In the case of an environmental non-compliant event or an unforeseen environmental catastrophic event, there is a duty to keep the public informed on the state of the environment, especially when the event affects their immediate environment, life, or livelihood. Section 2 of the National Environmental Management Act (NEMA) includes several principles which should guide Organs of State in how the environment should be managed. Included in this Section is the broad view of participation of all interested and affected parties (I&APs) in environmental governance, including the encouragement of I&APs to be informed, the development of understanding, the transfer of skills and capacity for achieving equitable and effective participation [Section 2 sub-section (4), (f) (g) & (h)]. Effective participation, speaks not only to the right to comment or object to development but, the right to be provided with official information and be engaged in any and all processes that may affect them going forward.
It is difficult for an I&AP to have equitable and effective participation if they are not provided with the information required to stimulate that participation. Information should take I&AP’s physical, psychological, developmental, cultural, and social interests and needs into consideration as per Section 2 (2). However, the norm for most environmental events is for confidentiality and an almost secretive silence as the situation is rectified. However, this goes against the principles in NEMA and in how the rectification of environmental matters should include the input of those who are either interested or affected.
Section 30(10) of NEMA states -:
(10) A relevant authority which has taken steps under subsections (6) or (8) must, as soon as reasonably practicable, prepare comprehensive reports on the incident, which reports must be made available through the most effective means reasonably available to-
- the public;
- the Director-General;
- the South African Police Services and the relevant fire prevention service;
- the relevant provincial head of department or municipality; and
- all persons who may be affected by the incident.
In terms of Section 30(10), the relevant authority has a duty to make reports and information public. Hence, once the relevant authority has issued a directive in terms of sub-section 6 to the polluter, instructing the polluter on measures that are required in the rehabilitation and restoration of the environment, they are to provide report/s on the incident through the “most effective means reasonably available”. It is important to note that within the directive the authority may also instruct the polluter to provide reports to themselves and the public during the remediation and rehabilitation processes in order to respond to Section 2 (4) and Section 30 (10). However, the method of distribution for these reports then becomes problematic.
Media Reports
While media articles sufficiently inform the public, they are not a suitable forum to deal with specialist reporting as per Section 30 (10) – many specialist reports contain reams of testing figures which may be non-sensical to a non-professional. Further, the availability of the report/s in a mutual location may be problematic due to the cost of printing the reports, the number of reports, and inefficient transport opportunities for the interested party. With the above in mind, the use of an online information and document repository, available on an open website, can be deemed a reasonably practical method of making information and reports available for all interested and affected parties, as well as, the public at large.
Accessible Online Information
Therefore, the setup of an online information and document repository responds to this duty by providing all citizens with the information at one time, letting the user decide which information they are interested in reading and which information they are not interested in. Additionally, the advantage of uploading numerous documents at various times provides the Authority with a relatively easy platform to keep citizens updated on the progress of the event regardless of document size or need for printing and providing hardcopy reports. The open-access through registration on the database ensures that these documents are available to the public while protecting the documents from ‘bots’ and unnecessary spam. Further, any I&AP with access to the internet or mobile data can download and peruse the reports at their leisure, providing all parties with the opportunity to stay informed on the current process and the specialist findings of the environmental event. The online hosting of such a repository allows the repository to be updated as and when necessary as reports are released into the public realm.
However, in order to ensure the necessary confidentiality that these sensitive reports require, and which may fall within the ambit of Section 31Q of NEMA, then consideration of Section 31Q(1A) is required. Therefore, reports should be carefully considered and the information reviewed prior to the upload of any document or report on to a repository. This review does not limit the release of crucial information, but rather, offers an opportunity for peer-review, clarifications with the specialist and any further information that may be required.
Cornubia Environmental Information
In the case of the Cornubia Environmental Info Website setup by GeoAfrika Technologies and managed by HSG Attorneys Inc. an online document repository was deemed the most impactful way of making specialist reports, and necessary updates to the public at large. The documents and reports uploaded into the system were all considered necessary disclosures to the public in line with Section 31Q (1A).
This repository has been a highly successful method of disseminating information to the public. Since its inception in 2021, there have been 1500+ documents downloaded by approximately 70 members of the public. The repository can be found at http://www.cornubiaenviroinfo.co.za/.
For more information on this project or our services email us at legal@hsginc.co.za or contact us here.
GeoAfrika 