South Africa: Constitutional Assembly Resources
You are here:
SAFLII >>
Databases >>
South Africa: Constitutional Assembly Resources >>
1995 >>
[1995] ZAConAsmRes 208
| Noteup
| LawCite
Environmental Rights [1995] ZAConAsmRes 208 (23 January 1995)
|
In response to the call for contributions towards formulating a new
Constitution for South Africa, the Habitat Council would like
to make a
submission on environmental rights. In 1993 the Habitat Council, with the cooperation of the C" Environmental
Tmst and the Environmental Law Association of South Africa,
conducted a series
of workshops on environmental rights. A large number of organisations
participated in the project. The resulting
environmental rights clause proposed
for the interim Constitution was submitted as a full document to the Negotiating
Council at
Kempton Park in September 1993. The document contained the ffiw
proposal, explanatory sections and dissenting viewpoints. In our opinion the clause, which appears in Article 29 of Chapter 3 of the
interim Constitution, Fun~ental Rights, does not reflect fully the spirit
of what we believe should be included. The right of every person to 'an environment which is not detrimental to
his or her health or well-being' is correctly entrenched in the interim
Constitution. However, we believe that, in addition to this basic right, there
should also
be an entrenched notion of resp~ibiliil. We do not agree
with the suggestion of the South African Law Commission that the term
'well-being' implies a duty to protect the environment. We
believe that, to give adequate guidance to the courts, the issue of
responsibility should
be clearly stated. It is with this in mind that we would
like to re-submit our proposed of September 1993 as follows: 'Every person has a right to an environment which is not detrimental to
health or well being and has the duty to protect it. w And to assist you in understanding the arguments in favour of our proposal,
we would like to re-submit a copy of our proposal in full,
as we submitted it to
the Negotiating Council in September 1993. It accurately reflects the
sentiments of those who participated
in the process of drawing up our proposal,
and it still reflects our current views. If there is any way in which we can assist you, please do not
hesitate to contact us PROPOSAL FROM A GROUP OF
NON-GOVERNMENTAL Yours faithfully WOUTER VAN WARMELO Executive 0 .fflcer A PROPOSAL FROM A GROUP OF
NON-GOVERNMENTAL Septe@r 1993
4149 Habitat Council - Cape EnWronmental Tmst - EnWronmental Law Association of South Affica ENVIRONMENTAL RIGHTS IN THE NEW
CONSTITUTION These proposals are a synthesis of a series of workshops held in Durban,
Johannesburg and Cape Town during the week beginning 3 May
1993 under the
auspices of the Habitat Council, with the assistance of the Environmental Law
Association of South Africa and the
Cape Environment Trust (Captrust). A total
of 65 participants, belonging to 46 non-govemment organisations, took part and a
further
63 were invited but could not attend for various reasons. Participants
provided individual expertise, and had not received a mandate
from their
organisations to represent them. Each of the workshops provided the opportunity
for environmentally aware individuals
to draw up consolidated proposals under
the guidance of legal experts. Dissenting views were also recorded. A fourth
workshop was
conducted on 7 May 1993, during which legal experts under the
guidance of "environmentalists" synthesised the various proposals emanating
from
the workshops. This document comprises the final proposal. Compiled by W van Warmelo and J Glazewski Cape Town September 1993 ------------------------------------------------------------------------------------------------------------ RECOGNIZING that South Afnca is a country with a nch and diverse heritage
of natural, human and social resources RECOGNRZING that a satisfactory balance must be sought between respect and
care for the enwron,ment on the one hand and economic development on the
other. ACKNOWLEDGING that enwronmental degradation is a senous and ongoing
phenomenon which has been exacerbated by historical policies ENCOURAGING the development of the enwrownent ethic, the holistic and
integrated management of the nation's resources and a social structure
which grants all fair and equitable access to resources, ASPIRING to enable both present and future generations to enjoy a life of
dignity and well being HEREBY DECLARE the folloiwng as constitutional
enWronmentalproWsions: Every person has a right to an enwronment which is not detrimental to
heakh or weft being and has the duty to protect it. OR Every person has a right to an enwronment which supports health and weU
being and has the duty to protect it. 1.1 All persons, including the State, shall bear a responsibility to
present and future generations in their utilization of the
enwronment. 1.2 In order to secure this principle, any person, including the
State, who is using the envirownent shall do so Mth reasonable regardfor
the need to: 2.1 All person, including the State, shall strive to prevent,
minimize and reduce pollution. Particular regard shall be paid to the
principles of reducing waste at source, recycling and the 'polluters
pays'. 2.2 Special measures shall be taken for the control of.. - toxic and hazardous substances. - the transboundary movement of polhmon and waste. 2.3 All persons ~ activities impact on the enwronment adversely
shall be obliged to make good such damage at their cost as far as is
practicable. lhe State has the obligation to introduce and promote enwronmental
education. This will include but, shall not be limited to, education on
the sustainable use of natural resources and its implications and shall
be aimed at encouraging responsible and cost effective consumption
lutilization of resources. 4.1 Every person shall have the right of access to a court of law
or other appropriate forwn in an enwronmental matter. 4.2 Every person shall have the right of access to any information
reasonably necessary to further his or her envirownental
rights. 4.3 Every person shall have the tight to be furnished with reasons
for an a&ninistrative decision which affects his or her enwrownental
interest. 4.4 7he State shall take measures which promote public partic~on in
decisions which affect the enwronment as far as is
practicable. 5.1 The State shall establish an independent and accountable agency
with the necessary powers to promote and secure the enwrownental
provisions of this part and environmental rights genera@. 5.2 lhe State shall actively promote the implementation of
enwronmental assessment and enwronmental management
procedures. SECTION H PREAMBLE RECOGNISING that South Mica is a country with a rich and diverse heritage
of natural, human and social resources RECOGNISING M& a satisfactory balance must be sought between respect
and carefor the environment on the one hand and economic development on
the other. ACKNOWMGING M& enwronmental degradation is a serious and ongoing
phenomenon which has been exacerbated by historical policies ENCOUR,4GING the development of the environment ethic, the holistic and
integrated management of the nation's resources and a social stmcture
which grants allfair and equitable access to resources, ASPIRING to enable both present andfuture generations to enjoy a life of dignity and well being HEREBY DECL4RE the following as constitutional enWronmental
proWsions: There was a general consensus in the workshops that the special nature of the
South African natural environment should be acknowledged.
There was debate
however as to the extent to which this should be widened to include man-made
objects and acknowledgement of the
different cultural diversity of the South
African population. This question is related to the definition of environment
referred
to above. It was decided to take the wider approach in the preamble
and the narrower one in the actual provisions. There was also debate about whether apartheid should be specifically
mentioned as contributing to environmental degradation. It was
decided to adopt
the wider wording 'historical policy' as other ~ts, such as colonialism also
contributed to environmental degradation
and current sociopolitical
circumstances. In general it was felt that the preamble should reflect a general
environmental ethic which was reflected by delegates in different
ways such as a
need to adopt a frugal lifestyle, to depart from wasteful and consumptive
practices and to respect the natural environment
and nature's
bounty. At the suggestion of some commentators, the original preamble has been
expanded to include 'Recognizing that a satisfactory balance
must be sought
between ~t and care for the environment on the one hand and economic development
on the other' as it emphasizes that
environmental groups are not necessarily
opposed to economic development, but wish environmental factors to be taken
cognizance of
in such development. Other commentators pointed out that: only constitutions as a whole have a preamble and felt it was not appropriate here. The intention is to have the constitution's preamble to include the environment. It is in this context that this preamble must be seen. We have ~ the above bracketed phrase to clarify this. There was opposition to the inclusion of 'has been exacerbated by historical policies'. We have retained this as there was a strong feeling in the group that apartheid has contributed to environmental problems. It also emphasizes that environmental concerns include the living conditions etc. of underprivileged swtors of the community and not only 'first world' environmental problems. There was also some opposition to the mentioning of social resources in the first line. We have retained it however as it emphasizes that ce@ resources are important to cerwn conununities. --------------------------------------------------------------- it . 6 FUNDAMENTAL RIGHT Every person has a right to an enwroment which is not de~enw to hmkh or
weU being and has the duty to protect it. OR Every person has a right to an environmnt which supports health and weU
being and has the d@ to protect it'. It was decided to simply refer to environment and not try to elaborate on
elements of the environment for the reasons mentioned above. There was much debate about the use of the words 'health' and 'well being'
and other possibilities such as 'not dangerous' and 'safe'.
It was decided that
the courts will be able to give a wide interpretation of the phrase 'health and
well being' to include matters
ranging from physical health to spiritual aspects
such as the need to protect wilderness areas. It was also felt that the word 'healthy' is more
appropriate than 'not dangerous' or I safe'. There was much debate around the question whether the fundamental nght should
be phrased in positive or negative phraseology. If
it is negatively phrased it
is more in the nature of an orthodox fundamental right because it enshrines the
right to a certain minimum
standard and does not grant a right of an
indeterminate extent. On the other hand, positive phraseology implants more
clearly the
general feeling of the workshops. It may be that the best option
will depend on the context of the final bill of rights. It should be borne in mind that the words 'health' and 'well-being' will be
interpreted by the courts and will be subject to the general
subscription clause
mentioned above. Many sectors commented on the need to emphasize not only rights but also duties. Tlns is a constructive and welcome suggestion as it emphasizes that a satisfactory environment is not somediing that is acquired from the state but that each and every person can and should make a contribution in this regard. We have considered the phrase I... and the duty to defend it' (which appears in the ANC draft), but feel that it is too narrow - we feel that a duty 'to protect' the environment expresses these suggestions better. We have accordingly added '... and the duty to protect it' to both original options. -----------------------------------------------------~---------- DIRECTIVE PRINCIPIXS G~ comment accompanying First draft proposal llere was much debate as to how the directive principles should be
categorized. In general it is possible to approach this from trying
to classify
environmental problems into certain logical groupings and then to apply certain
principles to each category. On the
other hand one would group environmental
principles and see if they fell into a logical classification system. The
former apporoach
was adopted. Direcdve jzrincipk I - Resource use and conservation 1.1 All persons, including the State, shall bear a responsibility to
present andfuture generations in their utilization of the
enwronment. Conunent accmnroling First draft pro~ The, word 'environment' in 1. 1 includes renewable and non-renewable
resources as well as the land, soil, ecosystems, the coast, wetlands
and a
number of environmental components. For this reason we have decided to confine
the principle simply to the word 'environment'
but the suggestion was made to
include the bracketed 'built and natural'. There was some debate about whether a separate and special clause should be
devoted to land use in view of the historical dispossession
of land which has
taken place in the country. It was acknowledged that this factor should be
taken into account but assumed that
it will be done elsewhere in the bill of
rights. 1.2 In order to secure this principle, any person, including the
State, who is using the environment shall do so with reasonable regardfor
the need to: - develop resources on a sustainable basis - maintain biological diversity - protect ecosystems, ecological processes, special habitats including
wilderness areas - minimize ecological and environmental damage - maintain the historical, archaeological and cultural
heritage. The introduction to the clause has been strengthened to replace the previous
'The State and people shall have regard to...' with a
more forceful obligation.
This was in response to commentary that the previous phrase was too weak and
that duties, not only right,
should be emphasized. We have also widened the rnmn-made environment to include not only the
historical heritage but also the archaeological and cul@ heritage. Some comment was received on the difficulties of sustainability. We have not
elaborated on this however. 1.3 All persons whose activities impact on the environment
adversely shall be obliged to make good such damage at their cost asfar
as is practicable. Conunent acconunodatina comments recdved on First draft MwW We have moved the previous clause 4.3 dealing with restoration of environmental damage here as clause 1.3 as it was pointed out it is not appropriate to administrative law. ---------------------------------------------------------------- Direedre lWn@ 2 - PoUudon Conftl and Waste Ma 2.1 All persons, including the State, shall strive to prevent,
minimize and reduce pollution. Particular regard shall be paid to the
principles of reducing waste at source, recycling and the 'polluters
pays'. - unent acc(xnowing rint dmft pc~ It was felt that both the preventative and precautionary principle which were
raised in the workshops are included in the terms 'prevention
and control'. For
the same remon it was felt that it was not necessary to specify different forms
of pollution for example air,
soil, water, noise and so on, as this was implicit
in the general term I pollution'. It should be pointed out that the imposition of a duty does not imply that
all pollution is rendered illegal and it is acknowledged
that all human activity
entails some. form of pollution. This clause could be widened to stipulate that
the control includes 'cradle
to grave' control of polluting substances. 2.2 Special measures shall be @nfor the control of.. The first part has been rephrased to read more clearly. As regards the second part, commentary was received that the original clause
went too far and not far enough. Some felt that a prohibition
should be
included banning the importation of toxic waste altogether along the line of the
Namibian Constitution, while others question
why it was necessary to include the
second sub clause at all in view of the first sub-clause. We have left the
clause as it is because
many countries of the world have special measures for
this "" of waste. We have not included a clause banning importation altogether
as this is a policy which is implicit in the clause as a whole which a
government could pass into legislation. We have expanded
the clause to include a reference to the transboundary movement of waste. ----------------------------------------------------------------- Direcdve Pdn@le 3 - Edu@ 7he State has the obligation to introduce and promote environmental
education. 7his will include but, shall not be limited to, education on
the sustainable use of natural resources and its implications and shall be aimed
at encouraging responsible and cost effective consumptionlutilizarion of
resources. There was a strong feeling in the workshops that environmental education was
vital. This includes not only formal education by residents
including
environmental aspects in school syllabi, but also to the whole spectrum of South
African society, ranging from corporate
executives to rural
pu~try. This clause has been elaborated on slightly to take into account various comments. One suggestion was to replace 'consumption' with utilization of resources. We have left both for the drafters to consider. In general most were supportive of this clause and in principle in agreement with it. ---------------------------------------------------------------- Directive Pdn&k 4 - Adminb~ve Law comments First draft pmww A constitution and/or bill of rights is only as good as the power to enforce
it. To this end the group felt that rights should be
enforced by all legal
persons, that is natural, corporate, institutions, organizations and
groups. All people should have access to such courts and there should be no
hindrance, financial or otherwise, to such access. Concemed parties and litigants should have reasonable access to information.
The duty to provide reasons for decisions affecting
the environment should be
mandatory. Public participation in environmental decision @g should be an enshrined
principle. It was noted that a fundamental basis exists
in this regard in the
audi alterem partem doctrine. It should be adapted and utilized in the
envirorlmental cause. The EIAIIEM procedure is a step in this regard. The constitution should enshrine a general principle that there be compulsory
rehabilitation by impactors at their own expense. 4.1 E@ person shall have the right of access to a court of law or
other appropriate forum in an environmental matter. Strong resistance to any softening of the locus standi requirement was
expressed from some quarters. We have however retained it in view of its
importance to developing environmental law.
The original clause has been split
as it was rightly pointed out that it contained very different administrative
principles. 4.2 Every person shall have the right of access to any infomwion
reasonably necessary to Mrther his or her envirownental
rights. T'his clause has been separated from 4. 1. Some argument was made that
sensitive commercial information may have to be protected.
We have accordingly
included the word 'reasonably' to precede nwwsary. 4.3 Every person shall have the right to be furnished with reasons
for an administrative decision which affects his or her enwronmental
interest. 4.4 7he State shall take measures which promote public
participation in decisions which affect the environment as far as is
practicable. We have added a clause regarding public participation as it was pointed out
that the first draft referred to its importance in the
commentary but not in the
draft provisions. A commentator pointed out that clauses 4.1 to 4.3 are of a general administrative law nature and not of a peculiar environmental nature and felt it had no place here. We feel that they are vital for the development of environmental law and have retained them to emphasize their importance from an environmental point of view. Should they appear in the overall Bill of Rights, well and good. ---------------------------------------------------------- Conuuent first draft laro~ There was a general recognition of a need to improve environmental
administration at two levels, namely in government and in the private
sector.
As regards the government sector there was a strong feeling that a new
constitution should include the establishment of
a strong, independent
environmental protection agency which would enjoy greater status than that
enjoyed by ordinary government departments. It was also acknowledged that there is a general need for a body to channel
environmental concerns and which would take up issues
and act as a watchdog in
this regard. Different options were mooted, for example an ombudsman and
environmental court and an environmental
tribunal. There was also great
emphasis on public participation in decisions affecting the environment. In general it was felt that there was an urgent need for an effective,
accountable, independent and powerful institutional body which
would monitor and
act as an environmental guardian. 5.1 lhe State shall establish an independent and accountable agency
with the necessary powers to promote and secure the enwromnental
provisions of this part and environmental rights
generally. There was some opposition to such an agency but we have retained it in view
of the majority of NGO's which felt there is such a need.
The clause has been
re-mt in simpler terms and to include some of the comments made. We have deleted this clause as it is felt that it is subsumed under clause 4
above and because legal representation and funding will
be dealt with in the
Bill of Rights generally. 5.2 7he State shall actively promote the impl~ntation of
environmental assessment and environmental management
procedures. T'his is a new clause which we have included as it was suggested that the first draft did not emphasize ElAs/IEM sufficiently. ----------------------------------------------------------------- The above clauses can be modified and adapted to meet the requirements and
character of a new
constitution. SECTION RI
.... read your proposals .... and find that we are in essential agreement
with them and any comments would be pedantic at this stage.
We therefore would
like to give you our full support and best wishes for its progress. c rt Hildna Club We at Roodepoort Hiking Club believe that the particapating parties have
adequately covered all aspects and consequently have nothing
to offer in the
form of further proposals or constructive criticisms. w o s Trust I would have been happier to have seen a more comprehensive representation of
the South African population participating. However,
the points brought out by
participants to be included in the new Constitution/Bill of Rights were
fundamentally relevant. The document very properly makes reference to the built environment and the
'historical heritage'. We note that in the attached comments
from the
individual workshops a number of participants remarked upon the need for
adequate coverage of the cultural environment,
eg, (various examples from the
document cited). We would like to propose that attention be paid to ensuring that the cultural
and historical heritage are sufficiently acknowledged
in the final version of
this document. Bird Club While I have every sympathy with the difficulty in defining environment, the
comments in point 3 on pg 3 are unacceptable. As this
stands it could be
interpreted as an individual's bedroom or place of work. It could be argued
that, as those fortunate to have
employment spend the majority of their time in
these two situations, they are the most important parts of our
environment. Despite the difficulties, the term 'environment' needs to be clearly defined
to give courts guidelines; terms such as natural environment
need to be used to
distinguish aspects of the environment. I do not believe that the approach as
stated on pg 7 that 'It was decided
to take a wider approach in the preamble and
a narrower one in the actual provisions' is practical. I agree that environmental education is of utmost importance as is the
concept that the 'impactor pays'. The EIA/IEM process should receive greater prominence. Although it is
imperfect, it is nevertheless a step in the right direction.
The omission is vitally important as these groups can be seen to represent
the interests of the victims of environmental ~.
(1) There is no suggestion that pollution or the production of waste should
be reduced - only that it be controlled. (2) The right to information is grossly underplayed as a sub-clause of a sub-section. It would seem obvious that serious environmentalists must seek ways of reducin2 waste production. It would seem equally obvious that the public ability to protect
environmental rights is directly related to its knowledge of
enviromental Extracts from coverin2 letter dated 13 July 1993 ... The Chamber opposes a number of the provisions of the draft proposal. We
regret to advise that unless the draft document is amended
to take into account
the concerns expressed..... it will not be possible for the Chamber to
participate in the project. Although
you indicate in your notice that persons
are free to distance themselves from the draft proposal, in terms of the
constitution of
the Habitat Council, it would seem that the representation
should at least represent the majority views of its members, and we should
be
interested to have your views in this regard. At the same time, we wish to congratulate the Council on embarldng on this initiative. Chamber of Mines of South Africa (Memorandum) The Chamber welcomes the initiative taken by the Habitat Council, the Cape
Environmental Trust and the Environmental Law Association
of South Africa on the
development of a draft proposal dated May 1993 on environmental rights in a new
constitutional dispensation. Before dealing with the draft proposal in detail, the Chamber wishes to
express a concern regarding the overall d~t of the draft proposal.
While the
Chamber aclmowledges the importance of the protection of the environment, as
evidenced inter alia by the development by
it and other authorities of the
concept of the environmental management programme report, the Chamber contends
that due consideration
must be given to economic development to enable all
persons in South Africa to achieve and maintain an acceptable standard of
living.
A balance between environmental protection on the one hand, and
economic development on the other, must therefore be sought. This
notion was
supported in the Government's White Paper on a national environmental management
system published during April 1993.
The draft proposal is materially defective
in that it fails properly to recognise this balance. I found the (documents re Environmental Rights) very interesting if a trifle
naive. As a set of desiderata I have no particular problem
with
them. .... our Board of Management ... felt it lacked sufficient emphasis on the
n-n-made environment. It was agreed that we send you the amendments we
propose wluch deal with dus and simplify certam other sections. .... We have a problem with 'cultural' and 'historical'. Unfortunately the
former has gained unpleasant connotations which makes
us favour the latter, but
we would not wish that to be interpreted narrowly so as to exclude
'pre-history'. The idea of having one succinct fundamental right elaborated upon by
directive principles is supported. Typically, it would appear
that such a right
would be justiciable (ic, enforceable by the courts) whilst directive principles
would guide government policy.
There are several aspects of the directives in
this document which do not accord with this model. Moreover, it is submitted
that
there are weaknesses in the proposed directives, both in the language
employed and in the fact that some basic objectives which ought
to be addressed
in these directives are not adequately addressed. The following comments on the draft document .... are offered in my own name
and not as Director of the Town Heritage Tmst or as Hon
President of the Cape
Environmental Tmst (Captmst). They are made largely in the context of Albie
Sachs' book, 'Protecting Human Rights in a New South Mica' (Oxford
University Press, C" Town, 1990), which presents a comprehensive approach to the
subject. 1.0 Overview of Albic Sachs'categorisation of human rights: Three 'generations of human rights are suggested, namely: First generation or 'blue' rights: llese are 'posited on the notion of individual rights' and 'are the political, civil, and legal rights established by revolution against feudal and colonial absolutism in the eighteenth century'. Second generation or 'red' rights: These include the right to education, to health, to nutrition, to shelter' which 'did not easily fit into the classic scheme of individually-based rights. What had previously been regarded as benevolent or charitable activities based upon moral or religious obligation, gradually became codified into law'. Third generation or 'green' rights: These are the 'so-Mled peoples' rights or
rights of solidarity ... and include such rights as
the right to peace, the
right to self-determination, the right to control over resources, the right to
development, and the right
to a clean environment ... Few would deny that these
green rights are important, many would argue that they are not really rights
at
all. 'There are strong arguments against considering them as rights. T'he most important one is that the assertion of vague, poorly-defined, and non-implementable rights undermines respect for genuine rights, and ends up diminishing rather than augmenting human freedom. 'In reply to this proposition, it should be pointed out that rights have
always evolved over time, both in terms of their substance
and their modes of
enforcement'. With regard to the possible recognition of rights of plants and aninials,
Sachs suggests that 'plants and animals, like the air and
water, can be the
object rather than the subject of rights. Conservation of the environment is a
shared goal of all the inhabitants
of South Africa. It is we who exercise these
rights, in our own name. and not on behalf of the flora and fauna. T'he
interests
we protect are our own rights to live in a clean and safe world in
harmony with nature'. 2.0 Comment 2.1 1 have no difficulty in accepting Albie Sachs' broad categorisation of
human rights where these relate to the position of human beings in
society, which is a human construct intended to promote human interests.
However, I have grave doubts as to the possible
effect of attempting to extend
this essentially human concept to the environment. @le n-n is an
interactive part of the environment as he is of society, the latter operates in
terms of processes very different to those
of the former. Where 'it is we who
exercise these rights, in our own name and not on behalf of the fauna and
flora', human necessity
could well be seen, at least on occasion, as overriding
all other considerations particularly in the short term. llus the
swond-gencration
right to nutrition and shelter could be regarded as justifying
the destruction of flora and fauna, no matter how desirable the conservation
of
the latter may be in the long term. 2.2 Moreover if human beings assume rights in the environment it will
be regarded by some as a necessary corollary that rights of flora and fauna be
recognised;
this view is already strongly held by parties in Britain and the USA
and has been advanced in the UN. Such a potentially contentious
and divisive
issue is best avoided and is in itself an argument for dispensing altogether
with an approach based upon .environmental
rights'. 2.3 Any responsible attitude to the environment must take account of both its *natural" and Hman-@ew aspects. The environment is an interactive totality and must be regarded holistically. Interventions by n-n, as in the form of individual buildings and the concentration of these in towns and cities, become as much a part of the environment as animals and plants; added to which is the fact that the former often embody cultural values. Certainly, many animal and plant species are endangered. But our cultural built heritage is also constantly at risk. Here it should be noted that so-Mled 'development rights' are ~y social in orirgin and, following the argument of this paper, do not
constitute 'environmental rights'. t should also be noted that
the inadequate
control of 'development rights' has rebounded on man in the form of
environmental degradation; the pollution of the atmosphere, the land, waterways
and coastline, the demolition of buildings
of cultural importance, the
deterioration of the fabric of towns and cities. attempt to apply to the environment principles that have been developed as a
result of social conditions. I believe that the principle
of conservation of
the environment per se should be firmly stated in the Constitution which
should also indicate forcefully the means of implementing this principle and
that
it should not be regarded as an extension of the principle of human
rights. The Constitution should also emphasise the need for the conservation
equally of the 'natural' and 'man-made' aspects of
the total environment and for
the integration of conservation with development and therefore with overall
planning. Since writing to you on 7 June 1993 I have come across two articles in
Edition 4 of 'EARTHYF.4R' that have bearing on this matter:
One of the questions up for debate is 'Does the Environment have Rights?'.
For the purposes of clarity it is perhaps worth considering
some definitions of
the words 'rights' and 'environment'. Thus environment is variously described as 'wffoundings", "region", 'natural
conditions or influences' as well as Osilm total of the biological,
chemical and physical factors in an area'. 'Rights' are described as
'justification' or 'fair claim' while
'rightful' is defined as 'legitimately
entitled to position'. It appears then that what we are asking with the question 'Does the
Environment have Rights' is whether our natural surroundings (environment)
has
justification (right). This ~on is fundamentally important since, if our
environment is justifiable in its existence, it has
a right to exist and, if it
has a right to exist it has rights to that existence. The ~on can be approached in a variety of ways, the most relevant of which I
believe are 1) the anthropocentric approach 2) the theistic
approach and 3) the
biocentric approach. The anthropocentric approach considers natund objects widiin the parameters
of their utilitarian value to people.... The theistic
approach considers that
God created the world (hence the environment) and 'saw that it was good', while
the biocentric approach acknowledges
the right of that which lives to continue
its existence, ic, that justifies its being. It seems to me that, whatever approach we use, one ends up acknowledging the
right of the environment to exist: trically, the environment has right to
existence BECAUSE it supports mian's life, ie, its right to exist is
justified by the fact that it is a life-support system to humanity.
Theisticdly, the environment is endowed by a divine source with the right
to exist since this source in fact created it and called it 'good'.
Biocentrically the environment is rightful simply because it is, and that
which is has a right to continue its existence. 141 If the environment is justifiable in its existence anthropocentrically,
theistically and biocentrically then it seems reasonable to
ask if we should not
in fact acknowledge that it has rights to that justifiable existence. While
human rights to a clean and stable environment are fast crystallising 'as
a universal human right', granting rights to the environment itself is a
further developing issue which has been raised in various quarters. The basic human right to survival is inextricably linked both to the
environment and its quality. By extending rights to the enviromnent we are,
in
essence, extending the right of humanity to survive. Thus biocentric means
achieve anthropocentric results. Hun-n rights, in today's sociopolitical sense are not only measures
affording human beings a certain quality of life but also fundamentally
acknowledge the intrinsic value of hun-n life, ie, hurnin rights
are bound up with our essential humanness and are not solely dependent on what
use or value a human being is to society.
In this way such rights incline more
to the biocentric view than the anthropocentric since they acknowledge the
NATURE of a living
organism (in this case human) and the right of that organism
to exist in that nature. Thus human rights are extended to even the most
severely disabled members of our society irrespective of whether or not they are
'useful' or
can give any contribution to a community's
well-being. Such an extension of rights is rooted in the quality of compassion which not
only evolves through a civilised society but is, in itself,
a civilising
influence. It is interesting to note that the Indian Constitution specifically
mentions this quality of compassion
as a fundamental duty of its citizens in
relation to their environment. Massive technological growth has given us unprecedented power over our
environment. Despite our vast technological lmowledge we are
only now begining
to understand how devastating the exercise of that power can be when it is used
to manipulate and change our natural
environment. It therefore seems that the
fundamental attitude of society towards the power it possesses over its
environment should
incorporate counter-balancing qualities, not only of
compassion, but also of restraint and caution and that these qualities should
be
guiding principles for our legislative and administrative bodies. Implicit in such qualities is the issue of curtailing population growth.
Professor de Lange of the University of Potchefstroom remarked
in 1989 'All
natural resources will be doomed unless conservation policies go hand in hand
with population control'. Somewhere along
the line the finite resources of
earth will be unable to meet the ever increasing demands of an ever increasing
population. It is virtually impossible to conceive that society could so drastically
reduce its demands that population growth would cease to
he a matter of concern.
The right to survive has always been recognised as the most fundamental human
right but this right will be
in jeopardy when our environment reaches the point
where it is unable to sustain human demand and population growth. It seems
therefore
to be a matter of the most serious urgency that consideration is given
to forestalling the arrival at such a point. If it is true that the time is right 'for the entrenchment of a conservation
ethos at the highest level'.... then maybe it is worth
considering whether or
not the entrenchment of such an ethos should include the following: acknowledgement of the environment as a 'capital asset', any loss of which needs to be underscored by a process of accounting for its depreciation the linking of conservation with population control affording special protection to wilderness areas, nature reserves and other important habitats as well as water catchments and, if possible increasing the extent of these areas and rehabilitating semi-wildeme,ss areas an emphasis on the need for environmental education so that an environmentally literate society can beging to emerge an awareness that, due to the exponential character of natural growth
patterns the problems presently manifesting in our environment
could reach
full-blown proportions much sooner than
predicted. Preamble RECOGNMNG that South Africa is a country with a rich and diverse heritage
of natural, human and social resources ACKNO GING that enwrownental degradation is a serious and ongoing
phenomenon which has been exacerbated by historical policies ENCOUR,4GING the development of the enwromnent ethic, the holistic and
integrated management of the nation's resources and a social stmcture
which grants alifair and equitable access to resources, ASPIRING to enable both present andfuture generations to enjoy a life of
dignity and well being HEREBYDECLARE thefollowing as constitutional envirownental
provisions: CO~NTS Parktown and Westcliff Heri!Uo Trut Witwatersrand Heritage Tmst We endorse this fully. I feel that the first line of the preamble could be shortened to "Recognizing
that South Africa is a rich and diverse country'. I
am not quite comfortable
with the phrase 'social resources' - this may be taken to read cheap labour by
Some. .... which has been exarcebated by historical policies' is considered
irrelvant. The Chamber submits that the preamble, if required at all, should limit
itself to environmental concerns only. The Chamber therefore
opposes the
mwrtion of the words "which has been exacerbated by historical policies' and
'and a smud stmcture which grants all flur
and equitable access to reso=%'.
Wlule the Chamber does not necessarily disagree with these statements, it is
submitted that the
insertion of social and political statements in a portion of
the constitution which is to relate specifically to the environment,
is out of
place and distracts from the expression of principles that need to be made on
the environment. In order to recognise the balance that must be achieved between the
protection of the environment and economic development there should
be added to
the preamble a statement on the lines of the following: - 'RECOGNISING that there must be achieved a reaonable balance between
environmental protection on the one hand and economic development
on the other;
n Although it is standard for a constitution or a bill of rights as a whole
to have a preamble, an individual right does not, and it is submitted that
the preamble is unnemsary. It does not serve as an aid
to interpretation of the
right (the directive principles could be used for this purpose) and would appear
to serve no other real
purpose. Fundwnental dght Every person has a right to an environment lwhich is not detmenml to health or well being. OR Every person has a right to an environmnt which suppons hwkh and weU
being. COMNENTS Fish Hock Alien Ve~ton Control G@u I am not sure about this at all. We are making a supposition that an
inherent right exists. Does it? If the directive principle 1. 1 to 2. 1 were enshrined to crisply state the
citzen's DUTY and die state's DUTY to protect the environment
in its totatlity,
and if citizens and state accepted that DUTY and practised accordingly, perhaps
we could talk of RIGHTS. BUT THEN WHAT NEED? It would follow that any agency or person infringing the provisions of 1. 1 -
2. 1 would have to account for such actions to a @ially
constituted Court of
Environmental Justice. (Proposed alternatives) Every person has a right to an environment which is not detriment to health
or well-being or destructive of@e historical (or cultund)
herime-. OR Every person has a right to an environment which supports health and well
being and the retention of the historical (or cultural)
heri!Ue Alternative Proposal: No one has the right to cause the environment to be detrimental to the health
and well being of others. I prefer the negative phraseology of the fundamenw right. It appears to be
not only stronger, but more relevant in today's already
polluted and degraded
world. While the individual's right to a healthy environment is expressed in the
clause, I have a nagging worry that this could, in certain
circumstances, be
manipulated: It could conceivably be argued that in wilderness areas for
example, the environment should be modified
to protect the individual from
dangers which could range from exposure to the elements to rock falls or wild
animals - All of these
could be 'detrimental' to one's health and might not
necessarily support 'well-being". I realize of course that the Fundamental Right would (hopefully) be
interpreted in the spirit as well as the letter of the law but
nevertheless I
feel that some reference to a right of the environment needs mention. It was obvious from the Durban workshop that this is a highly contentious
issue but as I mentioned there, whether one approaches the
question
anthropocentrically, theistically or biocentrally, it seems to me the
environment does in fact have a right to existence
(and also a right to
protection). I believe this needs to be stated. In New South Africa .... as we are all aware, the natural environment is
going to be under immense and sustained pressure. Consequently
any right or law
which is aimed at protecting the environment must be very powerful. The environmental right under discussion is weak. I feel that the
fundamental right, as well as giving every person a right to an
environment
which supports health and well-being, should also give every person THE RIGHT TO
PROTECT THE ENVIRONMENT TO ENSURE HEALTH AND WELL-BEING. If one
considers the USA Constitution and the so-Mled amendments, the strongest
fundamental rights are those which give individuals the right to do somediing,
not to receive something. The rights, such as the
right to life, the right to
free speech, the right to enforce privacy in your life, the right to bear arms
to protect yourself and
your property, are the powerful rights. I realise that some of what I've said is covered in the Directive Principles
but that is all they are, principles, they are, not fundamental
nghts. Maybe if
someone explained to me how the right and Directive Principles, as they are
curmtly formulated, could be used, for
example, to stop the Amphitheatre
cableway or prevent the St Lucia dune mining I could accept
it. It is suggested that the cl~s) as it stands should be augmented by a
reference to the duty of all persons to defend the environment
(see the proposed
Bill of Rights of the African National Congress, February 1993, which provides
in Article 12(14): 'All men and
women shall have the right to a healthy and
ecologically balanced environment and the duty to defend
it'). T'he Chamber submits that the fundamental right and the alternative thereto
are not enforceable. It could be argued that a large
amount of human activity
is detrimental to health or well-being, and if a person were entitled to protect
his rights to prevent such
activities, then the economy would seriously be
affected. The Chamber would support the expression of a ftmdamental right on the
environment (and with an appropriate reference also to the
duty of
persons to the environment) on the lines as that expressed in the Law
Commission's proposal on a Bill of Rights. This is set
forth as
follows: Article 30: Environmental Rights Everyone has the right not to be exposed to an environment which is dangerous
to human health or well‑being or which is seriously
detrimental thereto
and has the right to the conservation and protection of that
environment. It must be emphasised, however, that the expression of such a right must be
within a Bill of Rights otherwise acceptable to the Chamber
including, inter
alia, an appropriate article on circumscription, and where no change is made to
existing priniples such as the locus
standi
principle. T'he directive principles as stated.... are concisely stated and meet with my
approval. I would join the lobby for an independent
environmental protection
agency with public participation in decisions affecting the environment. I do
not think that the present
EIA procedure, for instance, is the way to go unless
there is independent funding. The principles appearing in the draft document could well be included in the
Constitution, but I wish to suggest .... amendments. Directive iRrincil21e 1 - Resource use and conservation 1.1 lhe State and people shall bear a responsibility to present and fiaure
generations in their utilization of the (natural and built) enwrownent
and should protect it. Agreed. The brief mention of 'historical heritage' in Directive Principle 1 is
entirely inadequate; see (my) 2.3 qnd 2.4 above. Directive Principle 1 is weak in that paragraph 1.2 merely states that 'Ihe
State and people shall have regard to .... I This paragraph
should be linked to
1. 1, making it clear that the protection and conservatiobn of the total
(natural and n-n-made) environment is the nsibility of the State
and people. T'he Phrase..... and should protect it" is problematical. First, 'should'
does not accord with the peremptory 'shall' used earlier
in the sentence, which
it ought to. The second problem is the word 'protect* which, if one looks at
the dictionary meaning, implies
prevention of harm or damage to something.
T'his sentence therefore contains a contradiction because it is requiring people
to utilise
and protect something at the same time. Suggested alternative proposal: 1.1 All persons, including the state, shall bear a responsibility to present
and future generations in their utilisation of the (natural
and built)
environment. 1.2 7he State and people shall have regard to: - the sustainable development of resources - the maintenance of biodiversity - the protection of ecosystem, ecological processes and wilderness areas and the need to minimize ecological and enwrontnental dwnage historical
hmtage. Add as the first item an acceptable management control system, eg, policy, BS7750 (Environmental
Management System) Amend the last item to read: - the protection and conservation of the historical, archaeological and architectural heritage. T'his is an amplification which we believe is necessary. 2 3 References to the 'built environment' and the 'historical heritage' are
somewhat vague. We have, in South Africa, a rich legacy of
n-ny
thousands of historical and archaeological sites reflecting several million
years of human occupation. A narrow interpretation of
the terms "built
environment' and 'historical heritage' need not necessarily include prehistoric
archaeological sites. The inclusion
of the word 'archacologcial' in the last
item of section 1.2 of the proposal would help here: Proposed amendment: - historical and archaeological heritage. The phnise 'the sustainable development of resources troubles me a little.
It implies that resources should be developed in some way. Perhaps
'usage' or 'utilization' could replace 'development', as 'development' has many
negative connotations. In its pure form the notion of 'sustainable development' in regard to
non-renewable resources means that such resources may not be
utilised at a rate
greater than they may be recycled, and more quickly than they can be replaced by
resources of a renewable nature.
This notion camot be endorsed, and the chamber
submits that there should be inserted in paragraph 1.2 of this principle a
qualification
that in regard to non-renewable resources, sustainable development
means the 'judicious utilisation of such non-renewable
resources'. As it stands, the phrase 'Tbe State and people shall have regard to:' is
meaningless. Under what circumstances or in what activities
shall the state and
people have regard to the things listed? This should be specified in the
principle. Suggested alternative proposal: 1.2 In order to secure this principle, any person who utilises the environment shall not do anything which will unreasonably: (a) limit the stock of natund resources for use by future generations; (b) diminish the diversity of the country's species of fauna and flora; (c) cause harm or damage to any ecosystems, ecological processes and wilderness areas; (d) cause harm or damage to the country's historical heritage. The clauses (a) to (b) are simply restatements of those in the document. The
phrase 'sustainable devlopment of resources' as used
in the document is
misleading and is avoided in this proposal. In this draft directive principle, and also in principles 2, 4 and 5 that
follow, persons, as well as the State, are enjoined to bear
certain obligations.
The Chamber rejects the extension of the locus standi principle that is implicit
in this, and proposes that
in paragraph 1. 1 and paragaraph 1. 2 of this
principle the words 'and people' should be deleted. The Chamber submits that
the State
has sufficient administrative authority to regulate resource use and
conservation, and that an extension of locus standi would lead
to delays and
thereby increased costs in m*ning and other development, and could lead
to vexatious litigation. I would like to see more definition of a person's right (duty?) to protect
the environment. Since utilisation invevitably involves
a degree of destmction
there is, I feel a @ area in Directive Principle 1. Maybe some qualification is
necessary. Eg, wilderness
areas should, at the most, be subjected to minimal
impact (ie utilisation) only. Directive Princiiale 2 - Pollution Control and Waste
Manaaement 2.1 The State and every person shall strivefor the prevention, and
ensure control of, pollution and effective implementation of the
'impactor pays'principle. Special measures shall be takenfor the control of
toxic and hazardous substances. COMNENTS Parktown and Wmtcliff Heritage Trust Witwatersrand Heriiue Trust Omit altogether. Surely this is better covered by the point in 1.2 above regarding environmental damage. Cutrust Alternative proposal: 2.1 The State and every person shall have a responsibility for the @tenance
and management control for the prevention of pollution
and effective
implementation of the 'i~tor pays' principle. Special measures shall be taken
for the control, collection, disposal
and dispersal of toxic and hazardous waste
and substances. As mentioned above, the Chamber opposes the insertion of the words 'and every
person' in this directive. The Chamber otherwise endorses
this directive, but
questions why special reference should be made to the control of toxic and
hazardous substances. Although these
substances are potentially hazardous,
other forms of pollution, particularly having regard to the possible greater
scale thereof,
are equally in need of such measures. This principle is worded in such a way that it seeks to achieve unrealistic
objectives. Firstly striving for the *prevention' of
pollution is unrealisite
since pollution is a reality of modem life and is an unavoidable side-effect of
development. As the comment
to this principle states: 'it should be pointed out
that the imposition of a duty does not imply that all pollution is rendered
illegal
and it is acknowledged that all hulnnqn activity entails some
form of pollution'. This is not evident from the principle as it
stands. @l 25 The second problem is that the word 'ensures' is inappropriate. How can 'every person .... ensure' control of pollution and the effective implementation of the 'impactor pays' principle? Even requiring the state to 'ensure' this would probably be imposing an excessive burden on the state. Another comment about the sentence is that the expression 'impactor pays' although not incorrect, is rather quaint. T'he phrase 'polluter pays' is universally recognised: why not use the latter expression if it means the same
thing'.? One final point of discussion is in respect of toxiclhazardous waste.
Effective control of pollution would n ly incorporate special
measures for such
waste, so is it necessary to mention it specifically? In any event, what does
'special measures" mean? The phrase
is too vague to take the general principle
any further. Moreover, no provision is made for control or prohibition of the
import
of hazardous waste. It is submitted that this is of critical importance,
bearing in mind that Africa is currently seen as a major
First World dumping
ground for such waste. See the Namibian Constitution, which provides that 'in
particular the Government shall
provide measures against the dumping or
recycling of foreign nuclear and toxic waste on Namibian territory'. (Art
95(1)(1). Suggested alternative proposal: 2.1 All persons, including the state, shall strive for the minimisation of
pollution. T'he state shall formulate policy and enact
legislation to prevent
the creation of pollution at source as far as is reasonably practicable. 2.2 T'he state shall formulate policy and enact legislation for, and provide
for the effective administration of, control of pollution.
All measures taken
in this respect shall incorporate the 'polluter pays' principle. 2.3 T'he state shall prevent the dumping or recycling of foreign nuclear and
toxic waste on [South African] wdtory. Directive Principle 3 - Education 3.1 There is an obligation on the State to promote enwronmental
education. 7his will include, but shall not be limited to, education on
the use of natural resources and implications thereof and shall be aimed at
encouraging responsible consumption. COMNENTS Chamber of Mines of South Africa T'he Chamber endorses this principle. Alternative proposal: 3.1 There is an obligation on the State to introduce and promote
environmental education. This will include, but shall not be limited to,
education on the sustainable use of natural resources and implications
thereof and shall be aimed at encouraging responsible and cost-effective
consumption. I am happy with this. I also recognise the difficulty facing the state.
Pick up any newspaper or periodical and you will see effective
counter-education
in the form of adverts encouraging envy and ~. Two deadly du that, according to
current economic dogma, are highly
profitable. .... We have a problem. Even Elsies Peak is gradually being sacrificed ....
In modem society there is endless bellowing about RIGHTS
.... Of the duty to
work, to teach, to learn, to preserve .... scarcely a muted
word. Altemative proposal: 3.1 There is an obligation on the state to promote education in
onviton~t. Omit the next sentence. We prefer 'n-n-made' to 'built" as not all works of mien
involve stmctures or even construction. @dscaping and planting may be very
significant elements. It is all very well to state that the state is under an obligation to promote
environmental education, but what does npromote' mean?
Tius could nwan anythmg
fiom mere encouragement of the concept to the financmg of environmental
education. If the former, it ~~
almost nodiing, and, if the latter, it will be
extremely difficult to enforce since it requires positive Action and allocation
of
resources by the state. Suggested alternative proposal: 3.1 The state shall take measures to promote environmental educafion as far
as is reasonably practicable. (Altematively, should it be in here at all? ie, just leave it to the
department of the environment to address as a matter of
policy?) We support this.
T'he Chamber strongly rejects the principles referred to in sub-paragraphs
4.1 and 4.3. For the reasons mentioned above, the Chamber
opposes the extension
of the locus standi principle referred to in sub-paragraph 4. 1. T'he Chamber
believes that persons should
not have an absolute right to information that may
be required to pursue legal rights, and that such rights should be qualified in
certain respects. T'he reason for this is that at the least there is sensitive
commercial information that it is not necessary or
desirable to disclose in all
circumstances. It is submitted that in any event the adjective 'reasonable"
should qualify the word
winformation' and not the word wrighto. 4.2 It shall be mandatoryfor all such courts or parties to give
contemporaneous nwtten reasonsfor their decisions. Reasons shall
befurnished by governmental authoritiesfor decisions affecting the
environment. COMMENTS Chamber of Min" of South Africa The Chamber also opposes the obligation that parties be required to give
contemporaneous written reasons for their decisions. This
requirement is cast
far too widely and should be restricted to public bodies only. Since all courts
are required to give written
reasons for their judgements, the first portion of
this sub-paragraph should be deleted. 'Me Chamber endorses the proposed
obligation
on Governmental authorities to furnish reasons for their
decisions. 4.3 All persons whose activities impact on the enwronment adversely
shall be obliged to make good such damage at their cost asfar as is
practicable. COMMNTS entrust Alternative proposal: 4.3 All persons whose activities impact on the environment adversely shall
have a re"sibility to make good such damage at their cost. (exclude: 'as
far as is practicable') Bird Club This principle contains several very important separate principles which, it
is submitted, are not adequately distinguished. Such
distinction is important
insofar as it is necessary to emphasise these principles. These principles are: Whether the public should be given the right to participate in
environmental decision-making is debatable. It may well he expedient, if not
desirable, to enact legislation which
does require or allow public participation
in decision‑maldng, especially in the stated exainple of the EIA, but it
is submitted
that this should be left to legislation which will set out the
parameters for such participation. Inclusion of such a right in a
bill of
rights would probably lead to great inefficiency in that there would have to be
consultation on every decision made. @ would
be fine for major decisions like
whether to mine a game reserve or to build apartments in a pristine coastal
area, but would be unnecessary
and too burdensome for many of the everyday
decisions which have to be made. It is therefore suggested that some principle
be included
which requires the state to provide for public participation as far
as is reasonably practicable, or similar proviso (see, below) Overall therefore it is submitted that principle 4, although it contains some
crucial principles, is unnecessary because the principles
would either be dealt
with elsewhere in the bill of rights or constitution, or they are inappropriate
for inclusion in such a document. The only principle which should be included here somewhere is the
'reparations' principle, which, as pointed out, does not really
fall under
administrative law. It is suggested, therefore, that Directive Principle 4 be
headed 'Reparations' and include clause
4.3 only. Directive PdnciiRie 5 - Administration We prefer 1 and 2. The environment needs a strong central government
authority with executive powers. The alternative seems confined
to an advisory
or monitoring role probably at regional or municipal level which is inadequate
on its own. 7he Chamber strongly supports the enwronmental management programme report
that has been developed by the industry and various Government
Departments and which incorporates Integrated Environmental Management
procedures and assessments. 7he Chamber recommends @ all sectors of the
economy shouldfollow the same route, adapting the process where necessary
to suit its own requirements. it is submitted that the emphasis should
not be on the impact on the environment, but on @ management of those
impacts. 5.1 An agency shall be established to ensure every person's right
to an enwronment which supports health and well being. 7he age" so
established shall be independent of the State but shall remain accountable
thereto. It shall be qfforded all the necessary powers to fuffll its
function. w .... to fulfil its functions which shall include effective, independent and
accountable administrative procedures for the monitoring
and assessment of
actions which have a significant environmental effect and for public
participation in these procedures'. The Chamber opposes the establishment of an independent agency in the form
proposed, and since the Chamber opposes the extension of
the locus standi
principle, it is submitted that sub-paragraph 5.2 should fall away. One
argument that has been given in favour
of an extension of the locus standi
principle is that the costs of litigation would prevent vexatious litigation
taking place, and
that for this reason the 'floodgates of litigation' would not
be opened. If this sub-paragraph were to be retained, the 'floodgates'
argument
would be a very si@ficant one. It is submitted that the specificity of 5. 1 makes it unsuitable for
inclusion in a document like this. Such a decision should lie
with parliament,
who can decide on its implementation on the basis of availability of
resources. 5.2 No persons shall be preventedfrom enforcing their environmental
right by reason of them not having access to sufficientfunding, legal
andlor representation. CO~NTS SA NatioiW Foundation for the Conservation of CoasW Birds Transpose..... funding legal and/or representation' to read '....funding and/or legal representation'. Michael Kidd, Lecturer, School of lAw. University of Natal (dirough Ber2watch) Since 5.2 has already been discussed above, it remains to assess principle 5. 1 (sse above). (Alternative.. the State shall establish effective, independent and
accountable administrative agencies and procedures ~functions will
include the monitoring, public participation and assessment of actions which
have a significant environmental effect). COMAENTS Birdlife International Bird Club The Chamber also opposes the alternative directive principle. The State has
sufficient regulatory power to ensure that the environment
is protected. In the
use of the mining industry the environmental management programme report concept
has now been carried into
the Minends Act. This n"m that the need for providing
agencies with the functions mentioned falls
away. The alternative mooted (however) is acceptable, apart from the inclusion of
the words 'public participation' which do not make sense.
These words should be
omitted and separate provision should be made for public participation in a new
sentence. Suggested alternative proposal: 5. 1 The state shall establish effective, independent and accountable
administrative agencies and procedures whose functions will
include monitoring
and assessment of actions which have a significant effect. Such procedures
shall include provision for public
participation as far as is reasonably
practicable. Suggested alternative proposal 7he State shall establish effective, independent and accountable
administrative agencies and procedures whose functions will include
the
monitoring, auditing, public participation and public participation and
assessment of actions which have a significant i@act on the
environment. Suggested Directive Principle 6 The State shall have the responsibility to effectively monitor and control in
accordance with acceptable international standards,
the effects on the
environment due to cross border activities such as trading pollution (air,water,
etc) with other states and coumntries. SECTION IV
No consideration of the process which we are undergoing. No plenary debate. Not enough time to prepare Not enough time in workshopslgroups
Eco-Prograntme objects titling this document mAn NGO Proposal' as only a minority of NG0s have been consulted and involved. Unless this process is broadened and deepened to significantly involve the
majority of South Africans through their existing organisations and
through consultation on a grassroots level, Eco‑Programme wishes to
formats distance itselvfrom this docwnent and this process. We request that
Eco‑Programme's name andparticipation be removedfrom this docwnent,
alternatively it (Eco-Programme's n~ should be accompanied by the above
statement - and in addition our attendance was not mandated by any of our
organisations and should imply no support of this
process. |