environmental statutes.

Mr Alberts, in a second presentation, discussed some of the practical challenges expected to emanate from the future implementation of the Mineral and Petroleum Resources Development Amendment Act 49 of 2008. He indicated that the Amendment Act provides for a number of changes concerning discard dumps, sequential lodging, consultation, environmental considerations such as transitional arrangements and financial provision, the amendment of timeframes with respect to granting and refusing rights, closure, mining permits and the extension of ministerial powers to include certain amendments, for example. He further highlighted that some of the amended provisions may be cause for concern and confusion as the effect thereof is, inter alia, that an approved environmental plan or environmental management programme is now no longer required to commence prospecting or mining operations, and that it is no longer a criminal offence to prospect or mine without an approved environmental management plan or environmental management programme.

In his presentation Professor Johan Nel, executive head of the Centre for Environmental Management at the North-West University considered whether a number of recent ISO reforms are significant or superficial therapies for the credibility crisis of the voluntary and certified compliance assurance movement. He explained that compliance enforcers around the world had great expectations that the flagship environmental management system standard – ISO 14001 – would be a reliable alternative to command and control measures and an ally to drive enforcement by assuring compliance. However, in determining whether the ISO standards do indeed ensure compliance with environmental laws, Professor Nel argued that ISO 41001 does not directly and explicitly require legal compliance and instead requires top management to merely make a policy commitment to comply with applicable legal requirements.

In his presentation Professor Louis Kotzé from the North-West University concluded the conference by discussing the topic of sustainability through the lens of the so-called rule of law for nature.

The ELA’s 2013 annual conference offered a good opportunity for networking and engagement on developments and changes in environmental law of relevance to scholars and practitioners in South Africa – the ELA secretariat described the conference as a success.

Angela van der Berg LLB (NWU) is an LLM student at the North-West University.

This article was first published in De Rebus in 2013 (Oct) DR 18.