Public participation as an essential requirement of the environmental rule of law: Reflections on South Africa's approach in policy and practice

Abstract

The need for public participation to be embedded in environmental governance has for several decades been accepted in international law. There are many reasons for this, including the fact that public participation facilitates better informed and credible decisions that affect the environment and the people who live in it. However, while acceptance of the need for public participation is widespread, approaches to giving effect to it in practice lie on a spectrum. At one end of the spectrum lie 'weak' methods that arguably pay lip service to the principle rather than providing opportunities for meaningful engagement and change. On the other lie 'strong' methods that embrace the full underlying ethos of public participation and provide real potential for those often marginalised from the core of power to influence outcomes and secure environmentally-just decisions. South Africa's approach provides an opportunity to examine both ends of the public participation spectrum. Post-democracy its approach has moved from a limited, exclusive and mechanistic one to an approach that in environmental policy and legislation in many ways exemplifies the upper rungs of Arnstein's well-known ladder of public participation. Nevertheless, a survey of judgments emphasises that legislative efforts aimed at ensuring 'strong' participation methods can become diluted where officials do not consistently embrace the full value and intended purpose of public participation in their decisions. In such instances the courts can play a valuable role in steering practice back to the intended path.