Environmental Assessment Practitioners: Reform and regulation at last?

22 September 2017

Cullinan & Associates welcomes the Minister of Environmental Affairs declaration of her intention to appoint an organisation as the registration authority for Environmental Assessment Practitioners (EAPS) in South Africa. Environmental authorities and professionals have long recognised the need for reform and regulation of EAPs as a profession and an industry.

If the Minister proceeds with the appointment, the Environmental Assessment Practitioners Association of South Africa (EAPASA) will become the first registration authority for EAPs. The Minister’s notice was published in GN 953 in GG 41084 of 1 September 2017.               

South Africa’s outstanding natural heritage is regulated in part by the National Environmental Management Act 107 of 1998 (NEMA), which places restrictions on human activities which may significantly affect the environment. Environmental Impact Assessments (EIAs) must be conducted for particular listed activities. The EIA process largely rests on the shoulders of EAPs who are required to conduct objective and thorough assessments in the application process for environmental authorisation. A tension exists between the legal requirement for an EAP to be independent from the person making the application (the Applicant) and yet being dependent on Applicants for work in compiling environmental assessment reports. Independence would require in some instances a report recommending that a development would have unacceptable environmental impacts and should not proceed – an outcome undesirable for the Applicant.

In order to fulfil their duties under NEMA, EAPs must:

  • be independent;
  • have expertise in conducting EIAs including knowledge of the relevant law;
  • perform the work truthfully and objectively;
  • comply with relevant laws;
  • take into account all the matters required by NEMA in compiling the reports and;
  • disclose all material information that may influence the decision on the application or that may influence the objectivity of their reports.

A variety of factors can prevent EAPs from producing acceptable EIA reports under NEMA, such as:

  • the integrity, aptitude and experience of the EAP;
  • the quality of specialist reports relied on by an EAP;
  • the willingness of Applicants to accept the EAPs recommendations;
  • EAPs who do not truthfully report the impacts of a proposed development or fail to act independently from an Applicant; or
  • when Applicants fail to provide EAPs with sufficient time, funds or support to conduct assessments properly.

Key to the success of any EAP’s reporting is their independence and the oversight of a regulatory body. For this reason we welcome the finalisation of EAPASA to prevent the industry’s reputation being compromised by a few unscrupulous practitioners.

EAPASA’s founding purpose is to advance the practice and quality of environmental assessment in South Africa in the public interest and in the interest of the environment, through establishing and maintaining a registration authority forEAPs. Once appointed EAPASA will be the registration authority for a period of 5 years, during which time the Minister will consider her options for the long term registration of EAPs.

Importantly, EAPASA will introduce and implement an ethical code of conduct and practice for EAPs registered with the body. A professional conduct committee within EAPASA will be responsible for conducting disciplinary hearings after which it may decide to exonerate, reprimand, suspend or expel a registered member the Association.

The proposed code of conduct, EAPASA’s constitution and other documents may be accessed here: https://www.environment.gov.za/legislation/gazetted_notices/molewa_eapasa_singleauthoritty

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Rights of Nature Tribunal in Bonn finds legals systems incapable of preventing climate change

Cormac Cullinan was a judge on the Tribunal, which heard seven cases from around the world which collectively demonstrated that global and national climate change commitments cannot be met without fundamental changes to the legal systems which legalise the activities that cause climate change and the destruction of the ecological systems on which life depends

09 November 2017

Meet our team – Tendai Bonga

A Zimbabwean, born and bred, Tendai has been admitted to the High Courts of both South Africa and Zimbabwe, and has experience practicing law in both countries.

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