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Bulldozing environmental rights by fast-tracking infrastructure development

Written by  Centre for Environmental Rights Friday, 29 March 2013 21:39
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27 March 2013 was the closing day for comments on the draft Infrastructure Development Bill, introduced by Minister of Economic Development Ebrahim Patel in the National Assembly last month, and designed to facilitate designation, authorisation and implementation of the special infrastructure projects (SIPs). Developments that can be declared as SIPs include all major infrastructure works of “significant economic or social importance” or that would “contribute substantially” to any government infrastructure development strategy, and expressly includes mines, oil and gas pipelines, refineries, and power stations – all developments that pose high risk to the environment.

While insiders say that the Bill is a vast improvement on earlier drafts, its disregard for the very notion of sustainable development and integrated environmental management and planning is distressing.

The principle of streamlined and integrated processes of approval for environmental and related authorisations for development, and greater coordination between different authorities, is sound and worthy of support. We believe that such processes promote integrated environmental management and planning, and reduce the burden on communities and civil society organisations who participate in such processes on their own behalf and in the public interest. We also recognise the dire need to improve infrastructure and access to essential services. However, we assert that suitable strategic and impact assessment processes, with their attendant expert input and public consultation phases, are crucial to determining the type of infrastructure that is best suited to the region and service to be provided. Rather than delaying infrastructure roll-out, these processes can serve to minimise the impacts, environmental risks and long-term maintenance costs of infrastructure projects.

However, the Bill effectively disregards decades of national policy development in relation to environmental management and sustainable development, and existing government commitments to sustainable development and environmental management. Despite the express obligations in section 24 of the Constitution to “secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development”; despite adoption of the National Sustainable Development Plan by Cabinet in 2011; despite recognition of the need for development that is sustainable in the National Development Plan; and despite the Bill envisaging the roll-out of large scale infrastructure much of which will have significant, long-term environmental impacts – the Bill contains not a single reference to sustainable development.

Against this background, the Bill provides a process flow for authorisation of SIPs within 220 days, from “approval of the project plan” to “regulatory decision” – “which timeframe may not be exceeded”:

  • 7 days to submit an application after approval of the project plan
  • 30 days for public consultation on the application and project plan
  • 52 days to amend the application and project plan and submit to the relevant authority
  • 60 days to prepare a “detailed development and mitigation plan”
  • 44 days for public consultation on and review of the development and mitigation plan by the relevant authority
  • 57 days for consideration and assessment by the relevant authority

Apart from contradicting existing, well-established procedures for environmental impact assessment (already in their third stage of development), in many instances these time periods will not be sufficient for responsible scientific assessment of potential detrimental impacts of the SIPs on water resources and air quality (to name but a few), or for developing adequate mitigation measures to address these impacts. The time periods can also never be sufficient to gauge the opinions of residents and other affected parties, whose inputs may well improve and expedite the implementation of the SIPs.

To achieve such fast-tracked authorisation, the Bill co-opts decision-making authorities onto various structures, and essentially places obligations on those authorities to ensure that the application and authorisation processes run without a hitch. This would place those Departments who hold the environment and water resources in public trust for the people of South Africa in an impossible conflict position, fundamentally undermining their Constitutional and legislative mandates. The Bill effectively sanctions political pressure on these Departments and their officials to grant authorisations for the SIPs without adequate impact assessment, and even if existing data motivates for a refusal of authorisation: the Bill provides for “negotiation” with an authority “with a view to obtaining the necessary approval… and [making] every reasonable effort to avoid an intergovernmental dispute”.

In the Centre for Environmental Rights’ comments to the Department of Economic Development, we have set out in detail the ways in which the Bill could be vulnerable to Constitutional challenges. These include:

  • potential violation of the right to an environment not harmful to health or well-being, and to have the environment protected for future generations through reasonable legislative and other measures, which we submit include the National Environmental Management Act, 1998 and its EIA regulations, already in their third iteration;
  • potential violation of the right to just administrative action;
  • potential violation of the cooperative governance provisions in the Constitution, including by giving insufficient recognition of local authorities’ Constitutional powers to regulate local land use planning.

Over and above the procedural aspects of the fast-tracking proposed in this Bill, it is important to understand the potentially radical consequences of short-cutting established time-frames for EIA, public participation and appeal. In simple terms, poor or inadequate assessments of risks posed to water quantity and quality, particularly in the drier and more variable climatic zones of the country, can expose entire communities to loss of access to drinking water. South African taxpayers are already bearing the cost of poor planning and inadequate regulation of environmental impacts in matters like acid mine drainage; ultimately, though, it is poor and vulnerable communities who cannot afford to relocate to avoid environmental pressures – the very communities the SIPs are supposed to assist – who bear the brunt of poor planning and inadequate regulation of environmental impacts.

It is internationally recognised, and firmly established in South Africa’s own policy frameworks, that identifying and addressing environmental issues as early as possible in planning processes is the most efficient and effective way of minimising later costs, delays and re-work, and costly and slow legal challenges. A cornerstone of EIA is the need to consider reasonable and feasible alternatives to the proposed project, and their impacts on the environment and affected communities. The earliest possible engagement with environmental authorities and stewards of our natural resources base in seeking the “best practicable environmental option” to achieve strategic projects, simultaneously minimising environmental risks, should therefore both expedite national objectives and ensure sustainable development. Environmental concerns need to be properly considered from the beginning of the project and not simply when raised in reaction to detailed plans already on the table. South Africa has world-leading strategic spatial environmental information to aid in development planning (both to avoid unnecessary environmental impacts and to reduce the environmental risk faced by projects), yet the Bill provides for no added impetus to use such information to facilitate and expedite appropriate infrastructure projects.

South Africans deserve significant public investment in and roll-out of infrastructure to facilitate economic growth. They are also, however, entitled to infrastructure development that is responsible, well-conceived, enjoys high levels of public support, does not prejudice their health and well-being, and does not cause environmental damage that will slow these projects down and generate long-term liabilities for the state. These are not radical ideas that can be bulldozed in the throes of election fever, but notions entrenched in the Constitution and our national policy framework. Pushing the Bill through in its current form will cost South Africa dearly.



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‘People the same as pigs’ in the VaalBy Sheree Bega | 16 Oct 2020 Foul: Pigs root in sludge in Emfuleni municipality. (Photos: Delwyn Verasamy/M&G) Clutching her one-year-old son, Monica Ndakisa jumps onto a brick to avoid the sewage that runs like a dark stain across the passage in her home.  “We’ve lived like this for years,” she says pointing to one of the culprits: her blocked toilet, which causes sewage to pool into nearly every room of her home in Sebokeng hostel in the Vaal. “The smell is too terrible.” It’s worse outside. Her small garden is submerged in a sickly, grey sewage swamp. To stop the human waste from seeping inside, Ndakisa has built a concrete barrier at her front door. But it’s futile. “My five-year-old son was in the hospital for two weeks with severe eczema and they told me it’s because of all this sewage. It makes us cough all the time. It’s so depressing to live like this.” Samson Mokoena, of the Vaal Environmental Justice Alliance (Veja), shakes his head. “It’s chaos. You can’t allow people to live in such conditions. The government is playing with our people.” Ndakisa’s neighbour, Maphelo Apleni, has used pipes to divert the stream of sewage from his garden. “It never stops,” he says grimly. “We have a municipality [Emfuleni] that doesn’t care about us.” Mziwekaya Mokwana points at a sewage-filled furrow clogged with litter where pigs are feeding. “This is no better life,” he says. “People are the same as pigs here.” Sewage in Vaal River system  Last month, the human settlements, water and sanitation department said it would take at least another three years to minimise and eventually stop the sewage flowing into the Vaal River system. In a recent presentation, it states how “design treatment capacity is at its limit, housing development investments are delayed and there are negative environmental and health impacts”. Ageing infrastructure is to blame for sewage spillages, coupled “with a lack of operation and maintenance investment” as well as theft and vandalism.  It will cost about R2.2-billion “to have a sustainable impact on the Vaal River catchment within Emfuleni local municipality”. The department’s plan aims to safeguard infrastructure; repair the bulk network to eliminate spillages, key and critical pump stations and rising mains; refurbish wastewater treatment works “in an attempt to comply with discharge licence conditions”; and achieve operation and maintenance requirements. But Maureen Stewart, the vice-chairperson of Save the Vaal (Save) is sceptical. She says there is no political will to tackle the crisis. “These problems go back over 12 yearsand reached crisis proportions when the system collapsed in 2018. The result is some 200 million litres of raw or partially treated sewage entering the Vaal River and its tributaries daily.” Stewart warns that it’s an ecological disaster that also affects agriculture and has serious health implications for people living above and below the Vaal Barrage Reservoir, which is 64km long and used to supply Johannesburg with water but is now too polluted to do so.   She says the Emfuleni municipality has been under Gauteng’s administration since mid-2018 and, despite promises, the status quo remains — unbridled sewage pollution of the Vaal River and Emfuleni.  “The Ekurhuleni Water Care Company (Erwat) was appointed to take over in 2019 and were given funding and spent R179-million. Their contribution was to unblock pipes and remove 50 tons of rubbish from the system. This opened the pipes but, as the pump stations and the three wastewater treatment plants remain dysfunctional, there has been no improvement. Raw sewage continues to flow into the Vaal River and into the streets of Emfuleni.”  Monica Ndakisa sweeps overspill from her toilet. There was a “glimmer of hope” when Minister, Lindiwe Sisulu, visited the Vaal in January this year, assuring Save that action will be taken and that funds are earmarked in the 2020-2021 budget.  “It seems her enthusiasm has not filtered down to her department,” says Stewart. “After Erwat’s contract was not renewed, the department stated they would undertake the repairs by appointing their own contractors. Tender documents have been languishing on someone’s desk at the department since July.” Sputnik Ratau, spokesperson for the department, says the government has committed resources towards solving the sewage problem in the Vaal.  “Government sent state institutions to assist Emfuleni local municipality (ELM) in this regard; these include SANDF and Erwat. Recently, the department finalised the scope of all that needs to be done to solve the sewage problem. There are 26 work packages that will be advertised in the coming weeks for competent contractors to take part in solving the sewage challenge in the Vaal.”  The department, says Ratau, aims to have a “busy festive season” working with the appointed contractors. “In the 2020/21 financial year, the department has committed R911-million towards solving this challenge. The total investment by the department in 2020/21 financial year is R1.2-billion in the Vaal; this includes the building of additional wastewater treatment capacity and associated pump stations.” Maphelo Apleni installs pipes to drain sewage out of his garden. Before the end of the financial year Module 6 in Sebokeng water care works will be launched, “subject to no community unrest disrupting construction”. The department, Ratau says, has to take all necessary precautions to ensure that section 217 of the constitution is followed as far as procurement is concerned.  “Thus the departmental checks and balances had to be followed to the letter to ensure compliance with procurement processes. This unfortunately caused delays but was necessary.” Within the next month the department aims to advertise for all the contractors “that can assist in this challenge”. Ratau says commitment dates, including start and completion dates, “will be sent not only to Save but all interested stakeholders once the contractors are appointed. The department cannot preempt this before the appointments are made.” He says that R7-billion is required to “solve the pollution challenge in ELM. This needs to be coupled with operations and maintenance, which is a function of ELM at local government level”. Save is once again taking the government to court to enforce legislation to ensure infrastructure is repaired within phased completion dates and that sufficient funds are made available for ongoing maintenance and operation of the system by the municipality, supervised by the high court.   Veja’s Mokoena is glad the department is taking over the Vaal clean-up. “This situation was supposed to be fixed a long time ago. So much money has been squandered at the municipal level.” Rand Water’s delay Eight months. That’s how long it took Rand Water to release public water quality records for the Vaal Barrage system to a team of aquatic specialists investigating the ecological health of the river system.  In January, Aquatic Ecosystems of Africa submitted a Promotion of Access to Information Act (Paia) application to Rand Water for access to its water quality analysis data for the Vaal Barrage and downstream since 2015.  Nothing happened, it says, until Tshepang Sebulela, the Paia compliance officer from the South African Human Rights Commission (SAHRC) intervened late last month.  New pipelines are being installed in the Vaal. In an email to Rand Water, Sebulela noted how the multiple requests for records by Aquatic Ecosystems and the Federation for a Sustainable Environment have allegedly been ignored, which in terms of Paia are deemed refusals.  “The SAHRC is greatly concerned by a large number of public institutions who provide such important services to the public who refuse to meet their basic legislative obligations,” he wrote. The records landed in the firm’s inbox on 2 October.  Aquatic Systems’ Simone Liefferink says sourcing surface water system data is becoming increasingly difficult. “It’s disturbing the data is not adequately managed, readily accessible to the public and private sectors who pay tax and other water charges for effective catchment management to be implemented.”  Rand Water did not explain the reason behind the delay.  That the information was provided in a PDF format of almost 2 000 pages “frustrates and delays” its interpretation, says Liefferink.  She and her partner, Russell Tate, began their investigation after a major fish kill in the Vaal River in mid-2018. That September they testified at the HRC’s inquiry into the contamination of the Vaal River that high levels of ammonia from the wastewater treatment works was wiping out life in the river system. A snap-shot analysis of the data provided by Rand Water shows high levels of E coli, ammonium and ammonia — key indicators of sewage pollution. Average E coli counts soared from 12 705 colony-forming units per 100ml in 2010 to more than 107 000 in 2018 and 66 923 in 2020.  “The contributing factor is clear — dysfunctional sewage treatment conveyances and treatment plants. More disturbing is the long-standing deterioration of the system that ever increases the loss of biodiversity and other essential ecological functions and human services. Yet this matter is still not treated with extreme urgency,” says Liefferink. HRC’s long-awaited report It’s taken nearly two years for the Human Rights Commission to release its report into the Emfuleni sewage crisis. “Their report has not yet been taken to parliament, nor has it been published. Why?” asks Save’s Stewart. Buang Jones, the Gauteng manager of the HRC, says the provincial report has been finalised.  “It’s with the commissioners now for final adoption and approval. Once it’s been approved, it will be shared with implicated parties and they’ll have 10 days to comment. This is a countrywide issue and the report seeks to address broader challenges when it comes to river pollution and wastewater management,” he says.  Read the original article here.


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