The nature of public participation in environmental compliance in South Africa in light of recent case law

Abstract

South Africa’s Constitution guarantees environmental rights, that extend to access to environmental information, the right to participate in environmental decision-making, and also the right to access remedies in environmental matters. The country has further made considerable and comprehensive provisions through legislation for public participation. Public participation is imperative for ensuring that the views of affected and interested parties are taken into account and that the environmental decision-making process is equitable, fair and leads to a more informed choice and meaningful environmental outcomes. In recent times, communities in areas with large-scale projects such as mining/extractive developments have been routinely approaching the courts for judicial review of granted environmental authorisations due to the omission or procedural unfairness of public participatory processes related to environmental authorisations and licenses. There is a responsibility on South African authorities to consistently monitor and where necessary, augment public participation process as a way of protecting and promoting environmental rights. To that end, this study investigated the nature of public participation in South Africa through an analysis of recent case law. The study concluded public participation in South Africa remains open to interpretation when it comes to application, with those in governance adopting varying degrees of participatory processes. It is from this open-ended nature of public participation where we see that those required to facilitate public participation fail, from an environmental compliance dimension. Common inconsistencies range from failure to identify and involve relevant interested and affected parties; notifications published in wrong languages or not made available at all; access to environmental information not made possible by applicants for licenses and approvals; and lack of law enforcement.