Earthlife Africa’s Ulrich Steenkamp says the notion “nothing about us without us” is fundamental to our many rights and responsibilities as citizens.
On paper, South Africa is a shining beacon when it comes to democracy. With one of the best constitutions in the world (renowned for being free, fair, and inclusive), we also have several government and public entities that are there to ensure that the rights of South Africans are protected. Fundamental to our many rights and responsibilities is this notion of “nothing about us, without us”. This right to Free, Prior and Informed Consent (FPIC) means that we should be informed before any development – which could affect us individually, or our communities and the environment we live in. It even applies to decisions taken about our respective province as well as the country, as a whole. This means, that before any ‘developments’ can take place. It can only happeny after your concerns have been heard and any objections you may have had were taken into account, and only once you have given your consent, can any development, big or small, take place.
This is where the legal requirements for Public Participation Processes (PPP) comes in. So, what is meaningful public participation and how should it work? Let’s say that a company wants to excavate soil in an area in, or even close to, your neighbourhood for a new gardening project. Before it even starts the project, this company must have public meetings to inform residents about the planned development. It should lay out all the potential benefits and negative impacts that you may have to face as a community, during the various phases of the project, as well as after the project has been completed. Affected communities should be notified about these meetings and these notices should be published on all local media platforms and in all official local languages (this includes local noticeboards in relevant neighbourhoods), to ensure that people are aware of the meetings. These notices should clearly state what the meeting would entail and why it is important for them to attend. Depending on the scope of the project, multiple meetings may be required.
How Public Participation processess used to look like. NERSA MYPD Hearing, Soweto, 6 February 2018. Accessible for all, with translations in all official South African languages, including sign language.
Public participation meetings are meant to clearly lay out everything regarding the project and should allow for open and thorough discussion with affected communities about any potential impacts or consequences, as well as possible benefits. Here, communities have the chance to raise all questions and concerns about a project and these must be sufficiently addressed by those proposing it. This could include questions about job creation or how a project could impact the environment and the community. People may also like to know more about the plans for rehabilitation, such as in the example of the excavation site. However, for many, key questions often relate to how a project might benefit or harm the community.
After these meetings have taken place, all issues should be satisfactorily addressed. Only if the ‘interested and affected parties’ (I&AP) have given their consent, can the project be given the go-ahead by the relevant governmental decision-makers. In the excavation scenario, after the project has been completed, the rehabilitation of the site must take place and the excavated site must be restored to the state it was in prior to the project (sadly, however, this is often not the case and communities are mostly left to deal with rehabilitation efforts, on their own).
In essence, this is supposed to be the normal process for projects that involve any type of development taking place in South Africa. However, for far-too many of these projects, these steps are not followed, or companies (and government) look for legal loopholes to avoid the “messiness of public participation processes”. In our experience, many entities – from local municipalities all the way up to national government and even transnational corporations – try to circumvent these legal requirements, either for fear of public pushback or because of the ‘added’ expenses of continuously holding the required public participation meetings.
It is for this exact reason that I write this story because I have seen and experienced so many of these tricks, first-hand. In my opinion, far too many governmental, Chapter 9 and international institutions seek to make a mockery of this process. These efforts to ease processes and secure more profits far-too often infringe on the rights of the people and environment.
Community-based organisations were able to access these public hearings easily and present the views and opinions of their organisations to the NERSA board, 6 February 2019
Based on my personal experience as an environmental justice activist, I have seen first-hand some of the key obstacles affecting the validity of current public participation processes. These include accessibility of both the selected meeting locations and the information provided. Often, neither of these are comfortably accessible to affected communities and demonstrates just how out of touch our decision-makers are with the struggles of our people. Most of the time, meetings are not held in local venues but rather in nearby cities, and since the start of the pandemic, many meetings have taken place online, thereby excluding those who cannot afford data or who do not have access to smart technology. Furthermore, the relevant documents and reports that communities need to participate meaningfully, are often only available from certain locations and are often only available in academic English.
There are also serious complaints about the timings for these meetings, which are often held at very awkward times. Even when it comes to the announcements of public submissions, these often feel rushed, not giving communities enough time to make the necessary arrangements to attend.
A prime example of this is the recent MYPD5 Application by Eskom (for yet another tariff increase) that was facilitated by National Energy Regulator (NERSA). The announcement was made in the middle of December 2021, at a time when the majority of South Africans are focussed on making plans for the festive season, and hearings were held in the same week as many children were returning to school for the new year. For such important discussions, which we assume Nersa knew were necessary for a long time, surely the public needed more of heads-up?
Government must endeavour to make meaningful public participation a reality, if it has any hope of getting real public support for its development ideas. “Nothing about us, without us!”
Ulrich Steenkamp, Programs Officer and Nuclear Campaigner at Earthlife Africa Johannesburg
For more information about our work, follow Earthlife Africa Johannesburg on Facebook and Twitter.