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African Human Rights Law Journal

versão On-line ISSN 1609-073X

Afr. hum. rights law j. vol.10 no.2 Pretoria  2010

 

ARTICLES

 

The meaning of certain substantive obligations distilled from international human rights instruments for constitutional environmental rights in South Africa

 

 

Erika de WetI; Anél du PlessisII

IProfessor of International Constitutional Law, University of Amsterdam, The Netherlands; Extraordinary Professor, University of Pretoria, South Africa
IIAssociate Professor, Faculty of Law, North-West University (Potchefstroom Campus), South Africa

 

 


SUMMARY

The South African Constitutional Court has not yet had sufficient opportunity to clarify the meaning of positive obligations of the state imposed by the environmental right contained in section 24 of the Constitution of the Republic of South Africa, 1996. The contribution attempts to determine some of the positive obligations of a substantive nature implied by this section. It does so by drawing inspiration from the way in which international (both universal and regional) human rights bodies have interpreted and applied relevant provisions of different human rights instruments within their respective jurisdictions. In addition, it illuminates the extent to which these obligations may have already been given effect to in domestic law. The human rights instruments that are considered for the purposes of this article include the International Covenant on Civil and Political Rights; the African Charter of Human and Peoples' Rights; the European Convention of Human Rights and Fundamental Freedoms; the American Declaration of the Rights and Duties of Man; and the American Convention of Human Rights.


 

 

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* Blur LLB LLD (Free State), LLM (Harvard), Habilitationsschrift (Zurich); E.deWet@uva.nl
** BA LLB LLM (Potchefstroom), LLD (North West); anel.duplessis@nwu.ac.za
1 The authors wish to express their gratitude to the South Africa-Netherlands Research Programme on Alternatives in Development (SANPAD) for its financial support that enabled the research for this publication. This contribution also forms part of a project of the Netherlands Organisation for Scientific Research (NWO) titled 'The emerging international constitutional order: The implications of hierarchy in international law for the coherence and legitimacy of international decision-making' and a project of the South African National Research Foundation (NRF) titled 'Local government and environmental rights'. The authors would further like to express their gratitude to Proff Jonathan Verschuuren and Dinah Shelton for their valuable comments on an earlier draft.
2 D Garcia San José Enforcing the human right to environment in Europe: A critical overview of the European Court of Human Rights case law (2004) 15.         [ Links ]
3 Constitution of the Republic of South Africa Act 108 of 1996, assented to on 16 December 1996, http://www.constitutionalcourt.org.za/site/theconstitution/english-09.pdf (accessed 13 July 2010).
4 The Constitutional Court's willingness to draw on international and foreign domestic law in its application of the Constitution has been shown in several of its judgments over the last couple of years. Two examples include S v Zuma & Others 1995 2 SA 642 (CC) paras 14-15 and Sanderson v Attorney, Eastern Cape 1998 2 SA 38 (CC) para 26.
5 Although Fuel Retailers Association of Southern Africa v Director-General Environmental Management, Department of Agriculture, Conservation and Environment Mpumalanga Province & Others 2007 6 SA 4 (CC) (Fuel Retailers case) was decided by the Constitutional Court and based on parts of sec 24 of the Constitution (n 3 above), the case merely focused on the need to create a balance between sustainability considerations in public environmental decision making. In addressing the most recent case of environmental significance, Mazibuko v The City of Johannesburg & Others 2010 3 BCLR 239 (CC), the Constitutional Court primarily relied on the right to access to sufficient water provided for in sec 27 of the Constitution.
6 The need for such a determination is clear from inter alia Feris's assessment as quoted by LJ Kotzé & AR Paterson 'South Africa' in LJ Kotzé & AR Paterson (eds) The role of the judiciary in environmental governance: Comparative perspectives (2009) 579.
7 National Environmental Management Act 107 of 1998 (NEMA), assented to on 19 November 1998, http://www.info.gov.za/view/DownloadFileAction?id=70641 (accessed 13 July 2010).
8 Sec 2(4)(n) and ch 6 of NEMA (n 7 above).
9 For a brief overview of the relevance of international human rights instruments and South African law, see J Dugard International law A South African perspective (2005) 336-340.
10 European Convention for the Protection of Human Rights and Fundamental Freedoms 4 November 1950, 213 UNTS 221.
11 See extensively E de Wet 'The "friendly but cautious" reception of international law in the jurisprudence of the South African Constitutional Court: Some critical remarks' (2005) 28 Fordham International Law Review 1529.
12 African (Banjul) Charter on Human and Peoples' Rights, 27 June 1981, 1520 UNTS 217.
13 American Declaration on the Rights and Duties of Man, April 1948, reprinted in OAS/ SerL/V/I4 Rev 9 (2003).
14 American Convention on Human Rights, 21 November 1969, 1144 UNTS 123.
15 International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171.
16 D Shelton 'The environmental jurisprudence of the international human rights tribunals' in R Picolotti & JD Taillant (eds) Linking human rights and the environment (2005) 12.         [ Links ]
17 In the absence of an international supervisory body that renders authoritative decisions on the scope of treaty obligations, it is up to the state parties themselves to determine the scope of the obligations. See F Viljoen International human rights law in Africa (2007) 28-30.
18 See Dugard (n 9 above) 16-26. For comments on international law and the South African Constitution from an environmental law perspective, see also J Glazewski Environmental law in South Africa (2005) 29-30.
19 See K O'Regan 'Human rights and democracy - A new global debate: Reflections on the first ten years of South Africa's Constitutional Court' (2004) 32 International Journal of Legal Information 207.
20 P Birnie & AE Boyle International law and the environment (2002) 259.         [ Links ] The importance of international developments in domestic sustainable development policy is also recognised in the South African context in the (as it was called at the time) Department of Environmental Affairs and Tourism (DEAT) People-planet-prosperity: Draft strategic framework development strategy for sustainable development in South Africa (2006) 22.
21 Birnie & Boyle (n 20 above) 257.
22 D Bodansky 'The use of international sources in constitutional opinion' (2004) 32 Georgia journal of International and Comparative Law 425;         [ Links ] see also O Tshosa National law and international human rights law cases of Botswana, Namibia and Zimbabwe (2001) 10; J Verschuuren De zorg van de overheid en het recht van de burger (1994) 79.
23 See in particular A Ulvsbäck Standardising individual environmental protection (2004) 1-2 15-16. See also AR Mowbray The development of positive obligations under the European Convention on Human Rights by the European Court of Human Rights (2004) 183.
24 See in particular Social and Economic Rights Action Centre (SERAC) & Another v Nigeria (2001) AHRLR 60 (ACHPR 2001) (SERAC case) paras 44-46. The African Commission also identified a fourth type of obligation, namely, that of promoting human rights; sec 7(2) of the Constitution similarly refers to the promotion of rights. However, this category, which concerns actions that promote tolerance or develop infrastructure, would also be adequately covered by the obligation of fulfilment; see also D Shelton 'International decisions' (2002) 96 American Journal of International Law 938-939.
25 Inter-American Court Marcel Claude-Reyes & Others v Chile (Merits, Reparations and Costs) judgment of 19 September 2006, Case 12.108, Report 60/03, http://www.corteidh.or.cr/casos.cfm (accessed 13 July 2010); see Inter-American Commission Report on the Situation of Human Rights in Ecuador (Ecuador Report) OEA/serL/V/II66 Doc 10 Rev 1, (1997), http://www.cidh.oas.org/countryrep/ecuador-eng/index%20-%20ecuador.htm (accessed 13 July 2010); European Court Anna Maria Guerra & 39 Others v Italy, judgment of 19 February 1998 (Guerra case) (1998) I Reports of Judgments and Decisions 64; European Court Öneryildiz v Turkey (GC) (Öneryildiz case) judgment of 30 November 2004 (2004-XII) Reports of Judgments and Decisions 657; European Court T
ătar v Romania (Tătar case) judgment of 27 January 2009 (unreported), Case 67021/01.
26 SERAC case (n 24 above) para 53; HRC Apirana Mahuika & Others v New Zealand, decision of 16 November 2000, Comm 547/1993, UN Doc CCPR/C/70/D/547/1993 (Mahuika case); HRC Länsman & Others v Finland (No 2) (Länsman case) decision of 22 November 1996, Comm 671/1995, UN Doc CCPR/C/58/D/671/1995; Inter-American Court Mayagna (Sumo) Awas Tingni Community v Nicaragua (Awas Tingni case) judgment of 31 August 2001 (Ser C) No 79 (2001).
27 See SERAC case (n 24 above) para 53; Claude-Reyes case (n 25 above); European Court Hatton v United Kingdom (GC) (Hatton GC case) judgment of 8 July 2003 (2003) 37 EHRR 28, paras 113-116.
28 See inter alia cases cited in nn 25-27 above.
29 See Kotzé & Paterson (n 6 above) 579-586 for an overview of some environmental cases in South Africa that concerned issues of administrative justice, access to information and locus standi.
30 On this point, see D Shelton 'Human rights and the environment: Problems and possibilities' (2008) 38 Environmental Policy and Law 44.
31 D Shelton 'Human rights and the environment' in H Stockinger et al (eds) Updating international nuclear law (2007) 161.
32 In accordance with art 24 of the African Charter: 'All peoples shall have the right to a general satisfactory environment favourable to their development.'
33 The individual complaints procedure resulted from art 55 of the African Charter in conjunction with ch XVII of the Rules of Procedures of the African Commission, 10 June 1995, http://www.achpr.org/english/_info/rules_en.html (accessed 13 July 2010); See also F Viljoen 'The African Commission on Human and Peoples' Rights' in C Heyns (ed) Human rights law in Africa (2004) 420 ff; See also F Ouguergouz The African Charter on Human and Peoples' Rights (2003) 485 ff.
34 See text of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights, 6 October 1998 CAB/LEG/66.5, http://www.chr.up.ac.za (accessed 13 July 2010). At the time of writing, the African Court had only dealt with one case which was declared admissible. See Michelot Yoyogombaye v Senegal, African Court on Human and Peoples' Rights, Appl 001/2008, judgment, 15 December 2009, http://www.african-court.org/en/cases/latest-judgments/ (accessed 13 July 2010).
35 See extensively F Viljoen & L Louw 'State compliance with the recommendations of the African Commission on Human Rights and Peoples' Rights, 1994-2004' (2007) 101 American Journal of International Law 1 ff.
36 See art 1 of the First Optional Protocol to the International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 302; See also SN Carlson & G Gisvol Practical guide to the International Covenant on Civil and Political Rights (2003) 11.
37 Art 27 of ICCPR determines that '[i]n those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language'.
39 Art 8(1) of the European Convention determines: 'Everyone has the right to respect for his private and family life, his home and his correspondence.'
38 See Garcia San José (n 2 above) 29-30. This anthropocentric approach to environmental protection, whereby environmental harm must affect human well-being before human rights guarantees can be invoked, implies that unless there is a specific right to a healthy or ecologically-balanced environment, international human rights procedures cannot be used on behalf of the environment or to prevent threats to other species or to ecological processes. See Shelton (n 30 above) 45; For criticism on the limits of the anthropocentric approach, see G Lohmann 'Sollte es ein individuelles Menschenrecht auf eine angemessene Umwelt geben?' in PG Kirchenschläger & T Kirchenschläger (eds) Menschenrechte und Umwelt (2008) 104. See also A Peters 'Gibt es ein Menschenrecht auf saubere Umwelt? Menschenrechte und Umweltschutz: Zur Synergie völkerrechtlicher Teilregime' in Kirchenschläger & Kirchenschläger (above) 225-226.
40 The single court consists of a chamber system with the possibility of appeal to the Grand Chamber. For a brief overview of the 'old' and 'new' systems of protection provided by the European Convention, see C Ovey & RCA White Jacobs & White. The European Convention on Human Rights (2006) 8 ff.
41 Art 2 of the European Convention determines that '[e]veryone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.'
42 It is worth noting that art 11 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), 17 November 1988, OAS TS No 69, guarantees the right to a healthy environment. However, art 11 cannot form the object of an individual petition before the Inter-American Commission or the Inter-American Court and is therefore not directly enforceable. See Ulvsbäck (n 23 above) 28; see also IK Scott 'The Inter-American system of human rights: An effective means of environmental protection' (2000) 19 Virginia Environmental Law Journal 201.
43 Art 1 of the American Declaration states: 'Every human being has the right to life, liberty and the security of his person.'
44 Art 4 of the American Convention states: 'Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.' See also Scott (n 42 above) 201.
45 Scott (n 42 above) 200.
46 Art 64 of the American Convention also provides for a broad jurisdiction in relation to advisory opinions. For a discussion, see Scott (n 42 above) 206-207.
47 Scott (n 42 above) 201 205. Although this implies that the Inter-American Commission formally relies on different standards when reviewing human rights complaints against different OAS member states, on a practical level the standards in the American Declaration and American Convention often overlap and function as one set of standards.
48 Environmental assessments refer in this context to either environmental impact assessments or environmental risk assessments. Due to some overlap no strict distinction between the two types of environmental assessments is made for purposes of this article. An environmental impact assessment is generally defined as a competent scientific analysis of the possible impacts on the environment, which is required by decision makers prior to the approval of certain activities or developments. See with reference to Robinson, JFC DiMento 'Science and environmental decision making: The potential role of environmental impact assessment' (2005) 45 Natural Resources Journal 297. An environmental risk assessment is more narrowly described as the process for identifying hazards and transforming related scientific data into meaningful information about the undesired effects of human activities on the environment; as well as combining it with an evaluation of the consequences. See F Klopf et al 'A road map to a better NEPA: Why environmental risk assessments should be used to analyse the environmental consequences of complex federal actions' (2007) 8 Sustainable Development Law and Policy 38.
49 SERAC case (n 24 above).
50 Under the African Charter, some indirect environmental protection has also been recognised through the right to health in art 16(1). In Free Legal Assistance Croup & Others v Zaire (Free Legal Assistance Group case) (2000) AHRLR 74 (ACHPR 1995), the African Commission was confronted with the provision of safe drinking water. In determining that the failure by the government to provide such a basic service constituted a violation of the African Charter, the African Commission only focused on art 16(1) and refrained from making the obvious link to art 24 of the African Charter; See M van der Linde & L Louw 'Considering the interpretation and implementation of art 24 of the African Charter on Human Rights and Peoples' Rights in light of the SERAC communication' (2003) 3 African Human Rights Law Journal 177.
51 SERAC case (n 24 above) 'Summary of the facts'; see also Van der Linde & Louw (n 50 above) 168; see Viljoen (n 17 above) 288.
52 SERAC case (n 24 above) para 52.
53 SERAC case (n 24 above) para 52; Van der Linde & Louw (n 50 above) 178; Viljoen (n 17 above) 288.
54 SERAC case (n 24 above) para 53.
55 Öneryildiz case (n 25 above) 657.
56 Öneryildiz case (n 25 above) para 71 ff; Shelton (n 31 above) 145.
57 Shelton (n 31 above) 145 166.
58 European Convention (n 10 above).
59 Art 2 European Convention (n 41 above); European Court Lopez-Ostra v Spain (Lopez-Ostra case) judgment of 9 December 1994 (1995) 20 EHRR 277 para 51. However, it remains essential to determine whether the adverse effects of the environmental pollution had a detrimental effect on one or more of the rights explicitly mentioned in art 8(1). It is not the purpose of that article (or any other in the European Convention) to prevent or address environmental pollution as such; See also Ovey & White (n 40 above) 286; J Verschuuren 'Invloed van het EVRM op het materiële omgevingsrecht in Nederland' in T Barkhuysen et al De betekenis van het EVRM voor het materiële bestuursrecht, VAR preadviezen No 132 (2004) 266.
60 Lopez-Ostra case (n 59 above) para 51.
61 As above. See also M Fitzmaurice & J Marshall 'The human right to a clean environment - Phantom or reality? The European Court of Human Rights and English courts' perspective on balancing rights in environmental cases' (2007) 76 Nordic journal of International Law 117.
62 European Court Fadeyeva v Russia (Fadeyeva case) judgment of 9 June 2005 (2005) 40 ECHR 376.
63 Fadeyeva case (n 62 above) paras 67 & 68. See also Fitzmaurice & Marshall (n 61 above) 128-129.
64 Fadeyeva case (n 62 above) para 134; Ovey & White (n 40 above) 28; Fitzmaurice & Marshall (n 61 above) 130.
65 European Court Hatton v United Kingdom (GC) (Hatton GC case) judgment of 8 July 2003 (2003) 37 EHRR 28 paras 43-45; Similarly, European Court Powell & Raynor v United Kingdom (Powell & Raynor case) judgment of 21 February 1990 (1990) 12 EHRR 355. This case also confirmed that the right to enjoyment of property protected in art 1 of Protocol 1 of the European Convention can also be affected by pollution or other environmental harm, where such harm has resulted in a very substantial reduction of the property at stake. However, in practice, this right has played a marginal role in the indirect protection of the environment in the jurisprudence of the European Court.
66 Hatton GC case (n 65 above) paras 113-116. From a procedural perspective it is worth noting that the Grand Chamber held that the absence of a judicial review procedure which could determine whether the introduction of a new night flight schedule at Heathrow violated the private and family life of those in the vicinity, constituted a violation of the right to a remedy under art 13 of the European Convention. See also Fitzmaurice & Marshall (n 61 above) 126; S Zeichen 'Das Recht auf unversehrte Umwelt und die Europäische Menschenrechtskonvention' in M Geistlinger (ed) Umweltrecht in Mittel- und Osteuropa im International und Europäischen Kontext (2004) 58.
67 See also Garcia San José (n 2 above) 56.
68 Hatton GC case (n 27 above) paras 126-129; Garcia San José (n 2 above) 63; S Greer The European Convention on Human Rights. Achievements, problems and prospects (2007) 264.
69 D Shelton (n 31 above) 145 166.
70 Scott (n 42 above) 215.
71 Scott (n 42 above) 212.
72 Inter-American Court Comunidad Yanomami v Brazil (Yanomami case), decision of 5 March 1985, Case 7615, Res 12/85, reprinted in Inter-American Commission on Human Rights and Inter-American Court of Human Rights Inter-American Yearbook of Human Rights (1985), http://www.cidh.org/annualrep/84.85eng/Brazil7615.htm (accessed 13 July 2010). See also KSA Ebeku 'The right to a satisfactory environment and the African Commission' (2003) 3 African Human Rights Law journal 149; Shelton (n 16 above) 20.
73 Yanomani case (n 72 above) consideration 10; Scott (n 42 above) 215.
74 Ecuador Report (n 25 above).
75 Ecuador Report (n 25 above) 77 ff; Shelton (n 16 above) 20 22.
76 HRC Chief Bernard Ominayak and the Lubicon Lake Band v Canada (Lubicon Lake Band case) decision of 10 May 1990, Communication 167/1984 UN Doc CCPR/ C/38/D/167/1984 para 33. See also Peters (n 38 above) 218.
77 The flipside of the coin is that the rights of indigenous peoples may also at times be limited in order to protect the environment. This was confirmed by the HRC in the Mahuika case (n 26 above). In this case the government of New Zealand had regulated the fishing rights of the Maori community after a complicated process of consultation, in an attempt to conserve natural resources against the background of a dramatic growth in the fishing industry. The HRC confirmed that there was no violation of art 27 of ICCPR in this instance.
78 Länsman case (n 26 above); Shelton (n 16 above) 8; S Joseph et al The International Covenant on Civil and Political Rights: Cases, materials and commentary (2005) 777.
79 See Shelton (n 16 above) 18.
80 As above.
81 See also Inter-American Commission of Human Rights, Third Report on the Situation in Paraguay (IACHR Paraguay Report) OEA/Ser.L/V/II 110 Doc 52, 9 March 2001; Shelton (n 31 above) 158.
82 D Bodansky & J Brunnée 'Introduction: The role of national courts in the field of international environmental law' in M Anderson & P Galizzi (eds) International environmental law in national courts (2002) 7.
83 Bodansky & Brunnée (n 82 above) 8; Shelton (n 31 above) 159.
84 It is acknowledged that constitutional interpretation requires that a right such as the environmental right be interpreted with, inter alia, contextual factors, constitutional values, the impact and scope of other constitutional rights as well as applicable internal limitations and the limitation clause (sec 36 of the Constitution) in mind. Guidance from international case law can accordingly only be a part of the domestic interpretation process.
85 See, eg, the following: Glazewski (n 18 above) 67-68 72-81; M Kidd Environmental law (2008) 18-23; I Currie & J de Waal The Bill of Rights handbook (2005) 521-530; L Feris 'The socio-economic nature of section 24(b) of the Constitution - Some thoughts on HTF Developers (Pty) Ltd v Minister of Environmental Affairs and Tourism (2008) 23 SA Public Law 194-207; L Feris & D Tladi 'Environmental rights' in D Brand & C Heyns (eds) Socio-economic rights in South Africa (2005) 249; Kotzé & Paterson (n 6 above) 560-562 572-579; AA du Plessis Fulfilment of South Africa's constitutional environmental right in the local government sphere (2009).
86 These duties arise from an inclusive reading of secs 24 and 7(2) of the Constitution. Sec 7(2) determines that '[t]he state must respect, protect, promote and fulfil the rights in the Bill of Rights'.
87 SERAC case (n 24 above).
88 Although the possibility exists that these internationally-recognised duties may assist further in the interpretation of other rights in the Constitution (eg the right to life or the right to dignity), it will not be discussed in any detail here.
89 The exact meaning of health and well-being in this context has not yet been confirmed by the courts. Health in this context seems to refer to protection against environmental conditions that would negatively affect human health, such as excessive air or water pollution and exposure to toxic substances. Well-being seems to refer to environmental conditions that are not necessarily harmful to human health but that may otherwise negatively affect the interests that people hold in the environment, such as the aesthetic value of a wetland that attracts different bird species or the spiritual or religious value attached to a sacred forest.
90 Öneryildiz case (n 25 above).
91 Lopez-Ostra case (n 59 above).
92 Fadeyeva case (n 62 above).
93 SERAC case (n 24 above).
94 Lopez-Ostra case (n 59 above).
95 Öneryildiz case (n 25 above).
96 More than 100 countries around the globe have adopted some form of EIA through legislation. See F Retief & LJ Kotzé 'The lion, the ape and the donkey: Cursory observations on the misinterpretation and misrepresentation of Environmental Impact Assessment (EIA) in the chronicles of fuel retailers' unpublished conference paper delivered on 31 May 2009 at the Annual Environmental Law Association Conference, Johannesburg, South Africa.
97 For a brief overview of the development of the EIA system in South Africa, see UN Economic Commission for Africa's report entitled Review of the Application of Environmental Impact Assessment in Selected African Countries (EIA Review) (2005) 24 http://www.unitednationonline.org/eca_programmes/sdd/documents/EIA_book_final_sm.pdf (accessed 13 July 2010).
98 NEMA (n 7 above).
99 Government Notices R385, R386 & R387 (EIA Regulations) in Government Gazette 28753, 21 April 2006, http://www.environment.gov.za/ (accessed 13 July 2010).
100 In this context, sec 1 of NEMA (n 7 above) broadly defines 'activities' as policies, programmes, processes, plans and projects.
101 Sec 24(1) of NEMA (n 7 above).
102 Sec 24D of NEMA (n 7 above).
103 See the extensive list of activities in Government Notice R386 in Government Gazette 28753, 21 April 2006 (n 99 above).
104 Erection and operation of a waste collection site in close proximity of a human dwelling (Öneryildiz case (n 25 above)).
105 Erection and operation of a waste treatment facility (Lopez-Ostra case (n 59 above)).
106 Erection and operation of a steel manufacturing plant (Fadeyeva case (n 62 above)).
107 Oil extraction (SERAC case (n 24 above)).
108 Sec 2(1)(a) of NEMA (n 7 above).
109 Sec 2(1)(e) of NEMA (n 7 above).
110 Secs 2(4)(a)(vii) & (viii) of NEMA (n 7 above) (our emphasis).
111 Sec 2(4)(i) of NEMA (n 7 above) (our emphasis).
112 EIA Regulations (n 99 above).
113 See sec 2(4)(i) of NEMA (n 7 above).
114 Amendments to the EIA Regulations (n 99 above) have recently been finalised by Department of Water Affairs and Forestry. The new Regulations were published on 18 June 2010 and will soon come into effect on a date to be announced. The 2010 Regulations can be retrieved via http://www.environment.gov.za/ (accessed 13 July 2010).
115 For a discussion of some of the challenges that are generally experienced in relation to the institutionalisation of EIA systems and the conducting of EIAs per se, see EIA Review (n 97 above).
116 An in-depth assessment of the effectiveness of the EIA system that considers in detail, eg, the qualifications and conduct of EIA practitioners, the scientific quality of assessments, fraud and corruption or the effectiveness of government in the issuing of records of decisions and monitoring of compliance, falls beyond the scope of this article. For further analysis, see SAIEA Improving the effectiveness of environmental impact assessment and strategic environmental assessment in Southern Africa (2003) 29-30 http://www.saiea.com/html/may_2003.pdf (accessed 13 July 2010).
117 See, eg, Sasol Oil (Pty) Ltd & Another v Metcalfe NO 2004 5 SA 161 (W); All the Best Trading CC t/a Parkville Motors & Others v SN Nayagar Property Development and Construction CC & Others 2005 3 SA 396 (T); MEC for Agriculture, Conservation, Environment and Land Affairs v Sasol Oil (Pty) Ltd & Another 2006 5 SA 483 (SCA); and Capital Park Motors CC & Another v Shell South Africa Marketing (Pty) Ltd & Others (unreported) [2007] JOL 20072 (T).
118 This is in line with the Constitutional Court's approach. In the case of South African National Defence Union v Minister of Defence 2007 5 SA 400 (CC) 51, 52 O'Regan J confirmed that '[w]here legislation is enacted to give effect to a constitutional right, a litigant may not bypass that legislation and rely directly on the Constitution without challenging the legislation as failing short of the constitutional standard'.
119 BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment and Land Affairs (BP case) 2004 5 SA 124 (W).
120 Sec 24(b) of the Constitution makes explicit reference to the notion of sustainable development. In terms of sec 1 of NEMA (n 7 above), sustainable development is defined in the South African context as 'the integration of social, economic and environmental factors into planning, implementation and decision making so as to ensure that development serves present and future generations'.
121 See for a more detailed discussion of this case Kotzé & Paterson (n 6 above) 573-575.
122 BP case (n 119 above) para B-D 144.
123 Fuel Retailers case (n 5 above).
124 Fuel Retailers case (n 5 above) para 41.
125 Fuel Retailers case (n 5 above) paras 44-45. Although the facts were quite different, the Constitutional Court's thinking seems to signify the reasoning of the HRC in the Länsman case (n 26 above).
126 For a detailed discussion, see Country Report of the Research Project by the International Labor Organization (ILO) and the African Commission on Human and Peoples' Rights on the Constitutional and Legislative Protection of the Rights of Indigenous Peoples: South Africa (2009) 3-4 (ILO & African Commission Country Report) http:// www.chr.up.ac.za/indigenous/country_reports/Country_reports_SouthAfrica.pdf (accessed 13 July 2010).
127 Ch 12 of the Constitution acknowledges the role of 'traditional' leadership; according to sec 2 of Traditional Leadership and Governance Framework Amendment Act 41 of 2003, http://www.saflu.org/za/legis/num_act/tlagfa2003431.pdf (accessed 13 July 2010) (Traditional Leadership Act), a community is recognised as a 'traditional' community for purposes of application of the Act if it is subject to a system of traditional leadership and observes a system of customary law.
128 Traditional Leadership Act (n 127 above).
129 Intellectual Property Laws Amendment Bill (IPLA Bill) of 2010, http://www.pmg.org.za/files/biNs/100422b8-10_0.pdf (accessed 13 July 2010).
130 See also ILO & African Commission Country Report (n 126 above) 47, which submitted that sec 24 of the Constitution should be seen as a mechanism to protect the environment of South Africa's indigenous people.
131 See the Preamble of the UN Declaration on the Rights of Indigenous People (UN Declaration) adopted on 13 September 2007, http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf (accessed 13 July 2010). South Africa has signed the Declaration at the time of its adoption. For a discussion of the Declaration with a focus on its meaning for indigenous communities in Africa, see WJM van Genugten 'Protection of indigenous peoples on the African continent: Concepts, position seeking, and the interaction of legal systems' (2010) 104 American Journal of International Law 29-65.
132 Art 29 of the UN Declaration.
133 Art 15 of the ILO Indigenous and Tribal Peoples Convention adopted on 27 June 1989 (ILO Convention) http://www.ilo.org/ilolex/cgi-lex/convde.pl7C169 (accessed 13 July 2010). South Africa and most other African countries have not ratified the ILO Convention.
134 Already in 1983, the ECOSOC Final Report on the Problem of Discrimination against Indigenous People, submitted by Special Rapporteur José R Martinez Cobo (Cobo Report) underscored the complexity and deep-seated implications of the relationship between indigenous communities and their land as reminiscent of their natural resource base. The Cobo Report is available at http://www.un.org/esa/socdev/unpfii/documents/MCS_xxi_xxii_e.pdf (accessed 13 July 2010).
135 Sesana & Others v Attorney-General (Sesana case), High Court judgment, Misca No 52 of 2002; ILDC 665 (BW 2006).
136 Cobo Report (n 134 above).
137 Sesana case (n 135 above) para H.1.5.b.
138 Van Genugten (n 131 above) 32-34. In relation to the pastoralist indigenous communities of other African countries such as Nigeria and Tanzania, conflicts over land and other natural resources between these communities and state authorities are reportedly increasing 'at an alarming rate'; see International Working Group for Indigenous Affairs The Indigenous world yearbook (2009) 13 http://www.iwgia.org/sw29940.asp (accessed 13 July 2010). These tensions are of an ethnic nature and follow the forceful removal of indigenous communities from what they regard as 'their' land; For a critical view of the way in which climate change affects the way of life some of the pastoralist indigenous communities in Africa and the role of governments in addressing this impact through mitigation and adaptation strategies, see JO Simel 'The threat posed by climate change to pastorolists in Africa' in International Work Group for Indigenous Affairs Climate change and indigenous affairs 34-43, http://www.iwgia.org/sw29928.asp (accessed 13 July 2010).
139 ICCPR (n 15 above); see also sec 30 of the Constitution, which determines that '[e]veryone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights'.
140 National Heritage Resources Act 25 (NHRA) of 1999, assented to on 28 April 1999, http://www.saflii.org/za/legis/num_act/nhra1999278.pdf (accessed 13 July 2010). The importance of this Act for purposes of the protection of the environment of indigenous people is illuminated in the Country Report (n 126 above).
141 Sec 1 of NHRA (n 140 above).
142 As above.
143 Sec 5(7) of NHRA (n 140 above).
144 Sec 2(4)(g) of NEMA (n 7 above). Unfortunately the meaning of 'decision' and 'indigenous knowledge' is not clarified in the Act. It can, however, be derived from the scope of application of NEMA that a decision pertains to any decision taken in the public or private domain that is or could be of environmental relevance. Indigenous knowledge is in a very technical way defined in the IPLA Bill (n 129 above) as 'traditional intellectual property' which is reminiscent of indigenous knowledge systems and which comprises of traditional works, traditional designs, traditional performances and traditional terms and expressions.
145 Policy Framework for the Protection of Indigenous Knowledge through the Intellectual Property System (Policy Framework) of 2008, http://www.dti.gov.za/ccrd/ip/policy.pdf (accessed 13 July 2010).
146 Policy Framework (n 145 above) 9.
147 National Environmental Management: Biodiversity Act 10 (Biodiversity Act) of 2004, assented to 7 June 2004, http://www.info.gov.za/acts/2004/a10-04/index.html (accessed 13 July 2010).
148 Bio-prospecting is defined in sec 1 of the National Environmental Management: Biodiversity Act (n 147 above) as any research on, or development or application of, indigenous biological resources for commercial or industrial exploitation, and includes inter alia the utilisation for purposes of such research or development of any information regarding any traditional uses of indigenous biological resources by indigenous communities. An example is the commercialisation of the medicinal uses of the indigenous Hoodia plant as originally discovered by the San people.
149 Sec 82(1) of the Biodiversity Act (n 147 above).
150 Sec 83 of the Biodiversity Act (n 147 above).
151 Oudekraal Estates (Pty) Ltd v The City of Cape Town & Others (25/08) [2009] ZASCA 85; 2010 1 SA 333 (SCA) (3 September 2009).
152 For the definition of a 'traditional community', see n 127 above.
153 See the inclusion of cultural interests in the definition of the environment, sec 1 of NEMA (n 7 above). Note also that the NHRA (n 140 above) is often classified as an environmental law despite it being administered by the national department responsible for arts and culture.
154 In this regard, although this matter dealt specifically with the retrospective application (statutory interpretation) of sec 28 of NEMA (n 7 above), the case of Bareki NO & Another v Gencor Ltd & Others 2006 1 SA 432 (TPD) should be noted. It addressed the historic pollution caused by an asbestos mine. The main applicant was a traditional leader acting in his own name and on behalf of the community living adjacent to the mine. The applicants alleged that the mine caused, and continued to cause, significant pollution due to the dispersion of asbestos fibers, which were causing ill health in the traditional community. The court confirmed, without further elaboration, that pollution and degradation of the environment present a serious health risk to residents and occupiers of the areas concerned, as well as a significant threat to the environmental integrity of the region.
155 SAHRC Report on the Inquiry into Human Rights Violations in the Khomani San Community in the Andriesvale-Askham Area (November 2004). This report is on file with the authors.
156 Restitution of Land Rights Act 22 of 1994, assented to 25 November 1994, http://www.info.gov.za/acts/1994/a22-94.pdf (accessed 13 July 2010).
157 SAHRC Report (n 155 above) 28.
158 SAHRC Report (n 155 above) 12.
159 SAHRC Report (n 155 above) 11 28.

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