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Citation: PER/PELJ 2006 9 (3), PDF accessible here

FINDING NEMA: THE NATIONAL ENVIRONMENTAL MANAGEMENT ACT, THE DE HOOP DAM, CONFLICT RESOLUTION AND ALTERNATIVE DISPUTE RESOLUTION IN ENVIRONMENTAL DISPUTES

E Couzens^* and M Dent^**

Summary

At a time when it is recognised that large dams have potentially serious environmental consequences; it appears that a dam, the De Hoop dam, is to be constructed in Mpumalanga Province. The dam may seriously disrupt ecosystems in the Kruger National Park. Authorisation for the dam was granted by the Minister: Department of Environmental Affairs and Tourism, based on a badly flawed environmental impact assessment (EIA) process; the Record of Decision (ROD) from the Minister was equally inadequate. Following objections and appeals, the Minister released a revised RoD in which important changes were made. The flawed EIA and approval processes, however, may come back to haunt the decision-maker; yet value lies in the lessons to be drawn from the initial failure to consider the views of interested and affected parties. In the end, an abridged form of Alternative Dispute Resolution (ADR) is to be followed; but much harm could have been avoided had this been done from the beginning. The ‘de hoop’ must be that these errors will be avoided in future in such disputes and a culture of ADR fostered.

1. Introduction

This article considers the proposed De Hoop Dam on the Olifants River, Water Management Agencies, conflict between government departments and other organs of state, the involvement of NGOs and conflict-breaching mechanisms.

The point of this article is not to debate the rights and wrongs of the project or to weigh in on behalf of either side in the dispute, but to show that there is a genuine dispute about the course which should be followed as well as interests which were not taken into account properly in the initial impact assessment and decision-making processes. Consequently, that this was (and is) an appropriate case for conciliation and dispute resolution mechanisms, which are key – and underutilised – features of the National Environmental Management Act 107 of 1998 and of the National Water Act 36 of 1998. If this case could be settled by means of alternative dispute resolution techniques, others might follow and future environmental disputes be settled with accommodation of a greater number of interests. The matter discussed in this article is not hypothetical, but a real and urgent legal and environmental problem.

2. The facts of the dispute

   The Department of Water Affairs and Forestry (DWAF) plans, possibly even as soon as late 2006, to begin the construction of a dam – the De Hoop dam – on the Olifants River, Mpumalanga.¹ DWAF made the decision to build the dam; with a Record of Decision (RoD) providing subsequent authorisation by the Department of Environmental Affairs and Tourism (DEAT).² The RoD was handed down on 21 November 2005, despite there having been six objections against the development lodged with DEAT – these being from South African National Parks (SANParks, which is an organ of state) and from five NGOs and private individuals.³ The RoD gave DWAF the right to proceed with the building of the dam. However, all of the six objectors lodged appeals against the RoD.⁴ The Minister’s Decision on the Appeals will be discussed in this article below, under section 7: The Minister’s Decision on the Appeals; and the Revised Record of Decision.

SANParks took a firm stand against the dam, suggesting that:

… if the dam is allowed to go ahead and take water out of the Olifants River system without Kruger [National Park] receiving its due share of water, known as the ecological reserve, SANParks “will have no alternative but to approach an appropriate court for relief” from the [DWAF]. Although a provision is made in the [R]ecord of [D]ecision for the implementation of the reserve of the Olifants River, SANParks describe it as “unclear, vague and embarrassing” as well as “meaningless and ineffective”.⁵

It has been suggested that SANParks threatened such litigation not only against DWAF, but also against its own principal – DEAT, being the competent authority in respect of issuing RoDs for environmental authorisation.⁶

It is unclear why DWAF desires to construct the dam; nor why DEAT agreed, implied by handing down its RoD, with DWAF that the dam is needed and desirable. The contending beneficiaries appear to be the water (and general economic improvement) needs of the poor in the area, in the one corner; with undisclosed mining interests in the other.⁷

According to Business Day:

Conservationists object to the project on the grounds that an interruption of the flow of the Olifants would endanger several game reserves downstream, including the Kruger Park, and would have a significant environmental and economic effect. They are in good company: internationally it has become accepted that the detrimental effects of large-dam projects outweigh the benefits. But the Steelpoort area, for which the dam is planned, is among the poorest in the country, where even subsistence farming is largely no longer possible. The land degradation due to poverty is already an environmental disaster; the effect on the people is an escalating tragedy. Government’s failure to act would be as great a violation of the constitutional rights of the Steelpoort people to live in an environment that is not harmful as would be a rash decision to build a dam and be damned. Whether building a large dam is the appropriate action is another matter.⁸

There appears, however, to be a cynical view amongst interested and affected parties who have opposed the construction of the dam that it is not intended to serve the basic needs of the poorest of the poor; rather, that it is to serve the interests of undisclosed mining companies. According to Wray in the Kruger Park Times:

The De Hoop dam is intended to supply water primarily to help mining companies utilize the platinum reserves in the area, with a lesser percentage of the stored water being earmarked for agriculture and primary human usage.⁹

Mainly, according to a media comment, the ‘R4-billion’ project is intended ‘to feed mining interests’.¹⁰ This view is given credence when one goes back to what is apparently the first mention of the project – to be found in the February 2003 State of the Nation Address by the President of South Africa, Thabo Mbeki.¹¹ Support for this view comes from scrutiny of DWAF statements on the subject.¹² Further support for the mining interest contention appears from a media release by DWAF of June 2004, which refers to the above State of the Nation address and suggests that the project (the Olifants River Water Resource Development Project or 'ORWRDP’) will –

…supply water for social and economic development in large parts of the Olifants and Mogalakwena/Sand Catchments of the Limpopo and Mpumalanga Provinces.¹³

This mining interest rationale appears nowhere in the November 2005 Reason for Decision by DEAT (as the lead authority for the EIA), authorising DWAF to proceed with the project. The RoD does not mention mining in its explanation as to why the project is deemed necessary – although ‘economic development’ generally is referred to.¹⁴ The first rationale given in the RoD is that of –

…the need to provide the previously disadvantaged communities with potable water.¹⁵

It is not, in any case, certain to what extent people in need of domestic water will benefit from the project. According to Macleod:¹⁶

Water [A]ffairs said one reason it wants to build the dam is to supply three local municipalities with domestic water. But, asked the EWT¹⁷ in its appeal, “How will domestic supply be guaranteed? No evidence is provided that local communities will receive water, let alone be able to pay for it.” In its appeal, SANParks said the dam would negatively affect tourism, wildlife and concession areas in the Kruger. “If our rivers dry up, the value of the tourism experience in Kruger will be diminished and tourism support for the area will cease.” If the project went ahead without clear assurances that Kruger would continue to receive its share of downstream water – known as an “ecological reserve” – “SANParks will have no alternative but to approach an appropriate court for appropriate relief”.

There is also concern about the relationship with Mozambique; in which regard Macleod¹⁸ quotes Vera Ribeiro, coordinator of the Mozambican environmental NGO Geasphere, as saying that:

…[t]he two governments must adhere to the Southern African Development Community’s protocol on shared watercourses, with close cooperation to ensure the sustainable use of shared water bodies.¹⁹

It is not certain whether such international obligations were taken into account. From the available information, it would appear that they were not adequately considered. It has been suggested that an irony is that:

… [DEAT's] own research had identified the Sekhukhuneland region as one of nine national conservation priority areas because of its high biodiversity and ecosystems service value.²⁰

Feelings on the matter have been running so high that there have even been accusations of obstructive acts by DEAT.²¹ Such obstruction has been denied.²² DEAT aside, DWAF certainly appears to be determined to construct the dam – this appears strongly from public pronouncements from the latter ministry. Such public pronouncements tend to feature arguments in favour of mining interests strongly; the domestic water needs of the poor less so.²³

The proposed De Hoop dam is not the only issue of concern. In May 2006 it was reported that:

…[t]he already pressurized Olifants River system is scheduled for more development, with another dam being intended to supply water for mining in the Olifants River catchment. Anglo Platinum is conducting an environmental impact assessment (EIA) for the planned Richmond dam, to be located in the Dwars River system, which feeds the Steelpoort River. … The mining company wishes to build the dam to meet the needs of its projected mining operations in the area, as the Richmond dam would be able to supply water in 2008 as compared to the projected date of 2014 for water supply from the De Hoop dam.²⁴

The newly proposed dam may well have a significant impact on the biodiversity of the area. It appears that, according to the draft scoping report:

…the dam basin contains 29 plant species of conservation importance, of which 21 are endemic or have Red Data status, while a further eight are protected species. In the area which will be flooded, 11 of these 29 species with conservation importance are found. The report also says that the dam basin is in an archaeologically sensitive area. However, the scoping report also adds that “The implication of a ‘no-go’ situation will be one of immense economic impact. Not only will this impact on the production of much needed platinum reserves, it will also result in stagnation of the local economy and an overall hampering of the development of a region already badly affected by unemployment.²⁵

Once again, therefore, the familiar cast of characters is gathering: mining interests, environmental conservation authorities, organs of state and, of course, the economically deprived people of the local area.

3. The Record of Decision (RoD)

The Department of Environmental Affairs released its RoD on 21 November 2005, authorising DWAF to undertake an activity described as:

…[t]he construction of a large storage dam (and associated spillway structure and pump station) on the Steelpoort River at the farm De Hoop … The dam will have a full supply level of 915 masl, a wall length approximately 1 050 m and will inundate an area of about
1 690 ha. … The removal and/or flooding of existing vegetation from the proposed dam inundation basin … [R]oad realignment [which] will include three major bridges, two across the Steelpoort River at either end of the proposed dam and one across the Maseketi River. … [and associated activities].²⁶

According to the RoD, in reaching its decision DEAT took into consideration the final environmental impact report (EIR) and environmental management plan (EMP) dated October 2005²⁷ and also comments received from the South African Heritage Resources Agency (SAHRA), and the Departments of Health and Social Services (Mpumalanga), Minerals and Energy (Limpopo), Economic Development, Environment and Tourism (Limpopo), and Agriculture and Land Administration (Mpumalanga).²⁸ It is significant that DEAT did not mention having taken SANParks’ views into account, despite SANParks having objected to the project. Moreover, mining interests are not mentioned in the RoD. Per the RoD:

The proposed development came as a result of the need to provide the previously disadvantaged communities with potable water and to facilitate the economic development in the Greater Sekhukhune Municipality, the Capricorn Municipality and the Mogalakwena Municipality.²⁹

According to the RoD:

The mitigation measures proposed in the environmental impact report are appropriate and practical for implementation. It is envisaged that, should the conditions as stipulated in this record of decision be complied with, the negative impact of this activity will be minimized.³⁰

This last sentence, of course, says nothing about whether the impact will be significant or not. The RoD then continues:

The environmental impact assessment process followed complies with the requirements of the EIA Regulations. Information submitted by the independent environmental consultant is deemed to be sufficient and adequate to make an informed decision. No fatal flaws have been identified during the EIA process. Based on the above, DEAT’s conclusion is that this activity will not lead to a substantial detrimental impact on the environment, that potential detrimental impacts resulting from this activity can be mitigated to acceptable levels and that the principles of section 2 of NEMA can be upheld.³¹

The authorisation was granted subject to certain conditions; inter alia, that, firstly, an Environmental Monitoring Committee (EMC) was to be established to report directly to the Director-General: DEAT.³² Members of the EMC were to reflect sectors such as affected residents, ward councilors, NGOs, community leaders, and farmers’ associations. The purpose of the EMC was to monitor compliance with the RoD and to make recommendations to the Director-General: DEAT related to the monitoring of the project. Secondly, that DWAF was to appoint an independent environmental control officer (ECO) prior to construction for purpose of monitoring compliance with the RoD and with recommendations of the EMP; and of undertaking monthly environmental compliance audits. Thirdly, according to the RoD, due to the -

…nature and extent of the proposed project and the proposed mitigation measures, a suite of environmental management plans (EMPs) [would] need to be produced – some, however, only ‘within a few years’ time … as and when required.³³

All EMPs were to be submitted by DWAF to DEAT before commencement of any of the relevant activities; and each was to cover a number of required aspects, such as the mitigation measures recommended in the original EIA, protection of heritage sites ‘likely to be impacted’, and waste avoidance and minimisation.³⁴

As far as rehabilitation after construction is concerned, DWAF was required to:

... initiate an investigation into the conservation of an equivalent area of the Sekhukune Land Centre of Plant Endemism to replace that lost due to the construction of the dam and its impoundment area.³⁵

As a safeguard of biodiversity, this was extremely weak. DWAF was not required to conserve biodiversity, nor even to conserve an equivalent area of biodiversity, but merely to ‘initiate an investigation’ into conserving an equivalent area. What was meant by ‘equivalent area’ is not defined; and, therefore, could have been interpreted simply spatially. This ignores the uniqueness of endemic biodiversity.³⁶

DWAF was required also to implement measures to control invasive plants and weeds; to have a suitably qualified specialist conduct all removals of indigenous vegetation and to have a qualified Environmental Officer³⁷ on site to assist with pre-marked red data species sites.³⁸ Without positive ongoing conservation obligations in place, however, these conditions were vague and would have been extremely difficult to enforce.³⁹

The project/development was authorised on condition that DWAF acquire (in accordance with relevant legislation) the necessary land rights.⁴⁰ Authorisation was further dependent on compliance with other legislation, in particular heritage legislation; and prospecting and mining legislation.⁴¹ Again, the emphasis did not appear to be on environmental protection.⁴²

Importantly, the RoD required that certain operational conditions, relating to factors like sanitation, removal of man-made structures of consequence and removal/disposal of waste generated, be complied with.⁴³ The most important operational condition required that "…[t]he ecological reserve requirements of the downstream river must be maintained".⁴⁴ This could have represented something of a problem. DWAF might have argued that as no ecological reserve requirements have actually been determined, there are none to meet. However, this would not have been an argument to be taken seriously – as will be seen below, there are legal requirements to take the reserve into account and it is clear from the tenor of the legislation that to ignore the reserve would be to breach both the National Water Act⁴⁵ (NWA) and the principles of NEMA.⁴⁶

The RoD required, finally, that certain safety and security measures be taken; these relating largely to storage of hazardous substances and to worker safety.⁴⁷ Of interest, though, is the following clause:

DWAF should already have attempted to model and quantify the risks based on rainfall and flow data, with the design characteristics of the dam (possibility of failure, seismic data and criminal intelligence). DWAF must therefore maintain the early warning systems and disaster plans for severe floods and the very unlikely event of dam wall failure.⁴⁸

It is extremely vague to suggest that DWAF “…should already have attempted…”. In fact, as a condition, it is virtually devoid of meaning. One might have expected that such a model and quantification would have been required as knowledge DEAT would need in deciding whether or not to grant the RoD.

In conclusion, then, the RoD was an inadequate document; and one which was based on a fundamentally flawed EIR. Instead of being a set of reasonably drawn conclusions, based upon a process of proper research, debate and consideration of various interests, the RoD represented an inadequate imposition.

4. Legislative framework

   1. National Environmental Management Act 107 of 1998 (NEMA)

NEMA is intended, besides setting principles in place for national environmental management, to provide for coordination, cooperation and conflict-breaching.⁴⁹ Chapter 4 is headed “Fair Decision-making and Conflict Management” and provides for conciliation and arbitration mechanisms where conflict arises in the environmental field.⁵⁰ Several options exist in this regard, but it does not appear that many have yet been used.

Crucial to NEMA, and the current issue, are the principles found in section 2; which, inter alia, apply alongside all other appropriate and relevant considerations,⁵¹ provide a general framework for environmental management,⁵² serve as guidelines in terms of which environmental decisions must be taken or any function exercised by an organ of state,⁵³ and serve as principles by reference to which a conciliator appointed in terms of NEMA must make recommendations.⁵⁴ DEAT was required to take the NEMA principles into account in making its decision in the present matter, as was acknowledged in the RoD.⁵⁵ Unfortunately, DEAT phrased this simply as:

… [concluding that] … the principles of section 2 of NEMA can be upheld [based on the EIA].⁵⁶

Again, this is extraordinarily vague. It is not clear what was meant by ‘can be upheld’. Preferable would have been evidence that the decision-maker had indeed given consideration to all relevant NEMA principles and applied them to the particular matter; before concluding on reasonable grounds that the principles would be upheld.

While it is true that NEMA’s principles require that people and their needs be placed '…at the forefront of concern’ in environmental management; it is also required that their physical, psychological, developmental, cultural and social interests must be served equitably.⁵⁷ It is further required that development must be socially, environmentally and economically sustainable.⁵⁸ Sustainable development, according to the principles, requires consideration of all relevant factors—including eight which are specifically listed.⁵⁹ In the instant matter, two of the eight are particularly relevant. It is required that a risk-averse and cautious approach be applied, which takes into account the limits of current knowledge about the consequences of decisions and actions;⁶⁰ and

… that negative impacts on the environment and on people’s environmental rights be anticipated and prevented, and where they cannot be altogether prevented, are minimized and remedied.⁶¹

The first, namely the ‘application of the risk-averse and cautious approach’ echoes the precautionary principle of international law—in other words, that where the scientific consequences of a development are uncertain, the development ought not to proceed. In the highly complex arena of water-related decisions, it is vital continually to extend the limits of current knowledge. Predictions of harm are what are most often in dispute, generally these predictions are uncertain and this uncertainty should not be used as a rationale for proceeding. It would be very difficult in the present matter to argue that either the risk-averse and cautious approach or the prevention or avoidance of harm approach have been taken into account properly, as it ought to have been.

Further principles of NEMA which appear to have been insufficiently considered, include the requirement that environmental management be integrated, taking into account the effects of decisions on all aspects of the environment and all people in the environment.⁶² The apparent lack of regard given to the needs of the environment (specifically, the needs of the Kruger National Park) infringe this principle and also the principle that decisions must take into account the interests, needs and values of all interested and affected parties.⁶³

It is likewise not apparent that sufficient weight was given to the principle that the social, economic and environmental impacts of activities, including disadvantages and benefits, must be considered, assessed and evaluated and decisions must be appropriate in the light of such consideration and assessment.⁶⁴ Further, the principle that decisions must be taken in an open and transparent manner and that access to information must be provided in accordance with the law,⁶⁵ was arguably infringed by the failure to provide proper details of what was considered in the making of the decision.⁶⁶

Both the EIA and the RoD appear to have been insufficiently detailed not to be considered in breach of the principle that sensitive, vulnerable, highly dynamic or stressed ecosystems, such as coastal shores, estuaries, wetlands and similar systems require specific attention in management and planning procedures, especially where they are subject to significant human resource usage and development pressure.⁶⁷ It can hardly be argued that a centre of plant endemism is not a sensitive ecosystem and far more attention to this could have been expected than the somewhat glib assertions that there should be expert supervision when plants are moved and that protection of an area of similar size be considered.⁶⁸

Finally, importantly in this context, NEMA’s principles require that there be intergovernmental co-ordination and harmonisation of policies, legislation and actions relating to the environment.⁶⁹ Where the management policies of SANParks in respect of the Kruger National Park were not taken into account, as appears to have been the case here, this principle has clearly been breached.⁷⁰ Further, one of the principles requires that actual or potential conflicts of interest between organs of state should be resolved through conflict resolution procedures.⁷¹ There is no suggestion that either DEAT or DWAF considered such conflict resolution.⁷²

Chapter 3 is headed ‘Procedures for co-operative governance’. Given space considerations, this article will not discuss these. The authors will simply note that co-operative governance is perhaps a key element since co-operation needs practice and it is in the practicing that relationships, trust, understanding and wisdom are built and it is these qualities that combine to deal with uncertainties in a wise manner.⁷³ It appears that in the present matter co-operative governance has been observed more in the breach than in the observance.

Chapter 4 is headed ‘Fair decision-making and conflict management’ and provides for conciliation mechanisms to be used. It is provided that any Minister, MEC or Municipal Council may, before reaching a decision,⁷⁴ consider the desirability of first referring the matter to conciliation.⁷⁵ It is provided⁷⁶ that, where such a decision-maker considers conciliation appropriate, he or she must (own emphasis) either refer the matter to the Director-General for conciliation under this Act;⁷⁷ or appoint a conciliator on the conditions, including time-limits that may be determined;⁷⁸ or where a conciliation or mediation process is provided for under any other relevant law administered by such Minister, MEC or Municipal Council, refer the matter for mediation or conciliation under such other law.⁷⁹ It is only where the decision-maker considers conciliation inappropriate or if conciliation has failed that it can make a decision.⁸⁰ The implications of this for the present matter are subtle but clear. Although the decision-maker (DEAT) was not compelled to refer the matter to conciliation, in order to make a decision without reference to conciliation (as happened here, with the release of the RoD in November 2005) the decision-maker by necessary implication had to consider conciliation inappropriate. This seems curious in situ, considering that there were six objectors to the proposed development – including an organ of state (SANParks). One could hardly think of a situation in which conciliation would have been more appropriate.

Another way in which conciliation might happen is that, per NEMA:

Anyone may request the Minister, a MEC or Municipal Council to appoint a facilitator to call and conduct meetings of interested and affected parties with the purpose of reaching agreement to refer a difference or disagreement to conciliation in terms of this Act, and the Minister, MEC or Municipal Council may, subject to section 22, appoint a facilitator and determine the manner in which the facilitator must carry out his or her tasks, including time limits.⁸¹

This might well have been an appropriate case for such a request to be made.⁸² Should the matter reach conciliation in one of the ways described above, the Director-General may, on the conditions, including time-limits that he or she may determine, appoint a conciliator acceptable to the parties to assist in resolving a difference or disagreement.⁸³ Importantly, there is a reminder to appointed conciliators of the need to take into account the principles of NEMA:

In carrying out his or her functions, a conciliator appointed in terms of this Act must take into account the principles contained in section 2.⁸⁴

Where conciliation does not resolve the matter, a conciliator may enquire of the parties whether they wish to refer the matter to arbitration and may with their concurrence endeavour to draft terms of reference for such arbitration.⁸⁵

Encouragement is given to the decision-maker to make as informed a decision as possible. It is even provided that:

…the Minister may at any time appoint one or more persons to assist either him or her or, after consultation with a Municipal Council or MEC or another national Minister, to assist such a Municipal Council or MEC or another national Minister in the evaluation of a matter relating to the protection of the environment by obtaining such information, whether documentary or oral, as is relevant to such evaluation.⁸⁶

In the present case, it appears that the decision-maker made the decision (as reflected in the RoD) based only on the EIA and on input from a limited number of stakeholders;⁸⁷ instead of making a decision based on a consideration of input from all relevant stakeholders.⁸⁸

Chapter 5 of NEMA is titled ‘Integrated Environmental Management’ and its purpose is described as being ‘to promote the application of appropriate environmental management tools in order to ensure the integrated environmental management of activities.’⁸⁹ It is strongly arguable that in the matter under discussion, many of the general objectives of integrated environmental management (IEM) were paid only lip service, at best. It has already been argued that the section 2 principles of NEMA were not adequately considered; where IEM requires that these principles be integrated into the making of all decisions which may have a significant effect on the environment.⁹⁰ It can further be argued that not enough was done to:

…identify, predict and evaluate the actual and potential impact on the environment, socio-economic conditions and cultural heritage, the risks and consequences and alternatives and options for mitigation of activities, with a view to minimizing negative impacts, maximizing benefits, and promoting compliance with the principles of environmental management set out in section 2.⁹¹

Nor was enough done to –

…ensure that the effects of activities on the environment receive[d] adequate consideration before actions [were] taken in connection with them.⁹²

Or to –

…ensure adequate and appropriate opportunity for public participation in decisions that may affect the environment.⁹³

2. National Environmental Management: Protected Areas Act 57 of 2003

According to Chapter 5, titled ‘South African National Parks’, SANParks⁹⁴ is to continue to exist as a juristic person despite the repeal of the Act in terms of which it was originally constituted.⁹⁵ Not only is SANParks a juristic person, but it is also an organ of state.⁹⁶ Per the Act, the functions which SANParks must perform include "…managing the national parks and other protected areas assigned to it";⁹⁷ as well as –

…protect[ing], conserv[ing] and control[ling] those national parks and other protected areas, including their biological diversity.⁹⁸

If it is properly to perform this function, SANParks necessarily has a critical conservation interest in the rivers which flow into the Kruger National Park and other national parks. Its form of continuous appropriate dispute resolution is to engage the CMAs and other NWA related organisations in the catchments. Indeed, it is a major stakeholder and thus must be recognised as having a right to be a member of these organisations. In terms of the Act, SANParks may, for the purpose of performing its functions, perform legal acts, including acts in association with or on behalf of any other person or organ of state;⁹⁹ and may institute or defend any legal action.¹⁰⁰ It can hardly be disputed, therefore, that SANParks would have the right to litigate in a matter such as that presently under discussion — even against DWAF or against DEAT, its own principal.¹⁰¹ Bolstering this argument, in terms of the Act, SANParks is governed by a Board-¹⁰²

… which takes all decisions in the performance of the functions of South African National Parks, except — those decisions taken in consequence of a delegation in terms of section 71;¹⁰³ or where the Public Finance Management Act¹⁰⁴ provides otherwise.¹⁰⁵

The Minister¹⁰⁶ does have supervisory powers over SANParks. The Minister is required (the wording is ‘must’) to monitor the performance by South African National Parks of its functions.¹⁰⁷ The Minister also has the prerogative (the wording is ‘may’) to determine norms and standards for the performance by South African National Parks of its functions;¹⁰⁸ and to issue directives to SANParks on measures to achieve those norms and standards.¹⁰⁹ None of the above would appear to detract from the locus standi of SANParks to perform its statutorily imposed functions.¹¹⁰ It is stated that SANParks must perform its functions subject to the norms and standards, directives and determinations issued by the Minister.¹¹¹ The issuing of norms and standards, directives and determinations can hardly be seen as abrogating SANParks’ legal standing; particularly where, as in the present case, no such issuing had occurred. In the present case, to argue otherwise would be to argue that SANParks has been prevented effectively from carrying out the duties (in respect of water flow and biodiversity) which its founding statute requires that it carry out.

3. The National Water Act 36 of 1998 (NWA)

One of the most significant failings of both the EIA and the RoD in the present matter is that the ecological reserve appears to have been insufficiently taken into account. Although it was mentioned,¹¹² there was no discussion of the consideration given to it. Therefore, it is not apparent that it was seriously considered, as it ought to have been.¹¹³

The reserve, according to the NWA, consists of two parts:

… the basic human needs reserve and the ecological reserve. The basic human needs reserve provides for the essential needs of individuals served by the water resource in question and includes water for drinking, for food preparation and for personal hygiene. The ecological reserve relates to the water required to protect the aquatic ecosystems of the water resource. The Reserve refers to both the quantity and quality of the water in the resource, and will vary depending on the class of the resource. The Minister is required to determine the Reserve for all or part of any significant water resource.¹¹⁴ If a resource has not yet been classified, a preliminary determination of the Reserve may be made and later superseded by a new one. Once the Reserve is determined for a water resource it is binding in the same way as the class and the resource quality objectives. ¹¹⁵

In respect of the reserve, the binding duty (the wording is ‘must’) which rests on the Minister,¹¹⁶ the Director-General,¹¹⁷ an organ of state and a water management institution, is to –

…give effect to the Reserve as determined in terms of this Part when exercising any power or performing any duty in terms of this Act.

It hardly can be argued seriously in the present matter that such effect was given when the arguments of important stakeholders apparently were not given due weight by the decision-maker. At least, even if such weight was given, it does not appear from either the RoD or the EIA on which the RoD was purportedly largely based.

5. The conflict

As has been seen above, there is great unhappiness within SANParks about the De Hoop Dam. Concerns have been raised publicly; and there is a possibility that DEAT/DWAF were not meeting their obligations in terms of NEMA’s principles by ignoring this and by not considering SANParks’ objections. The matter was, therefore, appropriate for conflict resolution, as informed by the spirit of NEMA. It also would seem to have been an appropriate case, anyway, to refer to conciliation; and, per section 17 of NEMA, as discussed above, the Minister is encouraged to consider conciliation.

Further, according to the Constitution:

…[a]ll spheres of government and all organs of state within each sphere must … exercise their powers and perform their functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere;¹¹⁸ and co-operate with one another in mutual trust and good faith by¹¹⁹ … informing one another of, and consulting one another on, matters of common interest;¹²⁰ and by co-ordinating their actions and legislation with one another.¹²¹

In the instant case, it would appear that at least the decision-makers are in breach of these constitutional obligations. The Constitution provides also that:

…[a]n organ of state involved in an intergovernmental dispute must make every reasonable effort to settle the dispute by means of mechanisms and procedures provided for that purpose, and must exhaust all other remedies before it approaches a court to resolve the dispute.¹²²

While this does mean that SANParks would need to exhaust all avenues before litigating, it implies also that the decision-makers, having become aware of a dispute, must endeavour to settle it using the mechanisms provided by NEMA. Nor must it be forgotten that this was not simply a dispute between organs of state, but one which also involved other interested and affected parties.¹²³ In a supreme irony, according to the Minister of DWAF, in a media release of June 2004:

The Project is also an excellent example of cooperative governance … The Department of Water Affairs and Forestry, together with the Limpopo and Mpumalanga Provincial Governments, and in consultation with a broad range of stakeholders ranging from local communities to large private sector companies, investigated numerous options for making more water available in the area, before recommending the dam at De Hoop. This project is an excellent manifestation of Government’s commitment to invest in infrastructure to support economic development and service delivery.

The ORWRDP Project may be many things, but an ‘excellent example of cooperative governance’ it is clearly not – as is illustrated above.

6. Alternative dispute resolution (ADR)

In the views of the present authors, the foregoing presents a good case for the need for Alternative Dispute Resolution (ADR). The NWA makes provision for what amounts effectively to ongoing ADR in many ways;¹²⁴ for example, through the establishment of Catchment Management Agencies (CMAs) in which all water stakeholders are represented and have a meaningful say in water allocation matters. In order to give practical effect to these policy imperatives; a system that accommodates, stimulates and supports what effectively amounts to ongoing ADR is essential.¹²⁵

It is widely acknowledged that a primary conflict of interests that is unavoidable in the South African situation is conflict between the goods and services for people from a river in which there is unrestricted flow down its length; and those goods and services from a dam. The goods and services that people derive from the river, particularly those closely related to biodiversity, are critically dependent on the variability of flow. South African rivers have highly variable flow, driven by our highly variable rainfall. The goods and services from a dam, on the other hand, are dependant on reducing the risk of shortages by storing the flow and thereby greatly reducing the variability.¹²⁶

In the opinion of the present writers, alternate dispute resolution (ADR) is appropriate when: a number of stakeholder groups is involved; uncertainty is high; there is no clear right and wrong apparent; implicit (undeclared) assumptions form the basis of most stakeholder views on allocation and on needs; the process of allocation is essentially a social one; the process is ongoing; conditions are continually changing; and the retaining of sound relations between the contending parties is important.¹²⁷

To accommodate the ongoing ADR process,¹²⁸ the organisational structures and processes for CMAs and Water User Associations (WUAs) were drafted into the NWA. There are 19 CMAs that are due to be formed, one for each of the 19 Water Management Areas (WMAs) – of which the Olifants River Catchment is one. The drafters of the NWA apparently foresaw that the implementation of these structures, and the ADR process within them, could not be implemented overnight. The Act therefore makes provision for DWAF to act as the CMA in the interim.¹²⁹ As the NWA commenced on 1 October 1998, it has been a lengthy interim period – and certainly a period long enough for DWAF to act in accordance with its own law with regard to how a CMA should act. It must, at least, be presumed that DWAF is to perform this role in the spirit and the letter (where appropriate) required by the NWA.

Complex policy requirements are recognised in the White Paper on Water Policy.¹³⁰ Some of these policy requirements relevant to the present discussion include cooperation with neighbours, in harmony with common goals;¹³¹ integrated economic, developmental and environmental goals;¹³² cooperation and coordination by all spheres of government and all organs of state;¹³³ integration of water and other management¹³⁴ and the adoption of a complex and integrated approach to water management.¹³⁵ The present writers are of the view that a reasonable interpretation of these stated requirements is that a form of ADR is envisaged and that the institutional changes which are currently under way¹³⁶ are designed to provide an institutional basis for such ADR.

One of the key functions of the CMA will be to facilitate processes which enable stakeholders to visit the consequences of their past, present and future actions. World-wide, the standard practice to assist this process, of visiting consequences that are removed in space and time from the cause, is to run simulation models.¹³⁷ It has been suggested that models are useful for generating information about the water resource systems, so that options can be considered and decisions taken to manage the resource and resolve conflict.¹³⁸ This description of the issues was adequate for the eras of getting more water supplies and of using water more efficiently.¹³⁹ However, we are now in the era of equitable allocation. Allocation is a social process and, therefore, fundamental paradigm changes take place in the process and the modeling technology is affected directly. The words ‘information’, ‘options’, ‘decisions’ and ‘resolution’ now require qualification. For example, the information needs to be credible and trusted and the understanding of it needs to be shared by all parties. The options must be sensible and innovative. There need to be a shared understanding of the consequences of decisions which themselves need to be acceptable and wise. Moreover, the resolutions need to be equitable, timely and lasting.

A key question is that of how credibility, trust, shared understanding, sensibility, acceptability, wisdom, equity and peace are to be achieved? The processes which yield these types of information, options, decisions and resolutions are clearly not ones based on creating information through uni-disciplinary, uni-organisational models and unilaterally disseminating the information with little prospect of receiving and responding to feedback. They will instead be processes which offer regular, affordable and meaningful communication amongst all stakeholder representatives and their top level scientific consultants. The processes should be flexible, iterative and increasingly reveal more information on the system dynamics. The processes will also need to be open and transparent, and to enable implicit assumptions and mental models to be made explicit. There will be a need to incorporate and reflect the inputs of all stakeholders in the processes. In our opinion the processes will involve a form of integrated systems simulation modelling which can function in a data poor environment. Such processes would need to overcome barriers to communication between stakeholders; which barriers might arise from geographic, disciplinary and organisational separation.

Implicit in all of these processes is a requirement to develop skills and technology to enable the phenomena of inference, connectivity, credibility, trust, assumptions, perceptions, relationships and coordination to flourish. All of these desirable phenomena, and especially that of coordination between groups, require extensive practice to achieve and manage effectively.

In the De Hoop matter it seems that, as will follow below in the discussion of the Revised Record of Decision, ADR has been brought in late as a remedy to resolve a political impasse — rather than from the beginning as a process to guide protagonists. It is important to understand that the stakeholders in CMAs will be required to live with the consequences of their decisions, of their EIAs and it will be to their detriment if these are flawed. The kind of ADR that is needed, therefore, is not a once-off process; the likelihood needs to be enhanced of wise decisions being taken where decisions are necessary.¹⁴⁰

7. The Minister's decision on the appeals; and the revised RoD

At the end of September 2006, the Minister of Environmental Affairs and Tourism released his Decision on Appeals (DoA).¹⁴¹ In one sense, this brings the entire matter to a close — the De Hoop dam will almost certainly be constructed despite the objections made to it, and despite the inadequacies of the EIA and approval processes.¹⁴² On the other hand, the Minister effectively acknowledges in the DoA that the objections had merit and that the processes followed were flawed. The appeals have, therefore, according to the Minister, been partially upheld. Importantly for the arguments made in this article, the solutions eventually proposed by the Minister in the DoA, and in the Revised Record of Decision (RRoD), amount to a directive that an ADR process be entered into.

According to the DoA, the Minister appointed certain ‘external experts’ to –

…review the hydrological, ecological and procedural aspects of the EIA process and to advise [thereon].¹⁴³

The recommendations made by the experts vindicate in significant respects the objections made to the process and to the appeals against the RoD; as well as supporting many of the suggestions made by the writers of the present article.¹⁴⁴ The Minister concluded that the need for the dam had been demonstrated, with there being "…no viable alternative to a supply-side solution for the demands envisaged on the system";¹⁴⁵ that the construction and operation of the dam will, however, "…have definite and substantial detrimental impacts on the environment";¹⁴⁶ and that the substantial impacts:

…cannot therefore be avoided, but measures must be put in place to mitigate the potential impacts to acceptable levels.¹⁴⁷

The Minister further concluded that the:

…current RoD does not adequately mitigate and manage the detrimental impacts and the grounds of appeals related to certain of the conditions and certain substantive issues should be upheld;¹⁴⁸ [that the dam] …may have certain positive impacts, both in terms of socio-economic and ecological aspects, but the RoD fails to adequately highlight or address these potential positive impacts’;¹⁴⁹ [and that an] …amendment of the RoD and certain conditions thereof would be required to address the identified inaccuracies.¹⁵⁰

It could hardly be made any clearer that both the EIR and the RoD have now been recognised as seriously, if not fundamentally, flawed documents. Ironically, the Minister has, in effect, overturned his own original RoD.

‘I therefore…’ concludes the Minister, in the DoA,:

…direct the Department [of Environmental Affairs and Tourism, presumably] to initiate a process, in partnership with [the] Department of Water Affairs and Forestry and other major authorities, to conduct a Strategic Environmental Assessment or related process that would guide future development and inform levels of acceptable change for the area in question.¹⁵¹

In other words, the Departments and other players are directed to enter into a process of consultation and, by implication, compromise; in a context where environmental considerations will be given due consideration.

The RRoD was released on 16 October 2006.¹⁵² In the RRoD, the Minister concluded, in addition to the findings listed in section 3 of the DoA, that the dam will have:

…positive impacts, both in terms of socio-economic and ecological aspects;¹⁵³ [that] …the conditions enclosed in this RRoD are deemed adequate to mitigate the identified impacts to acceptable levels;¹⁵⁴ [and that taking] …the mitigation measures enforced through this RRoD into consideration, the principles of section 2 of NEMA can be substantially upheld.¹⁵⁵

Specific conditions¹⁵⁶ laid down include that DWAF must maintain the ecological reserve requirements of the Steelpoort River downstream of the dam;¹⁵⁷ and that DWAF must:

…establish and maintain a conservation area of equal size and similar nature to the area of the Sekhukhune Land Centre of Endemism, to be flooded or otherwise transformed as result of the building of the dam, as mitigation for the loss of this land. This conservation area must be established at the time that the dam becomes operational. The process for identification and establishment of this conservation area must be discussed with and agreed to by the DEAT.¹⁵⁸

The RRoD’s specific conditions further stipulate that the development is authorised on condition that DWAF establish an Environmental Monitoring Committee (EMC) with clear terms of reference as described;¹⁵⁹ such EMC to be established before commencement of any construction activities and to include – as far as is reasonably practicable – representative stakeholders as members.¹⁶⁰ All costs associated with the EMC are to be borne by the applicant (DWAF);¹⁶¹ and the EMC must report to the Director-General: DEAT on a bi-monthly basis.¹⁶² Upon completion of the construction phase of the project, the roles, responsibilities and constitution of the EMC are to be reconsidered and the EMC to be re-established with new terms of reference for the operational phase of the development.¹⁶³ Further conditions include that DWAF must set up an Authorities Coordinating Committee (ACC);¹⁶⁴ with members drawn, inter alia, from DEAT, SANParks and relevant affected municipalities.¹⁶⁵ The responsibilities of the ACC include, inter alia, overseeing that all commitments in the RoD (the RRoD is meant, presumably) and EMP are met; providing guidance for the functioning of the EMC; taking into account all relevant information and issues raised by stakeholders when making project decisions; and evaluating reports and correspondence received from the independent Chair of the EMC.¹⁶⁶ It is further provided¹⁶⁷ that a suitably qualified Independent Environment Control Officer (ECO) must be appointed by the developer (DWAF); to monitor, on a daily basis, project compliance with the conditions of the RoD (the RRoD is meant, presumably), environmental legislation and recommendations of the EMP; the applicant (DWAF) to bear the costs of the ECO.¹⁶⁸

A ‘suite of Environmental Management Plans (EMPs)’ is required; including pre-construction EMPs, post-construction EMPs and operational EMPs.¹⁶⁹ DWAF is required to submit EMPs to DEAT for acceptance before the commencement of any of the activities related to this authorisation.¹⁷⁰ There also are further conditions stipulated, including that the necessary land rights for particular sections of the project be acquired by DWAF before roll-out of those sections;¹⁷¹ and that there be compliance with other legislation.¹⁷²

The RRoD concludes by advising that the applicant (DWAF):

…must comply with the conditions set out in this letter. Failure to comply with any of the above conditions may result in, inter alia, the Department [DEAT] withdrawing the authorisation, issuing directives to address the non-compliance – including an order to cease the activity – as well as instituting criminal and/or civil proceedings to enforce compliance.¹⁷³

By comparison with the flaws and inadequacies in the initial RoD, as discussed above in paragraph 2 of this article,¹⁷⁴ the DoA and RRoD would appear to show sterling attention being given to the requirements of South Africa’s environmental legislation — and to the ADR spirit of NEMA. The cynical critic could argue, however, that the RRoD merely serves to mask that the construction of the dam always has been a fait accompli, given the prevailing political will toward development and the momentum of the ASGISA initiative, and that insufficient attention ultimately has been paid to the ‘no development’ option.¹⁷⁵ Nevertheless, NEMA requires that social, economic and environmental considerations all be considered as components of sustainable development;¹⁷⁶ and, with no one of these three interests being given priority,¹⁷⁷ construction of the De Hoop dam subject to the strictures of the RRoD is probably as satisfactory a result as the concerned environmentalist could realistically have hoped to achieve.¹⁷⁸

8. Conclusion

In a climate of uncertainty, politics thrive. This is a universally accepted phenomenon. Uncertainty is germane to environmental issues. It is necessary, therefore, to build in a culture of cooperative governance, supported by an ADR culture¹⁷⁹ and functions throughout the process, to negotiate a way between paralysis and uncontrolled development. ADR cannot be something ‘tacked on’ at the end.¹⁸⁰ It takes time to build ADR capability into every facet of the science and technology that underpins the analysis of water resources, water quality, aquatic ecosystems analysis and analysis of goods and services from the environment. NEMA and the NWA are soaked in the spirit of ADR precisely because their drafters recognised that this would be the only practical way to achieve the goals of equity, environmental sustainability and economic efficiency. The old law created a climate for economic exploitation to the detriment of the other two; and now, as all of the provisions of the NWA have not been implemented, we, ironically, must still live with the old weaknesses. The result is the De Hoop dam situation prior to the RRoD: precisely the result which NEMA and the NWA were intended to prevent from occurring.

It is not possible for the authors of this article to state with certainty that the De Hoop dam either should or should not be built; just as this is not possible for any of the protagonists in the debate. The best that can be done in any development – and particularly where the development is on a major scale and has the potential to cause major environmental disruption – is to proceed with caution, to act only upon the best scientific data available and to ensure that all requisite legal steps have been taken.

It is submitted that an objective view of the matter shows that these steps were not initially taken in respect of the De Hoop dam. As has been shown above, important stakeholders’ interests and significant environmental considerations apparently were not given due consideration in the EIR and the RoD. It is clear, therefore, that the decision-makers did not act in accordance with the section 2 principles of NEMA, as they were required to do. Nor did the decision-makers act in accordance with the conflict-breaching mechanisms which the Constitution and NEMA require them to use. Hopefully, the De Hoop dam controversy shows that it is possible for ADR to be used to breach conflict in environmental and developmental disputes. It is a great pity that ADR considerations were not brought in at a far earlier stage – as the present writers contend they ought to have been – as this may have prevented much acrimony, expense and the grave risk of serious environmental damage occurring.¹⁸¹ There is much to be learned from the matter.

In respect of the De Hoop dam, the writers of the present article submit, the Minister of DEAT was right to set aside (at least, partially) a grossly flawed EIA/RoD process – including his own RoD. The Minister could then, and probably ought to, have sent the applicant (DWAF) ‘back to the beginning’ and required that a credible EIA process be conducted. In addition, the Minister could then have required the use of ADR to find the best and most equitable path. Indeed, it is submitted that by not doing so, the decision-maker missed out on the opportunity to bring all interests into the fold properly and, thereby, to accommodate these interests equitably, and thereby to make the best — or at least the best informed — decision. Further, it is submitted (as has been argued above) that that not only was an opportunity wasted; but the decision-maker was in breach of its legal obligations in terms of NEMA and the Constitution. An ADR process in this matter could have pointed South Africa in the direction of environmental cooperation and successful management. In the end, however, the best that can be hoped for is that the protagonists in future such disputes – and the present writers submit that there will be similar disputes in the future – will have learned from the errors made in the De Hoop dam authorisation process.¹⁸² 

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National Environmental Management Act 107 of 1998

National Environmental Management: Biodiversity Act 10 of 2004

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National Parks Act 57 of 1976

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Public Finance Management Act 1 of 1999

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Director, Mineral Development, Gauteng Region and Another v Save the Vaal Environment and Others 1999 2 SA 709 (SCA)

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Rustenburg Platinum Mines Ltd. Notice: Environmental Impact Assessment: Richmond Dam – Amended Scoping Report (undated)



List of abbreviations

a article

ACC Authorities Coordinating Committee

ADR Alternative dispute resolution

ASGISA Accelerated and Shared Growth Initiative for South Africa

Ch Chapter

CMA Catchment Management Area

DEAT Department of Environmental Affairs and Tourism

DoA Decision on the lodged appeals

DWAF Department of Water Affairs and Forestry

ECO Environmental control officer

EIA Environmental impact assessment

EMC Environmental Monitoring Committee

EMP Environmental management plan

EWT Endangered Wildlife Trust

GN Government notice

IEM Integrated environmental management

KNP Kruger National Park

KPTON Kruger Park Times Online News

M&G Mail & Guardian

n note

NEMA National Environmental Management Act

NWA National Water Act

ORWRDP Olifants River Water Resource Development Project

P&LON Policy and Law Online News

Reg Regulation

RoD Record of Decision

RRoD Revised Record of Decision

s section

sa Undated Internet source (followed by year found on Internet)

SAHRA South African Heritage Resources Agency

SAJELP South African Journal of Environmental Law and Policy

SANParks South African National Parks

SAWC South African Water Caucus

SEA Strategic Environmental Assessment

ss sections

WDC World Commission on Dams

WMA Water Management Areas

WUA Water User Associations

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