ENV102
Environmental Law
ERM 1241/1641
(Diploma Management
in Nature Conservation)
UNIT 3:
SA’s Framework Environmental Legislation
Lecturer:
Mr Linton Munyai
School of Biology and Environmental Science
UNIT 3 OUTLINE
• Part 1 – Generic structure of environmental laws
• Part 2 – Constitution and the environment
• Part 3 – National Environmental Management Act (107 of 1998)
READINGS FOR UNIT 3
• Kidd, M. (2011). Environmental Law. 2nd ed. Cape Town: Juta & Company.
• Chapter 2: The Constitution and Framework Environmental Legislation.
• King, N.D., Strydom & A.H. Retief F.P. (eds). (2018). Environmental Management
in South Africa. 3rd ed. Cape Town: Juta.
• Chapter 4: National Environmental Management Act 107 of 1998 (NEMA)
PART 1- GENERIC STRUCTURE OF ENVIRONMENTAL LAWS
PART 1 OBJECTIVES & OUTCOMES
Objectives Outcomes
• Introduction to the generic structure of an • Identify the components typically found in
env. Act and its components env. laws.
• Overview of the purpose and content of each • State the purpose each component.
of the components.
• Describe the manner in which some of these
• Explain how some of the components are component are prescribed in the law.
described in the law.
GENERIC STRUCTURE OF AN ENVIRONMENTAL ACT
• Env. Acts usually contain similar
components.
• i.e. they have a similar layout.
• These make up the typical structure of
an Env. Act.
• Each component is essential and
serves a particular purpose.
PRESCRIBED DEFINITIONS
• Definitions are found at the beginning of all Acts.
• Their purpose is to:
• increase certainty in the interpretation of the Act
• narrow or broaden the ordinary meaning of a particular word used within the Act
• ensure consistency in the meaning of words across different laws.
• Legal definition sections are crucial as they impact on the scope or applicability of
the law
• It is therefore important to carefully consider the content of the legal definitions
when reading and implementing an Act.
EXAMPLE: “POLLUTION"
NEMA vs Water Act vs Waste Act
According to NEMA: “pollution" means any change in the environment caused by-
(i) substances;
(ii) radioactive or other waves; or
(iii) noise, odours, dust or heat,
emitted from any activity, including the storage or treatment of waste or
substances, construction and the provision of services, whether engaged in by
any person or an organ of state, where that change has an adverse effect on
human health or well-being or on the composition, resilience and productivity of
natural or managed ecosystems, or on materials useful to people, or will have
such an effect in the future
EXAMPLE: “POLLUTION"
NEMA vs Water Act vs Waste Act
National Water Act: “pollution” means the direct or indirect alteration of the
physical, chemical or biological properties of a water resource so as to make it –
(a) less fit for any beneficial purpose for which it may reasonably
be expected to be used; or
(b) harmful or potentially harmful –
(aa) to the welfare, health or safety of human beings;
(bb) to any aquatic or non-aquatic organisms;
(cc) to the resource quality; or
(dd) to property;
EXAMPLE: “POLLUTION"
NEMA vs Water Act vs Waste Act
• In the Waste Act: “pollution” has the meaning assigned to it in section 1 of
the National Environmental Management Act
• Same meaning of the term is maintained across different Acts.
OBJECTIVES/PRINCIPLES
• Also found at the beginning of an Act.
• Purpose:
• To provide a broad context against which the subsequent detailed legal provisions should
be interpreted and applied
• The manner in which these provisions are formulated differs significantly:
• Some laws specifically prescribe how the objectives and principles should be applied
• Some laws compel the consideration and application of principles/objectives by
authorities
• Some laws include them to guide authority’s decision-making
PLANNING TOOLS
• Env. Acts usually contain comprehensive planning tools
• These are usually prescribed as:
• frameworks, strategies, plans, programmes etc.
• Purpose:
• to guide and enable effective implementation of the legal mechanisms contained the Act.
HOW ARE PLANNING TOOLS PRESCRIBED IN AN ACT?
• In prescribing a planning tool(s), an Act usually states:
• The type of planning tool that must be developed (framework, strategy, plan etc)
• The general purpose of the prescribed planning tools
• The outline of the contents of the planning tool (specific details that the tool must include)
• The authority that is responsible for developing and implementing the planning tool
• Procedures to be followed in developing the tool.
• The duration and review periods of the tool.
• Monitoring and reporting in the implementation of the tool.
PERMITTING TOOLS
• Permitting is the most used legal tool in environmental law.
• It involves authorities identifying a number of activities for which individuals
required a permit to undertake.
• The purpose of permitting tools is to regulate:
• the use of natural resources (biological resources, water, marine living resources; minerals)
• activities which potentially result in environmental pollution or degradation.
TYPES OF PERMITTING TOOLS
• Permit
• Approval
• Consent
• Licence
• Certificate
• Environmental Authorisation
• Authorisation
• Right
HOW ARE PERMITTING TOOLS PRESCIBED IN AN ACT
• Identification of permitted activities
• Defined activities (What are the activities that requires permits?)
• Lists (Act/Regulations)
• National/regional/lists
• Identification of permitting authorities
• “Competent/issuing authorities
• National/provincial
• Delegation
• Prescribed minimum qualification
• Powers and duties of permitting authorities
• Issue permits
• Use of conditions
HOW ARE PERMITTING TOOLS PRESCIBED IN AN ACT
• Application procedure
• Qualifying applicants
• Application fees
• Application forms
• Information disclosure
• Provision for EIA
• Scoping
• Different forms/levels if EIA (basic or full assessment) NB.
• Party responsibilities
• Reports by 3rd parties (independence requirements, qualifications/certification)
• Nature of reports
• Timeframe for reports
• Monitoring and reporting
• Form
• Timing
• consequences
HOW ARE PERMITTING TOOLS PRESCIBED IN AN ACT
• Decision-making
• Decision-making criteria
• Decision-making prerequisite
• Timeframes
• Cooperative governance (cross-consultation time limits; cross representation on decision-making
bodies
• Public Participation
• Form/method (notice &comment/ public hearings)
• By whom (applicant/appointed environmental consultant/authority)
• Timing (once off multiple/throughout)
• The authorisation
• Form of permit
• Right/ obligations
• Conditions
HOW ARE PERMITTING TOOLS PRESCIBED IN AN ACT
• Renewal Procedures
• Frequency
• Consequences
• Public participation
• Withdrawal & amendment of authorisations
• When & how
• Public participation?
• Appeal & Review
• To whom
• By whom
• Timeframes
COMPLIANCE & ENVIROCEMENT TOOLS
• Purpose:
• ensure adherence to the legal provisions articulated in the Act
• Compliance and enforcement mechanisms can be classified into five main
categories, namely:
• administrative measures
• criminal measures
• incentive-based measures
• voluntary measures
• civil measures
