Lesson 2: Key definitions or “the language” of environmental legislation

A.         Resources

If you wish to take some time to first look over the material provided in the document pack, please refer

The legislation in the document pack is as up to date as I could source online. This however raises an important point with respect to copies of the legislation – since someone hasn’t figured out how to automatically update them, please, remember to periodically check official sites for updated versions.

A few additional documents are provided – these are my collation from legislation and from working practice within environmental management and practice. One is a summary of key definitions and acronyms in use in environmental legislation, and, the second is a summary of key portions of the National Water Act and the National Heritage Resources Act that trigger permitting processes, along with some explanations of what the activities can be taken to mean in practice.

Official Department of Environmental Affairs (a portion of the Department of Environment, Forestry and Fisheries (DEFF)) site: https://www.environment.gov.za. Below is a snapshot showing where to find the legislation documents on the website.

For legislation outside of DEFF’s mandate, I default to the following useful site. This is the main South African government site: https://www.gov.za. It almost always has documents uploaded from the government printer before the information is loaded to the specific Department’s sites.

You will also over time find that a number of the environmental specialist legal firms maintain versions of the Acts that are ‘simplified’. That is, the text reads as the Act stands now, with the insertions inserted, and, the deletions deleted, and with notes as to when those changes took place. Keep an eye out for these as they make life a lot easier. However, legally you should always refer back to the government-held versions.

B.         How to read legislation

A quick consideration on how to read legislation – it really is all in the ‘and’, ‘or’, ‘including’, ‘excluding’, ‘does’, ‘does not’, and so on, phrases! To put it simply, if you do not get the relationship of those actioning words correctly, you will either miss a critical combination or you will be wasting your time worrying about something that you do not need to worry about. Always take the time to work through the wording carefully as often a seemingly innocuous combination of words can change the meaning totally.

Some examples are given below to show how to read the legislation. A pair of relevant scenarios is presented with one that fits and another that doesn’t. Some may seem totally ludicrous, but they are drawn from real scenarios I’ve encountered … if with some tweaking, so as to prove a point.

C.         Key definitions

The definitions within legislation, from the Constitution on downwards, set the legal playpen within which you may play. Below are key definitions which are relevant across the majority of environmental legislation. Note that these are not word for word as per the legislation but rather highlight the main points, and they are drawn from various articles of law (e.g. National Environmental Management Act (NEMA), Environmental Impact Assessment (EIA) regulations).

As noted in Lesson 1, the definitions are the core of the letter of the law, as they set the framework in which the activities and processes will play out.A more complete list of terms / definitions is included in the information pack with this course – this has a longer listing of definitions, and is followed by an acronym list. The acronym list is mainly so you don’t get lost in the alphabet soup – you could either print it out now, or open it in the background for direct reference.

D.         Topics of importance in environmental permitting

This next consideration is going to be relatively brief, but will set the scene for the kind of content that will occur in environmental permitting documentation, no matter what type of permit is being considered.

First and foremost, irrespective what type of permitting you are dealing with (i.e. general environmental, waste, water, coastal, biodiversity, heritage), permitting is about the assessment of impacts and how those influence the current and future status of the holistic environment. That is, the environment is not merely ‘the green stuff and fuzzy / feathered / scaled things” (i.e. biological), rather environment as per the definition given above, is the sum of the interaction of all biological, physical, social and economic aspects. Further, as each of these permitting processes is working within a governance framework, ‘environment’ by default considers governance controls on all of the above aspects.

The easiest way to show how a project is assessed is to consider the following assessment matrix. The matrix considers the aspects of the environment on the y-axis and the project phase and alternatives on the x-axis. This matrix will vary according to the nature of the proposal. Also if the assessment of each aspect is done sequentially (i.e. developable, caution, don’t develop), then instead of a number of alternatives you will have a preferred alternative that is built from the option best suited to the nature of the site, and then that option is simply compared against the “no go” (current status) alternative.

Once determined that a specific combination of aspect and stage of development is deemed to be at risk, as such each applicable cell (intersection) is considered in terms of a range of risk factors. The exact categorisation may be amended slightly per development type, and the significance may be weighted to say for instance allow for duration to have more weight in the combined value. Intensity is seen as a combination of “Consequence, irreplaceability, reversibility, indirect and cumulative impacts” considered against the risk matrix determination for “Intensity”. Note that positive impacts are a not a risk value per se as they do not “add” to the combined significance rating, rather they mitigate or reduce the significance value, as they are deemed an opportunity, not a risk. 

E.         What’s next?

Lesson 3 will deal build on what you have learnt in Lessons 1 and 2 with the following topics:

  • Inter-relationship of relevant legislation;
  • National Constitution;
  • Mining – MPRDA;
  • Environment – NEMA;
  • SEMAs – NEM:AQA, NEM:BA, NEM:ICMA; NEM:PAA, and NEM:WA;
  • Heritage – NHRA;
  • Water – NWA;
  • Land-use planning – SPLUMA (& LUPA);
  • Combined permitting processes;
  • Basic Assessment process flow; and
  • Scoping and Environmental Impact Report process flow.

Right … when you are ready, proceed with Lesson 3

You can take a break as often as you need, but I’d recommend that you only do so at the end of a Section (i.e. Section A through K).

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