LEG2601 - Legal Aspects Of Environmental Management exam pack 2022.

LEG2601 - Legal Aspects Of Environmental Management exam pack 2022. QUESTION 1 1.1. Distinguish between a public law relationship and a private law relationship. (6) 1.2. List any four sources of South African law. (4) 1.3. Define a “heritage resource” and indicate what type of environmental assessment must be undertaken if a development will have an impact on a heritage resource. (5) 1.4. Write a short note on your understanding of the public trust doctrine. (5) 1.5. Section 24(a) of the Constitution provides that “everyone has the right to an environment that is not harmful to their health or wellbeing”. Discuss the concept of wellbeing with reference to case law. Use your own words. (5) [25] QUESTION 2 2.1 Decisions are made concerning environmental and planning matters, and the implementation of rules and regulations are classified as administrative action. In terms of section 33 of the Constitution (the right to administrative justice), all administrative decisions must be lawful, reasonable and procedurally fair. In your own words, explain what the bold phrases mean in relation to environmental decision-making. (10) 2.2 Discuss, in your own words, the powers of Environmental Management Inspectors. (10) [20] QUESTION 3 3.1 Why must internal remedies be exhausted before a dispute is brought to court? (6) 3.2 Explain what the purpose of a criminal sanction is. (5) 3.3 Distinguish between the following civil law remedies: Interdict and Mandamus. (6) 3.3 Discuss internal administrative control by senior officials. (8) [25] Downloaded by: alettamagampa | Distribution of this document is illegal S - The study-notes marketplace Page 6 of 6 QUESTION 4 Read the following scenario to answer question 4.1-4.3. Remember to use your own words and apply the set of facts to each of your answers: Ripwaters (Pty) Ltd wants to build a housing estate in Limpopo, outside an urban area on a piece of undeveloped land. The proposed housing estate will bring about the transformation of an area of 10 hectares. 4.1 Identify which procedure the company must follow in terms of the Environmental Impact Assessment Regulations, 2010 to obtain the necessary authorisation for the development. After identifying the appropriate procedure, briefly list the applicable procedure. (16) 4.2 Assume that you are a concerned citizen who is staying next to the development site described in the scenario above and that the development of the housing estate has already started. You have not been notified of the development and want access to the following information: the environmental authorisation, the public participation process and the basic assessment. (i) Indicate which section of the Bill of Rights and which legislation are applicable and can be used to gain access to the above information. (2) (ii) Who can you approach to request the above information? (5) 4.3 A developer wants to undertake a development on a piece of land where there are historic grave sites and therefore must submit an impact assessment report to the responsible heritage resources authority. List the information that must be provided in the impact assessment report. (7) [30] TOTAL: {100} © UNISA 2021 Downloaded by: alettamagampa | Distribution of this document is illegal S - The study-notes marketplace Question 1 1.1)Public Law Relationship - Public law is law governing the relationship between individuals (such as citizens and companies) and the state. - It is an unequal (↕ vertical) relationship, because one of the parties holds on authoritative position - Public law aims to protect the public interest - Public law comprises of constitutional law, administrative law, tax law and criminal law, as well as all procedural law. Private Law Relationship - Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts and torts (as it is called in the common law), and the law of obligation (as it is called in civil legal systems) - It is a horizontal (↔ equal) relationship, meaning that the parties are on equal footing - The persons (also called “parties”) act in their own (private) capacity to further their own interests 1.2) Four Sources of South African Law - The constitution – the supreme law of the country - Legislation (acts of the national and provincial legislatures, governmental regulations) - Common law - International law 1.3)The term ‘heritage resource” refers to any place or object of cultural significance. The cultural Heritage Impact Assessment must be undertaken if a development will have an impact on a heritage resource. In the context of developments which threaten heritage resources, the Act provides for a National Heritage Resources Authority and for Provincial Heritage Resources Authorities. These authorities are responsible for protecting and managing certain categories of heritage resources and they are the authorities that must make the decision on whether to permit the development. A person who wishes to undertake certain types of development that will an impact on a heritage resource must include an assessment of the impact on the heritage resource in question in his or her application. 1.4)The environment is held in public trust for the people, - The beneficial use of environmental resources must serve the public interest and the environment must be protected as the people’s common heritage - Kidd (Environmental law 2008 act 11) states that the public-trust doctrine adopted in South Africa resembles “trusteeship” rather than public trust Downloaded by: alettamagampa | Distribution of this document is illegal S - The study-notes marketplace - Public trust refers to a state-held resource which must be held for the benefit of the general public, referring to the free use of, or access to, such a resource by the general public - The principle of trusteeship, in contrast, entails that the trustee should protect the environment on behalf of future generations. 1.5)“Well-being” is regarded in the wider sense which includes spiritual or psychological characteristics and an individuals need to be able to connect with nature. Question 2 2.1) • To be performed “lawfully” the action must comply with all the requirements of the law. This means that the relevant prescriptions of the constitution, other legislation and case law (e.g., the sources of law) must be complied with. Any administrator must act within the powers conferred on him or her by the empowering legislation (the legislation that confers the powers). In the enabling legislation we find instructions relating to the scope and content or nature of administrative power. If any administrator exceeds the statutory powers laid down in the enabling legislation, we say that the action is ultra vires (which is unlawful). • A “reasonable” administrative action is a decision based on the consideration of all the relevant and objective facts and circumstances. A reasonable decision is therefore a decision based on reason and not based on, for e.g., subjective opinion. A reasonable decision is a suitable and necessary decision in the circumstances and reflects that the administrator has weighed up the advantages and disadvantages before reaching the decision. In terms of PAJA, an unreasonable administrative action is so unreasonable that no reasonable person could have so exercised the power or performed the function. • The obligation to comply with “fair procedures” requires that both parties involved in the case have the opportunity to present their side of the story to the presiding officer, and that the presiding officer must be objective and impartial when making a decision on the matter. These are known as the rules of natural justice, which has been included in PAJA. 2.2) Besides their powers, which include: • Questioning suspects • Issuing written notices where people refuse to answer questions • Inspecting and copying any relevant book or document, as well as taking photographs and samples relevant to any investigation, EMIs also have the following specific powers: • May issue a compliance notice if a person has not complied with a term or condition of a permit, authorisation, license or the provisions of environmental legislation. Downloaded by: alettamagampa | Distribution of this document is illegal S - The study-notes marketplace • May give an offender an admission of guilt fine instead of being tried by a court for the offense. • Has the power to seize any item as well as to stop, enter and search vehicles, vessels and aircraft. • Can carry out routine inspections on buildings, land or premises to ascertain that there is compliance with the legislation or any permit or authorisation issues. EMIs are organs of state and perform administrative action when, for example, issuing a compliance notice. Their actions are therefore subject to the scrutiny of senior officials who will check that they exercise their powers as set out in the Constitution (s 33) and the relevant legislation. Question 3 3.1) Before someone can ask a court to review an administrative action, there is an important rule in the PAJA that must be complied with, the rule of exhaustion of internal remedies. This means that, where the law sets out procedures allowing someone to review or appeal a decision of the administration, there must be used up before an affected person can approach a court. Internal remedies are ways of correcting, reviewing or appealing administrative decisions using the administration itself • Administrative officials dealing with these problems are well able, and have the expertise needed to deal with the problems on the spot. • The matter may therefore be dealt with expediently and cheaply, without the long delays that are encounted in court cases. Court cases, on the other hand, are expensive and timeconsuming, and judicial officers often have less hands-on experience of technical environmental problems than officers working in this field. • Although administrative control is not the same as the judicial control exercised by the courts, the administrative controlling bodies and officials have powers and functions to evaluate and resolve administrative disputes. 3.2) Criminal sanctions are widely used to enforce environmental rules and to control actions that contravene the law. Criminal sanctions are provided for in legislation and are also referred to as criminal penalties or measures. These sanctions are very important and are used extensively in environmental disputes where specific legislative provisions have been contravened. The major purposes of criminal sanctions are: • Deterrence • Incapacitation • Rehabilitation • Retribution • Restitution Downloaded by: alettamagampa | Distribution of this document is illegal S - The study-notes marketplace 3.3) An interdict is a remedy that may be instituted against the administration or a private individual. It may be used to prevent a certain activity from being carried out or it may be used to make a person undertake a particular act. An interdict is regularly used in environmental disputes, because it is aimed at preventing unlawful action lor threatened unlawful action by the administration or an individual. A mandamus is a type of mandatory interdict which is aimed at compelling and administrative body perform its statutory duty. However, a mandamus cannot stipulate how the power should be exercised. 3.4) Internal administrative control is control exercised within the administration itself. It is an important and effective means of control, which is exercised by either senior officials or specially constituted bodies. In instances where a person feels aggrieved by a decision taken by a certain official, the aggrieved person can take the matter further: He or she can have the matter reconsidered or re-examined by a more senior official. In such instances, terms such as “appeal’ or “review” reflect that the decision will be reconsidered by a second decision-maker. Each department has its own structure (and channels) for internal administrative control, which is provided for in legislation. Senior or superior officials exercise control over the acts of more junior officials. NEMA contains specific provisions regarding this type of control. In terms of section 43(1), an aggrieved person may appeal to the Minister against a decision taken by any person qualified to make a decision on a certain matter. Question 4 4.1) In order to undertake the proposed development, the developer is required to submit an Environmental Impact Assessment as the proposed development triggers listing activity 27 of LN 1 which is the clearance of an area of 1 hectare or more, but less than 20 hectares of indigenous vegetation, except where such clearance of indigenous vegetation is required for— (i) the undertaking of a linear activity; or (ii) maintenance purposes undertaken in accordance with a maintenance management plan. “Indigenous vegetation: refers to vegetation consisting of indigenous plant species occurring naturally in an area, regardless of the level of alien infestation and where the topsoil has not been lawfully disturbed during the preceding 10 years. Ploughing of land, bulldozing of an area, eradication or removal of vegetation cover with chemicals, amongst others, constitutes clearance of vegetation, if this will result in the vegetation being eliminated, removed or eradicated. Burning of vegetation (e.g., fire- breaks), mowing grass or pruning does not constitute vegetation clearance, unless such burning, mowing or pruning would result in the vegetation being permanently eliminated, removed or eradicated. I.e., eradication of weeds or plant types not occurring naturally within the specific area Downloaded by: alettamagampa | Distribution of this document is illegal S - The study-notes marketplace by means of selective chemical application would not constitute clearance of indigenous vegetation. The pruning of shrubs under a power line would not constitute clearance, unless the pruning is done in such a way that the shrubs die- off as a result of the pruning. The preparation and submission of the Environmental Impact Assessment consists of Six Distinct Phases. 1. The Screening Phase Screening is an exercise undertaken during the planning and design of a proposed project. During screening, the need for an EIA is determined as well as the level of assessment that would be required. During this phase, potential fatal flaws must also be identified, such as unavailability of technical and scientific information that the EIA requires, or lack of funding or legal approvals (e.g., land use rights) for new infrastructure, such as water supply, housing, hospitals, schools, or lack of services and infrastructure, e.g., water, electricity, sewage. This phase allows for corrective measures that are important to the EIA process to be undertaken, for example, acquisition of missing information that is critical for informed decision-making. The outputs of the Screening phase are: • A classification, according to its environmental sensitivity, of the project and its alternatives; • Confirmation about whether an EIA is required or not; • If an EIA is required, confirmation on the level of assessment required. 2. The Scoping Phase In order to ensure efficiency and effectiveness, an environmental assessment must be focused. It is not about gathering all possible information on all possible aspects, but about focusing on the key issues that are relevant to the specific course of action under consideration. Scoping does not, however, start with a blank slate. The legislation highlights several specific relevant considerations that must be considered during the EIA process, such as the minimum requirements set out in section 24(4) of NEMA. The Scoping phase is when the scope of the EIA is determined, by identifying the issues to be addressed and alternatives to be considered. Scoping is also informed by consultation with interested and affected parties (I&APs). I&APs are informed about the proposed project and its alternatives, and their comments on the issues to be addressed and alternatives to be considered are invited. An important output from consultation with I&APs will be a clear understanding of the key issues and alternatives that must be further addressed in the EIA. A key issue is defined as an unresolved question or concern about the potential social, economic or ecological consequences of the development proposal or an issue that will have an influence on the decision. During the scoping phase the potential feasible options for avoiding negative impacts must firstly be identified. Secondly, the potential feasible options for mitigating and managing unavoidable negative impacts must be identified. Thirdly, the potential feasible options for compensating (offsetting) impacts of medium or higher significance that could not be avoided or further mitigated should be identified. Fourthly, the scoping phase must also identify the potential feasible options for enhancing positive impacts of the development proposal. Lastly, the Scoping phase must determine the terms of reference for the assessment and any specialist studies required in the next phase of the EIA. Downloaded by: alettamagampa | Distribution of this document is illegal S - The study-notes marketplace In South Africa there are two main EIA processes that are followed, namely, the Basic Assessment and Scoping and Environmental Impact Reporting processes. “Scoping” is included in both of these EIA processes, but it is undertaken as the first part of an integrated scoping and assessment procedure during the Basic Assessment process, where it generates an integrated scoping and assessment report (the Basic Assessment Report). On the other hand, during the Scoping and Environmental Impact Reporting process there is a separate scoping phase from which a Scoping Report is generated before proceeding to the assessment phase. 3 The Specialist Study Phase While specialist studies are usually prepared during the assessment phase of an EIA, the involvement of specialists might well be required during the Screening or Scoping phases. Specialists are experts in their field, for example, geologist, botanist, economist, etc., appointed to address key issues that were identified during the Scoping phase of the EIA. Their brief is to predict changes that are likely to result from the proposed project and its alternatives, assess the implications of these changes for the socioeconomic and ecological environment, and propose measures that will enhance impacts that are positive and avoid or mitigate those impacts that are negative. Specialists must also recommend monitoring and review programmes to assess the effectiveness of mitigation and enhancement measures and set quantifiable standards for measuring these. The aim of the Specialist Studies Phase is to provide information on both the positive and negative impacts associated with the project alternatives. The studies also present recommendations for actions that may either enhance potential benefits or minimise harmful effects. 4. The Integration and Assessment Phase During this phase of the EIA, the findings of the specialist studies are integrated with other available information and synthesized into an Environmental Impact Assessment Report (EIAR). Depending on the level of assessment required, this takes the form of either a Basic Assessment Report or an Environmental Impact Report. The EIAR includes a description of the impacts that remain after mitigation measures have been applied for the proposed project and its alternatives. This phase of the EIA is also informed by public participation with the I&APs being afforded the opportunity to comment, and the assessment being required to address these comments. The aim of the Integration and Assessment Phase is to prepare information that assists in making a well-informed project decision (i.e., whether the project should proceed and if so, under what conditions). This information should be presented in a clear, understandable format to the project proponent, authorities and interested and affected parties. 5. Public Participation Public involvement is a fundamental principle of EIA. The inclusion of the views of the affected and interested public helps to ensure that the EIA process is open, transparent and robust. Project proponents must be willing to take into account the information, values and concerns of the community, and to amend the proposal to minimise community concerns, if necessary. Public involvement improves the transparency and accountability of the decision making process, so that it is equitable and fair, well informed and leads to good environmental outcomes. Public participation is required by the NEMA EIA Regulations in South Africa and forms an integral part of all phases of the EIA process. Its purpose is to provide a source of information for the EIA, with the following objectives: Downloaded by: alettamagampa | Distribution of this document is illegal S - The study-notes marketplace • Inform stakeholders about the proposed project and its alternatives, and all potential environmental impacts; • Provide an opportunity for the public to present their views, concerns and values, and to influence project design in a positive manner; • Obtain local and traditional knowledge; • Reduce conflict through early identification of contentious issues; • Increase public confidence in the process and provide transparency and accountability in decision making by the project proponent and the authorities. The public participation process will be checked by the competent environmental authority for the following: • Legal requirements: did the process comply with prescribed minimum legal requirements in terms of procedure? • Was the consultation effective: did it fulfil the objectives for public participation, as described above? • Access to and quality of the information provided during the public consultation process: was sufficient relevant information provided in a form that was easily understood? Were stakeholders given sufficient time to read, discuss, and consider the information and its implications? Were responses provided to issues/problems that were raised? • Timing and venue for public consultation: were the venues and timing of events appropriate? Did it encourage maximum attendance and free exchange of views by stakeholders? Were these stakeholders generally representative of all interested and affected parties? 6. Authority Review and Decision Making The final EIA Report is submitted to the competent environmental authority Department of Environmental Affairs & Development Planning and Department of Mineral Resources, Western Cape, who will review it to determine, firstly, whether its information is adequate for informed decision-making. Secondly, once it is decided that the information presented is adequate, the authority will either grant or refuse environmental authorisation. This decision is subject to appeal by any I&APs, including the project developer. The decision on the application will clearly state whether the environmental authorisation is granted or refused for the proposed project. If granted, the environmental authorisation will state which alternative was approved and why, and state the conditions attached to the authorisation. 4.2) i) The promotion of Access to Information Act, 2000 Section 32 ii) Access to information is viewed as a basic requirement in any democratic state that strives for transparency, participation, and accountability. The bill of rights sets out the right of access to information in section 32: 1) Everyone has the right of access to • Any information held by state; and • Any information that is held by another person that is required for the exercise or protection of any rights Downloaded by: alettamagampa | Distribution of this document is illegal S - The study-notes marketplace The promotion of access to information Act 2 of 2000 (PAIA) has been promulgated to give effect to this right. Access to information is also a right that a private individual may enforce against other private persons. In terms of PAIA, a request for a record (information) may not be refused if the disclosure of the record would reveal evidence of substantial contravention of, or failure to comply with, the law and an imminent and serious public safety or environmental risk. 4.3) A person who wishes to undertake certain types of development that will have an impact on a heritage resource must include an assessment of the impact on the heritage resource in question in his or her application. This procedure is set out in, section 38 of the Act. A person who intends to undertake a specified development must, at the very earliest stages of initiating such a development, notify the responsible heritage resources authority and furnish it with details of the location, the nature and the extent of the proposed development. The responsible heritage resources authority must, within 14 days of receipt of a notification – if there is reason to believe that heritage resources will be affected by such development – notify the person who intends to undertake the development to submit an impact assessment report. Such report must be compiled at the cost of the person proposing the development, by a person or persons approved by the responsible heritage resources authority with relevant qualifications and experience and professional standing in heritage resources management. The responsible heritage resources authority must specify the information to be provided in the report it requires. However, the following information must be included: • the identification and mapping of all heritage resources in the area affected • an assessment of the significance of such resources in terms of the heritage assessment criteria • an assessment of the impact of the development on such heritage resources 8 • an evaluation of the impact of the development on heritage resources relative to the sustain- able social and economic benefits to be derived from the development • the results of consultation with communities affected by the proposed development and other interested parties regarding the impact of the development on heritage resources • if heritage resources will be adversely affected by the proposed development, the consideration of alternatives • plans for mitigation of any adverse effects during and after the completion of the proposed development • The report is submitted to the heritage resources authority, which must make a decision on the matter. Downloaded by: alettamagampa | Distribution of this document is illegal S - The study-notes marketplace Reference List Black, Donald 1976 The behaviour of Law. New York: Academic Press Communication Services Western Cape Government Environmental Affairs and Development Planning Elizabeth A. Martin (2003). Oxford Dictionary of Law (7th ed.). Oxford: Oxford University Press. ISBN 3. Forcese, Craig; Dodek, Adam; Bryant, Philip; Carver, Peter; Haigh, Richard; Liston, Mary; MacIntosh, Constance (2015). Public Law: Cases, Commentary and Analysis (Third ed.). Toronto, ON: Emond Montgomery Publishing Ltd. p. 4. ISBN 978-1-55239-664-3. Mattei, Ugo; Bussani, Mauro (18 May 2010). "The Project - Delivered at the first general meeting on July 6, 1995 - The Trento Common Core Project". The Common Core of European Private Law. Turin, Italy: Common Core Organizing Secretariat, The International University College of Turin. Retrieved 8 September 2011. Researching South African Law from Globalex, by Amanda Barratt and Pamela Snyman, updated in 2018 by Salona Lutchman Downloaded by: alettamagampa | Distribution of this document is illegal S - The study-notes marketplace 1 LEG2601 May/June 2018 LEGAL ASPECTS OF ENVIRONMENTAL MANAGEMENT Duration: two hours (120 minutes) 100 marks Examiners: First: Mr H Coetzee Second: Ms E Raubenheimer Closed-book examination This examination question paper remains the property of the University of South Africa (Unisa) and may not be removed from the examination venue. This examination question paper consists of four (4) pages.  Answer all the questions.  Pay attention to the ALLOCATION OF MARKS for each question and adapt your answer accordingly.  Refer to relevant CASE LAW and OTHER LEGAL AUTHORITY.  Credit will be given for a SYSTEMATIC PRESENTATION, GRAMMATICALLY CORRECT LANGUAGE and references to LEGAL AUTHORITY. Downloaded by: alettamagampa | Distribution of this document is illegal S - The study-notes marketplace 2 Question 1 1.1 What is the role of international and regional conventions (treaties) in South African environmental law? Make sure to refer to the following aspects in your answer: the transcendental nature of environmental issues (including relevant examples); cooperation; the normative value of a treaty; examples of treaties; Section 39 of the Constitution on whether to consider international and foreign law; and Section 233 of the Constitution on interpreting legislation. (12) (max 12 marks) Environmental deterioration or damage is affecting not only individual states but also the entire world (cross borders). √ Such deterioration includes, for example, ozone depletion, global warming, loss of biodiversity, air and marine pollution, extinction of species and nuclear damage (any example). √ These examples of environmental problems are indicative that environmental deterioration transcends state borders, which emphasises the role and importance of international law in environmental issues. √ In order to tackle these problems international cooperation is essential and South Africa forms part of the international environmental law community. √ South Africa is a party to many international and regional environmental treaties√ that require cooperation with other nations in order to improve the environment √ Examples include the Antarctica treaties for the protection of the continent of Antarctica and its natural resources; the protection of endangered wildlife [fauna and flora] in terms of the Convention on International Trade in Endangered Species of Wild and Flora [CITES]; and the Convention on Biodiversity,(any two examples) √√ A treaty is a written agreement between states and is a source of international law. √ A state that has signed a treaty is bound by it. √ Section 39 of the Constitution deals with the interpretation of the Bill of Rights and provides that when interpreting the Bill of Rights, a court, tribunal or forum must consider international law and may consider foreign law. √ In other words, the courts must look for guidance to international law sources, √ particularly regarding cases or fields of law they have not dealt with before (e.g. human law, which includes environmental rights). Courts may also refer to foreign law (e.g. English, American and Canadian law) where applicable. √ Section 233 of the Constitution furthermore provides that when interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law. √ 1.2 Give two examples of indigenous law (customary law) rules relating to the management of the environment (natural resources) in South Africa. (2) (max 2 marks)  Rule of open access to grazing land √  Rule on land containing medical plants √ Downloaded by: alettamagampa | Distribution of this document is illegal S - The study-notes marketplace 3  African customary law regulates individual relationships between members of the family, rather than relationships between individuals and the state. √ 1.3 The structure within which environmental law functions can be seen as a triangle, with each angle representing the relationship between the different parties and/or institutions. Name the three parties and/or institutions. (3)  Organ of state √  Owner/applicant (any one of the two) √  Neighbours/third parties, interested and affected parties (any of the three) √ 1.4 The National Environmental Management Act 107 of 1998 (NEMA) states that “environment” means the surroundings within which humans exist and that are made up of a number of components. Define the term “environment” as per NEMA. (13) Environment means the surroundings within which humans exist and that are made up of (i) the land, √ water √ and atmosphere √ of the earth; (ii) micro-organisms, √ plant √ and animal √ life; (iii) any part √ or combination √ of (i) and (ii) and the interrelationships √ among and between them; and (iv) the physical, √ chemical, √ aesthetic and cultural √ properties and conditions of the foregoing that influence human health and wellbeing.” √ [30] Question 2 2.1 There are ten questions. Each question is accompanied by a number of options as possible answers. Only one option or statement in each question is correct. You must identify the correct option and write down the option you have chosen (a, b, c or d) next to the question number. (10) 2.1.1 South Africa’s framework environmental legislation is the … . (a) Biodiversity Act 10 of 2004 (b) National Water Act 36 of 1998 (c) National Environmental Management Act 107 of 1998 (d) Environment Conservation Act 73 of 1989 2.1.2 An “organ of state” as per Section 239 of the Constitution excludes … . (a) the Department of Correctional Services (b) the Department of Environmental Affairs (c) a court or a judicial officer (d) the Mpumalanga Department of Agriculture, Rural Development, Land and Environmental Affairs.