Minister of Mineral Resources and Energy Gwede Mantashe is again targeting NGOs as being “anti-development”, being quoted as saying that “foreign-funded NGOs are being used to weaponise environmental preservation to block development in developing nations”. Others have responded to this, but I want to think about Mantashe’s utterances in the context of the law.
In the 1980s and before, South African society (most of it) had to deal with a raft of oppressive apartheid legislation and a group of laws labelled “internal security” laws, which were aimed at suppressing opposition to the apartheid laws themselves.
During the 1980s, there were three different States of Emergency, together with laws that allowed people to be detained without trial, meetings to be banned and the like, in many cases on the subjective “opinion” or “satisfaction” of a member of the security forces.
When decisions under these laws were challenged, the odd fair-minded judge managed to interpret the laws in a way that brought about a just result, but, by and large, a tame judiciary (particularly the appellate division) upheld the government’s decisions.
Add to this an almost complete lack of transparency, no public participation in enacting legislation and devices such as ouster clauses (provisions in legislation that ousted the court’s jurisdiction in relation to anything done under that legislation), and NGOs and progressive lawyers needed to be creative in chipping away at the apartheid monolith.
There was no basis on which to challenge the substantive merits of legislation in the courts. But there were some important judicial results, and these tended to become more frequent as we approached the dawn of the new democracy in 1994.
Transparency and accountability
How different things are now (at least on paper). We now have a democratic Constitution with a justiciable Bill of Rights, meaning that any legislation or government decision that infringes any of those rights may be declared invalid by a court. Our Constitution is built on principles that include transparency and accountability.
In addition, the right to public participation is built into the law, both in general (in terms of the Promotion of Administrative Justice Act) and in many individual empowering statutes.
And, in the field of environmental law (which covers regulation of new mining and related activities under the promotion of the minister’s Department of Mineral Resources and Energy (DMRE)), there are many principles with which the DMRE must comply when approving new “development”, as the minister calls it.
One of the fundamental principles of South African law – arguably the primary principle which informs how we think of all other environmental law principles – is sustainable development. Whatever we might think about the merits of the concept (and there are many legitimate criticisms), it is a cornerstone of the constitutional right in S24, which provides that everyone has the right to an environment that is not harmful to health and wellbeing, and underpins all our environmental legislation.
Mantashe’s complaints about NGOs undermining development almost exclusively focus on mining projects looking to exploit fossil fuels. Are new fossil fuel projects consistent with sustainable development? This is a topic that could fill several separate articles in their own right, so I don’t intend to spend too much time on it.
In thinking about how to answer this question, we should think about what the UN Secretary-General António Guterres said on release of the Sixth Report of the IPCC in February 2022: essentially that the world needs to move away from fossil fuels quickly. This is not just coal, but oil and gas too.
The International Renewable Energy Agency’s Net Zero Roadmap: A Global Pathway to Keep the 1.5⁰C Goal in Reach states very clearly that “no new long-lead time upstream oil and gas projects are needed in the NZE (Net Zero Emissions by 2050) Scenario, neither are new coal mines, mine extensions or new unabated coal plants.” I’ll leave you to make up your own mind.
Let’s focus instead on how South African environmental law empowers the involvement of civil society, which includes NGOs. Our framework environmental act, the National Environmental Management Act of 1998 (Nema), contains a set of national environmental management principles, many of which highlight and support the role of civil society in protecting the environment.
The same act provides for very liberal standing requirements, meaning that persons are empowered to litigate in the interests of protecting the environment (which is not the case in many other countries, and was not the case in pre-1994 South Africa). Persons have the right to decisions that are consistent with the right to administrative justice (decisions must be lawful, reasonable and procedurally fair) and they have the right to access to information. The position in 2023 compared with 1983 couldn’t be more different.
The courts have recognised this change in the empowerment of civil society. In 2009, the Constitutional Court in Biowatch Trust v Registrar, Genetic Resources observed that it had been clearly established that the participation of public interest groups is vital for the protection of the environment.
In Arcelor-Mittal v Vaal Environmental Justice Alliance (2014), the Supreme Court of Appeal rejected an argument that an NGO seeking to ensure compliance with the law was setting itself up as a “parallel regulating authority” and therefore ought to be prevented from doing so.
In short, our law encourages civil society involvement in ensuring compliance with our environmental law and protection of the environment (which, let us not forget, includes humans) and does not prevent it.
In cases decided over the past year, several decisions by the DMRE to allow extractive activities (all involving fossil fuels) have been declared invalid by the courts. All of them involved flaws in public participation. In other words, there was a failure to consult properly with affected people before a decision was taken to allow the activity.
In the case of Sustaining the Wild Coast NPC v Minister of Mineral Resources and Energy, a 2022 decision of a Full Bench of the Eastern Cape High Court, the court set aside a decision by the DMRE to allow a so-called seismic survey (in order ultimately to extract gas) off the east coast of the country.
First, there was inadequate consultation.
Second, the court found, that despite statements made in the environmental management programme that the seismic survey “would create jobs and increase government revenues etc, no detail to substantiate these claims is made; no explanation as to how the jobs will be created, and how the economy will be stimulated, or how the seismic survey will improve the socio-economic circumstances in which most South Africans live are provided”.
This meant that there was inadequate compliance with certain requirements of the Mineral and Petroleum Resources Development Act.
Third, the decision had not been taken in terms of the precautionary principle, which is required by Nema.
Fourth, there was a failure to take into account the affected communities’ spiritual and cultural rights and their rights to livelihood.
And, fifth, it had been argued in the case that, were new oil and gas reserves to be discovered pursuant to the seismic survey, these could “not be burnt if we are to stay on the pathway to keep global average temperature increases below 1.5 degrees Celsius”.
The DMRE argued that climate change considerations were premature at this stage (essentially the exploration stage), and fell to be considered at a much later stage. The court disagreed with this and held that the climate change considerations ought to have been taken into account at the stage of deciding on the seismic survey.
Other alleged flaws in the decision were not decided upon by the court, because the flaws that it had established were sufficient to find the decision invalid.
The example provided by this case brings me to my final point. Even if we assume Mantashe’s frankly ridiculous assertion that “foreign-funded NGOs are being used to … block development in developing nations” were true, if such an NGO were to challenge any decision by the DMRE that had been taken validly in terms of our law, it would more than likely receive short shrift from the courts.
The obstacle to “development” is not NGOs, irrespective of their funding. NGOs are intended by our environmental law to be involved in these processes and to step in if the law is not being followed. The real obstacle is that the DMRE is not complying with the law, and Mantashe knows this full well. DM
Full disclosure: The author is an active member of an environmental NGO, Wessa.