Spurn activities that will harm our future
“We are not living up to our constitutional obligations when it comes to the environment,” says Melissa Fourie, attorney and executive director of the Centre for Environmental Rights.
She speaks with some authority, having experienced environmental lawmaking from both sides of the fence: she led the roll-out of the Green Scorpions, formally known as the environmental management inspectorate, and she is head of the nonprofit centre she helped to establish in 2009 to advance environmental rights as guaranteed in the South African Constitution and provide legal assistance on environmental issues to civil society.
Fourie believes the government is failing to meet its section 24 obligations enshrined in the Constitution because environmental rights are not prioritised.
“We struggle with simply saying no to those activities that will irreparably harm future prospects, such as allowing mines in areas where there simply is not enough water available. Instead, most authorities believe that there is always a compromise to be made and a political deal to be struck. That is not what the Constitution requires,” says Fourie.
“We can see this contestation in our environmental laws, which lack coherence and undermine and contradict each other.”
The government bends over backwards to accommodate industry, putting environment rights at risk, based on promises of employment that frequently do not materialise, Fourie says.
The nonprioritisation of environmental concerns leads to underinvestment in enforcement of environmental laws, leaving a small group of officials struggling to monitor and compel compliance, she said.
“This is one reason there is such widespread noncompliance with environmental law in South Africa. People simply do not believe they will be caught and punished.”
It is not that Fourie doesn’t understand the government’s problems.
“My years as head of the Green Scorpions have given me a huge insight into the challenge of implementing legislation, and particularly the challenge of developing a consistent and professional compliance and enforcement programme,” she says.
The government’s argument that its approach to allow industries to pollute beyond health and environmental standards is “pro-poor” is no comfort to those people affected by mining, or highveld residents who live next to an Eskom power station who are battling to breathe, she said. Or for that matter pensioners who have to buy bottled water out of their meagre savings because their tap water is undrinkable.
Fourie, who has gained a reputation as an environmental champion and a public interest lawyer, started her career as a young commercial litigation lawyer at Sonnenberg Hoffmann Galombik in 1998, followed by a stint at Blake Dawson Waldron in Sydney, Australia.
“It didn’t take long to realise commercial law wasn’t for me,” she said.
An accomplished pianist, Fourie had first thought to pursue her music interest, but was drawn to law and social justice issues. “In the early Nineties so much was happening in South Africa. I wanted to engage in more political matters, and before long I found myself involved in law.”
Drawn by an interest in environmental law, she joined the International Union for Conservation of Nature and was seconded in 2005 to the department of environmental affairs and tourism.
“The National Environmental Management Act had just been amended to include new compliance monitoring and enforcement provisions, and I was tasked with setting up the Green Scorpions,” she said.
“I had no idea at the time of the enormity of the task. We had to take a framework created by statute and give it life as quickly as possible. We had to design an accredited training course, get all existing compliance and enforcement officials trained and designated, compile standard operating procedures, design a logo and produce clothing, and of course start doing compliance inspections and enforcement — criminal pro-secution as well as issue directives.
“We were putting together an institution on top of 15 other government institutions — this involved hundreds of officials in national and provincial departments and conservation agencies responsible for compliance and enforcement of environmental laws — from conservation to industrial pollution, from grizzly-faced older officers in khaki to fresh young environmental science graduates.”
Proud of what the then 900-strong inspectorate has achieved and continues to achieve, Fourie said the experience was a major professional challenge.
“We had no examples, no precedents, new legislation and lots of political expectations. Fortunately, we had little opposition to the inspectorate. I think there was such a need, even from industry, for environmental regulation that we were supported throughout; we had very little resistance when we took action.
“I think there were times at the beginning when what we did was a bit rough and ready,” she laughs.
Asked how she thought South Africa compared with other countries in terms of legislation, Fourie said our laws suffered from a lack of coherent legislative vision and proper rigour in legislative drafting. “This creates uncertainty,” she said. “What needs to be done is to simplify the system to make it easier to understand and comply with the law.”
Most recently, the “one environmental system” — a series of statutory amendments — was an attempt to reduce the ongoing struggle between environment and mining authorities over separate and unequal regulation of the environmental effects of mining. To Fourie’s frustration, however, the changes left oversight of the mines’ environmental compliance to the department of mineral resources.
“There is no rational basis for not giving this function to environmental authorities whose staff are appropriately trained and incentivised to assess and enforce compliance of environmental laws,” she said. “Environmental enforcement is not, and will never be, a priority for mining authorities, whose job is to promote mining. There is no political will to do so.”
Fourie has lobbied for the past eight years for environmental law to be amended to provide for an administrative penalty system, aligned with international trends in regulation.
“Meaningful administrative penalties imposed by a tribunal akin to the Competition Tribunal, on the civil standard of a balance of probabilities, would be far more effective than opting for criminal prosecution — criminal enforcement is the hardest option. Companies, in particular, will only change their behaviour if they are made to pay hefty fines.”
Fourie believes the environmental rights centre has an obligation to continue to test the law and promote compliance through advocacy and litigation, with community-based organisations and partner nongovernmental organisations.
The centre is a group of public interest environmental lawyers who work to make the voices of people affected by environmental rights violations heard and to promote accountable, transparent environmental governance.
A recent victory for the centre was a landmark decision by the Supreme Court of Appeal, ordering mining company ArcelorMittal to release its plan for the rehabilitation of a disposal site to the Vaal Environmental Justice Alliance, which the centre has been assisting. The plan had been applied for under the Promotion of Access to Information Act.