Finding Nema: The National Environmental Management Act, the De Hoop Dam, Conflict Resolution and Alternative Dispute Resolution in Environmental Disputes

E Couzens,M Dent

doi:10.17159/1727-3781/2006/v9i3a2829

Abstract

At a time when it is recognised that large dams have potentially serious environmental consequences; it appears that a dam, the De Hoop dam, is to be constructed in Mpumalanga Province. The dam may seriously disrupt ecosystems in the Kruger National Park. Authorisation for the dam was granted by the Minister: Department of Environmental Affairs and Tourism, based on a badly flawed environmental impact assessment (EIA) process; the Record of Decision (ROD) from the Minister was equally inadequate. Following objections and appeals, the Minister released a revised RoD in which important changes were made. The flawed EIA and approval processes, however, may come back to haunt the decision-maker; yet value lies in the lessons to be drawn from the initial failure to consider the views of interested and affected parties. In the end, an abridged form of Alternative Dispute Resolution (ADR) is to be followed; but much harm could have been avoided had this been done from the beginning. The ‘de hoop’ must be that these errors will be avoided in future in such disputes and a culture of ADR fostered.

Highlights

This article considers the proposed De Hoop Dam on the Olifants River, Water Management Agencies, conflict between government departments and other organs of state, the involvement of NGOs and conflict-breaching mechanisms.The point of this article is not to debate the rights and wrongs of the project or to weigh in on behalf of either side in the dispute, but to show that there is a genuine dispute about the course which should be followed as well as interests which were not taken into account properly in the initial impact assessment and decision-making processes
The Record of Decision (RoD) was handed down on 21 November 2005, despite there having been six objections against the development lodged with Department of Environmental Affairs and Tourism (DEAT) – these being from South African National Parks (SANParks, which is an organ of state) and from five NGOs and private individuals
According to the RoD, in reaching its decision DEAT took into consideration the final environmental impact report (EIR) and environmental management plan (EMP) dated October 200527 and comments received from the South African Heritage Resources Agency (SAHRA), and the Departments of Health and Social Services (Mpumalanga), Minerals and Energy (Limpopo), Economic Development, Environment and Tourism (Limpopo), and Agriculture and Land Administration (Mpumalanga)

Summary

Introduction

This article considers the proposed De Hoop Dam on the Olifants River, Water Management Agencies, conflict between government departments and other organs of state, the involvement of NGOs and conflict-breaching mechanisms. The point of this article is not to debate the rights and wrongs of the project or to weigh in on behalf of either side in the dispute, but to show that there is a genuine dispute about the course which should be followed as well as interests which were not taken into account properly in the initial impact assessment and decision-making processes That this was (and is) an appropriate case for conciliation and dispute resolution mechanisms, which are key – and underutilised – features of the National Environmental Management Act 107 of 1998 and of the National Water Act 36 of 1998. ** MSc Eng (Natal) PhD Eng (Natal) MBL (UNISA); PrEng, Programme Director, Centre for Environment Agriculture and Development, Faculty of Science, University of KwaZuluNatal, Pietermaritzburg

The facts of the dispute

Legislative framework

National Environmental Management

The conflict

Conclusion