LEGAL PERSPECTIVES ON RADIOLOGICAL PROTECTION OF THE ENVIRONMENT By GIFT NHLAPHO Legal Advisor National Nuclear Regulator 1

LEGAL PERSPECTIVES ON RADIOLOGICAL PROTECTION OF

THE ENVIRONMENT

By

GIFT NHLAPHOLegal Advisor

National Nuclear Regulator

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Purpose of Presentation

• To outline the legal basis underlying obligations for the protection of the environment.

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Brief background on the protection of the environment principle

• Interaction between humans and the environment:

Social Causes (increased population growth) & Economic Causes (process of industrialization) led to,

Socio-economic causes (increased waste generation) & increased pressures on resources (environmental causes), this led to,

Environmental effects such as environmental degradation and pollution on global, regional and local scales

This resulted in a need to regulate human activities and the

effects of human activities on the total environment.3

International initiatives

• The 1987 Brundtland Report:

This Report defined “sustainable development” asdevelopment “meeting the needs of the present withoutcompromising the ability of future generations to meet

theirown needs.”

This Report provided a starting point for sustainabledevelopment requirements. • Rio Declaration (Agenda 21); Stockholm Convention;

Basel Convention; JHB Summit4

International initiatives cont...

• The international initiatives and environmental

instrumentsculminated in the development of Integrated

EnvironmentalManagement principles such as: The Precautionary Approach; The Polluter Pays Principle; Duty of Care from Cradle to Grave; Integrated & Holistic Approach; Participation, transparency & democracy; Accountability & liability; Environmental awareness & education; Continual improvement; Consideration of alternatives; Carrying capacity of environmental resources.

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SA Legal Perspectives: Historical Overview

• The Environment Conservation Act, 1989 (Act No. 73 of 1989) (ECA) coordinated all matters concerning environmental conservation. The ECA focused on the “ecological approach” to the environment.

• In 1995 a Consultative National Environmental Policy Process (CONNEP) was launched.

• The CONNEP Process identified the following historical deficiencies:

Limited legal definition of environment (ECA); Fragmented environmental laws;

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Historical Overview cont...

Lack of implementation of environmental laws; Limited application of common law remedies; Limited access to justice; Limited or no participation in environmental decision

making; Limited or no environmental education.

The CONNEP Process resulted in the formulation of the 1997 White Paper on National Environmental

Management.

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Radiological protection of theenvironment: Current Legal Basis

(1) The Constitution of South Africa Act, 1996

Supreme law of SA; Law or conduct inconsistent with it is invalid; Obligations imposed by it must be fulfilled; Contains a Bill of Rights applicable to all law and binding

upon the legislature, executive, judiciary and all organs of state & natural and juristic persons;

No other law or government action can supersede the provisions of

the Constitution.

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Radiological protection of theenvironment: Current Legal Basis cont..

• The Bill of Rights: Section 24 – Environmental Right

Section 24 provides that everyone has the right-(a)To an environment that is not harmful to their health or

well-being; and(b)To have the environment protected, for the benefit of

present and future generations, through reasonable legislative and other measures that – (i) prevent pollution & ecological degradation;(ii) promote conservation; and (iii) secure ecologically sustainable development & use of natural resources while promoting justifiable economic & social development. 9


(2)The National Environmental Management Act, 1998 (Act No. 107 of 1998) (NEMA)

• NEMA implements the 1997 White Paper Policy on National Environmental Management which Policy undertakes to give effect to the rights in the Constitution that relate to the environment & defines sustainable development as a combination of social, economic & environmental factors. The Policy entrenches environmental sustainability in policy and practice;

• Following NEMA, DEAT undertook a law reform process to provide a consolidated legislative framework for environmental management in SA aimed at promoting sustainable development.

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• NEMA Definition of ‘environment’:

“Environment” means surroundings within which humans exist

and that are made up of - Land, water and atmosphere of the earth; Micro-organisms, plant and animal life; Any part or combination of the above, and the

interrelationships among and between them; and The physical, chemical, aesthetic and cultural properties

and conditions of the foregoing that influence human health and well being.

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• Section 2 - NEMA Principles:

Provides that the principles set out in section 2 of NEMA apply throughout SA to the actions of all organs of state that may significantly affect the environment and – (a) ...(b) ...(c) Serve as guidelines by reference to which any organ of state

must exercise any function when taking any decision in terms of NEMA or any statutory provision concerning the protection of the environment;

(d) ...; and(e) Guide the interpretation, administration and implementation of

NEMA, and any other law concerned with the protection or management of the environment.

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(3) The National Nuclear Regulator Act, 1999 (Act No. 47 of 1999)

This is the primary legislation for nuclear matters.

The NNR Act provides for the Regulator to regulate nuclearActivities. It also provides for safety standards and regulatorypractices for protection of persons, property and the

environment against nuclear damage.

• In terms of section 36 Regulations on Safety Standards & Regulatory Practices have been promulgated under GN R388: GG 28755 of 28 April 2006 13

Importance of Sect 24-Environmental Right & NEMA

Principles

Constitutional Case Law:

Fuel Retailers Association of Southern Africa v D-G Environmental Management: Dept of Agriculture,

Conservation& Environment: Mpumalanga Province and Others

(2007)

In this case the CC had to answer a question concerning theobligations of state organs when making decisions that may

havesubstantial impact on the environment.

Facts: The Dept of Agriculture had granted authority in terms

of section 22 of ECA to a Trust to construct a filling station on

a property.

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Importance of Sect 24-Environmental Right & NEMA

Principles

Facts cont…The RoD noted that the property had been rezoned and that all identified and perceived impacts were satisfactorily dealt with in

thescoping report.

Fuel Retailers challenged the decision mainly on the ground thatthe need, desirability and sustainability of the proposed fillingstation had not been considered, a matter which they were obliged to consider.

The Dept contended that the need and desirability were considered by

the local authority when it decided the rezoning, therefore it did not

have to reassess these considerations.15

Case law cont...

• The Pretoria High Court and the Supreme Court of Appeal agreed with the Dept. Fuel Retailers referred the matter to the CC.

Arguments at the CC: Fuel Retailers argued that the environmental authoritiesthemselves were obliged to consider the socio-economic

impact of constructing the proposed filling station & relied on sec24(b)(iii) of the Constitution and sections 2(4)(a), 2(3), 2(4)

(g), 2(4)(i) of NEMA.

Dept argued that rezoning forms part and parcel of the process of an application for authorization in terms of sec 22 of ECA.

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Case law cont...

Fuel Retailers argued that the two processes are distinct and separate: the local authority considers an application for rezoning from a town planning perspective and environmental authorities are required to consider the impact of the proposed development on the environment and socio-economic conditions.

CC Decision: The CC concluded that the Constitution & environmental

legislation introduce a new criterion for considering future developments. Pure economic factors are no longer decisive.

The need for development must now be determined by its impact on the environment, sustainable development and social and economic interests.

The duty of environmental authorities is to integrate these factors into decision making and make decisions that are informed by these considerations.

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Case law cont...

CC Decision...

The environmental authorities left the consideration of the vital aspect of their environmental obligation imposed by NEMA entirely to the local authority and this is not the proper discharge of their statutory duty.

This amounts to unlawful delegation of their duties to the local authority and this they cannot do.

NEMA specifically enjoins the environmental authorities to consider, assess and evaluate the social and economic impact of the proposed filling station and thereafter to make a decision that is appropriate in the light of such assessment. 18

Way forward

• Adoption of international treaties and conventions:

Process of section 231 of the Constitution – Signing/Ratification

and adoption into legislation to be enforceable in SA;

• Adoption of ‘best practice’ documents/processes:

These may be built into our legislative framework throughRegulations to give them legal effect and status;

• Change of mindsets to appreciate the environmental direction undertaken by the Govt.

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Questions ??

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THANK YOU FOR YOUR AUDIENCE

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LEGAL PERSPECTIVES ON RADIOLOGICAL PROTECTION OF THE ENVIRONMENT By GIFT NHLAPHO Legal Advisor National Nuclear Regulator 1