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Take no prisoners

8 September 2011

The National Environmental Management Act (NEMA) and its regulations provide for an Environmental Impact Assessment (EIA) to be conducted to ascertain the impact that a particular “listed” activity will have on the environment, and to assess the risks involved.  This enables the authorities to make an informed decision as to whether the activity should be allowed.

What, however, if the information placed before the authorities is incomplete or fraudulent?  In a recent criminal case the North Gauteng Regional Division of the Magistrates Court had to decide whether an Environmental Assessment Practitioner (EAP) had been fraudulent in making representations contained within his assessment or had contravened the EIA regulations by submitting incorrect or misleading information that a wetland did not exist on a site for a development whereas, in fact, it did.

The NEMA regulations require the EAP to be ‘independent; and have expertise in conducting environmental impact assessments, including knowledge of the Act, these Regulations and any guidelines that have relevance to the proposed activity.’

A proposed development known as the Pan Africa Parliament required a Basic Assessment Report (BAR) under the NEMA regulations.  Mpofu Environmental Solutions CC compiled the report which expressly stated that a ‘river stream or wetland does not occur within a 500m radius of the site’.

The Department of Environmental Affairs (DEA), on the strength of the BAR, granted the go ahead to develop the site.  Construction began but was later stopped due to construction difficulties being experienced on site and concerns were raised regarding the possible existence of a wetland on site.  Two criminal charges were then brought against the EAP, the first for fraud and the second for contravention of regulation 81(1)(a) of the Environmental Regulations which renders a person guilty of an offence if he/she provides incorrect or misleading information in any document submitted to an authority.

The court found that the State had not proved that the accused had been fraudulent in his activities but convicted him in his personal capacity and Mpofu Environmental Solutions CC, of contravening the EIA regulations.   In each instance the fine was R80, 000 with R40, 000 suspended.

The DEA must be commended for its commitment to uphold the provisions of the EIA Regulations as well as sounding a warning to all EAP’s that non-compliance with the regulations and incorrect or deficient representations will be dealt with vigorously.  This case also emphasises the need for experienced and capable professionals to conduct the assessments to ensure that correct information is placed before the authority to enable the best decision in each particular case to be made.

Patrick Forbes 

 

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