Murky waters of environment disclosure cleared up

In a case that is expected to have wide implications for mining and industrial companies, the Supreme Court of Appeal (SCA) has ruled that, with regard to environmental issues, local and international companies should be left in no doubt that there is “no room for secrecy” and that “constitutional values will be enforced”. 

Lawyers warn that companies will have to be more transparent about their environmental plans, and make sure they have nothing to hide.

ArcelorMittal South Africa had refused to disclose the contents of its Environmental Master Plan or documents relating to its Vaal disposal site to a nongovernmental (NGO)group, the Vaal Environmental Justice Alliance. 

The alliance contends that the plan, drawn up in 2002, covered rehabilitation of the disposal site, situated in Vereeniging, after the company had allegedly dumped hazardous waste there, as well as the company’s plans to address pollution and rehabilitate its sites over a 20-year period.

The SCA dismissed ArcelorMittal’s appeal against a Johannesburg high court ruling, ordering the company to hand over its environmental plan to the lobby group. 

The company said after the SCA ruling that it would not appeal the judgment and would hand over the documents. 

It still contends, however, that the plan was an internal document and had become outdated over the years because of changes to environmental legislation. 

ArcelorMittal, relying on being a private company, had rejected the alliance’s application under the Promotion of Access to Information Act (Paia), saying the NGO had not proved that the information was required for the “exercise or protection of any rights”. The Act includes this provision for private companies, which does not apply to organs of state or the government. 

The SCA, in a unanimous ruling, rejected the company’s -argument and held the wording of section 50(1) of Paia should be construed as “reasonably required” when it came to the exercise or protection of environmental rights. 

Werksmans director Neil Kirby said the SCA in its judgment balances two competing interests, industrial activity against concerns of preservation of the environment. This has been also emphasised in the Constitutional Court.

The SCA said in its judgment that the NGO had not only relied on section 24 of the Constitution, which states, among other things, that everyone has a right to an environment that is not harmful to their health or wellbeing, but had also drawn from provisions of environmental statutes that recognised the importance of public participation in safeguarding the environment.  

Robyn Hugo, attorney at the Centre for Environmental Rights which represented the NGO, said the case was about accountability. 

“Industries like AMSA [ArcelorMittal] regularly refuse to release environmental information — as basic as licences — to nongovernmental and community -organisations. Like AMSA, these companies simultaneously claim — in communications with shareholders and the public — that they -constructively engage with stakeholders and/or are committed to transparency.  

Lawyers from Webber Wentzel’s project finance, construction and environment practice unit said the ruling had “wide implications” for companies, particularly those with a history of having a negative impact on the environment, and where its industrial activity could be considered a matter of public interest. 

The law firm said the SCA judgment could spell the end of what the Centre for Environmental Rights, in its November report, said was a growing deference by government departments to the records of private companies when the issue involves environmental matters.

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