The Biodiversity Law Centre comments on draft amendments to the EIA Regulations

On 4 August 2023, the Minister of Forestry, Fisheries and the Environment published proposed amendments to the Environmental Impact Assessment Regulations, 2014 (EIA Regulations) and Listing Notices 1, 2 and 3 in respect of activities requiring Environmental Authorisation in terms of section 24(2) and 24D of the National Environmental Management Act, 107 of 1998 (NEMA) (the Proposed Amendments).

The EIA Regulations provide the regulatory framework for managing environmental impact assessments (EIA) of development activities in South Africa.  The Listing Notices specify which development activities trigger the need for an EIA – and activities range from prospecting, mining, oil and gas exploration/production (collectively, “mining activities”) to the construction of roads and telecommunication infrastructure.   The EIA Regulations also provide for key procedures through which members of the public can ensure that their environmental and important other rights are protected.  For example, before a developer submits its application for an environmental authorisation (which will include the results of the EIA), it must obtain the written consent of the owner or controller of the land on which the development is to take place. 

The Proposed Amendments contain a number of changes to align and clarify certain aspects of the Regulations and Listing Notices which relate to mining activities.  They also introduce a definition of “offshore activities” which appears to relate to activities that occur within South Africa’s internal and territorial waters, exclusive economic zone and continental shelf – all as defined by the Maritime Zones Act, 15 of 1994 (Maritime Zones Act).  These activities are to be excluded from the requirement for written consent by the owner.   

Among the Biodiversity Law Centre’s comments on the Proposed Amendments which were submitted on 4 September 2023, it has pointed out the connections between the definition of “offshore activities” in the Proposed Amendments and ICMA’s definitions of “coastal waters” and “coastal public property”.  This all becomes material as the Proposed Amendments seek to exclude activities on “coastal public property” from the written consent requirement – replacing this with the requirement that the state body that manages the particular portion of coastal public property is “notified”.  The Biodiversity Law Centre has indicated that “notifying” the state – which holds coastal public property in trust for the citizens of South Africa – is a lesser form of protection than requiring written consent from that body.  As a consequence, it may become more difficult for organs of state to fulfil their trusteeship function and statutory and constitutional obligations to protect the environmental integrity South Africa’s marine environment.

A related concern is the continued exclusion of ship-to-ship bunkering from the Listing Notices.  This activity of transferring oil from tankers to vessels at sea carries inherent environmental risks – including the risk of oil spills and ocean-based noise pollution.  As explained in more detail in our comments, ship-to-ship bunkering activities in Algoa Bay have been linked to population decline of African Penguins which are threatened with functional extinction in the near future and there is clearly a need to have this activity brought within the ambit of South Africa’s key mechanism for assessing environmental risk; determining the need for mitigation; and enabling the state to place limits or prohibit activities which cannot be shown to be ecologically sustainable.

Read our full comments below: