Mining and Environmental Impact Assessment in South Africa
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University of South Africa**We aren't endorsed by this school
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ORG 10
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Management
Date
Dec 11, 2024
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61 Environmental Impact Assessment in the Context of Mining in South Africa: Challenges and prospects DOI: https://doi.org/10.31920/2753-3182/2022/v1n2a3John Laisani Researcher and Legal Practitioner, Advocate of the High Court, South Africa, LLB University of Venda, Msc in Mining and Environmental Geology, University of Venda, PhD in Environmental Sciences (Geology), University of Venda laisanij@gmail.com Hlako ChomaResearch Associate, Ismael Mahamed Centre for Human and People’ Rights,University of Venda. LLM Howard University, LLM Georgetown University, Washington DC respectively, advchoma@yahoo.co.uk & Makole Rinah Magoro 3Coordinator, Office of Technology Transfer, University of Venda, Hons in Development Planning and Management, University of Limpopo, African Journal of Public Administration and Environmental Studies (AJOPAES)ISSN 2753-3174 (Print) ISSN 2753-3182 (Online) Indexed by Sabinet Volume 1, Number 2, December 2022 Pp 61-81
Laisani, Choma & Magoro (AJOPAES) Vol. 1, (No. 1), December 2022, pp 61-81 62 Abstract Environmental Impact Assessment has been characterized with poor community participation which has led to exposition of a deepening crisis in government institutions of lack of publicly monitored corporate governance. The study attempts to critique the effectiveness of the South African Environmental Assessment approaches and also identify its challenges and prospects in the mining context. The study implores qualitative methods and use a wide range of research methods and tools in data collection, such as official document analysis, observations, and interviews. The results of the study suggest that South Africa lacks a systematic approach to environmental impact assessment reviews. This systematic approach will ensure an environmental audit (EA), which is an integral part of project approval. This study suggests that project monitoring and review should be used as a means of monitoring and evaluating the implementation of environmental impact studies. The authors recommend the development of a standard EIA monitoring plan, which should be formalized as a core aspect of South Africa's EIA policy. Keywords:Environmental Impact Assessment, review, Environmental Assessment, Environmental Audit and Environmental Management Plans or Systems. 1.0 Introduction The Environmental Impact Assessment (EIA) is essentially an integrated method in which the analysis, synthesis and management of the expected impact of development proposals play an important role. The overall purpose of environmental impact assessment is to enhance the biophysical and socio-economic benefits of projects and programs, while at the same time mitigating potential hazards through wise choices.1According to the principle of Article 17 of the Rio Convention, environmental impact assessment is a national tool and must be conducted for planned activities that may have a substantial effect on the natural environment2. Principle 17 of the United Nations Conference on Environment and Development reflects the requirement of a state to conduct an Environmental Impact Assessment (EIA) for activities that 1A Ulloa, 2017. Perspectives of environmental justice from indigenous peoples of Latin 2Article 17 of the Rio Convention, United Nations Conference on Environment and Development, Rio de Janeiro, Brazil, 3-14 June 1992
Environmental Impact Assessment in the context …63 may have a significant impact on the environment. UNCED regards EIA as a key tool for environmental protection and sustainable development. This means that unless sustainable development standards are specifically included in the standards used in environmental assessment, EIA may not contribute to sustainable development. This is essential if developing countries want to incorporate environmental issues into their development plans. It should be noted that, according to international environmental law, environmental impact assessment is considered an important method of environmental management. The international community has realized the importance of assessing the possible environmental impacts of a series of activities in order to minimize these impacts.3Over time, through the number of references to environmental impact assessments in different international instruments such as treaties and the decisions of international agreement management agencies, this recognition has improved in scope and depth. This chapter will present the challenges and prospects for environmental impact in South Africa. Environmental Impact Assessment (EIA) can be a tool that integrates environmental issues with traditional, technical, financial, and political considerations into decision-making.4It involves scientific analysis of potential impacts on major policies, plans and projects and how to minimize adverse impacts. The National Environmental Management Act (NEMA) introduced an environmental impact management system, specifically the environmental impact assessment (EIA) process.5The environmental impact assessment process can be an instrument that needs to incorporate social, economic, and environmental factors into planning, implementation, and options evaluation to confirm that development serves present and the generations to come.6EIA is South Africa's main regulatory tool to mitigate and manage the effects of the latest developments and activities that may have an impact on environmental rights that are not harmful to 3K Swangjang, 2018. Comparative review of EIA in the Association of Southeast Asian Nations 4Ulloa (n 1 above) 3 5Swangjang (n 2 above) 3 6Bond, A., Pope, J., Retief, F., Morrison-Saunders, A., 2018. On legitimacy in impact assessment: An epistemologically-based conceptualisation. Environ. Impact Assess. Rev. 69, 16–23. https://doi.org/10.1016/j.eiar.2017.11.006.
Laisani, Choma & Magoro (AJOPAES) Vol. 1, (No. 1), December 2022, pp 61-81 64 health and well-being.7It is one of the processes that actively promotes the sustainable development of the community. Several challenges have arisen in the management of the EIA law in most African countries and South Africa is no exception. The nation has seen environmental management legislation being revised to meet the challenges of environmental stewardship in accordance with the constitutional requirements of environmental legislation rights provisions. Fragmented solutions have been applied to meet emerging challenges, but the EIA system has not yet been fully overhauled.8This paper seeks to explore the effectiveness of EIA system in South Africa, to ascertain what challenges are being faced within the implementation of the EIA system and what are the prospects to enhance the EIA system in South Africa. The study will explore the subsequent areas of focus which are: Mining and Environmental impacts in South Africa, communication and coordination, compliance, monitoring and enforcement and effectiveness of the EIA regime in South Africa. 2.0Literature Review This research is exploratory and seeks to build on the existing body of follow-up knowledge. The theory in the study is not explicit rather this study is inductive- drawing conclusions from the elements and principles proposed in the body of literature on how to do good EIA follow-up. The study will review literature on mining and environmental impacts in South Africa, EIA regime and mining in South Africa and environmental impact assessment legislation and policies. 2.1Mining and Environmental impacts in South Africa The South African Human Rights Commission issued a stern report pointing out the damage caused by the mining industry to human rights in South Africa. The conclusion paints a dark picture. By critically examining the mining industry in South Africa, one can be sure that it is full of perspectives on challenges related to the aquatic, air, terrestrial and marine environments. The author believes that the government should 7Alers, A (2016) A Review Package for South African EIA Follow-Up Performance8Nadeem, O, R Hameed and S Haydar (2014). Public consultation and participation in the EIA in Pakistan and Lessons Learnt from international practices. Pakistan Journal of Engineering and Applied Science 14:73-84
Environmental Impact Assessment in the context …65 be responsible for the damage caused by the communities affected by mining because of poor government law enforcement, weak law enforcement, and a serious lack of coordination. These challenges are due to the lack of a regulatory framework for environmental management. At present, the environmental management at the central government level is in the charge of agriculture, water, forestry, mining, energy, and health departments, and lacks coordination and coordination. It is the central management agency for environmental issues. At the regional level, provincial protection agencies play an important role. This environmental management method needs to be reviewed. South Africa should have an environmental management agency responsible for the country's environmental management issues. In the case of Global Environment Trust et al. v Tendele Coal Mining (PTY) LTD and others, The Pietermaritzburg High Court presided over the case on related issues. Members of the Somkhele community argued under the banner of the Mfolozi Community Environmental Justice Network and the Global Environmental Trust that Tendele Coal's current operations are illegal. The basis of the illegality is premised on the view that the company did not obtain the required environmental and land use permits. Community members asked the court to order the government to stop mining operations to protect their constitutional right to a healthy environment under section 24 of the South African Constitution9. The South African government introduced the laws on the problem of responsibility and wise mining problems and the problems of protection of environmental integrity, but it seems that implementation is bad. Therefore, the act of deterioration continues. The Ministry of Environment confirmed that the audit report, the response and surveillance of the audit report occurred, and confirmed that the question of the processes and damage of the EIA to the mitigation of incorrect environmental impact.10This is an important issue in the context of environmental risks and is discussed11. To confirm that the 9Global Environmental Trust and Others v Tendele Coal Mining (Pty) Ltd and Others (1105/2019) [2021] ZASCA 13; [2021] 2 All SA 1 (SCA) (9 February 2021) 10Environmental Management Programme (EMP) under the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) 11Zhang, J., Kørnøv, L., Christensen, P., 2018. The discretionary power of the environmental assessment practitioner. Environ. Impact Assess. Rev. 72, 25–32. https://doi. org/10.1016/j.eiar.2018.04.008.
Laisani, Choma & Magoro (AJOPAES) Vol. 1, (No. 1), December 2022, pp 61-81 66 condition of relaxation is implemented, it must be more emphasized for environmental management plans (EMP) and surveillance. However, the EIA is ideal for the ideal stages in the phases that are concerned mainly by the determination records that are barely concerned about the subsequent surveillance and impact audits. 2.2EIA regime and mining in South Africa Feasibility of the EIA study by the Department of Environmental Affairs observed that “EIAin the Republic of South Africa is marginally effective and it should not be discarded as an instrument as there is currently nothing better to take its place".12In this research, effectiveness is defined as the ability of EIA to achieve the goals set for it. Efficiency is related to the time impact of the EIA process. The study observed that EIA is not effective for all types of development, therefore, different sets of tools must be studied and used for impact forecasting and management, not EIA or as a supplement.13In addition, the challenges related to the interpretation of the EIA regulations have also been identified as another limiting factor in the effectiveness of the EIA procedure, because different authorities will react differently to certain regulations, which will ultimately lead to the lack of effectiveness of the EIA procedure. Participation, communication, and coordination by various stakeholders is very critical for environmental assessment. There are instances where EIA is commenced without project design. The environmental impact assessment is most influential in the preliminary design stage. However, without understanding all the other parameters involved in the preliminary design, the EIA cannot be compiled, thereby increasing the value of the EIA.14Environmental impact assessment should not be used as an afterthought, but as a collaborative method to maximize the actual environmental improvement. Technical feasibility and financial feasibility should be included in the preliminary design to form part of the environmental impact assessment. The relevant 12‘List of Activities and Competent Authorities identified in terms of sections 24 and 24D of the National Environmental Management Act, 1998 GN R387, GG 28753, 21 April 2006’, items 7 and 8 of the Schedule13EMA (n 20 above) 9 14Simpson, N.P., Basta, C., 2018. Sufficiently capable of effective participation in environmental impact assessment? Environ. Impact Assess. Rev. 70, 57–70. https://doi.org/10.1016/j.eiar.2018.03.004.
Environmental Impact Assessment in the context …67 stakeholders should be consulted to analyze the alternatives of the proposed project. The concept of alternatives extends to site selection, design, technology selection, construction technology, and phase, operation and maintenance procedures.15Alternatives should be compared in terms of possible environmental impact, capital and operating costs, applicability of local conditions, systems, training, and monitoring requirements.16This is the missing element in most EIA projects. You can refer to the mining exploration project of Thathe Vondo Forest in Venda, Limpopo Province, South Africa, and the environmental challenges faced by the northwestern Mpumalanga Province and parts of Limpopo Province where mining activities occurred. This phenomenon has brought challenges to South Africa's EIA, and detailed environmental studies should be conducted to determine which systems can be established to improve South Africa's EIA system. The practice of global environmental assessment in the last four years has led to the recognition of generally accepted design principles. One of the principles is that as project proposals and approvals progress, the environmental impact assessment process should provide ways to improve. EIA follow-up actions are derived from this understanding. It is concerned about events that take place after the consent decision has been obtained.17Research conducted in South Africa and around the world has fully demonstrated the need for environmental assessment follow-up.18The goal is to help improve project implementation and provide feedback on the EIA process. By incorporating feedback into the EIA process, follow-up work will enable experiential learning to take place. It also helps EIA professionals and implementing agencies determine the efficiency of mitigation measures, the deficiencies of 15Sinclair, A.J., Doelle, M., Gibson, R.B., 2018. Implementing next generation assessment: A case example of a global challenge. Environ. Impact Assess. Rev. 72, 166–176. https://doi.org/10.1016/j.eiar.2018.06.004. 16Zhang, J., Kørnøv, L., Christensen, P., 2018. The discretionary power of the environmental assessment practitioner. Environ. Impact Assess. Rev. 72, 25–32. https://doi. org/10.1016/j.eiar.2018.04.008. 17A David Collins, Public Participation in Environmental Impact Assessments for Foreign Investment Projects: a Canadian Perspective: In Public participation and Foreign Investment Law (2021) Nijholf International Investment Law Series 18Sinclair, A.J., Doelle, M., Gibson, R.B., 2018. Implementing next generation assessment: A case example of a global challenge. Environ. Impact Assess. Rev. 72, 166–176. https://doi.org/10.1016/j.eiar.2018.06.004.
Laisani, Choma & Magoro (AJOPAES) Vol. 1, (No. 1), December 2022, pp 61-81 68 forecasting methods, the final results of project implementation, and how to improve EIA practices.19A case in point is a mineral exploration project at the Thathe Vondo Forest adjacent to Lake Fundudzi, in Venda, Limpopo Province in South Africa. The mining project concerned raised lots of contestations within the mining community due to noncompliance with the environmental regulations in that the Thathe Vondo forest is recognized as South African treasure, protected by the government under the National Heritage Resources Act. The land where the mining claim is located is on a buffer zone which cannot be exploited for a mining venture, even if considerations have been made for rezoning of the land through an application for reservation or change of land use the land may never be conducive for a mining project. But since April 2018, with the approval of the Department of Mineral Resources and Energy, a mining company has been prospecting for minerals which it has now apparently found after the company undertook mineral exploration in Thathe Vondo forest located in Venda, Limpopo Province of South Africa. One wonders how the prospecting license was obtained in a buffer zone for a mining expedition. The local community was not aware of this ordeal of the prospecting license, a fact that renders it doubly illegal. EIA processes must incorporate an accountability mechanism that is equally accessible to the local community.20The royal council declined knowledge of its involvement with the mineral exploration project as they claimed that the area is conserved for biological diversity for sound ecosystem management. In this vein, one may not the view that environmental impact assessment procedures were not complied with by the mining company. According to Swangjang, EIA monitoring covers four different activities, namely monitoring, which means collecting information and comparing it with project standards, forecasts or expectations.21Evaluation involves the evaluation of compliance with standards, forecasts, or expectations, and the environmental performance of a given project. Such management practices need to make decisions or take appropriate actions in response to problems arising from project 19Wijaya, A., Budiharto, R.S., Tosiani, A., Murdiyarso, D., Verchot, L., 2015. Assessment of large scale land cover change classifications and drivers of deforestation in Indonesia. Int. Arch. Photogramm. Remote.Sens. Spat. Inf. Sci. 40, 557. 20Wijaya (n 9 above)5 21Swangjang, K., 2018. Comparative review of EIA in the Association of Southeast Asian Nations. Environ. Impact Assess. Rev. 72, 33–42. https://doi.org/10.1016/j.eiar. 2018.04.011.
Environmental Impact Assessment in the context …69 monitoring and evaluation. Bratman and Dias defined communication as the provision of feedback to stakeholders and the public on the project implementation process in order to achieve corporate environmentalism and accountability.22This study will distinguish three types of monitoring mechanisms. Baseline monitoring should investigate environmental parameters in the proposed business environment before implementation begins. In addition, effectiveness monitoring focuses on measuring the difference between the baseline parameters and the changes resulting from the implementation of a commitment. Finally, post-audit impact monitoring focuses on meeting recommended assessment standards.23By carefully reviewing these monitoring mechanisms, it can be seen that many mining companies have not complied with these procedures. Herdiansah identified three stakeholder groups participating in EA monitoring, including advocates or first-party monitoring, regulators or second-type monitoring, and finally community or third-party monitoring.24The former include voluntary, self-regulated, or industry-driven initiatives derived from environmental awareness or peer pressure. The second type of monitoring is carried out by the regulatory agency to confirm that the proposer meets the EA approval conditions25. Finally, third-party monitoring covers the entire community, including formal or informal institutions that monitor the impact of the project. These may include independent actions by village supervision groups or committees and community members who are concerned about the impact of the project on their communities. Although many African countries have gained valuable experience in the application of EIA and achieved a certain degree of success, the implementation of environmental impact assessment monitoring projects is still lacking or imperfect, and is facing huge challenges. If there is no scientific monitoring of EIA, the effectiveness of mitigation measure9s 22Bratman, E., Dias, C.B., 2018. Development blind spots and environmental impact assessment: tensions between policy, law and practice in Brazil's Xingu river basin. Environ. Impact Assess. Rev. 70, 1–10. https://doi.org/10.1016/j.eiar.2018.02.001.23Wijaya (n 9 above)5 24Magdalena Michalak and Przemysław Kledzik, The Aarhus Convention and Polish regulations concerning parties to proceedings for issuing the eia decisions, JEEPL 2021 18/1–2, 56–76. 25Bratman (n 30 above) 16
Laisani, Choma & Magoro (AJOPAES) Vol. 1, (No. 1), December 2022, pp 61-81 70 and management plans is usually still largely unverified.26In most jurisdictions, EIA approval has become a simple pursuit of development permits on paper, rather than a meaningful activity in pursuit of informed environmental decision-making. As more and more resources are used for EE practices in African countries, it is necessary to guarantee returns through systematic monitoring plans.27In a nutshell, the background factors that affect the follow-up of the environmental impact assessment include institutional arrangements and regulations, institutional capabilities and resources, methods and technologies used, and the types of projects involved. For these reasons, even within similar jurisdictions, the monitoring results of developed and developing countries are different.282.3Environmental Impact Assessment legislation and Policy The 1996 Constitution of the Republic of South Africa (Constitution) is an all-encompassing law. Section 24 of the Constitution establishes the right to an environment that is not harmful to health or well-being. It calls on the government to adopt legislation and other measures to prevent pollution and ecological degradation, promote protection, ensure ecological sustainable development, and use natural resources. At the same time, it promotes reasonable economic and social development. To this end, several pieces of legislation and relating regulations have been enacted in the context of mining and these includes the Hazardous Substances Act No. 15 of 1989, Mineral and Petroleum Resources Development Act No. 28 of 2002 (MPRDA), National Environmental Management Act No. 107 of 1998 (NEMA), National Environmental Management: Air Quality Act No. 39 of 2004 (NEM: AQA), National Environmental Management: Biodiversity Act No. 10 of 2004 (NEM:BA). In addition, the National Environmental Management: Protected Areas Act No. 57 of 2003 (NEM: PAA), National Environmental Management: Waste Act No. 59 of 2008 (NEM: WA), National Water Act No. 36 of 1998 (NWA) were also enacted to safeguard the environment. 26Bragagnolo, C., Carvalho Lemos, C., Ladle, R.J., Pellin, A., 2017. Streamlining or sidestepping? Political pressure to revise environmental licensing and EIA in Brazil Environ. Impact Assess. Rev. 65, 86–90. https://doi.org/10.1016/j.eiar.2017.04.010. 27Sinclair (n 8 above) 5 28Swangjang (n 11 above) 6
Environmental Impact Assessment in the context …71 South Africa adopted the EIA procedure as early as 1989 in the Environmental Protection Act, but in 1997 it approved the specific regulations for EIA for the first time. In 2006, environmental assessment standards were formulated in accordance with the National Environmental Management Law. The National Environmental Management Law (No. 107 of 1997) includes a general policy framework that is formulated through a comprehensive participatory process called the National Environmental Policy Consultative Process (CONNEPP). Among other things, the white paper defines the nature of sustainable development and considers sustainable development as a recognized resource management method. Comprehensive environmental management imposed by Chapter 5 of NEMA is one of the policy directives that put into effect Section 24 of the Constitution and the sustainable development requirements of the 1992 Rio Earth Summit. Purpose of Chapter 5 of NEMA is to promote the application of appropriate environmental management tools to ensure integrated environmental management of activities. An EIA created with non-realistic design does not benefit from anyone. Therefore, compliance, monitoring and compliance is required for the EIA project. Government level adjustments are properly adapted to various ministry activities, mineral resources and other related stakeholders, and adapt adequately with each other to achieve the desired objectives.29The South African EIA adjustment system seems to have a gap30. The research identifies a gap of a schematic mechanism, and this study revealed that there is an inappropriate capacity to review the projects of several fields. The National Environment Council attends a role of supervisory in the implementation of the National Environmental Management Law, but from the perspective of limiting its monitoring function, as formulated to bring the environmental instructions. Funds to support environmental awareness and coordination are limited. This will ensure effective community involvement in environmental issues.31For projects that belong to more than one sector, such as mining projects in national parks, protected areas, or buffer zones in the Fundudzi Lake and Thathe Vondo Forest in Limpopo Province, South Africa, the degree of inter-ministerial coordination is low. After the impact assessment, the study also cited some technological 29National Environmental Management Act No. 107 of 1998 (NEMA), 30Sinclair (n 8 above) 5 31Simpson (n 22) 9
Laisani, Choma & Magoro (AJOPAES) Vol. 1, (No. 1), December 2022, pp 61-81 72 gaps in the Environmental Management Plan (PGA). The Ministry of Environmental Affairs shall establish an environmental management agency to coordinate the competent government departments and relevant stakeholders to ensure the successful implementation of the environmental management plan. An EIA review committee with industry experience should be organized to improve the quality of EIA opinions and thus promote sustainable development of the environment. The legal gap found in this study is that there is no clear definition of a coordination mechanism in the current bill. Therefore, relevant legislation and stakeholders must be coordinated to achieve the ultimate goal of environmental management.322.4Effectiveness of EIA system in South Africa. Most post-certification challenges are inherited from the pre-certification process itself. The EIA informs the environmental management plan and mitigation measures, so a faulty or inadequate EIA will always lead to a faulty Environmental Management Plan (EMP). The preparation of the environmental impact assessment and the correct composition of the assessment team are key.33Models are essential for reasonable decision making, but the EIA process lacks quantitative methods. By analytically reviewing South Africa's environmental impact assessment process, you face logistical challenges because South Africa does not have an agency or agency to regulate environmental issues. These tasks are carried out by government departments and pressure groups. The fundamental question to ask is whether these regulatory agencies have sufficient capacity to follow up on the monitoring and evaluation process. Does the department have technical capabilities (methods, equipment) to successfully and effectively monitor the process? Does the monitoring department have sufficient financial resources to carry out rigorous tasks in the implementation, monitoring and evaluation process? One may wonder how effective government agencies and stakeholders are in implementing the environmental management plan of the project owner. In view of the above situation, it is necessary for the South African government to establish an 32Bratman, E., Dias, C.B., 2018. Development blind spots and environmental impact assessment: tensions between policy, law and practice in Brazil's Xingu river basin. Environ. Impact Assess. Rev. 70, 1–10. https://doi.org/10.1016/j.eiar.2018.02.001. 33Wijaya et al., 2015
Environmental Impact Assessment in the context …73 environmental management agency responsible for environmental issues, which will be established in accordance with the terms of NEMA. 3.0 Methodology This study is exploratory and seeks to build on the existing body of follow-up knowledge. The theory in the study is not explicit rather this study is inductive- drawing conclusions from the elements and principles proposed in the body of literature on how to do good EIA follow-up. A qualitative research methodology was employed and entailed semi-structured interviews and secondary document analysis. Semi-structured interviews were usefully employed to investigate EIAs and participation and explore conflicting meanings and understandings amongst related stakeholders within the mining and environmental sector. The official documents included South Africa's Environmental Management Act, Environmental Impact Assessment Regulations and government policies and directives on environmental issues. In order to collect empirical data of environmental impact assessment research and follow-up activities, this study reviewed sample environmental impact assessment report. This report was prepared by the competent environmental consulting agency and approved by relevant South African authorities. The aspects included project objectives, expected impacts, mitigation measures, local participation and post-audit activities. A purposive sampling design was employed to secure interviewees, although a snowballing technique was also employed as interviewees referred the author to other informants. Semi-structured and face-to-face interviews were used to collect data from a diversity of stakeholders which includes the private sector, Non-Governmental Organisation, government departments and the community at large. With semi-structured interviews, only key questions and topics were predetermined to ensure consistency. Some questions were tailored according to the expertise of the interviewee since questions were open ended and flexible, all informants did not rigidly stick to the predetermined questions and brought up new topics as the interview progressed. Initially questions and topics were formulated from a literature review conducted and were used as acquired during interviews. The purpose is to determine the quality of the EIA report, approval conditions and post-audit activities of the selected project. The study attempts to criticize the effectiveness of EIA as an integral part of the project planning process, and analyzes South Africa's Environmental
Laisani, Choma & Magoro (AJOPAES) Vol. 1, (No. 1), December 2022, pp 61-81 74 Assessment (EA) method and determines its challenges and prospects in the context of mining. A survey was conducted on a mining project on Lake Fundudzi and Thathe Vondo Forest under Khosi Thovhele Tshivhase. The mine is to be situated on the farm Chibase in the Thulamela District, comprising 13 043 hectares. It is tribal land under the control of Thovhele Tshivhase, situated some 30 km west of Thohoyandou and including villages such as Mukumbani, Murangoni, Tshidzivhe, Tshilungwi, Tshiheni, and Tshiavha. A sample size of 30 respondents was used in this study. The key informant interviews involved various stakeholders. These include government department officials of the Department of Mineral Resources, Department of Environmental Affairs, members of the royal council of Thovhele Tshivhase and members of the communities within Venda. The qualitative data gathered from the study were analysed using the thematic approach. 4.0 Results and discussion of findings The study sought to explore the effectiveness of EIA system in Limpopo Province of South Africa. The study identifieda lack of standard procedure for EIA follow-up in South Africa. These findings were validated by the views of various authors in the literature who echoed the same sentiments. In addition, the challenges related to the interpretation of EIA regulations have also been identified as another limiting factor in the effectiveness of EIA procedures. This is because different authorities will react differently to certain regulations, which ultimately leads to a lack of effectiveness of the environmental impact assessment system.34This paper developed themes which were analysed using the thematic approach. The themes covered include poor public participation, the abuse of the EIA system, lack of input on mining development during EIAs by civil society and lack of trust in mining companies, including government monitoring of EIAs and mining development. It is vital to note that there are links and overlaps between the themes discussed. The study findings revealed that there was gross abuse of the EIA process by environmental practitioners. Fifteen respondents noted the view that some of the abuses was aided by government departments in a bid to fast track a mining project. Though EIA process is an ideal way of identifying potential development impacts, it was not complied with by a 34Sinclair (n 23) 10
Environmental Impact Assessment in the context …75 number of mining companies and their respective environmental consultants which raised a lot of issues around corruption within the mining sector. The system of obtaining EIA certificates was marred with abuse and corruption in a bid to expedite mining projects approval. Majority of the stakeholders particularly community members and civil society noted the view that there was exclusion of key stakeholders like community members from public consultative forums which led to approvals made without inputs from affected members of the communities. Five respondents of the informants viewed the EIA process as being problematic, flawed and tokenistic. This observation is in tandem with the views of Alexandra Jiricka-Pürrer, Martin Bösch and Ulrike Pröbstl-Haider who assert the notion that most EIA processes are not complied with by environmental practitioners.35Four respondents within Tshivhase village noted that mining consultants did not effectively consult with IAPs since they preferred not to address concerns raised so as to get developments approved more easily. Such participatory inefficiencies demonstrate lack of willingness by the environmental practitioners and the mining companies to engage stakeholders particularly affected communities on how to redress the issues in contestation. Analysis of the findings of the enquiry into the Mammba Metals Group company mining expedition in the Thathe Vondo forest, in Thovhele Tshivhase clan and a review of EIA projects around Limpopo Province of South Africa revealed that there is high degree of non-compliance with EIA procedure. The Mammba Metals Group did not employ a standard environmental impact monitoring approach in that the community was not involved during the EIA process. A general assessment of operational projects approved by the Department of Mineral Resources did not include cumulative impact monitoring in their Environmental Management Plans or Systems. It should be noted that neither the EMP nor the post-audit monitoring plan includes community involvement or third-party monitoring plans. However, a content analysis of a large number of reports on various coal and gold mining operations and other mining operations in South Africa's Mpumalanga and Limpopo provinces revealed a number of environmental damages that the local population has discovered for the first time. These findings 35Alexandra Jiricka-Pürrer, Martin Bösch and Ulrike Pröbstl-Haider (2018)Desired but Neglected: Investigating the Consideration of Alternatives in Austrian EIA and SEA Practice, MDPI, Sustainability
Laisani, Choma & Magoro (AJOPAES) Vol. 1, (No. 1), December 2022, pp 61-81 76 resonate with the view of Wijaya et al that coordination mechanisms are not clearly defined in the NEMA hence there is a need for harmonization of the related pieces of legislation and stakeholders to achieve the ultimate goal of environmental stewardship.36The study also determined the ineffectiveness of the first-party monitoring, which is based on the commitment of the project sponsors to implement and monitor impact mitigation measures. In most communities in South Africa, post-audit activities that involve regular environmental monitoring activities are rarely carried out. This study shows that the majority of supporters did not comply or did not implement EIA follow-up activities that meet the conditions for approval of the environmental impact assessment, as seen in the mining project in Venda, Limpopo province, South Africa. One of the issues reviewed in this study is the failure of supporters to implement and monitor impact mitigation measures, which has led to environmental degradation in several mining locations. The study also noted that the EIA guidelines are too general, list-based, have long been superseded by developments, and do not reflect current thinking. The author believes that the EIA cannot be compiled without understanding all the other parameters involved in the preliminary design, thus adding value to the EIA stated by Simpson and Basta.37Environmental impact assessment should not be done as an afterthought, but rather as a collaborative method to maximize real environmental improvement. The study also noted that the EIA guidelines and the EIA report review are out of sync. In particular, the EIA conducted by Mamba Metal Group in Venda did not emphasize the important elements of the EIA process, such as participation, substitution and coordination. This article aims to demonstrate that most mining projects do not comply with South African principles of procedural justice and constitutional provisions on environmental justice. The research attempts to determine the challenges faced in implementing the environmental impact assessment system and its solutions. The research shows that environmental research on governance and justice has determined how stakeholders shape the 36Bratman, E., Dias, C.B., 2018. Development blind spots and environmental impact assessment: tensions between policy, law and practice in Brazil's Xingu river basin. Environ. Impact Assess. Rev. 70, 1–10. https://doi.org/10.1016/j.eiar.2018.02.001. 37Simpson, N.P., Basta, C., 2018. Sufficiently capable of effective participation in environmental impact assessment? Environ. Impact Assess. Rev. 70, 57–70. https://doi.org/10.1016/j.eiar.2018.03.004.
Environmental Impact Assessment in the context …77 processes and outcomes of various government decisions. Dawson believes that streamlining EIA is crucial in South Africa.38Therefore, it is necessary to develop alternative tools to supplement or replace the EIA where appropriate. The study also noted that there is a need to improve collaborative governance, as the lack of adequate coordination has been an obstacle to the effective management of the EIA process in South Africa. The research attempts to determine the challenges faced in implementing the environmental impact assessment system and its solutions. The research shows that environmental governance and judicial research have determined how stakeholders shape the process and results of various government decisions. Bram and Nwanekezie believe that streamlining EIA is essential in South Africa.39Therefore, it is necessary to develop alternative tools to supplement or replace EIA under appropriate circumstances. The study also pointed out that collaborative governance needs to be improved, as lack of adequate coordination has been an obstacle to effective management of the EIA process in South Africa. 5.0 Proposed EIA follow-up process This research proposes a monitoring plan for the environmental impact assessment that is integrated with local conditions. It should start with the selection process carried out at the initial stage of the process. During this process, supporters consult with relevant government departments and stakeholders for their views and technical assistance in the EIA follow-up process. The screening process is critical because it provides a form of analysis to determine which items need EA tracking. Such a procedure will strengthen current practices, making EIA monitoring mandatory only for projects that require EA monitoring. For example, a project with one or more of the following characteristics can design a detailed monitoring plan as part of the EA process. The characteristics include that the project is located in an environmentally sensitive area, such projects must be widely rejected by the public, and the project site must be located in a new location. In 38Bratman (n 30 above) 16 39Bram, N.; Nwanekezie, K. Conceptualizing Strategic Environmental Assessment: Principles, Approaches and Research Directions. Environ. Impact Assess. Rev. 2017, 62, 165–173
Laisani, Choma & Magoro (AJOPAES) Vol. 1, (No. 1), December 2022, pp 61-81 78 addition, the project must require complex or subtle mitigation measures and must be associated with increased risks to health, safety and the environment. Bram and Nwanekezie further pointed out that these standards can be used as reference requirements for such projects, which constitute risk factors for the sustainable development of communities.40Zimbabwe is one of the countries with well documented step-by-step research guidelines for environmental impact assessment. The primary objective is to promote compliance with environmental assessment policies by government departments, project developers, and the public. The steps in the guide are selection, prospectus, terms of reference (TOR) and scope, investigation, review, acceptance or non-acceptance of the EIA, terms and conditions, and monitoring and auditing. The local population plays an important role in the EIA monitoring plan. All relevant information about the monitoring plan can be provided to these locals at local government offices and local premises (such as the chief's residence and law enforcement office). In addition, the local population is also in a good position to conduct periodic inspections and identify changes caused by the implementation of the proposed project. 6.0Conclusions and recommendation The study notes the view that South Africa does have fairly good EIA participatory procedures in place to guide environmental consultants and include Integrated Action Plans (IAPs) to inform mining developments, these have been abused by consultants, mining companies and national government. The study notes that institutions of environmental governance in South Africa are intended to eliminate decision-making and participatory power from civil society. Local communities carry the externalised costs of production that is environmental decay through contamination of the environment and health. An evaluation of each in terms of its contribution to environmental sustainability principles is given and recommendations made for the inclusion of EIA follow-up as a standard component of the EIA process. The study pointed out that the current environmental impact assessment process in South Africa faces considerable challenges. Paradoxically, the opportunity to improve the EIA process lies in the follow-up Environmental Assessment (EA) program. This is because the plan is an iterative process that provides opportunities for remediation 40Bram (n 33 above) 17
Environmental Impact Assessment in the context …79 when problems arise and provides lessons for improving the EIA process. Therefore, the follow-up action of the environmental impact assessment is essential for the environmental assessment to maintain effective management tools and the life cycle of the project to ensure that the correct environmental information is provided at the correct time. It provides a channel to transfer follow-up results to future EIA research. In this regard, it provides an opportunity to strengthen South Africa’s current environmentalimpact assessment procedures. The advantage of the method proposed in this document is that it does not require amendments to the legislation, but is a follow-up work on the basis of the existing environmental impact assessment procedure, and takes advantage of the existing opportunities in the procedure, and can be replicated in other developing countries The study recommends the following: Create an environmental management agency under NEMA, which will be responsible for the supervision and promotion of sustainable management of natural resources and protection of the environment with stakeholder plan There is need for harmonisation and rationalization of environmental legislation inSouth Africa. Public participation should be an integral component in EIA and EA approvals References A David Collins, Public Participation in Environmental Impact Assessments for Foreign Investment Projects: a Canadian Perspective: In Public participation and Foreign Investment Law (2021) Nijhoff International Investment Law Series Alexandra Jiricka-Pürrer, Martin Bösch and Ulrike Pröbstl-Haider (2018) Desired but Neglected: Investigating the Consideration of Alternatives in Austrian EIA and SEA Practice, MDPI, Sustainability America: A relational indigenous environmental justice. Environ. Justice 10, 175–180.https://doi.org/10.1089/env.2017.0017. Bakker, L., 2019. Security blurs and citizenship: Consequences in Indonesia. In: Diphoorn, T., Grassiani, E. (Eds.), Security Blurs: The Politics of Plural Security Provision. Routledge, Taylor & Francis
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