On the 29th and 30th of September 2022, the Environmental Law Association of South Africa held their annual conference at the University of the Western Cape, hosted generously by the University’s unique Global Environmental Law Centre. The Conference was held in celebration of Desmond Tutu, in an era of transition where sustainable living and development are becoming increasingly prevalent, particularly due to the growing concern regarding the impacts of climate change. The presentations were in majority theoretical, seasoned with a hint of empirical research.
Cormac Cullinan, a practising Environmental law Attorney at the oldest Environmental Law firm of South Africa and founder of the Wild Law Institute, opened the floor with a mindboggling keynote address. Mr Cullinan chose to discuss the jarring reality that environmental law is not going to stop ecological destruction.
Climate change comes as no surprise; scientists have relentlessly warned of the devastating impacts it will wreak if we do not take immediate and effective action. Our current governance systems bode ill for the future of our Earth. What does this mean for environmental lawyers? Environmental law in itself cannot and will not save the current status quo without a cataclysmic transformative change across the economic, social and political spheres. Our focus ought to be sharpened towards the goal of protecting our environment keeping in mind the harmonious coexistence between humans and the environment as the yard stick. Mr Cullinan highlighted that the most important duty of human beings is to sustain life on this Earth. Ultimately, he posits that the role of legal practitioners in environmental law must be urgently revisited if we seek to address or at least mitigate the harmful consequences of climate change.
The conference was thereafter broken down into various themes, which will be briefly outlined below.
- Transformative environmental constitutionalism and public participation
The first speaker under this theme was Mr Caiphas Brewster Soyapi, a researcher based at the North-West University, South Africa. Mr Soyapi presented his research about how ecological proportionality could be used as a primer for transformative environmental constitutionalism.
Sustainable development is a palatable concept, enthralling the human mind. But it has turned out to be a toothless concept, languishing in academia without coming to fruition in the practical world. In addressing this gap, Mr Soyapi researched and investigated the possibility of applying ecological proportionality practically, beyond the academic sphere. In assessing how it may operate in the practical dimension, he discussed the court’s findings in the African Network for Animal Welfare v The Attorney General of the United Republic of Tanzania case and whether this method of legal reasoning to determine the limits to which rights could be interfered with, can be applied in South African courts.
Dr Jenny Hall, senior lecturer in the Department of Procedural Law at the North-West University and specialist in environmental law since 1994, was the second speaker under this theme. Dr Hall discussed the nexus between public participation and environmental democracy. Public participation in decision-making is astonishingly inadequate and ineffective in environmental law. It should be a meaningful process, taking into account the circumstances of the interested and affected parties as opposed to merely consisting of a check box item. The gap between interested and affected parties and the public participation process must be bridged. Having taken a closer glance at the 2022 seismic surveying judgments in particular, where the public participation process was flawed, Dr Hall posited that decision makers need to work closely with local communities in such pivotal cases and legal practitioners need to critique why it matters. This is particularly true in our era of climate change where human and non-human lives are at stake.
- Protected areas and the political economy of water
The first presenter under this theme was Mr Alexander Paterson, who is a Lecturer and Course Convenor at the Institute of Marine and Environmental Law at the University of Cape Town. His presentation was based on the possible tweaks that could be made to South Africa’s Law and Policy Framework Governing Protected Areas, in preparation for the Post-2020 Global Biodiversity Framework. In doing so, he focused on two key issues drawn from the Montreal target 3 to be achieved by 2030 and provide suggestions as to how South African environmental legislation can be reformed to meet that target. For a high-value biodiversity country such as South Africa, the 2030 biodiversity conservation target should be the bare minimum, considering the fact that the target was not tailor-made to each country. Mr Paterson opined that it is time to make big and brave choices. With such a fragmented environmental legislation, more integrated planning is required and all role players a ground level are required to come on board in such climacteric decision-making. Albeit honourable, without actionable plans these aspirational ambitions and goals are merely ink on paper.
This theme was wrapped up with a presentation about the political economy of water, by Professor Mbangiseni Nepfumbada from Rand Water and the University of Johannesburg, together with Alexandra Carroll, a PhD student at the University of Johannesburg, working concurrently at Rand Water. They discussed the manner in which water legislation is contradictory in theory and practice and how corruption lurks within the private sector and in the government. One of the solutions proposed in addressing the loopholes in water legislation and bridging the gaps between legislation and its practical application, was the need for stronger State intervention.
- Climate change and the urban sector
Dr Oliver Fuo, senior lecturer at the North-west University, was the first speaker to present his research under this theme. Dr Fuo chose to present his research paper which consisted of a legal analysis of Urban Climate Change Mitigation and Adaptation in the Building Sector in South Africa, with a particular focus on the City of Cape Town. Cities have become a prominent actor in global climate governance. In his legal analysis, Dr Fuo compared the climate-related mitigation and adaptation efforts in the building sector in Cape Town, to those in Hamburg in Germany and Sao Paulo in Brazil. National and local legislation and policies were examined with a sharpened focus on building-related energy, water and green infrastructure. Various similarities and differences are found in multilevel building-related laws and policies that partly enhance and partly limit cities’ climate mitigation and adaptation efforts. In identifying the key challenges and shortcomings in building-related climate mitigation and adaptation at the city level, Dr Fuo posited that these cities could strengthen integrated planning and thus overcome siloed decision-making and implementation, thereby creating synergies between climate mitigation and efforts.
Lastly, Dr Johandri Wright, a PhD researcher at the North-West University, presented her research on funding climate change initiatives and utilising the law for enhancing financial controls in South African cities. Cities are playing an increasing role in climate change initiatives. However, the financial landscape is a different animal to the service delivery landscape. In addressing monetary losses caused by theft and/or corruption, financial risk management is crucial. The law and policy are tools to drive change and guide decision-making. Dr Wright discussed various financial controls that could be put in place to improve financial management and service delivery, such as participatory budgeting, results-based budgeting, tax credit as incentives, social accountability, artificial intelligence, self-evaluation, etc.
- National Environmental Management: Laws Amendment Act 2 of 2022 (NEMLA)
A panel discussion was held between employees of the Department of Environmental Affairs and Development Planning and the Department of Forestry, Fisheries and the Environment to elaborate on the various amendments that have been made to the National Environmental Management Acts and their transformative impacts in environmental law. What stood out as the key amendment in NEMLA was the financial provisioning for the remediation of environmental damage under section 24P of the National Environmental Management Act (NEMA) generally, and the financial provisioning solely applicable to mining activities, under section 24PA of NEMA.
- Energy, social justice, mining and climate change
The second day of the annual conference kicked off with a theme about energy, social justice and climate change.
The first speaker, Mrs Willemien du Plessis, a professor and researcher in the field of Law, Justice, Sustainability and Environmental Change at the North-West University, presented her findings based on a case study undertaken in the Taung Local Municipality (North-West Province of South Africa) to demonstrate the lack of social justice for access to basic needs (water, energy and food). Household surveys were conducted, with the assistance of fieldworkers and researchers to determine the extent of social justice with regards to access to water, energy and food in Taung. A few challenges were encountered in attempting to carry out the survey but once they had been surpassed, the preliminary findings were that the municipal services were delayed; the community was unaware of its rights and responsibilities; the level of unawareness of indigent policies regarding food was poor. Essentially, the study conducted revealed that neither social justice nor the progressive realisation of socio-economic rights had been achieved in Taung.
Subsequently after Professor Willemien’s empirical study presentation, Refilwe Tsatsimpe, a junior lecturer at the North-West University and recently admitted Attorney of the North-West High Court presented, together with Rorisang Matlala, a junior lecturer at the North-West University, competing rights in the mining sector and particularly what happens when “deep pockets” clash with rights. A profound disagreement and conflict exists between the government, local communities and mining companies. It begs the question of how to reconcile interests of the government and mining companies on the one hand and the interests of local communities on the other hand. In most instances, the issue lies in the inadequate public consultation. Professor Tsatsimpe and Matlala emphasised the importance of section 24 of the Constitution, which imposes a duty on the government to fulfil this right to prevent ecological destruction, promote sustainable development, socio-economic development whilst protecting the environment. The professors argued that the local communities have an interest in ecological conservation due to their exposure to ecological degradation and are thus entitled to decide whether mining should be granted or not. Based on this discourse, local communities should therefore be provided with information that will enable them to make an informed decision, thus resulting in meaningful public participation. Nevertheless, this principle lacks to a great extent. Mining companies should have an obligation to provide truthful information regarding the scope of their mining activities, using the local communities’ native language and making use of platforms that are easily accessible to these communities. The professors concluded their presentation on a strong note by stating that effective governance instils confidence in the public and the law.
The third presentation was delivered by Dr Chantelle Moyo, a doctoral researcher under the South African Research Chair: Cities, Law and Environmental Sustainability (CLES) at the North-West University. Her research title was “The legal conundrum and opportunities in the generation and procurement of electricity in South African cities”. Cities account for almost half of the country’s energy demand, yet its energy plan is poorly planned and managed. Dr Moyo discussed the challenges faced by our country in terms of energy supply, namely the lack of investment, corruption, climate change, mismanagement, competency and capacity constraints, exclusionary conditions in the regulations for municipalities to procure or generate their electricity, financial capacity of municipalities to raise funds and manage long term generation projects, and procurement issues. In addressing these challenges, Dr Moyo laid out the legal context for the electricity provision and believed that the electricity provision ought to be decentralised by employing independent power producers and local government involvement in the provision of electricity.
Finally, this theme was brought to an end with a presentation by Dr Nicolene Steyn, PhD researcher at the North-West University, regarding the potential regulation of Cryptocurrency Mining towards climate mitigation. Cryptocurrency mining is based on the most used verification method (known as bitcoin) which is incredibly energy intensive, requiring one billion CPU cycles: a dreadfully unsustainable process. The more bitcoins mined, the more computation is required to calculate the math involved. Due to the extent of bitcoin’s power usage and the toll it has on the mining industry, a colossal amount of e-waste is generated. The carbon footprint of bitcoin is equivalent to 37 megatons of Co2 in the hemisphere, according to the Cambridge bitcoin electricity consumption index. The issue lies in the outdated verification methods. We ought to resort to clean energy without causing detriment to local communities. Cryptocurrency mining therefore raises various environmental concerns and regulatory challenges, mostly due to the lack of licensing, the criminal activity, and its under-researched nature. Dr Steyn expounded her recommendations to address these shortcomings, namely the implementation of a green tax, the regulation of e-waste disposal, the need for structured regulations taking into account nature and the use of cryptocurrency, the centralisation of cryptocurrency and perhaps a combination of national and local responses to regulate cryptocurrency.
- The Deadly Air case – where do we go from here? A panel discussion on the Groundwork Trust case
The final theme of the annual conference comprised of a panel discussion with Peter Kantor, chairperson of the Environmental Law Association and Advocate of the High Court of South Africa , Michael Kidd, lecturer and researcher at the University of Kwazulu-Natal, John Rantlo, Post-Doctoral research fellow at the NRF, Anél du Plessis, professor of Local Government and Environmental Law at the North-West University and Melanie Murcott, associate professor at the University of Pretoria, regarding the Trustees for the time being of Groundwork Trust and Another v Minister of Environmental Affairs and Others (39724/2022) case. Diverging opinions emerged during the discussion but the crux of the debate lay in the court’s contraversial interpretation of section 24 of the Constitution which entrenches the right to a healthy environment, flying in the face of prior academic and judicial interpretation. Professor Kidd critiqued the court’s lack of contextual interpretation of section 24. The latter section is not a stand alone right. Section 24(b) informs how section 24(a) should be carried out. The other speakers pointed out that certain aspects are worthy of celebration in the Groundwork case, notably the court’s endorsement of the justiciable link between human health and the state of the environment, and the possibility for litigation for future generations where an eminent threat to such right suffices to seek redress. Dr Murcott alleviated the criticism-borne approach of her fellow speakers by shifting the focus on transformative environmental constitutionalism. The social justice imperative is interconnected with environmental and climate justice. When courts are advancing the constitutional environmental right, they need to consider issues of social distribution of environmental harm. In the Groundwork case, Dr Murcott opined that the court framed its judgment in a manner as to give voice to the marginalised and adopted a substantive rights-based approach to the environmental dispute. The court should therefore be applauded for implementing environmental constitutionalism in a substantive rights-based manner. Dr Murcott emphasised that one should not confine or narrow the manner in which section 24 is interpreted and applied; we are living in an era where people are dying because of climate change, particularly vulnerable people. However, courts should not fall foul of the core principles in NEMA to assist its decision-making when section 24 of the Constitution is at stake.
A successful conference on all levels.
Dawson Edwards Attorneys