EIA regulations and GMOs in South Africa

Biosafety in South Africa - Policy & Legislation GMO's

2 September 2010

The African Centre for Biosafety (ACB) has done considerable work with regard to the need for environmental impact assessments of GMOs and the limitations of current legislation. This work can be found on the ACB’s website, biosafetyafrica.org.za

We have perused the new Environmental Impact Assessment (EIA) Regulations, regulating procedures and criteria for conducting EIAs as set out in chapter 5 of the National Environmental Management Act no 107 of 1998 (NEMA), which came into effect on 2 August 2010.ⁱ

These have been changed in a number of respects, but the situation in respect of GMOs remain unchanged. The listing of GMOs as a schedule 1 activity under the National Environmental Management and Biodiversity Act, 2004 (NEMBA) is still the same, meaning that only a basic assessment needs to be conducted when GMOs are released into the environment.ⁱⁱ However, the new section 78 of NEMBA, amended in 2009, does give the Minister of Water and Environmental Affairs the authority to call for an EIA when there is reason to believe that the release may pose a threat to any indigenous species or the environment. To date, the Minister has not used her Authority to do so.ⁱⁱⁱ

The ACB has attempted on numerous occasions to invoke section 78 of NEMBA as amended, with no success to date. The most recent attempt has been in respect of the general release of Syngenta’s GM maize, GA 21. Although a decision to grant the approval is still pending, communication from the Minister during June 2010, indicates that an EIA will not be called for.

The pre-existing EIA regulations have been in place since 3 July 2006.^iv Government was motivation to redraft these regulations owing to the EIA system being overburdened by a large numbers of applications associated with a very wide range of activities.^v Furthermore, in 2008, the National Environmental Management Amendment Act was promulgated, making it necessary to align existing regulations with the new NEMA provisions. In addition, the revised EIA regulations also seeks to integrate the EIA process with other authorisation processes coordinated by the Department of Environmental Affairs such as water-use licences, emission-to-air licences and mining-related approvals.

The major focus in the redrafting process has been the revision of the list of activities requiring environmental authorisation prior to starting any developments in the specific area where a new activity is planned. Other important changes to the regulations include:
Introduction of a listing notice dedicated to activities planned for sensitive areas so as to treat sensitive ecosystems with more care;
Replacement of landowner consent with landowner notification;
Exclusion of December 15 to January 2 for public consultation processes and in the counting of days for both decisions and lodging of appeals.^vi

During 2009, a group op 21 South African NGOs, supported by the African Centre of Biosafety, sought a legal opinion on the constitutionality of some of the clauses of the draft EIA regulations. Various clauses within these draft regulations removed the right of the public to participate in decision-making and provided competent authorities with discretion which insufficiently protects the constitutional right to a healthy environment.^vii The Department of Environmental Affairs chose not to fully consider this legal opinion.^viii

Fortunately the final regulations have addressed the major concern raised in this legal opinion. This concern was in relation to the provision made in regulation 9. This regulation previously stated that after lapsing of the extended timeframe for accepting (amended) basic assessment reports and environmental assessment reports authorisation, the authorisation was deemed to have been granted.^ix This regulation now states that after lapsing of these time frames, the competent authority must base his or her decision on available information instead. Only if the competent authority fails to make a decision after the timeframe has lapsed, any individual has the right to institute proceedings in a court or a tribunal for the judicial review of this administrative action.

ⁱDepartment of Environmental Affairs. 18 June 2010. National Environmental Management Act, 1998 (Act 107 of 1998) Environmental Impact Assessment Regulations. Government Gazette no. 33306. http://www.environment.gov.za/EIM%20WEBSITE/eim_page.html (Accessed 2 July 2010).

ⁱⁱDepartment of Environmental Affairs. 18 June 2010. National Environmental Management Act, 1998 (Act 107 of 1998) Environmental Impact Assessment Regulations. Government Gazette no. 33306. http://www.environment.gov.za/EIM%20WEBSITE/page2.pdf (Accessed 2 July 2010) p94.

 

 

ⁱⁱⁱRepublic of South Africa. 27 May 2009. National Environmental Laws Amendment Act, 2009. p20.

 

^ivWestern Cape Department of Environmental Affairs and Development Planning. May 2009. NEMA environmental impact assessment regulations guideline and information document series. guideline on transitional arrangement. http://www.capegateway.gov.za/other/2009/9/transitional_arrangements.pdf (Accessed 12 August 2010).

 

^vMining Weekly. 2 August 2010. New EIA regulations now in effect in South Africa. http://www.miningweekly.com/article/new-eia-regulations-now-in-effect-in-south-africa-2010-08-02-1 (Accessed 12 August 2010).

^viEngineering news. 16 April 2010. New EIA regulations to be effective from July. http://www.engineeringnews.co.za/article/new-eia-regulations-to-be-effective-from-july-2010-04-16 (Accessed 12 August 2010).

 

 

^viiLetter from The Legal Resource Centre to the Director General Department of Water and Environmental Affairs re Draft Environmental Impact Assessment Regulations Government notice 165 of 2009, 13 February 2009, dated 9 August 2009.

 

^viiiLetter from The Legal Resource Centre to the Director General Department of Water and Environmental Affairs re Draft Environmental Impact Assessment Regulations Government notice 165 of 2009, 13 February 2009, dated 9 August 2009.

^ixCorrespondence with Pamela Andrews, Legal Resources Centre, 7 July 2010.