Sustainable Development: An Exposé

  • Lisa Arthur

Abstract

SUSTAINABLE DEVELOPMENT: AN EXPOSÉ


 


LISA ARTHUR


Fourth Year LLB Student, School of Law, University of the Witwatersrand


 


I INTRODUCTION


 


As it is a relatively new legal concept,[1] much thought and effort has been expended into defining what the concept of sustainable development means and the problems related to its application.[2] This paper seeks to summarise the various understandings of the concept held by the courts, legislature and government and how these various bodies have applied the concept. This paper will show that although the legal understanding of the concept is sophisticated and nuanced, the complete lack of legal guidelines on practical application to complex problems renders its application biased at best or a crude estimate at worst.


 


II WHAT IS SUSTAINABLE DEVELOPMENT? – MODELS OF UNDERSTANDING


 


This concept first developed in international law before being transposed into South African law.[3] Though the status of this concept is disputed in international law,[4] a consistent understanding of it has been given judicial approval by the South African courts.[5] Among the earliest expressions is that of the Brundtland report which defines sustainable development as ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’. [6]


 


The Brundtland Report urged nations to merge environmental and economic considerations when making decisions;[7] a key concept that has been given judicial approval in cases[8] prior to the landmark case of Fuel Retailers.[9] Later, the Brundtland definition was expanded to include the consideration of social factors.[10] It is this understanding of the need to give equal weight to economic development, social development and environmental protection that developed the ‘three pillar model’.[11] According to the Constitutional Court (‘the Court’) in Fuel Retailers, the three pillar model approach gives effect to the most important principle of integration.[12] According to this principle, all three considerations must be given effect to. As these pillars are interdependent and mutually reinforcing,[13] any conflict between the pillars must be reconciled and a compromise must be reached.[14] Further, this principle seeks to merge environmental protection and economic development, where previously these concepts were distinct and separate.[15] This relationship is often represented by the following diagram: [16]


 


Figure 1: Three Pillar Model of Sustainable Development


 


In addition to these two main approaches there are two other approaches which the South African courts have not favoured. The first is the four pillar approach in which the fourth pillar is that of culture:[17]


 


 



Sustainable Development




Social




Culture




Environmental




Economic



Figure 2: Four Pillar Model for Sustainable Development


 


Again, under this approach all four pillars have to be reconciled and considered in any decision.[18] The inclusion of culture is arguably an important pillar as solutions fashioned for a particular country, to operate in a certain political, economic and social climate, may not be suitable for transplantation into another country.[19]



Figure 3: Two Pillars Supported by a Foundation Model of Sustainable Development




Alternatively, another approach is that of the two pillars supported by a foundation approach:


 


Figure 3: Two Pillars Supported by a Foundation Model


 


According to this approach, the environment is the source of all economic and social stability and must therefore be protected first and foremost.[20] Some judicial support is given to this approach by the Court in Fuel Retailers, in which it observed that social and economic goals ‘cannot subsist on a deteriorating environmental base’.[21] However, in application the Court emphasised that all three pillars of sustainable development should be considered and, as such, environmental considerations are not always paramount and may have to be compromised when applied alongside economic or social considerations.[22] As far back as 2008, and in its Sustainable Development National Strategy and Action Plan 2008[23], the government has indirectly supported this model by referring to ‘non-negotiable ecological thresholds’.[24] This document has further recognised that GDP-focused growth indicators do not reflect the sustainability of that growth;[25] this indicates that government realises that pure economic considerations do not trump all other considerations.


 


Governmental understanding is exhibited in the National Framework for Sustainable Development[26] in which the concept is understood as the embedding of the economic system, socio-political system and ecosystem within each other, being held together by the governance system within a legitimate regulatory framework.[27] In the document the model is shown as below:


 


Figure 4: National Framework for Sustainable Development Model of Sustainable Development


 


The governmental understanding, at least on paper, accords substantially with the three pillar model espoused in Fuel Retailers. In the jurisprudence, government has also demonstrated its understanding by considering socio-economics in a series of cases dealing with the environmental authorisation of fuel stations.[28] Thus it seems that government has the same understanding of the concept as the courts.


 


As seen above, there is a bewildering array of sustainable development models. Some commentators have shied away from defining sustainable development, preferring to detail the various components of the concept rather than extrapolating a pithy description.[29] These components have become known as principles of sustainable development.


 


III PRINCIPLES OF SUSTAINABLE DEVELOPMENT – SOUTH AFRICAN LAW


 


Section 24 of the Constitution[30] contains the right to the environment and has repeatedly been recognised as the source of all environmental legislation.[31] Explicit reference to sustainable development is made in section 24(b)(iii) in which the government is required to take legislative as well as other measures to secure ecologically sustainable development and use of natural resources. Beyond this, however, the Constitution does not define what sustainable development is or how it is to be applied.


 


The National Environmental Management Act[32] (‘NEMA’) is the legislation which gives effect to section 24 of the Constitution and forms the framework legislation for all environmental matters.[33] In the preamble to NEMA and under section 1, the three pillar model is given support by requiring the ‘integration of social, economic and environmental factors into planning, implementation and decision-making so as to ensure that development serves present and future generations' (emphasis added). This definition, in combination with section 4, contains several principles such as intergenerational equity,[34] intragenerational equity,[35] sustainable use of natural resources[36] and the precautionary principle.[37] Thus it is clear from NEMA that the concept involves more than a mere balancing of three considerations; rather, in addition to this balancing, a host of other considerations must also be given effect to.[38] In international jurisprudence, several other principles are included under the concept.[39] These include the precautionary principle,[40] the polluter pays principle[41], the principle of access to environmental justice[42] and information[43] and the principle of public participation[44]. However, if all these principles were to be included under sustainable development, almost the entire text of NEMA could be included in this discussion. Therefore, this paper limits itself to the principles which have the most mainstream support.


 


The first principle of intergenerational equity rests on the understanding that natural resources are finite and must be protected for future generations to enjoy and exploit.[45] This principle has support from section 24 of the Constitution which requires that the environment must be protected ‘for the benefit of present and future generations’. As such, the present generation has a right to use and enjoy natural resources, yet it also has an obligation to sustain the natural resource base and to consider the long term effects of its activities on the ability of future generations to sustain themselves.[46] This understanding was elucidated in Fuel Retailers in which it was recognised that development must not cease but must be regulated to ensure continued survival of future generations.[47]


 


Connected to this principle is the principle of intragenerational equity which requires that both the environmental costs and benefits of exploitation of resources must be shared equitably among the population.[48] In particular, the needs of the poor and vulnerable must be protected and fulfilled.[49] This principle seeks to reduce poverty and ensure that all people receive the same basic level of resources needed to realise basic human rights.[50]


 


Sustainable use requires that the integrity of a resource be maintained in such a manner that it may continue to be used in the future.[51] NEMA therefore requires that ‘the development, use and exploitation of renewable resources and the ecosystems of which they are part, do not exceed the level beyond which their integrity is jeopardised.[52]


 


The precautionary principle requires that activities which might lead to significant, serious or irreversible harm must be prevented even if there is a lack of full scientific certainty as to the existence and severity of the risk.[53] This is encapsulated in NEMA which requires a risk-averse and cautious approach to be applied, which takes into account the limits of current knowledge about the consequences of decisions and actions.[54]


 


However, even though these principles form part of sustainable development, the overriding principle has been identified as the principle of integration.[55] This principle has been defined as the integration of environmental considerations into economic and social planning and implementation, and conversely, the integration of socio-economic considerations into environmental planning and implementation.[56]


 


Although lip service is given to the totality of principles, in practice only the principle of integration and the three pillar model have been directly applied to a given problem in case law.


 


IV APPLICATION OF SUSTAINABLE DEVELOPMENT


 


The Constitution and the preamble to NEMA set the goal of sustainable development and give principles which a decision maker must consider when attempting to reach that goal.[57] However, applying these principles is extremely difficult.


 


Cases which dealt with the refusal to grant environmental authorisation for building a fuel station proceeded on the following basis:[58] 1) Define applicable laws and principles; 2) Identify that the law required the integration of environmental, social and economic (‘SEE’) factors; 3) Determine if the environmental authority was authorised to apply SEE factors; and 4) Determine if the authority applied SEE factors.


 


At no point in this process did a court determine if the principles of inter/intra generational equity, sustainable use or the precautionary principle could be considered or applied as authority.[59] As such, the courts consider, at a purely superficial level, whether the principle of integration is applied. The courts also did not go into any discussion on how the SEE factors are to be reconciled besides conducting a general balancing exercise.[60] Such a general exercise renders the complex balancing of factors (which should have equal weighting) susceptible to abdication to political will, whim or personal bias.[61] Due to the separation of powers, a court will only order a review if a decision is manifestly unreasonable.[62] Therefore a decision that reflects a political choice, but which is justified on reasonable policy grounds, will not be reviewed even if the decision fails to exhibit an equal compromise between the three pillars.


 


Further, it may be impossible to reach a happy compromise; as in this value-laden judgment, one or two of the values sometimes override another.[63] Academics have recognised this potential problem and have suggested that prior to engaging in balancing, a particular pillar should be consciously pre-weighted.[64] This would enable a decision-maker to consider the other pillars but in situations of conflict choose a decision which best suits the weighted pillar.[65]


 


As shown in Fuel Retailers, there are two different ways to implement the pillars. The majority favoured considering each pillar separately and then evaluating them cumulatively at the end of the decision making process.[66] The minority favoured the consideration of economic factors only when the development potentially threatened the environment, not before.[67] It is then only when development triggers environmental concerns that the principles of sustainable development in NEMA should be applied.[68] However, yet again, even if a trigger occurs, the evaluation of sustainable development requires the balancing of three pillars – the point at which an economic development may threaten the environment would merely be a preceding condition.


 


It has been argued that the balancing process failed in the decisions of Fuel Retailers and BP Southern Africa. The argument holds that these cases mask a bias towards an economically weighted approach, which in these situations, gives an environmentally friendly outcome as it resulted in the prevention of an environmentally degrading activity.[69]


 


In other cases, sustainable development has been used as a guiding principle to uphold legality[70] and to determine whether a review was warranted.[71] In these cases, the principles of sustainable development were never scrutinised or directly applied.[72]


 


V DECISION MAKING MODELS


 


Executive government uses various tools to implement sustainable development, namely public participation mechanisms,[73] EIAs[74] and internal department guidelines.[75] These are used cumulatively to assess and balance the pillars.[76] However, the use of these tools is subject to the same criticisms as above. It would be advisable for decision makers to make use of the wide range of complex decision-making models used in the health sciences and mathematics.


 


VI CONCLUSION


 


Legal understanding has fleshed out the components of sustainable development to a sufficient extent to enable decision makers to set the parameters of their decisions. Now, what the law needs to set out is a method of assessment which moves away from a crude balancing exercise to a sophisticated and nuanced decision-making model more suited to the multifaceted problems facing environmental authorities. In this regard, it would perhaps be wise from the outset to acknowledge that decisions in this arena inevitably create winners and losers.


 


[1] Its first expression was in the 1972 Stockholm Declaration on the Human Environment.


[2] J Verschuuren ‘Sustainable development and the nature of environmental legal principles’ (2006) 9 PER/PELJ 2.


[3] For a detailed history on the international evolution see Dire Tladi Sustainable Development in International Law: An Analysis of Key Enviro-Economic Instruments (2007) 96 ; Fuel Retailers Association of Southern Africa v Director-General Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province & Others 2007 (6) SA 4 (CC) paras 46 – 56 (‘Fuel Retailers’).


[4] Gabcíkovo-Nagymaros Project (Hungary/Slovakia) 37 162 (1998) 200 para 140. In a Separate Opinion, Vice-President Weeramantry held that the concept of sustainable development is part of international customary law. See Separate Opinion para 207.


[5] See below under ‘Application of Sustainable Development’.


[6] Report of the World Commission on Environment and Development: Our Common Future (‘the Brundtland Report’) available at http://www.un-documents.net/our-common-future.pdf, accessed on 2 September 2014. Chapter 1 para 42; Sands Principles of International Environmental Law 2 ed (2003) 252.


[7] The Brundtland Report ibid paras 72-80.


[8] BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment and Land Affairs 2004 (5) SA 124 (W) at 140E-151H (‘BP Southern Africa’); MEC for Agriculture, Conservation, Environment and Land Affairs v Sasol Oil (Pty) Ltd and Another 2006 (5) SA 483 (SCA) para 15 (‘Sasol Oil’).


[9] Supra note 3.


[10] ILA New Delhi Declaration of Principles of International Law Relating to Sustainable Development, 2 April 2002 Principle 7; See also Tladi op cit note 3 at 36.


[11] LJ Kotze ‘The Constitutional Court’s contribution to sustainable development in South Africa’ (2003) 6 PER/PELJ 81 at 86.


[12] Fuel Retailers supra note 3 para 53.


[13] Jacqueline Church ‘Sustainable development and the culture of uBuntu’ 2012 De Jure 511 at 513; General Assembly (2005), 2005 World Summit Outcome, A/RES/60/1 para 48.


[14] Jennifer A. Elliott An Introduction to Sustainable Development 4 ed (2012) 20.


[15] Supra note 8 para 144.


[16] LA Feris ‘The role of good environmental governance in the sustainable development of South Africa’ (2010) 13 PER/ PELJ 73 at 85.


[17] Church op cit note 13 at 522.


[18] AA Du Plessis & C Rautenbach ‘Legal perspectives on the role of culture in sustainable development’ (2010) 13 PER/PELJ 27 at 38.


[19] Church op cit note 13 at 523.


[20] Feris op cit note 16 at 84.


[21] Fuel Retailers supra note 3 para 44.


[22] Fuel Retailers supra note 3 para 45


[23]Available at https://www.environment.gov.za/sites/default/files/docs/2008nationalframeworkfor_sustainabledevelopment.pdf, accessed on 2 September 2014.


[24] Ibid at 14.


[25] Ibid at 30.


[26]Available at https://www.environment.gov.za/?q=content/documents/strategic_docs/national_framework_sustainable_development, accessed on 2 September 2014.


[27] National Framework for Sustainable Development op cit note 26 at 15.


[28] Supra note 8.


[29] Sands op cit note 6 at 266.


[30] Constitution of the Republic of South Africa, 1996.


[31] HA Strydom and ND King Fuggle and Rabie’s Environmental Management in South Africa 2 ed (2009) 198.


[32] 107 of 1998.


[33] Strydom & King op cit note 31; Other legislation echoes sustainable development; See the Marine Living Resources Act 18 of 1998 s2, National Water Act 36 of 1998 preamble, Mineral and Petroleum Resources Development Act 28 of 2002 s1.


[34] Van der Linde and Basson ‘Environment’ in Woolman et al (eds) Constitutional Law of South Africa 2 ed (2009) 50-17 – 50-18.


[35] Loretta Feris ‘Constitutional environmental rights: An under-utilised resource’ (2008) 24 SAJHR 29 at 41.


[36] Sands op cit note 6 at 253.


[37] NEMA supra note 32 s4(a)(vii); See also Jane Holder & Maria Lee Environmental Protection, Law and Policy 2 ed (2007) 9-33.


[38] This is seen by s4(a) which requires the ‘consideration of all relevant factors’, including the principles listed.


[39] Sands op cit note 6 at 253; The New Delhi Declaration differentiates between general and specific principles; See Tracy-Lynn Field ‘Sustainable development versus environmentalism: Competing paradigms for the South African EIA regime’ (2006) 123 SALJ 409 at 412.


[40] Jacqueline Peel The Precautionary Principle in Practice: Environmental Decision-making and Scientific Uncertainty (2005) 15.


[41] Tladi op cit note 3 at 14; See also Sands op cit note 6 at 228.


[42] Rajendra Ramlogan Sustainable Development: Towards a Judicial Interpretation (2011) 277.


[43] Ibid; This forms the subject of South African litigation in Trustees, Biowatch Trust v Registrar: Genetic Resources, and Others 2005 (4) SA 111(T).


[44] Ibid.


[45] Patricia W. Birnie and Alan E. Boyle International Law and the Environment 2 ed (2002) 89.


[46] Werner Scholtz ‘Common heritage: saving the environment for humankind or exploiting resources in the name of eco-imperialism?’ (2008) 41 CILSA 273 at 289.


[47] Fuel Retailers supra note 3 para 58.


[48] Dire Tladi ‘Intragenerational equity: A new name for international environmental justice’ (2003) 9 Fundamina: A Journal of Legal History 197 at 198; On an international scale this principle also encapsulates equity between nations.


[49] Feris op cit note 35 at 40.


[50] Feris op cit note 35 at 40.


[51] Michael Faure & Willemien Du Plessis The Balancing of Interests in Environmental Law in Africa (2011) xxii.


[52] Supra note 32 s2(4)(a)(vi).


[53] Ramlogan op cit note 42 at 68.


[54] The full scope of this principle is beyond this paper; See Holder & Lee op cit note 37.


[55] Fuel Retailers supra note 3 para 53; M Barnard ‘The role of international sustainable development law principles in enabling effective renewable energy policy – A South African Perspective’ (2012) 15 PER/PELJ 207 at 220.


[56] Ian Roy Sampson Incorrect application and interpretation of socio-economic factors in environmental impact assessments in South African law (LLM dissertation, University of Pretoria, 2010) 34.


[57] LJ Kotze ‘The Constitutional Court’s contribution to sustainable development in South Africa’ (2003) 6 PER/PELJ 81 at 87.


[58] Fuel Retailers supra note 3; BP Southern Africa; Sasol Oil supra note 8.


[59] Fuel Retailers supra note 3 para 81. The court merely mentioned it as a principle and did not remark on its potential impact on the authorities’ decision, with regard to the potential for contamination of the aquifer.


[60] Ibid para 93; BP Southern Africa supra note 8 at 144H - 145A.


[61] Hangklip/Kleinmond Federation of Ratepayers Associations v Minister for Environmental Planning and Economic Development: Western Cape and Others (4009/2008) [2009] ZAWCHC 151 (unreported) para 143 (‘Hangklip/Kleinmond’).


[62] Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC) paras 48-49.


[63] Feris op cit note 16 at 86.


[64] Loretta Feris ‘Sustainable development in practice: Fuel Retailers Association of South Africa v Director-General Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province’ (2008) 1 Constitutional Court Review 235 at 251.


[65] Ibid.


[66] Feris op cit note 64 at 252; See Fuel Retailers supra note 3 para 90.


[67] Fuel Retailers ibid 112-113.


[68] Ibid.


[69] Feris op cit note 16.


[70] Oudekraal Estates (Pty) Ltd v The City of Cape Town and Others 2010 (1) SA 333 (SCA).


[71] Foodcorp (Pty) Ltd v Deputy Director General: Department of Environmental Affairs and Tourism: Branch Marine and Coastal Management and Others [2005] 1 All SA 531 (SCA); Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others 2011 (4) SA 113 (CC).


[72] However in Space Securitisation (Pty) Ltd v Trans Caledon Tunnel Authority and Others [2013] 4 All SA 624 (GSJ), the court did apply the precautionary principle to determine whether it should grant an interim interdict. In Hangklip/Kleinmond supra note 61, the court differentiated between SEE factors and extraneous factors. Only factors that impact the activity can be considered and not ‘extraneous benefits divorced from the impacts of the authorised activities’ para 66.


[73] Hendrik Andries Strydom & N. D. King Environmental Management in South Africa (2009) 201.


[74] Sampson op cit note 56 at 11; T Murombo ‘Beyond public participation: The disjuncture between South Africa's environmental impact assessment (EIA) law and sustainable development’ (2008) 11 PER/PELJ 106 at 107-108.


[75] BP Southern Africa supra note 8; See http://cer.org.za/virtual-library/policy-documents-white-papers for a list of environmental policy documents.


[76] Murombo op cit note 74 at 114.

Published
May 2, 2016
How to Cite
ARTHUR, Lisa. Sustainable Development: An Exposé. Inkundla, [S.l.], may 2016. Available at: <http://inkundlajournal.org/index.php/inkundla/article/view/29>. Date accessed: 19 oct. 2017.
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