22 September 2009

Development and Environmental Protection - can a balance be achieved?

The environmental right in South Africa's Bill of Rights, which grants everyone the right to an environment that is not harmful to health or well-being, imposes a constitutional imperative on the State to take measures to ensure "ecologically sustainable development and use of natural resources while promoting justifiable economic and social development".

Goals of environmental protection and social and economic upliftment of people are thus constitutionally entrenched and must be reached in an integrated way. In practice, however, there is an uneasy balance to be struck between the protection of the environment and economic and social development in a country urgently in need of both.

Sustainable development, which meets the needs of the present without compromising the ability of future generations to meet their own needs, is a cornerstone of environmental law. In addition to its constitutional recognition, it is given prominence as a fundamental environmental management principle in South Africa's primary environmental statute, the National Environmental Management Act (NEMA).

Pink birds are at the centre of an interesting and complex illustration of the difficulties inherent in balancing interests to achieve sustainable development in South Africa today. In the vicinity of the Northern Cape city of Kimberley, the Kamfers Dam supports the largest permanent population of Lesser Flamingos in Southern Africa. The species is recognised by conservationists as "near-threatened" because of declining populations, very few breeding sites in the world and human-induced threats to those breeding sites that do exist. In 2008, the flamingos bred on the dam for the first time recorded, making it the only breeding place for the species in South Africa and one of only four in Africa. For some conservationists, the area is a sacrosanct breeding ground worthy of the highest protection.

A large housing development has been approved very close to the Kamfers Dam. In addition to providing much-needed housing in an economically depressed area, its positive knock-on effects will include employment, provision of additional services including schools and policing and fiscal benefits for the province as a whole.

Environmental impacts of the development are recognised to include effects on the breeding patterns of the flamingos, which may be disturbed by construction activities and thereafter by the influx of thousands of residents.

For supporters of the development, potential disturbance of the birds is a small price to pay for the greater socio-economic benefits. For flamingo conservationists, the disturbance of this extremely sensitive and important ecosystem is intolerable and the decision taken to authorise the development unjustified. How are interests of this type to be reconciled?

The Constitutional Court (the Court) provided guidance for environmental decision-makers in the case of Fuel Retailers Association of Southern Africa v Director-General Environmental Management, Department of Agriculture, Conservation and Environment, Mpumulanga Province. The Court found that sustainable development offers a principle for the resolution of tensions between socio-economic and environmental concerns. Whenever a development that may have a significant impact on the environment is planned, the Court held that there is a need to weigh considerations of development, including socio-economic development, against environmental considerations and to reach a balance between these factors.

In practice, however, this will necessarily require value judgments on the part of the decision-maker, who may have personal bias in favour of either environmental or socio-economic protection. For parties on opposing sides of the development/environmental protection debate, it is likely to be hard to accept a middle ground proposed by a decision-maker in which it is felt that neither development aims nor environmental preservation is being compromised unacceptably. It is hoped that future court decisions will provide more detailed guidance to assist decision-makers to integrate and accommodate competing interests on the road to sustainable development.

Helen Dagut
Consultant, Environmental Law

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