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this view is given credence when one goes back to 23 speaking in mpumalanga in january 2006, the minister of dwaf, ms bp sonjica, said: (d) any representations made by persons interested in the matter; and (c) be able to vary the frequency of meetings [required to be on a bi-monthly basis from scudder future of large dams and operation of the dam will, however, "...have definite and substantial mbeki 2003 http://www.info.gov.za/ 17 may informing one another of, and consulting one another on, matters of the de hoop dam is intended to supply water primarily to help in the context of the orwrdp matter; in which there have been suggestions that dwaf http://www.polity.org.za/pol/news/?show=86670 [date of use 24 may 2006] deat 2005 http://www.dwaf.gov.za/ 17 may constitution of the republic of south africa, 1996 detriment of the other two; and now, as all of the provisions of the nwa have the national water act for the implementation of the "reserve"); (g) that the sea be process. being critical; (h) that dwaf identify replacement land, by means of specialist surveys, being by sanparks; the endangered wildlife trust (ewt); geasphere, a mozambican decisions, it is vital continually to extend the limits of current knowledge. mining interests strongly; the domestic water needs of the poor less so.23 ... [and associated activities].26 mainly, according to a media comment, the `r4-billion' project is intended `to ...current rod does not adequately mitigate and manage the couzens & dent per/pelj 2006(9)3 development;176 generating information about the water resource systems, so that options can while it is true that nema's principles require that people and their needs be continuously. they are permanently in dispute resolution mode as they bargain over the anon 2006 business day http://www.businessday.co.za/ 17 may "[t]he director-general must coordinate the activities of organs of state referred to in demonstrated, with there being "...no viable alternative to a supply-side effectively amounts to ongoing adr is essential.125 possibility that deat/dwaf were not meeting their obligations in terms of site of the proposed de hoop dam. according to the bateleurs', "[h]aving heard so many area. one of these is the barred minnow, which will become locally extinct if the dam is ...supply water for social and economic development in large parts skills ibid at 3.2.2.3]; (b) the developer's (dwaf) representatives; (c) representatives of register of internet resources been extremely difficult to enforce.39 nilsson 2005 nature quality, aquatic ecosystems analysis and analysis of goods and services from the rod.55 length approximately 1 050 m and will inundate an area of about the apparent lack of regard the dispute.122 minister, mec or municipal council, refer the matter for mediation or 38/118 a key question is that of how credibility, trust, shared understanding, sensibility, conducting an environmental impact assessment (eia) for the couzens & dent per/pelj 2006(9)3 engage the cmas and other nwa related organisations in the catchments. to ensure that you have access to sustainable resources. in this regard i would make binding in the same way as the class and the resource quality 21616.html [date of use 17 may 2006] 34 rod at 3-4, 3.2.1; 3.2.2; 3.2.3. deat 2005 http://www.dwaf.gov.za/ 17 may. [and that an] ...amendment of the rod and certain conditions couzens & dent per/pelj 2006(9)3 clearly not ones based on creating information through uni-disciplinary, uni- leaders, and farmers' associations. the purpose of the emc was to monitor breaches thereof. and to issue directives to keep to our current schedule that the first water from the de hoop dam could be supplied according to business day: 35/118 is provided that local communities will receive water, let alone be cautious approach be applied, which takes into account the limits of current department of water affairs management of water resources of the matter is that the ecological reserve appears to have been insufficiently taken however, we are couzens & dent per/pelj 2006(9)3 in resolving a difference or disagreement.83 emphases.] dwaf 2004 http://www.info.gov.za/ 17 may. therefore, to build in a culture of cooperative governance, supported by an adr 146 deat 2006 http://www.environment.gov.za/ 17 oct at 3.2. the argument in the present article is that principles found in all of the bill of rights, it is widely acknowledged that a primary conflict of interests that is unavoidable there is an urgent need for socio-economic upliftment and development. more water at a close cooperation to ensure the sustainable use of shared water adequately highlight or address these potential positive impacts';149 priority,177 individuals served by the water resource in question and includes 4.3 the national water act 36 of 1998 (nwa) principles would be upheld. further, according to the constitution: needed, therefore, is not a once-off process; the likelihood needs to be areas under threat to give "decision-makers and other interested or vital parties an aerial 15/118 science and technology that underpins the analysis of water resources, water now in the era of equitable allocation. allocation is a social process and, echoes the precautionary principle of international law--in other words, that consultants. the processes should be flexible, iterative and increasingly reveal questionable who checks on dwaf to see that it has complied with its own legislation (the (emps) [would] need to be produced some, however, only `within a 7/118 such emc to ongoing; conditions are continually changing; and the retaining of sound 63 s 2(4)(g). the institutional arrangements and processes through which people are able to chapter 3 is headed `procedures for co-operative governance'. given space review and was unable to say this week when the outcome would be known." according to creamer media 14 aug 180 it is laudable that the minister: deat has provided in the rrod for what amounts to an [o]ur objective was to ascertain if construction had begun on the controversial richmond 24/118 the authorisation was granted subject to certain conditions; inter alia, that, provides for conciliation mechanisms to be used. it is provided that any saiae symposium. presentation at the symposium of the sa institute of make recommendations.54 of the area. it appears that, according to the draft scoping report: it hardly can be argued seriously in the present matter that such effect was register of cases dwaf made the decision to build the dam; pollution impacts on the olifants river system from mines and industries; negative the project, with mines using the dam water carrying a large part of the balance." in the opinion of the present writers, alternate dispute resolution (adr) is department [deat] withdrawing the authorisation, issuing directives of this act must take into account the principles contained in section establish catchment management agencies for all water management areas, the minister diversity' or `biodiversity' is defined in s 1 as meaning: "...the variability among living 75 s 17(1). couzens & dent per/pelj 2006(9)3 77 s 17(1)(b)(i)(aa). 31 ibid. as will appear from the extended discussion below, it is a highly dubious contention environmental management: protected areas act 57 of 2003. since such repeal, reference to the excellent progress being made on the r3 billion olifants river water or partly funding, construction. groenewald 2006 m&g 6 oct. construction will be partly conflicts of interest between organs of state should be resolved through conflict objectors. at the least, mention could have reasonably been expected. in a climate of uncertainty, politics thrive. this is a universally accepted either end of the proposed dam and one across the maseketi river. expense and the grave risk of serious environmental damage occurring.181 33/118 have no alternative but to approach an appropriate court for relief" option.175 acceptability, wisdom, equity and peace are to be achieved? the processes mbeki.11 ...protect[ing], conserv[ing] and control[ling] those national parks and assumptions form the basis of most stakeholder views on allocation and on therefore, could have been interpreted simply spatially. this ignores the http://www.dwaf.gov.za/documents/policies/nwrs/sep2004/pdf/appendix environmental and political costs (london earthscan 2005) consequence of a delegation in terms of section 71;103 1 690 ha. ... the removal and/or flooding of existing vegetation from municipalities, to supply domestic water to many communities," the minister added. [our due to rapid expansion within the mining sector on the eastern limb of the bushveld supreme irony, according to the minister of dwaf, in a media release of june 2007), the construction of a dam affecting the flow of a river is an activity which is subject international recognition of the detrimental effects of large dams, see, for example, nilsson enforce compliance.173 44 rod at 6, 3.2.72. deat 2005 http://www.dwaf.gov.za/ 17 may. it might be pointed out that discussed above, the minister is encouraged to consider conciliation. as far as rehabilitation after construction is concerned, dwaf was required to: nema can be substantially upheld.155 99 s 56(i). concluded, in addition to the findings listed in section 3 of the doa, that the dam solutions eventually proposed by the minister in the doa, and in the revised development community's protocol on shared watercourses, with in the present case, it appears that the decision-maker made the decision (as this article considers the proposed de hoop dam on the olifants river, water compliance audits. thirdly, according to the rod, due to the - predictions are uncertain and this uncertainty should not be used as a rationale sekhukhune land centre of endemism is potentially endangered by the development, stakeholders in the processes. in our opinion the processes will involve a form allow for a broader view relating to the impacts of further development on the new dams or any signs of dams under construction in the area. we observed various weirs institute or defend any legal action.100 parties who have opposed the construction of the dam that it is not intended to http://www.dwaf.gov.za/projects/olifant/documents/pdf/revisedrod16oct very high priority and hence have been determined by now. the period of eight years from particular, that pertaining to archaeological remains; relocation of burial sites; and that provides for conciliation and arbitration mechanisms where conflict arises in the register of legislation agency must ... (b) strive towards achieving co-operation and consensus in managing or where the development and particularly where the development is on a major scale and 20-de-hoop-dam-21203.html [date of use 17 may 2006] (dwaf);161 significant environmental and economic effect. they are in good 163 deat 2006 http://www.dwaf.gov.za/ 1 nov at 3.2.2.8. be made explicit. there will be a need to incorporate and reflect the inputs of all availability of water for domestic purposes. more water will enable considerable mining no evidence in either the eir or the rod of serious consideration. it appears rather that it takes time to build adr capability into every facet of the dwaf 2004 (2) http://www.dwaf.gov.za/ 17 may). however, according to that strategy 166 deat 2006 http://www.dwaf.gov.za/ 1 nov at 3.2.3.4. knowledge about the consequences of decisions and actions;60 ewt endangered wildlife trust be considered and decisions taken to manage the resource and resolve national environmental management: biodiversity act 10 of 2004 general: deat related to the monitoring of the project. secondly, that dwaf affects the populations who receive them. additionally, the lifestyles of those living impacts resulting from this activity can be mitigated to acceptable course, the economically deprived people of the local area. park times online news http://www.krugerpark.co.za/krugerpark-times-2- environmental management tools in order to ensure the integrated management' (ch 4), in the language of the statute itself. required by the principles of iem also to "ensure the consideration of environmental 164 deat 2006 http://www.dwaf.gov.za/ 1 nov at 3.2.3.1. including the determination of the public interest and the rights and obligations of all 105 s 57(1)(b). resource development project (dwaf orwrdp 9 june 2004) [found on regulations under the national environmental management act 107 of 1998 (nema), or eco environmental control officer http://www.miningweekly.co.za/components/print.asp?id=91695 [date of 37/118 36/118 couzens & dent per/pelj 2006(9)3 article.144 national parks (sanparks, which is an organ of state) and from five ngos and chapter 4 is headed `fair decision-making and conflict management' and billion. this investment will include key economic infrastructure projects such as the much needed expansion of domestic water supply systems. i expect that if we are able to having taken sanparks' views into account, despite sanparks having objected substantial analysis; if the ecological reserve received only a cursory mention it is, making process; [if this is done in an ongoing manner, then relevance and trust get located close to steelpoort, and anglo plats is responsible for extensive mining activity on breach of this act, including a principle contained in chapter 1, or of any provision of a through the establishment of catchment management agencies (cmas) in strategy and water use objectives (september 2004) [found on internet] the rod was conservation authorities for management as a nature reserve; the deficit being looming; and it knew that the cma would not have acted as dwaf did ... in fact, that if the act. 38 rod at 4, 3.2.4. deat 2005 http://www.dwaf.gov.za/ 17 may. are at any point called upon to make such financial provision. considering that the was to appoint an independent environmental control officer (eco) prior to schalkwyk extended the appeal period for 30 days. but no such concession has been ... which takes all decisions in the performance of the functions of similar systems require specific attention in management and planning and it will be to their detriment if these are flawed. the kind of adr that is the first, namely the `application of the risk-averse and cautious approach' interests, and calls for co-operation. it is implicit in the act that the allocation of water is a 45/118 september 1997 agreement on the person to be appointed, the director-general may appoint a person who 7 the minister's decision on the appeals; and the revised rod demands for their rights. it is extremely vague to suggest that dwaf "...should already have ss sections the dam and related projects are predicted to cost some r8-billion. the dam is one of 136 eg, in terms of the nwa, the introduction of cmas (ch 7; ss 77-90); the introduction of consider m&g mail & guardian have serious consequences in particular cases, inter alia, where it lays `... the necessary management institution, is to compelled to provide, supporting information to an applicant, therefore, does not change catchment and the knp. 147 deat 2006 http://www.environment.gov.za/ 17 oct at 3.3. and that dwaf must: exhaust all other remedies before it approaches a court to resolve upheld'. preferable would have been evidence that the decision-maker had been. both the wild coast [n2 tollroad] and de hoop decisions were issued towards the end of fully constituted, dwaf must act in place of the cma, which presumably means that macleod f "mbeki joins assault on green laws" 2006 mail & guardian 4 perspective of the situation or problem they are assessing" bateleurs 2006 newsletter any of the protagonists in the debate. the best that can be done in any example, of removing and reinstating the sekhukhune land centre of endemism cannot ...ensure that the effects of activities on the environment receive[d] considered such conflict resolution.72 with members drawn, inter ...[t]he already pressurized olifants river system is scheduled for resolution of the difference or disagreement; [it is the assumptions and insights that 117 dwaf. 29 ibid. igneous complex. to secure the water necessary for their initial development needs, the the desirability of first referring the matter to conciliation.75 84 s 18(3). affected parties' are given the period 16 october - 25 november 2006 in which to register 20/118 case for conciliation and dispute resolution mechanisms, which are key and only policy matters - they are constitutionally mandated. required that their physical, psychological, developmental, cultural and social the purpose of performing its functions, perform legal acts, including acts in as one of nine national conservation priority areas because of its environmental field.50 process of consultation and, by implication, compromise; in a context where 32 it was not stated as to what the emc was to report. 17/118 once again, therefore, the familiar cast of characters is gathering: mining wording is `may') to determine norms and standards for the performance by 9: water resources cannot be managed in isolation from other natural resources. 150 deat 2006 http://www.environment.gov.za/ 17 oct at 3.6. acknowledges in the doa that the objections had merit and that the processes from the available information, it would appear that they were not adequately fairness in order to make meaningful public participation difficult. the reasons why this a case of obtaining but a case of generating in an acceptable manner.] that a renewed effort be made as part of the eia process to solicit response from co- change. ... sustainability should be a top priority, and the book is a valuable reminder of couzens & dent per/pelj 2006(9)3 19 macleod 2006 m&g 3 feb. dwaf and deat to engage in proper consultation with interested and affected parties. if a resource has not yet been classified, a preliminary be obtained indicating acceptance of responsibility for all costs necessary to comply with development ought not to proceed. in the highly complex arena of water-related macleod 2006 m&g 3 feb. "after the furore," comments macleod, "over the wild coast de hoop and richmond dams had begun." see bateleurs 2006 newsletter (b) the desirability of giving indigent persons access to conflict resolution measures in sustainable been recognised as seriously, if not fundamentally, flawed documents. plans due end oct-06. land valuation of rights and interaction with rlcc due aug-06. de that the construction as cmas and their supporting organisations. however, eight years have now elapsed the minister,116 important aspect of environmental conservation), it is the authors' contention that natural development plan established in terms of the water services act, 1997 (act no 108 of consideration of various interests, the rod represented an inadequate tourism (29 september 2006) [found on internet] given to the needs of the environment (specifically, the needs of the kruger strategy for the dam; dwaf having to take responsibility for the sea and compliance 29/118 couzens & dent per/pelj 2006(9)3 the olifants river in the limpopo province [the president's reference to `limpopo' ought management, to provide for coordination, cooperation and conflict-breaching.49 environmental conservation was neglected in the rod. it is provided76 dwaf to act in accordance with its own law with regard to how a cma should [found on internet] http://www.dwaf.gov.za/documents/policies/nwpwp.pdf 142 despite there being a possibility that the authorisation for the project could be withdrawn at 124 s 79(4) provides, for instance, that "[i]n performing its functions a catchment management cumulative impacts; inadequate consideration of eco-sustainable alternatives; 167 deat 2006 http://www.dwaf.gov.za/ 1 nov at 3.2.4. species could also be rescued before the flooding and relocated. the ei process found envisaged that, should the conditions as stipulated in this record of exercising any power or performing any duty in terms of this act. dispute, must endeavour to settle it using the mechanisms provided by nema. presents a new study on people whose parents were resettled, involving a total of nearly elements of the ecological reserve determination. these are complex factors requiring argument, according to wray sa 2006 kpton (3) http://www.krugerpark.co.za/ 17 may: consultation with a broad range of stakeholders ranging from local 83 s 18(1). provided that if the parties to the difference or disagreement do not reach accusations of obstructive acts by deat.21 urgently carried out with the `aquatic reserve' being re-determined and fine-tuned, via the from the [dwaf]. although a provision is made in the [r]ecord of under discussion -- even against dwaf or against deat, its own principal.101 legislated to give effect to the inevitable ongoing need to resolve disputes over what needs 87 see n 22 supra. process is provided for under any other relevant law administered by such http://www.dwaf.gov.za/ 17 may. curiously, in may 2006, president mbeki announced a detrimental impact on the environment, that potential detrimental administration (mpumalanga).28 155 ibid. couzens & dent per/pelj 2006(9)3 environment.90 endemism, to be flooded or otherwise transformed as result of the a decision.80 the world has experienced an unprecedented increase in the number of large dams, from couzens & dent per/pelj 2006(9)3 112 see n 42 supra. the minister's decision on the appeals will be discussed in this article below, group, department of geography, soas university of london, 1999 125 key elements of the nwa deal with this through, inter alia, institutional arrangements such conciliation, in order to make a decision without reference to conciliation (as cabinet reshuffle in which minister sonjica moved from water affairs and forestry to flow, driven by our highly variable rainfall. the goods and services from a dam, consequences that are removed in space and time from the cause, is to run (b) by mediating the difference or disagreement; rushed the decision through is because it had the parallel process of the cma formation the organisational structures common interest;120 and, with no one of these three interests being given 54 s 2(1)(d). predictions of harm are what are most often in dispute, generally these constructed and implementation of the opmp requiring a written agreement from dwaf http://www.dwaf.gov.za/projects/olifant/documents/pdf/finaleiroct05chap1 risks based on rainfall and flow data, with the design characteristics kruger would continue to receive its share of downstream water dwaf must obey its own laws, just as the cma will have to. further, the decision-maker is 130 white paper on national water policy 1997; dwaf 1997 http://www.dwaf.gov.za/ 1 nov. continue to exist as a juristic person despite the repeal of the act in terms of of government; or other benefits. it will also create the opportunity for water service providers such as 7: the constitution moves us away from the old approach that pitted environmental goals 135 ibid: the complexity of all these interactions calls for a complex and integrated approach not initially taken in respect of the de hoop dam. as has been shown above, 92 s 23(2)(c). this would require the organizational instruments and processes to be in place 55 see n 25 supra. c) procedural aspects of the eia process and the rod: inadequate appeal period; 2003 state of the nation address by the president of south africa, thabo commencement of mining operations. it is settled law that a mere preliminary decision can authorisation appeal solution from deat pending. approval of environmental management 11/118 that many have yet been used. controversy shows that it is possible for adr to be used to breach conflict in considerations were not brought in at a far earlier stage as the present writers being built, at least partially, to benefit mining interests and that mining companies will 175 in the rrod, for example, the minister does not expand convincingly upon his assertions 22/118 through employment opportunities in mining and associated developments, and also in the need for alternative dispute resolution (adr). the nwa makes provision for [found on internet] http://www.dwaf.gov.za/communications/minister- include as far as is reasonably practicable representative stakeholders as 34/118 the environmental impact assessment process followed complies department of environmental affairs and ngos to find an acceptable solution." assessment.64 http://www.environment.gov.za/newsmedia/medstat/2006sep29_1/290920 and coordination by all spheres of government and all organs of state;133 dwaf was required also to implement measures to control invasive plants and the key question is really whether provision of water from the dam could take place before determine the reserve for all or part of any significant water probably to have been to `mpumalanga'. the quote is reproduced as it is given in the 15 ibid. this is despite the orwrdp environmental impact assessment report of october least) of its own legislation, if not also the letter. certainly, dwaf's duty to act as if it were 21/118 http://www.dwaf.gov.za/projects/olifant/documents/pdf/rod21nov05part government information 2006 government's programme of action 2006 sanparks would have the right to litigate in a matter such as that presently policy.130 into account. although it was mentioned,112 vegetation and to have a qualified environmental officer37 considerations,51 11-dam-threatens-species.html [date of use 17 may 2006] interests of undisclosed mining companies. according to wray in the kruger of integrated systems simulation modelling which can function in a data poor weeds; to have a suitably qualified specialist conduct all removals of indigenous parties whether they wish to refer the matter to arbitration and may with their 36 in the national environmental management: biodiversity act 10 of 2004, `biological up an authorities coordinating committee (acc);164 there is much to be learned from the matter. speeches/2006/mpumwatersummit16jan06.doc [date of use 17 may other national parks. its form of continuous appropriate dispute resolution is to 153 deat 2006 http://www.dwaf.gov.za/ 1 nov at `2: key factors informing the decision'. catchment is one. the drafters of the nwa apparently foresaw that the breached.70 public finance management act 1 of 1999 47/118 factors--including eight which are specifically listed.59 there was no discussion of the entered into. dwaf department of water affairs and forestry 151 deat 2006 http://www.environment.gov.za/ 17 oct at `3: decision'. resolution procedures.71 communication between stakeholders; which barriers might arise from in the rrod, the minister build the dam to meet the needs of its projected mining operations in the ecological complexes of which they are part and also includes diversity within species, desirabilities existed at the time of the scoping report, and were considered by deat, conflicting reports on the olifants river and its tributaries, and whether the de hoop dam 22 jp louw, head of communications at the department of environmental affairs, is quoted attributes in management and decision-making which may have a significant effect on the resource.114 dwaf 2004 (1) http://www.dwaf.gov.za/ 17 may of meetings. any changes should be communicated to the department for ... if the dam is allowed to go ahead and take water out of the quantity and quality of the water in the resource, and will vary since at least late 2002/early 2003. be seen below, there are legal requirements to take the reserve into account more water supplies and of using water more efficiently.139 brought under any law. (s 17(1)(b).) regulations published in gn r1183 of 1997 under s 26 of the environment conservation outcomes is more a matter of shaping the interaction between actors, so that cooperation emp environmental management plan stagnation of the local economy and an overall hampering of the management,52 show sterling attention being given to the requirements of south africa's the cma (i.e., open, transparent, etc. has not happened. perhaps one of the reasons it 3 the record of decision (rod) was arguably infringed by the failure to provide 114 it is understandable that not every portion of every river in south africa can have its importance, of which 21 are endemic or have red data status, while be determined. and that there be compliance with other legislation.172 mabunda, chief executive of sanparks, on behalf of sanparks; and dr n king, executive lost due to the construction of the dam and its impoundment area.35 species of unique endemic plants. these species, including plants with medicinal tourism released his decision on appeals (doa).141 axelrod r the evolution of cooperation (new york basic books 1984) considers conciliation inappropriate or if conciliation has failed that it can make in respect of the de hoop dam, the writers of the present article submit, the 2003 conflicts of interest inherent in the sharing of a common water resource. the inherent media release by dwaf of june 2004, which refers to the above state of the biodiversity convention 1992 at http://www.biodiv.org/convention http://www.krugerpark.co.za/krugerpark-times-3-4-another-dam-22096.html which it was originally constituted.95 and processes for cmas and water user associations (wuas) were drafted reflected in the rod) based only on the eia and on input from a limited number goods and services from a dam. the goods and services that people derive couzens & dent per/pelj 2006(9)3 suggested adaptive management strategy, as dwaf proceed to develop an operating 42 while not all conditions have to relate to environmental conservation, and some may (c) the desirability of improving the quality of decision-making by giving interested and 118 s 41(1)g. anyone may request the minister, a mec or municipal council to (a) the desirability of resolving differences and disagreements speedily and cheaply; are driven by the social and economic needs in both limpopo and mpumalanga, where for project reference 12/12/20/553 de hoop dam (21 november 2005) of the dam. however, all of the six objectors lodged appeals against the rod.4 the flow and thereby greatly reducing the variability.126 must (own emphasis) either refer the matter to the director-general for least the best informed -- decision. further, it is submitted (as has been argued in the country, where even subsistence farming is largely no longer go into generating this information that are the key ... with water resources it is not environment. such processes would need to overcome barriers to 1 the applicable catchment management area (cma) is the olifants cma. as knowledge deat would need in deciding whether or not to grant the rod. since the nwa was promulgated (the date of commencement was 1 october 1998) and olifants river system without kruger [national park] receiving its due http://www.dwaf.gov.za/ 17 may. knp kruger national park affected parties with the purpose of reaching agreement to refer a negatively affect tourism, wildlife and concession areas in the 9 wray sa 2006 kpton (1) http://www.krugerpark.co.za/ 17 may. asgisa accelerated and shared growth initiative for south africa commencement of any of the activities related to this authorisation.170 [that] ...the conditions enclosed in this rrod are .pdf [date of use 17 may 2006] all costs associated with the emc are to be borne by the applicant 51 s 2(1)(a). issues to the other appellants was received after closure of the deadline for submission of couzens & dent per/pelj 2006(9)3 observance. specific conditions156 chapter 5 of nema is titled `integrated environmental management' and its possible. the land degradation due to poverty is already an personal and representative capacities; these being: mr e pietersen, in his personal water resources development project (phase 2): infrastructure sanparks took a firm stand against the dam, suggesting that: be to breach both the national water act45 aspects;153 should the matter reach conciliation in one of the ways described of the olifants and mogalakwena/sand catchments of the limpopo as "meaningless and ineffective".5 the key organisations-catchment management agencies (cmas)-that will give effect to it construction of the dam always has been a fait accompli, given the prevailing 13/118 it is only where the decision-maker the calendar year is purely coincidental, and there is certainly no deliberate intent by the the minister concluded that the need for the dam had been a real and urgent legal and environmental problem. couzens & dent per/pelj 2006(9)3 http://www.info.gov.za/aboutgovt/poa/report/economic.htm [date of use 17 accordance with the law,65 s 19(2) provides that "[w]here a dispute or disagreement referred to in subsection (1) is s section conservation of an equivalent area of the sekhukune land centre of plant endemism to in one sense, this brings 2008 as compared to the projected date of 2014 for water supply aspects, such as the mitigation measures recommended in the original eia, 50/118 the difference between `initiate an investigation into' and `establish and maintain' could environmental cooperation and successful management. in the end, however, dwaf 2004 (2) http://www.dwaf.gov.za/ 17 may october 2006, "government will provide about r1,3 billion of the r4,9 billion required for environmental affairs and tourism] van schalkwyk has sent the appeals for independent has adequate experience in or knowledge of conciliation of environmental disputes. a will have: http://www.businessday.co.za/articles/opinion.aspx?id=bd4a200131 [date 177 s 2(2) does provide that "environmental management must place people and their needs achieve the goals of equity, environmental sustainability and economic impacts and factors affecting the living situation. requisite legal steps have been taken. have below average rainfall. having said that, you may well ask what are we in fact doing although the decision-maker (deat) was not compelled to refer the matter to dam's construction along the steelpoort river, a tributary of the olifants river, is the fiscal 126 see generally: dwa management of water resources. this is only one of the many basic human needs reserve provides for the essential needs of ministry. such public pronouncements tend to feature arguments in favour of turton "water scarcity" rod; and what ought to be done) open to interpretation. in fact, that the concern for ... the basic human needs reserve and the ecological reserve. the 106 of deat. implementation of these structures, and the adr process within them, could ...must comply with the conditions set out in this letter. failure to again, the integrated, taking into account the effects of decisions on all aspects of the 16/118 ... initiate an investigation into the conservation of an equivalent area organisms from all sources including, terrestrial, marine and other aquatic ecosystems and it can further be argued that not enough was done to: considered. it has been suggested that an irony is that: conditions of the rod (the rrod is meant, presumably), environmental questioning the basis of the information.] 97 `in terms of chapter 4 and section 92 in accordance with this act': pendlex: s 55(1)(a). the decision, but 'only received notification early in december 2005 through other means'." three local municipalities with domestic water. but, asked the ewt17 which all water stakeholders are represented and have a meaningful say in 6 alternative dispute resolution (adr) the issues and commitments made by the government, as reported in the eir in the appointed by the director-general in terms of this act and suspend the proceedings 41(5) of the same act provides that: "...[t]he requirement to maintain and retain the aquatic environment certainly falls under nema's ambit. the doa and rrod would appear to public finance management act104 president's 2003 state of the nation address] to provide water for platinum mining and 43 [a `closure certificate'] to such holder, but the minister may retain such portion of the which nema and the nwa were intended to prevent from occurring. importantly, the rod required that certain operational conditions, relating to instead of making a decision based on a consideration of director, mineral development, gauteng region and another v save the vaal be underestimated. the minister also has the prerogative (the water for drinking, for food preparation and for personal hygiene. the http://www.krugerpark.co.za/krugerpark-times-2-22-de-hoop-dam- hoop dam tender design & documentation to complete jul-06." couzens & dent per/pelj 2006(9)3 african heritage resources agency (sahra), and the departments of health it is submitted that an objective view of the matter shows that these steps were there proposed dam] will not lead to a substantial detrimental impact on the environment ...". 179 the argument for naming the culture that should prevail within the multi-stakeholder with potable water.15 both dwaf and the mining companies involved. in terms of s 41(1) of the mineral and the difference or disagreement concern the environment or laws concerned with themselves need to be acceptable and wise. moreover, the resolutions need to these relating largely to storage of hazardous substances and to worker as to why the project is deemed necessary although `economic development' http://www.bateleurs.co.za/ 26 aug) on 4 june 2006 a reconnaissance was made of the conflict of interests between groups is acknowledged in nema, in the nwa, and in many 128 although not labelled adr in the legislation, this is essentially what is provided for. 71 s 2(4)(m). journal of environmental law and policy 1 under section 7: the minister's decision on the appeals; and the revised adr process; but this remains `fire fighting' the real benefits of adr (negotiation, 20 macleod 2006 m&g 3 feb; quoting the ewt appeal, see n 4 and 17 supra. bolstering this will have learned from the errors made in the de hoop dam authorisation least, the matters as described in 3.2.2.7'. couzens & dent per/pelj 2006(9)3 and de hoop dams. the richmond dam is planned on the dwars/klein dwars river stakeholders involved in cooperative governance aspects related to the proposed project. 2004 is not present in the rod shows, again, that the rod is an inadequate document. be equitable, timely and lasting. couzens & dent per/pelj 2006(9)3 environmental management set out in section 2.91 generally is referred to.14 ...nature and extent of the proposed project and the proposed development, environment and tourism (limpopo), and agriculture and land eia/rod process including his own rod. the minister could then, and groenewald 2006 m&g 6 oct 18. serve as guidelines in terms of which environmental decisions groenewald 2006 m&g 6 oct. this statement, the present writers feel, represents a `face- the interest of the protection of the environment; 103 s 57(1)(a). 138 ibid. 4.2 national environmental management: protected areas act 57 of the applicant (dwaf) must: "...establish and maintain a conservation area of equal size 37 `qualified environmental officer' was not defined. few years' time ... as and when required.33 could then have required the use of adr to find the best and most equitable undisclosed mining interests in the other.7 or mec or another national minister in the evaluation of a matter provisions will be relevant in respect of the de hoop dam. it would therefore be interesting officially described by scientists. this is reported in the draft environmental impact as has been seen above, there is great unhappiness within sanparks about the implications of this for the present matter are subtle but clear. ngo geasphere, as saying that: the project is also an excellent example of cooperative governance which, inter alia, apply alongside all other appropriate and relevant it is unclear why dwaf desires to construct the dam; nor why deat agreed, authorities, to conduct a strategic environmental assessment or 169 deat 2006 http://www.dwaf.gov.za/ 1 nov at 3.2.5.1. the downstream river must be maintained".44 61 s 2(4)(a)(viii). according to chapter 5, titled `south african national parks', sanparks94 apparently were not given due consideration in the eir and the rod. it is clear, the rrod was released on 16 october 2006.152 development of a region already badly affected by unemployment.25 harm approach have been taken into account properly, as it ought to have national environmental management act 107 of 1998 commitments; this specification to include the commitments and ability to meet them by all actions and legislation with each other. co-operative governance and integration are not support for this view comes from scrutiny of dwaf statements on the rushed through just before the cma is formed for the olifants river. deat checks dam minerals and energy] approves the environmental management plan or environmental 44/118 informed by the spirit of nema. it also would seem to have been an appropriate article, which deals with shortcomings in the eia and rod processes. be established before commencement of any construction activities and to 18/118 several options exist in this regard, but it does not appear times online news [found on internet] dwaf should already have attempted to model and quantify the roles, responsibilities and constitution of the emc are to be reconsidered and means of alternative dispute resolution techniques, others might follow and either the risk-averse and cautious approach or the prevention or avoidance of 50 it is not stated that these mechanisms are reserved for disputes between proponents and 101 see the discussion below under s 5 of this article. so that it is legal and will be implemented by dwaf (which has the accountability under 41/118 south africa). see govt info 2006 (1) http://www.info.gov.za/ 17 may, generally. on the de from the river, particularly those closely related to biodiversity, are critically association with or on behalf of any other person or organ of state;99 right, mining right or mining permit must, before the minister [meaning the minister of institutional integrity of government in another sphere;118 couzens & dent per/pelj 2006(9)3 rod: where the scientific consequences of a development are uncertain, the 121 s 41(1)h.iv. if it is properly to perform this function, sanparks necessarily has a critical removal/disposal of waste generated, be complied with.43 system, which flows into the steelpoort river, which flows ultimately into the olifants river or large industries." see also bosshard 1999 wcd http://www.dams.org/ 17 may. couzens & dent per/pelj 2006(9)3 "...[t]he area where the dam is due to be constructed ... is known to contain at least 20 parties be warned if this is to happen; (b) that an amended rod clearly indicate which deat 2006 http://www.dwaf.gov.za/ 1 nov principles of nema, as they were required to do. nor did the decision-makers issued by the minister.111 issn 1727-3781 needs; the process of allocation is essentially a social one; the process is nema.46 this last sentence, of course, says nothing about whether the impact will be 64 s 2(4)(i). in spatial and temporal terms, impacts on the environment are often separated caution, to act only upon the best scientific data available and to ensure that all responsibilities of the acc include, inter alia, overseeing that all commitments reasonable level of assurance will enable considerable mining expansion and will bring to accommodate the ongoing adr process,128 hoop dam, conflict resolution and alternative dispute resolution in cma did act as dwaf has done, then it would be dwaf's duty to `blow the whistle'!) chapter 4 is headed "fair decision-making and conflict management" and obligations in place, however, these conditions were vague and would have nema national environmental management act related process that would guide future development and inform involved in ensuring that this happens. the nwa states that until such time as the cma is (b) any other functionary or institution catchment management agency are ... (c) to co-ordinate the related activities of water environment conservation act 73 of 1989 time-limits that may be determined;78 it is stated that sanparks must perform its will be required to live with the consequences of their decisions, of their eias 14/118 economic improvement) needs of the poor in the area, in the one corner; with affected residents/ratepayers' association[s]; (d) ward councillors; (e) non-governmental environmental considerations will be given due consideration. the de hoop dam, conflict resolution and alternative national environmental management: protected areas act 57 of 2003 `decisions' and `resolution' now require qualification. for example, the culture179 accommodate these interests equitably, and thereby to make the best -- or at given when the arguments of important stakeholders apparently were not given 8/118 30 ibid. and the emc must report to the director-general: deat on a bi- limpopo and mpumalanga provincial governments, and in desirable. the contending beneficiaries appear to be the water (and general 116 dwaf; but with oversight by the minister: deat. ecosystems shown in the national environmental management: biodiversity act 10 of basin states, especially from mozambique; (f) that an operational phase management increase public investment: develop olifants river system - response on environmental [found on internet] for particular sections of the project be acquired by dwaf before roll-out of the 19 water management areas (wmas) of which the olifants river record of decision (rrod), amount to a directive that an adr process be against the development lodged with deat these being from south african 159 deat 2006 http://www.dwaf.gov.za/ 1 nov at 3.2.2.7. these terms of reference being that (the fixed costs) from which the variable costs (ie, costs of resolving each dispute) agricultural engineers, pietermaritzburg, 1995 inadequate mitigation of risks to the ecosystems; and impacts on the biodiversity of with one another.121 5,700 in 1950 to approximately 50,000 today. ... hundreds of millions of people are will benefit from the project. according to macleod:16 assumptions, perceptions, relationships and coordination to flourish. all of even bear part of the cost (see n 7 supra). this could have an important consequence for implied by handing down its rod, with dwaf that the dam is needed and the rrod concludes by advising that the applicant (dwaf): 3.2.4, deat 2005 http://www.dwaf.gov.za/ 17 may) with the requirement in the rrod that and economic circumstances of these areas, the urgent need for socio-economic biodiversity) which its founding statute requires that it carry out. biodiversity, but merely to `initiate an investigation' into conserving an mpumalanga provincial water summit: white river (16 january 2006) "we can ill afford any negative impacts on our consumers with systems that regularly fail deat was required to take the nema principles into detrimental impacts and the grounds of appeals related to certain of enhanced of wise decisions being taken where decisions are necessary.140 the rod required, finally, that certain safety and security measures be taken; area." adds that "the implication of a `no-go' situation will be one of 48 rod at 7, 3.2.8.5. deat 2005 http://www.dwaf.gov.za/ 17 may. it is strongly arguable that in the 9/118 capacity; mr p owen, steering committee member, on behalf of the sawc; mr r lorimer, 113 an effect of a dam (particularly a large dam) is to alter both the amplitude and the 41 rod at 5-6, 3.2.6. deat 2005 http://www.dwaf.gov.za/ 17 may. it has been suggested that sanparks threatened such litigation not only which may significantly affect the environment; (s 17(1)(a)) or before whom an appeal 06.pdf [date of use 1 november 2006] the reserve, according to the nwa, consists of two parts: social process which will be forever ongoing. accordingly, in addition to the entrenching of bosshard p "an ngo look at large dams" 1999 world commission on all rehabilitation measures, as required for implementation due to construction damage, 80 s 17(1)(b)(ii). a new one. once the reserve is determined for a water resource it is phase of the development.163 111 s 78(2). in the instant matter, two 8 conclusion http://www.miningweekly.co.za/ 26 aug. see 1 introduction it has been a lengthy interim period and certainly a period long enough for 152 deat 2006 in the rod (the rrod is meant, presumably) and emp are met; providing financial provision ought to be of significant value. saleable portion will indeed serve the disadvantaged communities as specified (by means to the project. moreover, mining interests are not mentioned in the rod. per the national parks of its functions.107 assigned to it";97 disagreement to conciliation, the appointment of a conciliator, the appointment of a water caucus (sawc); and by a private individual. see, for example, wray sa 2006 (1) sea strategic environmental assessment accordance with relevant legislation) the necessary land rights.40 couzens & dent per/pelj 2006(9)3 2006] alternative but to approach an appropriate court for appropriate evaluation.86 rrod is probably as satisfactory a result as the concerned environmentalist iem integrated environmental management see below in the present section (s 2). it is worth noting that according to a media report of office of marthinus van schalkwyk, minister of environmental affairs & 62 s 2(4)(b). the nwa contains similar wording and certainly the same concepts--the "essential aspects" must be achieved and, further, that a written commitment from dwaf couzens & dent per/pelj 2006(9)3 `[t]he above' did not include proper details. that deat might later have provided, or been developer (dwaf); to monitor, on a daily basis, project compliance with the 2005, which suggests that several previous investigations to identify options to supply cannot be altogether prevented, are minimized and remedied.61 60 s 2(4)(a)(vii). national park (knp); flooding of areas containing rare and endangered species, and the department of environmental affairs released its rod on 21 november conflicting interests are involved. to meeting the environmental water requirements for relevant rivers as determined for (nwa) and the principles of appointed conciliators of the need to take into account the principles of nema: was further dependent on compliance with other legislation, in particular impacts on tourism due to the viability of the knp; the financial viability of the project (an organisation of pilots interested in environmental protection, who fly stakeholders over cooperation facilitator, the appointment of persons to conduct investigations, and the conditions of such granting of the s 9 licence opens the door to the licensee and sets in motion a chain of anon "assessing the eia" 2006 business day 15 may [found on internet] this might well have been an appropriate case for such a request to be 17 the endangered wildlife trust; an ngo, and one of the six objectors/appellants. resolution in integrated and sustainable water resources management" environment that is not harmful as would be a rash decision to build constructed despite the objections made to it, and despite the inadequacies of where conciliation does not resolve the matter, a conciliator may enquire of the couzens & dent per/pelj 2006(9)3 89 s 23(1). include cooperation with neighbours, in harmony with common goals;131 breach of these constitutional obligations. the constitution provides also that: concurrence endeavour to draft terms of reference for such arbitration.85 appoint a facilitator and determine the manner in which the facilitator chairperson [to be independent; and to have appropriate people and project management all conditions; (c) that dwaf supply written agreement that it will ensure that the domestic agreed to by the deat.158 improved in only 7% of cases but worsened in 70%, with the rest having no significant objections made to the process and to the appeals against the rod; as well as 115 part 3. dam the richmond dam might be built in the area to supply water as early as 2008 bloomberg 2006 creamer media http://www.miningweekly.co.za/ 26 aug (dwaf orwrdp 2 march 2004) [found on internet] government information 2006 accelerated and shared growth initiative for information needs to be credible and trusted and the understanding of it needs cooperative governance framework as `an adr culture' is made above in s 6 of this article. therefore, fundamental paradigm changes take place in the process and the procedures, especially where they are subject to significant human resource dwaf 2006 http://www.dwaf.gov.za/ 17 may lesser percentage of the stored water being earmarked for members of the emc were to chair of the emc.166 was already in progress or not, and where the site of the intended richmond dam was, ... "[i]nstead of finger-pointing and harassing concerned citizens, we worked with the perform include "...managing the national parks and other protected areas excellent manifestation of government's commitment to invest in 24 wray sa 2006 kpton http://www.krugerpark.co.za/ 30 may. according to the bateleurs about local employment, much needed economic growth and other benefits such as the development plans are approved by the relevant local authorities); (d) that dwaf must be discussed with and agreed to by the deat (rrod at 3.2.1.13). to an eia and requires an environmental authorisation. deat 2006 mining companies utilize the platinum reserves in the area, with a and evaluating reports and correspondence received from the independent where the management policies of list of abbreviations all emps were to be submitted by dwaf to deat before commencement of development, according to the principles, requires consideration of all relevant department of water affairs and forestry 2004 water resource followed were flawed. the appeals have, therefore, according to the minister, decision be complied with, the negative impact of this activity will be 25 wray sa 2006 kpton http://www.krugerpark.co.za/ 30 may. or appoint a conciliator on the conditions, including 93 s 23(2)(d). it is worth noting that the nwa has stipulated permanent organisational the recommendations made by the experts vindicate in significant respects the 4.1 national environmental management act 107 of 1998 (nema) schulze and pike "agrohydrological modeling" the reserve had been determined. the danger is that exactly this may have happened. as where such a decision-maker considers conciliation appropriate, he or she sa undated internet source (followed by year found on internet) environment;" (s 23(2)(e)) and to "identify and employ the modes of environmental which yield these types of information, options, decisions and resolutions are adequate consideration before actions [were] taken in connection resource development project or 'orwrdp') will the emc would: authority in respect of issuing rods for environmental authorisation.6 public notices economic growth rate, via the accelerated and shared growth initiative for south africa prospect of receiving and responding to feedback. they will instead be couzens & dent per/pelj 2006(9)3 environmental management (iem) were paid only lip service, at best. it has conflict.138 hoop dam specifically, see govt info 2006 (2) http://www.info.gov.za/ 17 may: "massively [date of use 17 may 2006] drawn conclusions, based upon a process of proper research, debate and in a the minister, mec or municipal council may, subject to section 22, 4 see, for instance, macleod 2006 m&g 4 aug 11, where it is commented that "[minister of for decision by deat (as the lead authority for the eia), authorising dwaf to not be implemented overnight. the act therefore makes provision for dwaf to extremely unlikely. development has a momentum of its own which can make it difficult to an organ of state and a water relations between the contending parties is important.127 plan (opmp) be drawn up and implemented for the relevant area, with specific reference couzens & dent per/pelj 2006(9)3 53 s 2(1)(c). s 1: `organ of state' means organ of state as defined in the constitution. s 239 wray m "de hoop dam threatens species yet to be named" sa 2006 kruger making of all decisions which may have a significant effect on the placed '...at the forefront of concern' in environmental management; it is also can evolve, than it is about imposition of requirements. bodies.19 environmental rights be anticipated and prevented, and where they and it is clear from the tenor of the legislation that to ignore the reserve would 156 deat 2006 http://www.dwaf.gov.za/ 1 nov `3: conditions; 3.2: specific conditions'. the particular matter; before concluding on reasonable grounds that the under way136 has worked too much in the interest of mining interests. catchment management forums are not provided for in the act; but are multi-stakeholder that a suitably qualified provides otherwise.105 42/118 not yet been listed by the minister by notice in the government gazette. however, the water allocation matters. in order to give practical effect to these policy the conditions and certain substantive issues should be upheld;148 none of the cma catchment management area 154 ibid. mechanisms and procedures provided for that purpose, and must one of the most significant failings of both the eia and the rod in the present appointment, must be made taking into account (s 22) decision in december 2004, minister of environmental affairs and tourism marthinus van such obstruction has been rustenburg platinum mines ltd. notice: environmental impact assessment: affairs and forestry is previous minerals and energy affairs minister lindiwe hendricks. kruger park times online news [found on internet] macleod 2006 m&g 3 feb could argue, however, that the rrod merely serves to mask that the event of dam wall failure.48 145 deat 2006 http://www.environment.gov.za/ 17 oct at 3.1. the base of trust is never built, then it has to be re-established for each dispute and exists. system, north of steelpoort. the de hoop dam is planned for further upstream on the which were not taken into account properly in the initial impact assessment and the eia and approval processes.142 national parks act 57 of 1976 to address the non-compliance including an order to cease the significant or not. the rod then continues: downstream of the dam are changed because the water flow is regulated. ... scudder to weigh in on behalf of either side in the dispute, but to show that there is a ongoing because the circumstances are continually changing. steelpoort river itself. we could see existing dams on both river systems, but found no need to be a shared understanding of the consequences of decisions which construction in the coming period of the john ross highway to richards bay, a dam on to consider these issues on an ongoing basis. contend they ought to have been as this may have prevented much acrimony, it is not possible for the authors of this article to state with certainty that the de chairman of the national parks support group trust on behalf of the trust; dr d 133 ibid: the constitution provides that all spheres of government and all organs of state 6 macleod 2006 m&g 3 feb 5. potential impacts in the dam's basin and in its immediate surroundings. 13 dwaf 2004 http://www.info.gov.za/ 17 may. according to the same release: "...[t]he a `suite of environmental management plans (emps)' is required; including ecological reserve requirements of the steelpoort river downstream of the discussed above, under s 1: the facts of the dispute, it is even being proposed that a new regulations r1182, r1183 and r1184 in government gazette no 18261 of 5 cooperate and integrate. it is interesting to note that 8 years after the passing the nwa, handed down on 21 november 2005, despite there having been six objections political will toward development and the momentum of the asgisa initiative, deat, five appeals against the rod were received from various parties both in their commence mining operations. without the s 9 licence he cannot seek such approval. the environmental protection is as much a `need of the people' as is economic development. could have been expected than the somewhat glib assertions that there should building of the dam, as mitigation for the loss of this land. this couzens & dent per/pelj 2006(9)3 department of environmental affairs and tourism 2006 statement from the more development, with another dam being intended to supply water axelrod evolution of cooperation disadvantages and benefits, must be considered, assessed and evaluated and actions relating to the environment.69 department of water affairs and forestry 2004 national water resource the most important infrastructure. planned investment by the major state corporations for 2003 is at least r32 148 deat 2006 http://www.environment.gov.za/ 17 oct at 3.4. that at least 20 red data species that are already threatened with extinction occur in the groups, require extensive practice to achieve and manage effectively. interests, environmental conservation authorities, organs of state and, of the water law will actively promote the values enshrined in the bill of rights" (principle 1). use and abuse (pollution) of water. couzens & dent per/pelj 2006(9)3 effects to ensure that cumulative impacts are identified, assessed and managed; an sea operational. the process for identification and establishment of this conservation area hardly be greater. this could have represented ch chapter (a) monitor and audit project compliance to the specific conditions of the rod, structure and pump station) on the steelpoort river at the farm de process.182 ...the dam basin contains 29 plant species of conservation 1998 and of the national water act 36 of 1998. if this case could be settled by solution for the demands envisaged on the system";145 national water resource strategy and water use objectives, september 2004 (see on site to assist with municipality.29 current preliminary reserves; this opmp being essential before the de hoop dam is 85 s 18(6). s19(1) provides that "a difference or disagreement regarding the protection of the have expected that such a model and quantification would have been required of interest, though, is the following clause: this section does provide a general duty of care; and it would be disingenuous to argue further support for the mining interest contention appears from a complex policy requirements are recognised in the white paper on water built." nwa national water act preparation of an environmental programme, which, if approved, will enable him to sajelp south african journal of environmental law and policy environmental management: biodiversity act 10 of 2004: "an organ of state that must integration of water and other management134 cmas, ch 7: ss 77-90; and water user associations, ch 8: ss 91-98), and processes are oct 18 factors like sanitation, removal of man-made structures of consequence and environment conservation act 73 of 1989 (which regulations and act govern this project in conclusion, then, the rod was an inadequate document; and one which was 139 turton water scarcity. court, rsa; senior lecturer, faculty of law, university of kwazulu-natal, durban. 2005 nature. scudder future of large dams suggests that: "...[d]uring the past 50 years 21 according to macleod 2006 m&g 3 feb: "[o]pponents of the dam were furious when dam;157 halt. as an analogy, consider, for example, the words of olivier ja in director, mineral the proposed development came as a result of the need to provide govt info 2006 p&lon http://www.polity.org.za/ 24 may on internet] http://www.info.gov.za/speeches/2003/03021412521001.htm due weight by the decision-maker. at least, even if such weight was given, it scudder t the future of large dams: dealing with the social, upheld [based on the eia].56 wray m "another objection against the de hoop dam" sa 2006 kruger park orwrdp olifants river water resource development project minerals and energy affairs. in a straight swap of portfolios, the new minister of water upon completion of the construction phase of the project, the genuine dispute about the course which should be followed as well as interests and desirability should have been assessed in the eia scoping report, they might have section 24(1) ..." (s 23(3)). govt info 2006 (1) http://www.info.gov.za/ 17 may deat 2006 http://www.environment.gov.za/ 17 oct. bloomberg n "fresh environmental concerns over de hoop dam" 2006 development including an organ of state (sanparks). one could hardly think support legal compliance in other areas (such as cultural heritage, which is of course an maximizing benefits, and promoting compliance with the principles of amongst all stakeholder representatives and their top level scientific sanparks in respect of the kruger national park were not taken into account, through this rrod into consideration, the principles of section 2 of kruger. "if our rivers dry up, the value of the tourism experience in 2004: municipality, the capricorn municipality and the mogalakwena phenomenon. uncertainty is germane to environmental issues. it is necessary, as possible. it is even provided that: undertake additional strategic level investigations, including assessment of cumulative a.pdf [date of use 17 may 2006] 161 deat 2006 http://www.dwaf.gov.za/ 1 nov at 3.2.2.4. 140 see generally, axelrod evolution of cooperation. axelrod suggests that promoting good see s 2 and n 24 and 25 supra. there is as yet no indication as to when the reserve might deat's conclusion is that this activity will not lead to a substantial ecosystems of the water resource. the reserve refers to both the 162 deat 2006 http://www.dwaf.gov.za/ 1 nov at 3.2.2.6. the report to include, `at the very what is apparently the first mention of the project to be found in the february over the holiday period to appeal. sanparks said it was given no official communication of mitigation measures, a suite of environmental management plans the emc to be re-established with new terms of reference for the operational ... 182 the eia process for the proposed richmond dam (see s 2 and n 24 and 25 supra) might 43 rod at 6, 3.2.7. deat 2005 http://www.dwaf.gov.za/ 17 may. report (eir) essentially is the environmental impact assessment. if needs and n 10 supra on the asgisa issue. as appears to have been the case here, this principle has clearly been uniqueness of endemic biodiversity.36 financial provision remains in force until the minister issues a certificate in terms of section gn government notice 176 s 2(3): development must be socially, environmentally and economically sustainable. organisations; (f) community leaders; (g) representatives of farmers associations; (h) an couzens & dent per/pelj 2006(9)3 department of environmental affairs and tourism revised record of and on the other hand, the minister effectively expansion and will bring about local employment, much needed economic growth and conservation, management and control of the water resources in its water management operate with one another in mutual trust and good faith by119 republic of south africa (dwa pretoria 1986) 5 the conflict might be so go to the heart of the matter. operation in respect of latent or residual environmental impacts. it is submitted that these number of interests. the matter discussed in this article is not hypothetical, but imposition. properties, will be flooded if the dam is built. some of the plant species have yet to be are completed and the site is handed over to dwaf by the contractor for operation. deat yet contain no mention of the kruger national park and the role of its management 10 macleod 2006 m&g 3 feb. it appears that undisclosed mining companies will be funding, agriculture, the construction of ngqura (coega) port and concessioning of the durban determination of the reserve may be made and later superseded by something of the complexity of biological diversity can be seen from this definition; which ...ensure adequate and appropriate opportunity for public it is further provided167 already been argued that the section 2 principles of nema were not adequately ...[a]ll spheres of government and all organs of state within each case the impact of the "no development" option needing to be critically reassessed to groenewald 2006 m&g 6 oct the social, economic and environmental impacts of activities, including particularly where, as in the present case, no such issuing had occurred. in the 45 national water act 36 of 1998. dams [found on internet] would be difficult to support an argument that posits the unknowable. the scoping report bateleurs 2006 bateleurs newsletter june/july [found on internet] mitigate the potential impacts to acceptable levels.147 at the end.180 a manner that does not encroach on the geographical, functional or considered, as it ought to have been.113 of arbitrators established in terms of section 21." ...identify, predict and evaluate the actual and potential impact on nor must it be forgotten that this was not simply a dispute between organs of state, but one which also involved other interested and affected parties.123 bateleurs 2006 newsletter http://www.bateleurs.co.za/ 26 aug independent environment control officer (eco) must be appointed by the required to conserve biodiversity, nor even to conserve an equivalent area of dispute resolution in environmental disputes general perceived inadequacies; unhappiness with the conditions attached to the 28 rod at 22. deat 2005 http://www.dwaf.gov.za/ 17 may. wray m "de hoop dam gets go-ahead" sa 2006 kruger park times online monitoring and auditing of the project; as early as 2009/2010, with the full yield being available by 2011/2012." dwaf 2006 government information "women dominate mbeki's mini-cabinet reshuffle" and transparent manner and that access to information must be provided in international stakeholders. deat 2006 http://www.environment.gov.za/ 17 oct. matter under discussion, many of the general objectives of integrated 123 in particular, the five appellants (other than sanparks) against the rod. the constitutional rights of the steelpoort people to live in an and it can hardly be argued that the weaknesses in the requirements laid down by the rod high; there is no clear right and wrong apparent; implicit (undeclared) [date of use 1 november 2006] arising from a difference or disagreement regarding the protection of the environment is schulze re and pike a "agrohydrological modeling as a tool for conflict by comparison with the flaws and inadequacies in the initial rod, as discussed (b) make recommendations to the director-general: deat on issues related to the capital expenditure in the mtef period, including, at the national level, r55 billion for 46 it is, in fact, staggering that the rod could contain mention of the ecological reserve and periods do not run over december-january, or that registered interested and affected was reported that: according to the doa, the minister appointed certain `external experts' to in respect of the reserve, the binding duty (the wording is `must') which rests on sanparks describe it as "unclear, vague and embarrassing" as well ...the need to provide the previously disadvantaged communities 2006 policy and law online news [found on internet] 78 s 17(1)(b)(i)(bb). 32/118 study of the lowveld/kruger park ecosystem as a whole being urgently needed, to the environment. nema and the nwa are soaked in the spirit of adr precisely have been identified during the eia process. based on the above, [d]ecision for the implementation of the reserve of the olifants river, (e) such other considerations relating to the public interest as may be relevant. ... appeals. deat 2006 http://www.environment.gov.za/ 17 oct. cease." if the project went ahead without clear assurances that frequency of flood flows downstream as well as the overall flow. all three of these are key the view that a reasonable interpretation of these stated requirements is that a couzens & dent per/pelj 2006(9)3 archaeologically sensitive area. however, the scoping report also benefit only mining and not necessarily provide potable water for communities; 19/118 emc environmental monitoring committee in other words, the departments and other players are directed to enter into a not only is sanparks a juristic person, but between species, and of ecosystems." b) socio-economic adequacies: the need for the dam; the contention that the dam will 8 anon 2006 business day http://www.businessday.co.za/ 17 may. on the question of serve the basic needs of the poorest of the poor; rather, that it is to serve the determinations can hardly be seen as abrogating sanparks' legal standing; 67 s 2(4)(r). as recently as mid-august 2006, it has been suggested that: "... [d]riving the de hoop three core projects underpinning government's attempts at achieving a six percent couzens & dent per/pelj 2006(9)3 of the eight are particularly relevant. it is required that a risk-averse and disseminated by rustenburg platinum mines ltd (anglo platinum), `interested and of the sekhukune land centre of plant endemism to replace that [found on internet] due to poor planning and resources that are not able to yield sufficient water when we facilitate the economic development in the greater sekhukhune litigating, it implies also that the decision-makers, having become aware of a 144 the experts suggested, in essence "(a) that in future, deat should ensure that appeal similar nature to the area of the sekhukhune land centre of does have supervisory powers over sanparks. the minister is sanparks on measures to achieve those norms and standards.109 intergovernmental co-ordination and harmonisation of policies, legislation and relief". 143 deat 2006 ...[t]he construction of a large storage dam (and associated spillway final environmental impact report (eir) and environmental management plan again, this is extraordinarily vague. it is not clear what was meant by `can be environmental affairs released its record of decision in late november, giving them 30 days the parties have to keep going back to square one to build it all up again.] slimes dams were clearly visible, but we could find no indication that work on the proposed (c) by making recommendations to the parties to the difference or disagreement; or 82 in the nwa, the minister, mec, local councils and all interested and affected immense economic impact. not only will this impact on the environmental legislation and specific measures as stipulated in the eir and the of the dam (possibility of failure, seismic data and criminal sphere must ... exercise their powers and perform their functions in internet] http://www.info.gov.za/speeches/2004/0406091515001.htm [date a article finally, importantly in this context, nema's principles require that there be conservation area must be established at the time that the dam bray e "co-operative governance in the context of the national ...[t]he two governments must adhere to the southern african ...cannot therefore be avoided, but measures must be put in place to record of decision. 12/118 government being a party to this study; (e) that dwaf must obtain written confirmation either because application for authorisation was made before the commencement of conservationists object to the project on the grounds that an mitigation of activities, with a view to minimizing negative impacts, turton ar "water scarcity and social adaptive capacity: towards an this description of the issues was adequate for the eras of getting allegation (or at least implication) would appear to be that deat abused procedural mineral and petroleum resources development act 28 of 2002 27/118 essentially three grounds: measures); and the need for a strategic environmental assessment (sea) that would parties.63 16 macleod 2006 m&g 3 feb. be expansive. see discussion below in relation, eg, to s 17(2), which provides that replace that lost due to the construction of the dam and its impoundment area (rod at 4 reg regulation it is further required that development may 2006] sufficient and adequate to make an informed decision. no fatal flaws wma water management areas 52 s 2(1)(b). http://www.bateleurs.co.za/ 26 aug. according to a notice (in terms of reg 4(6) of the `2: key factors informing the decision'. mec or another national minister, to assist such a municipal council dwa management of water resources conservation interest in the rivers which flow into the kruger national park and new allocations and the transfer or reallocation of water use rights ..." dwaf 2005 the entire matter to a close -- the de hoop dam will almost certainly be protection of heritage sites `likely to be impacted', and waste avoidance and act. it must, at least, be presumed that dwaf is to perform this role in the spirit management programme in terms of section 39(4), make the prescribed financial provision ...give effect to the reserve as determined in terms of this part when hoop ... the dam will have a full supply level of 915 masl, a wall intelligence). dwaf must therefore maintain the early warning deat, or between organs of state. the intention of the drafters appears to have been to operational condition required that "...[t]he ecological reserve requirements of or to bosshard 1999 wcd http://www.dams.org/ 17 may 158 deat 2006 http://www.dwaf.gov.za/ 1 nov at 3.2.1.13. from the de hoop dam.24 interest; and (e) in the interest of protecting the environment." to water management. provincial constitution; or petroleum resources development act 28 of 2002: "...[a]n applicant for a prospecting appropriate when: a number of stakeholder groups is involved; uncertainty is acc authorities coordinating committee environmental management, is co-operative governance by all the stakeholders involved." department of environmental affairs and tourism (deat).2 simulation models.137 sanparks south african national parks pending the outcome of the conciliation." (s 17(3).) 26/118 decision: de hoop dam project reference 12/12/20/553 olifants river soon as late 2006, to begin the construction of a dam the de hoop dam on 49 `co-operative governance' (the preamble; and ch 3) and `fair decision-making and conflict indeed given consideration to all relevant nema principles and applied them to mirrors the definition of biological diversity in a 2 of the convention on biological diversity. of ensuring that the required water resources development plans and water services parties, public and private, with regards to water. while taking cognisance of existing uses, (a) any department of state or administration in the national, provincial or local sphere and the present writers submit that there will be similar disputes in the future 95 s 54(1). the national parks act 57 of 1976 was repealed by s 90 of the national minimisation.34 while this does mean that sanparks would need to exhaust all avenues before referred to arbitration the parties thereto may appoint as arbitrator a person from the panel act 28 of 2002; and in terms of s 41(4)(a) of the national water act 36 of 1998) the proposed de hoop dam is not the only issue of concern. in may 2006 it 47 rod at 7, 3.2.8. deat 2005 http://www.dwaf.gov.za/ 17 may. 26 rod at 11. deat 2005 http://www.dwaf.gov.za/ 17 may. in addition, a water licence must regulations r385 in government gazette no 28753 of 21 april 2006 to be a member of these organisations. in terms of the act, sanparks may, for happened here, with the release of the rod in november 2005) the decision- considerations, this article will not discuss these. the authors will simply note encouragement is given to the decision-maker to make as informed a decision environmental management act 107 of 1998" 1999(6) south african the first institutions that will give effect to these aspects of the act are not yet functioning. activity as well as instituting criminal and/or civil proceedings to couzens & dent per/pelj 2006(9)3 with the requirements of the eia regulations. information submitted before recommending the dam at de hoop. this project is an a dam and be damned. whether building a large dam is the another way in which conciliation might happen is that, per nema: issues and concerns. notice: environmental impact assessment: richmond dam those sections;171 important structures prescribed by the state to achieve integrated and sustainable see, for example, govt info 2006 p&lon http://www.polity.org.za/ 24 may. this is ironic, dependent on the variability of flow. south african rivers have highly variable cooperative governance' it is clearly not as is illustrated above. and accumulative; therefore, `proving' them is extremely difficult in a world of multiple 107 s 78(1)(a). agriculture and primary human usage.9 it is also an organ of state.96 rod; inadequate public participation and consultation with regard to cbos and against dwaf, but also against its own principal deat, being the competent protection of the environment may order the parties to submit the dispute to a conciliator mitigation of this, the summary report suggests that 'an area of sekhukhune mountain stakeholders to visit the consequences of their past, present and future actions. must carry out his or her tasks, including time limits.81 wray sa 2006 kpton (1) http://www.krugerpark.co.za/ 17 may purpose is described as being `to promote the application of appropriate finding nema: the national environmental management act, the de 141 deat 2006 http://www.environment.gov.za/ 17 oct. wray sa 2006 kpton (2) http://www.krugerpark.co.za/ 17 may either him or her or, after consultation with a municipal council or p&lon policy and law online news are designed to provide an institutional basis for such adr. nema, and the nwa, were disregarded. this land. this conservation area must be established at the time that the dam becomes environmental protection. built in and the parties can move on to the nub of the dispute without continually and wisdom are built and it is these qualities that combine to deal with act in accordance with the conflict-breaching mechanisms which the from the mozambican government that it has given clearance for the dam to be built; and the rod gave dwaf the right to proceed with the building thabo mbeki, houses of parliament, cape town, 14 february 2003 [found implicit in all of these processes is a requirement to develop skills and unacceptable if there is a reasonable certainty that species could be lost and in such a there appears, however, to be a cynical view amongst interested and affected the issuing of norms and standards, directives and or otherwise transformed as result of the building of the dam, as mitigation for the loss of [that the dam] ...may have certain positive impacts, both in terms of the inception of the project] should the need arise to review the prescribed frequency deemed adequate to mitigate the identified impacts to acceptable ...[a]n organ of state involved in an intergovernmental dispute must company: internationally it has become accepted that the detrimental and m dent** express these needs, values and interests on an ongoing basis are key. it needs to be flooded, 11 of these 29 species with conservation importance are above, the director-general may, on the conditions, including time-limits that he 72 the state departments responsible for nema and the nwa must collaborate, coordinate, in the rod that `the need for the proposed dam has clearly been demonstrated' rrod at bray 1999 sajelp or stressed ecosystems, such as coastal shores, estuaries, wetlands and 6/118 (adequate funding for the development and implementation of management the mitigation measures proposed in the environmental impact principles by reference to which a conciliator appointed in terms of nema must couzens & dent per/pelj 2006(9)3 macleod 2006 m&g 4 aug developing countries" mewrew occasional paper 9. water issues study [developing layers of trust in the assumptions (mentioned above) builds the base assumptions and therefore easily trivialised and ignored when it is used in an inappropriate then they ought at the very least to have been repeated in both the eir and the rod. it amended scoping report (undated). http://www.dwaf.gov.za/ 1 nov. emphasis did not appear to be on environmental protection.42 world-wide, the standard practice to assist this process, of visiting http://www.dams.org/news_events/events_london0799_bosshard.htm the project/development was authorised on condition that dwaf acquire (in 2006 http://www.dwaf.gov.za/ 1 nov at 3.2.4.6. 90 s 23(2)(a). integration is much more than simply achieving representation equity (ie, seats 122 s 41(3). modeling technology is affected directly. the words `information', `options', further conditions include that dwaf must set be applied for and obtained. this is a separate process and is not considered in this nema's principles by ignoring this and by not considering sanparks' as a safeguard of biodiversity, this was extremely weak. dwaf was not must co-operate with each other in mutual trust and good faith by co-ordinating their the risks and consequences and alternatives and options for the proposed dam inundation basin ... [r]oad realignment [which] rrod revised record of decision ... [concluding that] ... the principles of section 2 of nema can be marble hall already under construction and a record of decision having been issued in environmental and developmental disputes. it is a great pity that adr provide an immediate test case for the willingness of the protagonists anglo-platinum, mbeki t 2003 state of the nation address of the president of south africa, management best suited to ensuring that a particular activity is pursued in accordance with nor was enough done to water have been undertaken by dwaf, but that: "...[s]ince these earlier investigations couzens & dent per/pelj 2006(9)3 of a situation in which conciliation would have been more appropriate. heritage legislation; and prospecting and mining legislation.41 as saying that there was nothing malicious or intentional about the timing: "[t]he fact that 49/118 equivalent area. what was meant by `equivalent area' is not defined; and, 39 it could be argued that a duty of care exists ex lege. according to s 54 of the national finding nema: the national environmental management act, there is also concern about the relationship with mozambique; in which regard kpton kruger park times online news usage and development pressure.67 department of environmental affairs and tourism 2005 record of decision seems curious in situ, considering that there were six objectors to the proposed further, one of the principles requires that actual or potential feed mining interests'.10 102 s 57(1). pre-marked red data species sites.38 12 according to a statement by dwaf in march 2004: "... [t]he project is driven by the social environmental impact report, final (13 october 2005) [found on internet] 131 white paper on national water policy 1997; dwaf 1997 http://www.dwaf.gov.za/ 1 nov at authorised on condition that dwaf establish an environmental monitoring director of the ewt, on behalf of the trust. an appeal from geasphere raising similar 30/118 120 s 41(1)h.iii. http://www.environment.gov.za/ 17 oct. it is likewise not apparent that sufficient weight was given to the principle that couzens & dent per/pelj 2006(9)3 nevertheless, nema requires that social, economic and conciliator appointed in terms of this act must attempt to resolve the matter (s 18(2)) 7 substantiation for this contention will appear generally from the arguments in this article; and co- for example, eia environmental impact assessment and that the substantial impacts: users and of the water management institutions within its water management area; (d) to n note indicate the way forward with the proposed de hoop dam; (i) that, finally, the rod specify it is not, in any case, certain to what extent people in need of domestic water ... that negative impacts on the environment and on people's reserve requirements have actually been determined, there are none to meet. environment may be referred to arbitration in terms of the arbitration act, 1965 (act 42 of adr alternative dispute resolution financial provision as may be required to rehabilitate the closed mining or prospecting as the nwa commenced on 1 october 1998, efficiency. the old law created a climate for economic exploitation to the white paper on a national water policy for south africa 1997 91 s 23(2)(b). this requires that the stakeholders develop a holistic knowledge, and to do this 57 s 2(2). it is noteworthy that the word `interests' is used; and not the word `rights'. ...positive impacts, both in terms of socio-economic and ecological 2006 volume 9 no 3 4/118 couzens & dent per/pelj 2006(9)3 organs of state, the involvement of ngos and conflict-breaching mechanisms. construction for purpose of monitoring compliance with the rod and with and the adoption of a complex deat department of environmental affairs and tourism paralysis and uncontrolled development. adr cannot be something `tacked on' which stakeholder groups will bargain for their interests rather than to clog the courts with denied.22 119 s 41(1)h. the top of mountains and on the side of mountains and mountain ridges. a number of objections. the matter was, therefore, appropriate for conflict resolution, as section on corporate governance as well as the ability of government to meet its environment agriculture and development, faculty of science, university of kwazulu- and the letter (where appropriate) required by the nwa. as well as according to the rod: ...direct the department [of environmental affairs and tourism, there is no suggestion that either deat or dwaf take into account the interests, needs and values of all interested and affected 109 s 78(1)(c). 28/118 the water resources under its control; ...". s 80 provides that "... the initial functions of a sanparks now functions in terms of the latter act. see also pendlex s 2(g) of the latter not been implemented, we, ironically, must still live with the old weaknesses. indeed, it is a major stakeholder and thus must be recognised as having a right with a record of decision (rod) providing subsequent authorisation by the under discussion. another requirement which does not appear to have been met is that nema is intended, besides setting principles in place for national environmental stakeholders are obliged to co-operate in permanent organisations (cmas) to meeting `i therefore...' concludes the minister, in the doa,: deat 2006 http://www.environment.gov.za/ 17 oct wray m "another dam planned in the olifants river catchment" sa 2006 thereof would be required to address the identified inaccuracies.150 must be socially, environmentally and economically sustainable.58 decision-making processes. consequently, that this was (and is) an appropriate guidance for the functioning of the emc; taking into account all relevant 5/118 had relied on earlier was flawed. ii. exercising a public power or performing a public function in terms of any what amounts effectively to ongoing adr in many ways;124 found. the report also says that the dam basin is in an been partially upheld. importantly for the arguments made in this article, the dwaf white paper on a national water policy for south africa april 1997 present case, to argue otherwise would be to argue that sanparks has been tragedy. government's failure to act would be as great a violation of this mining interest rationale appears nowhere in the november 2005 reason the basic right of all to a fair and reasonable share, organisational structures (for instance, the result is the de hoop dam situation prior to the rrod: precisely the result therefore, that the decision-makers did not act in accordance with the section 2 is to groenewald y "de hoop dam gets thumbs up" 2006 mail & guardian 6 use 26 aug 2006] http://www.dwaf.gov.za/ 17 may. other protected areas, including their biological diversity.98 operative governance has been observed more in the breach than in the and pumping stations, and a tremendous amount of mining activity. there is a large mine unfortunately, deat phrased this simply as: bolstering this argument, in terms of the act, sanparks is governed by a south african national parks of its functions;108 173 deat 2006 http://www.dwaf.gov.za/ 1 nov at `4: consequences of non-compliance'. emps; act 73 of 1989; in terms of s 39(1) of the mineral and petroleum resources development for proceeding. it would be very difficult in the present matter to argue that macleod18 can be cured by the provisions of another act, which further act has not even been referred nema (and of course by s 38 of the constitution of the republic of south africa, 1996, chapter 3 of the national environmental management act [107 of 1998] ... must take into path. indeed, it is submitted that by not doing so, the decision-maker missed 33 rod at 3, 3.2.3.1. deat 2005 http://www.dwaf.gov.za/ 17 may. needs practice and it is in the practicing that relationships, trust, understanding `swept under the carpet' at deat. the information which would need to be used is full of conciliation under this act;77 some of these policy requirements relevant to the present discussion the first rationale given in the rod is that of required that a credible eia process be conducted. in addition, the minister share of water, known as the ecological reserve, sanparks "will however, this would not have been an argument to be taken seriously as will able to pay for it." in its appeal, sanparks said the dam would out on the opportunity to bring all interests into the fold properly and, thereby, to comply with any of the above conditions may result in, inter alia, the bibliography that a centre of species endemism need not be taken into account, merely because it had wua water user associations more information on the system dynamics. the processes will also need to be resources development project (orwrdp), with the raising of flag boshielo dam near 132 white paper on national water policy 1997; dwaf 1997 http://www.dwaf.gov.za/ 1 nov at in carrying out his or her functions, a conciliator appointed in terms 35 rod at 4, 3.2.4. deat 2005 http://www.dwaf.gov.za/ 17 may. dwaf 1997 http://www.dwaf.gov.za/ 1 nov development a priority in the olifants and mogalakwena/sand catchment 127 arguably, too, the courts are not appropriate for resolving disputes where multiple 718b-d: "the issue of a licence in terms of s 9 enables the holder to proceed with the 172 deat 2006 http://www.dwaf.gov.za/ 1 nov at 3.2.7. such other legislation includes, in 129 in the preamble to ch 7 of the nwa it is stated that: "...[w]hilst the ultimate aim is to interruption of the flow of the olifants would endanger several game reserves downstream, including the kruger park, and would have a against economic and development ones and requires, instead, that they be integrated. promote the co-ordination of its implementation with the implementation of any applicable other supporting acts. the nwa goes further than simply acknowledging this conflict of specific environmental management act, or of any other statutory provision concerned with authorisation 94 as established by s 5 of the national parks act 57 of 1976. in the views of the present authors, the foregoing presents a good case for the in the south african situation is conflict between the goods and services for does not appear from either the rod or the eia on which the rod was couzens & dent per/pelj 2006(9)3 mining sector has leased, for a five-year period, an under-utilised portion of water from the couzens & dent per/pelj 2006(9)3 per the act, the functions which sanparks must couzens & dent per/pelj 2006(9)3 at the forefront of its concern"; but this cannot be seen as a `developer's charter' upliftment and development, and planned mining expansion." see dwaf 2004 (1) 18 this article will not consider the question of international obligations and potential wdc world commission on dams eia process and to advise [thereon].143 quotes vera ribeiro, coordinator of the mozambican environmental proceed with the project. the rod does not mention mining in its explanation ecological reserve relates to the water required to protect the aquatic processes which offer regular, affordable and meaningful communication 76 s 17(1)(b)(i). the environment, socio-economic conditions and cultural heritage, eco; and (i) an aquatic and terrestrial ecologist/s. and integrated approach to water management.135 establishment of this conservation area must be discussed with and members.160 levels and that the principles of section 2 of nema can be upheld.31 48/118 in its appeal, "how will domestic supply be guaranteed? no evidence 59 s 2(4)(a)(i)-(viii). minister of deat was right to set aside (at least, partially) a grossly flawed was in breach of its legal obligations in terms of nema and the constitution. an 1965)." levels of acceptable change for the area in question.151 purportedly largely based. could realistically have hoped to achieve.178 appropriate action is another matter.8 legislation, but does not include a court or a judicial officer. environmental disputes 160 deat 2006 http://www.dwaf.gov.za/ 1 nov at 3.2.2.2. these members being: (a) a are not yet in place. it might not be coincidental that the rod on the de hoop dam was news [found on internet] http://www.krugerpark.co.za/krugerpark-times-2- prepare an environmental implementation or environmental management plan in terms of production of much needed platinum reserves, it will also result in management agencies, conflict between government departments and other 14 rod at 22. deat 2005 http://www.dwaf.gov.za/ 17 may. it might be objected that as need couzens & dent per/pelj 2006(9)3 simply to `initiate an investigation into the conservation' of `an equivalent area' is clearly 25/118 million people have been resettled from planned reservoir basins, and this evacuation also at the end of september 2006, the minister of environmental affairs and case, anyway, to refer to conciliation; and, per section 17 of nema, as board-102 the olifants river, mpumalanga.1 couzens & dent per/pelj 2006(9)3 110 it is worth noting also that in terms of s 32(1) of nema, as amended, "[a]ny person or 137 schulze and pike agrohydrological modelling. sawc south african water caucus been so assessed; and that as deat should have considered these in considering the important stakeholders' interests and significant environmental considerations audi rule applies to the consideration of the preliminary decision ..." for mining in the olifants river catchment. anglo platinum is macleod f "damned from the start" 2006 mail & guardian 3 feb 5 (d) [be] disbanded at a time to be determined by [deat] in consultation with [dwaf]. guide protagonists. it is important to understand that the stakeholders in cmas that the section 2 principles of nema were properly considered by deat. participation in decisions that may affect the environment.93 rod record of decision it could hardly be made any clearer that both the eir and the rod have now couzens & dent per/pelj 2006(9)3 above) that that not only was an opportunity wasted; but the decision-maker (emp) dated october 200527 165 deat 2006 http://www.dwaf.gov.za/ 1 nov at 3.2.3.2. bushveld, similar in size to the proposed development, be formally conserved.' plant http://www.krugerpark.co.za/ 17 may. 46/118 importantly, there is a reminder to adversely affected by dams, but curiously no precise figures are available. at least 40-80 "[t]he water law shall be subject to and consistent with the constitution in all matters 149 deat 2006 http://www.environment.gov.za/ 17 oct at 3.5. 65 s 2(4)(k). in the present case, sanparks' objections to the project appear to have been these desirable phenomena, and especially that of coordination between deat aside, dwaf certainly appears to be determined to construct pre-construction emps, post-construction emps and operational emps.169 richmond dam amended scoping report (undated) group of persons may seek appropriate relief in respect of any breach or threatened or where a conciliation or mediation requires a collective socio-scientific endeavour in an ongoing process. 40/118 acceptance; ** msc eng (natal) phd eng (natal) mbl (unisa); preng, programme director, centre for department of water affairs and forestry and other major based on a fundamentally flawed eir. instead of being a set of reasonably levels;154 authority (sanparks). of use 17 may 2006] i. exercising a power or performing a function in terms of the constitution or a since it depends on the assumptions that are made in generating the information (through 69 s 2(4)(l). statutorily imposed functions.110 the appeals, according to the minister's statement of 29 september 2006, concerned development 16 october 2006. [found on internet] the newly proposed dam may well have a significant impact on the biodiversity compliance with the rod and to make recommendations to the director- couzens & dent per/pelj 2006(9)3 costs of the eco.168 made for the de hoop dam." macleod 2006 m&g 3 feb 5. required (the wording is `must') to monitor the performance by south african [date of use 30 may 2006] the protection of the environment or the use of natural resources ... (d) in the public the orwrdp project may be many things, but an `excellent example of adr process in this matter could have pointed south africa in the direction of the minister106 (d) in any other manner that he or she considers appropriate. 70 it might be asked whether the project and the rod did not support the principles of the sahra south african heritage resources agency objectives. 115 environmental management of activities.'89 at the table) it needs knowledge equity as well. resources development project: environmental impact assessment: nwa. neither of these requirements appears to have been properly met in the matter nation address and suggests that the project (the olifants river water 2.84 functions subject to the norms and standards, directives and determinations 79 s 17(1)(b)(i)(cc). to be shared by all parties. the options must be sensible and innovative. there couzens & dent per/pelj 2006(9)3 5: the objective in relation to our neighbours is the same as it is within our borders, to information, whether documentary or oral, as is relevant to such of use 17 may 2006] 58 s 2(3). integrated economic, developmental and environmental goals;132 geographic, disciplinary and organisational separation. report directly to the director-general: deat.32 environmental disaster; the effect on the people is an escalating the department of water affairs and forestry (dwaf) plans, possibly even as inadequate the nature of `endemism' is such that, inherently, no equivalent currently affected persons the opportunity to bring relevant information to the decision- alia, from deat, sanparks and relevant affected municipalities.165 water [a]ffairs said one reason it wants to build the dam is to supply 3/118 ... [deat's] own research had identified the sekhukhuneland region 2 in terms of the environmental impact assessment (eia) regulations promulgated under the * ba hons llb (wits) llm environmental law (natal and nottingham); attorney of the high [and that taking] ...the mitigation measures enforced monthly basis.162 south africa [found on internet] http://www.info.gov.za/asgisa/ [date of use 88 the information can often be conflicting despite coming from ostensibly reputable sources, and that insufficient attention ultimately has been paid to the `no development' uncertainties in a wise manner.73 structures and processes (cmas, wuas and cmfs) to ensure that all stakeholders are environmental legislation -- and to the adr spirit of nema. the cynical critic it can hardly be disputed, therefore, that act as the cma in the interim.129 national water act 36 of 1998 one of the key functions of the cma will be to facilitate processes which enable 27 it is not apparent that deat took into account the objections from sanparks and the other according to the rod, in reaching its decision deat took into consideration the systems and disaster plans for severe floods and the very unlikely forums at local level, which dwaf is promoting and funding nationally. 10/118 lure of unlocking investment of up to r30-billion in new platinum mines in the province. ... and by co-ordinating their actions and legislation organisational models and unilaterally disseminating the information with little 178 according to media reports in october 2006, dwaf director-general, jabu sindane, said: (a) by obtaining such information whether documentary or oral as is relevant to the subject.12 feelings on the matter have been running so high that there have even been considered; where iem requires that these principles be integrated into the form of adr is envisaged and that the institutional changes which are currently and mpumalanga provinces.13 .pdf [date of use 17 may 2006] any of the relevant activities; and each was to cover a number of required africa," dwaf minister buyelwa sonjica said. "people in these areas will benefit directly hoop dam either should or should not be built; just as this is not possible for account the need for the protection of listed ecosystems." above in paragraph 2 of this article,174 requires ongoing engagement within the organisational structures and functions of the consideration and compromise) have been lost. 2/118 ...establish and maintain a conservation area of equal size and govt info 2006 (2) http://www.info.gov.za/ 17 may 17 may 2006] socio-economic and ecological aspects, but the rod fails to 74 [w]here a difference or disagreement arises concerning the exercise of any of its functions funded through dwaf as part of asgisa (accelerated and shared growth initiative for further principles of nema which appear to have been insufficiently difference or disagreement to conciliation in terms of this act, and environmental organisation; the national parks support group trust; the south african wray sa 2006 kpton (3) http://www.krugerpark.co.za/ 17 may the dangers of destroying sustainable rural societies largely to support unsustainable cities 66 according to the rod, "[b]ased on the above, deat's conclusion is that this activity [the known as an "ecological reserve" "sanparks will have no couzens & dent per/pelj 2006(9)3 ... the department of water affairs and forestry, together with the supporting many of the suggestions made by the writers of the present constitution and nema require them to use. hopefully, the de hoop dam crucial to nema, and the current issue, are the principles found in section 2; the sekhukhune centre of endemism and steelpoort's sub-centre. will be relatively small. however, if each dispute is seen as a once-off matter and that, department of water affairs and forestry 2006 speech by ms bp sonjica. department of water affairs and forestry 2004 olifants river water [date of use 17 may 2006] obviously, this is a public participation and a procedural fairness issue. however, the dwaf 2004 http://www.info.gov.za/ 17 may safety.47 and similar nature to the area of the sekhukhune land centre of endemism, to be flooded 31/118 is not the final published document; the eir is. national park) infringe this principle and also the principle that decisions must private individuals.3 provides that: 81 s 17(2). nema directs also that: "a court or tribunal hearing a dispute regarding the the fact that the rod was arguably inadequate as it stood. the best that can be hoped for is that the protagonists in future such disputes couzens & dent per/pelj 2006(9)3 department to issue decisions on big or controversial applications during this period." couzens & dent per/pelj 2006(9)3 http://www.bateleurs.co.za/ [date of use 26 aug 2006] inadequate consideration of threats to biodiversity; inadequate consideration of saving effort' by dwaf; after the doa and rrod made it clear that the eir which dwaf revised record of decision, adr has been brought in late as a remedy to provide a general framework for environmental assessment for the olifants river water resources development project (orwrdp). in to in the rod. this would be to leave too large an area (between what is required by the wuas (ch 8; ss 91-98); and the introduction of catchment management forums. it appears that in the present matter co- 170 deat 2006 http://www.dwaf.gov.za/ 1 nov at 3.2.5.2. relevant here is that the dam is effects of large-dam projects outweigh the benefits. but the input from all relevant stakeholders.88 51/118 treaties and conventions consideration given to it. therefore, it is not apparent that it was seriously the de hoop dam. concerns have been raised publicly; and there is a will include three major bridges, two across the steelpoort river at ensure that we adjust to the pressures and demands of the future through co-operation, which feeds the steelpoort river. ... the mining company wishes to simulation models, generally). on the other hand, are dependant on reducing the risk of shortages by storing ...review the hydrological, ecological and procedural aspects of the construction of the de hoop dam subject to the strictures of the 104 public finance management act 1 of 1999. 56 ibid. be expert supervision when plants are moved and that protection of an area of and also comments received from the south prevented effectively from carrying out the duties (in respect of water flow and appoint a facilitator to call and conduct meetings of interested and [asgisa]." bloomberg 2006 creamer media nwa). in the case of the de hoop dam, it would seem that dwaf ignored the spirit (at becomes operational. the process for identification and acts as the catchment management agency where one has not been established." events which can, and in the ordinary course of events might well, lead to the matters in terms of nema and advises on whether nema has been complied with; but it is those conducting the eia process merely considered, and reported on, impacts and 134 white paper on national water policy 1997; dwaf 1997 http://www.dwaf.gov.za/ 1 nov at similar size be considered.68 people from a river in which there is unrestricted flow down its length; and those and functions throughout the process, to negotiate a way between it can hardly be argued that a centre of recommendations of the emp; and of undertaking monthly environmental 174 contrast, eg, the requirement in the rod that dwaf initiate an investigation into the the 98 pendlex: s 55(1)(b). pertaining to all sites `indicated as having scientific and research significance'. 73 see, generally, bray 1998 sajelp. according to bray 1998 sajelp 2, "[o]ne of the most the present writers are of wray sa 2006 kpton http://www.krugerpark.co.za/ 30 may proper details of what was considered in the making of the decision.66 the director-general,117 park times: decisions must be appropriate in the light of such consideration and 23/118 hereinafter 'the constitution'); and to be restricted only by the requirements of s 17(1) that detrimental impacts on the environment";146 probably ought to, have sent the applicant (dwaf) `back to the beginning' and 11 in that address, mbeki stated that: "... [m]ore than r100 billion has been set aside for application, they might have been so considered. however, the environmental impact make every reasonable effort to settle the dispute by means of that co-operative governance is perhaps a key element since co-operation into the nwa. there are 19 cmas that are due to be formed, one for each of environment and all people in the environment.62 http://www.dwaf.gov.za/projects/olifant/ [date of use 17 may 2006] a) ecological sustainability: concerns around the adequacy of the ecological reserve of 3 these objections (lodged as part of the public participation process phase of the eia) 43/118 ironically, the minister has, in effect, overturned his own original rod. couzens & dent per/pelj 2006(9)3 further, the principle that decisions must be taken in an open 2 the facts of the dispute 96 as defined in s 239 of the constitution. not conflict, in harmony with the needs of our common development goals and the future environmental disputes be settled with accommodation of a greater plant endemism is not a sensitive ecosystem and far more attention to this also are further conditions stipulated, including that the necessary land rights dwaf is required to submit emps to deat for acceptance before the the steelpoort and olifants rivers, and associated potential impacts on the kruger 1.5 million people affected by 50 different dams across the world. their living standards environment and others 1999 2 sa 709 (sca) the point of this article is not to debate the rights and wrongs of the project or olifants and mogalakwena/sand catchments include some of the poorest areas in south resolve a political impasse -- rather than from the beginning as a process to 1998 to 2006 has arguably been adequate; and the de hoop dam has been on the cards couzens & dent per/pelj 2006(9)3 the previously disadvantaged communities with potable water and to 1997); and (e) to promote community participation in the protection, use, development, something of a problem. dwaf might have argued that as no ecological and interests are fair and reasonable. in essence, these institutions are the crucible in made.82 report are appropriate and practical for implementation. it is must be taken or any function exercised by an organ of state,53 infrastructure to support economic development and service delivery. account in making its decision in the present matter, as was acknowledged in were conducted, the water demand requirements in the area have changed significantly minimized.30 that, where application had not been made before such commencement, mining activities south african national parks, except -- those decisions taken in the minister further concluded that the: conciliation under such other law.79 it has been suggested that models are useful for e couzens* it is not certain whether such international obligations were taken into account. 168 deat 2006 http://www.dwaf.gov.za/ 1 nov at 3.2.4.1. the eco to remain employed until high biodiversity and ecosystems service value.20 interests must be served equitably.57 couzens & dent per/pelj 2006(9)3 has the potential to cause major environmental disruption is to proceed with kpton http://www.krugerpark.co.za/ 17 may; and wray sa 2006 (2) kpton department of water affairs and forestry 2005 olifants river water 2005, authorising dwaf to undertake an activity described as: 68 see n 27 supra. above would appear to detract from the locus standi of sanparks to perform its of stakeholders;87 doa decision on the lodged appeals by the independent environmental consultant is deemed to be 108 s 78(1)(b). the area, as the richmond dam would be able to supply water in 5 wray sa 2006 (2) kpton http://www.krugerpark.co.za/ 17 may. `[a]nyone may request ...'. legal standing would appear to be conferred by s 32(1) of legislation and recommendations of the emp; the applicant (dwaf) to bear the because their drafters recognised that this would be the only practical way to a further eight are protected species. in the area which will be couzens & dent per/pelj 2006(9)3 couzens & dent per/pelj 2006(9)3 assumed that the case in point would have been one which should have been accorded a relating to the protection of the environment by obtaining such reserve determined overnight; priority scheduling is needed. however, one might have environmental considerations all be considered as components of sustainable presumably] to initiate a process, in partnership with [the] language of the rod does not provide any concrete requirements for ongoing monitoring for the rehabilitation or management of negative environmental impacts." in addition, s (and potentially instructive) to see whether dwaf and/or the mining companies involved the rrod's specific conditions further stipulate that the development is steelpoort area, for which the dam is planned, is among the poorest reflect sectors such as affected residents, ward councilors, ngos, community 4 legislative framework 157 deat 2006 http://www.dwaf.gov.za/ 1 nov at 3.2.1.1. protection of the environment. imperatives; a system that accommodates, stimulates and supports what minister, mec or municipal council may, before reaching a decision,74 http://www.environment.gov.za/ 17 oct at `2.2: expert recommendations'. ...the minister may at any time appoint one or more persons to assist attempted...". in fact, as a condition, it is virtually devoid of meaning. one might aug 11 that can replace the ecosystem lost and which will be transferred to the relevant nature november 2005 for the construction of the de hoop dam near steelpoort. these projects and social services (mpumalanga), minerals and energy (limpopo), economic considered, include the requirement that environmental management be planned richmond dam, to be located in the dwars river system, irrigation sector. ... beyond the short-term time horizon, it is deemed necessary to enable maker by necessary implication had to consider conciliation inappropriate. this depending on the class of the resource. the minister is required to communities to large private sector companies, investigated nilsson c "flood warnings" 2005 435(23) nature 1031 determine cumulative impacts of development on the area with the mozambican foundation for a possible decision ...' which may have grave results. in such a case the open and transparent, and to enable implicit assumptions and mental models to 40 rod at 5, 3.2.5. deat 2005 http://www.dwaf.gov.za/ 17 may. natal, pietermaritzburg. understanding of the social dynamics of managing water scarcity in with them.92 laid down include that dwaf must maintain the in the instant case, it would appear that at least the decision-makers are in 86 s 20. in making a decision under nema concerning the reference of a difference or without positive ongoing conservation therefore, logical to deduce that it was not considered seriously. in this matter, there was technology to enable the phenomena of inference, connectivity, credibility, trust, both the eia and the rod appear to have been insufficiently detailed not to be dwaf 2005 http://www.dwaf.gov.za/ 17 may the dam this appears strongly from public pronouncements from the latter container terminal." mbeki 2003 http://www.info.gov.za/ 17 may. 39/118 development, gauteng region v save the vaal environment 1999 2 sa 709 (sca) at kruger will be diminished and tourism support for the area will in the de hoop matter it seems that, as will follow below in the discussion of the considered in breach of the principle that sensitive, vulnerable, highly dynamic underutilised features of the national environmental management act 107 of couzens & dent per/pelj 2006(9)3 06.html [date of use 17 october 2006] numerous options for making more water available in the area, 100 ibid. and may 171 deat 2006 http://www.dwaf.gov.za/ 1 nov at 3.2.6. 181 a risk which, it is contended, has not been entirely eliminated. the complexities, for it is significant that deat did not mention or she may determine, appoint a conciliator acceptable to the parties to assist some point in the future, following non-compliance with conditions laid down, this is committee (emc) with clear terms of reference as described;159 information and issues raised by stakeholders when making project decisions; firstly, an environmental monitoring committee (emc) was to be established to and serve as have been exempted from compliance with the regulations under nema until 1 april the principles of environmental management set out in section 2." (s 23(2)(f).) this
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Finding NEMA: The National Environmental Management Act, the De Hoop Dam, Conflict Resolution and Alternative Dispute Resolution in Environmental Disputes