Saliem Fakir discusses the pros and cons of the proposed environmental management legislation
The National Environmental Management Bill, released recently by the Department of Environmental Affairs and Tourism, is a significant contribution to the evolution of environmental management.
It may well have shortcomings, particularly given the time frame in which it was drafted, but its implications are far-reaching and perhaps revolutionary. In some circles it is regarded as the first “people’s Bill”.
The Bill has several key intentions:
l to do away with the current outdated Environmental Conservation Act, since it is not consistent with the new Constitution;
l to provide mechanisms for the right to a healthy environment enshrined in the Bill of Rights, and to give both the state and civil society the means to ensure the enforcement of environmental rights; and
l to give effect to the national policy on environmental management, which has gone through a process of wide consultation since 1995. In this sense it can be described as a Bill about environmental governance.
It places a great deal of emphasis on co-ordination within the government. It also provides for participation by civil society, and for conflict management.
Perhaps its main weakness is that it focuses on national and provincial government, and has not brought local government to the centre stage.
Another weakness is that, while the general spirit of the Bill is aimed at improving environmental governance, its authors have not quite defined what governance means, and this could open it up to a range of interpretations.
The Bill should provide greater clarity on the demarcation between the roles of the state and civil society in issues of governance. In the environmental sector, this has not been sorted out, and civil society is of the view that it needs to participate more in decision-making.
The Bill makes it possible for the minister of environmental affairs and tourism to appoint a national environmental forum to “inform the minister of the views of interested and affected parties”.
I suspect this role will be challenged by civil society as it has the connotation of the relaying of information, rather than active participation in policy debates and influence over the way in which the government implements policy.
In fact, the Bill limits the role of civil society in vague terms to “the application of principles and setting and achieving of objectives and priorities for environmental governance”.
Perhaps the word “advice” will provide a much broader scope to engage the perspectives of civil society. It seems the envisaged forum has quite a weak role to play, compared to the previous council for the environment.
While the proposals for the forum are the downside, the upside for civil society is that the Bill gives private individuals, groups and associations greater leverage to fight in the courts for a better environment.
It makes provision for private prosecutions, and strengthens the standing of individuals and groups in taking up public-interest causes when environmental rights are infringed.
It makes it possible for litigation to be pursued without having to have the process channelled via the minister.
In the chapters dealing with fair decision-making and integrated environmental management, the Bill obliges organs of the state to consult or create participatory processes for interested and affected parties, further extending the role of civil society outside the national environmental forum.
Then there is the exciting innovation which enables individuals or community members to enter into special environmental-management co-operation agreements with the minister to promote compliance. In this way the state, through law, can mobilise civil-society resources to achieve common policy objectives.
Compared to the old Act, the Bill provides for a much better role for the committee for environmental co- ordination, which will manage inter- governmental deliberations.
The committee has representation from key national and provincial departments involved in environmental management, and is seen as a mechanism to ensure that inter-governmental co- operation and integration are enhanced.
The committee will be chaired by the director general of the Department of Environmental Affairs and Tourism, who is directly accountable to the minister.
The committee can request environmental implementation plans from government agencies and departments.
These will have to show how the relevant national department or province will ensure that its policies, plans and programmes will meet the objectives of sustainable development and better environmental management.
The implementation plans are important as the minister can request departments to submit reasons for non-adherence to objectives and plans, which may explain some of the jittery reactions various national and provincial departments may take towards the plans.
The committee and the provisions on implementation plans make it possible for the department to act as “lead agent” in protecting the environment. This it hopes to do without feeling it has to tread on the toes of other ministries.
The Bill makes it possible to establish co-operative governance through “memorandums of understanding” with other departments.
These ensure that the lead agency does not just give directives; they force it to consult and come to agreement with other departments in meeting common environmental objectives and standards.
The implementation plans in the end seem to provide both a benchmark and a way for the department to have some meaningful control over the implementation of environmental management.
The implications of the Bill will have stunned many people, in particular the business community and certain organs of state, as it does have real teeth.
However, this is also dependent on how fast the department is able to develop a cadre of dedicated staff to push the ideals of the Bill through.
Saliem Fakir is country programme co- ordinator of the IUCN-World Conservation Union
ENDS