African Wildlife and Environment Issue 65

CONSERVATION

CONSERVATION

themselves in an unprecedented position – we asked whether we could in turn lodge a response to these appeal documents? It had never happened before, so they weren’t sure! Eventually we were told we could. It was apparent that neither appeal addedanythingnewto thedebate; these Provincial Departments simply did not like the decision. We felt that, on merit, it would be hard for the decision to be overturned. We demonstrated this in a clear and concise submission. We were wrong again! It took until the middle of 2014, but eventually the Appeal Decision came. It had been adjudicated by the Minister herself, Edna Molewa. It was a simple seven page document which was the ultimate answer to a complex 1500+ page EIA document. It dealt narrowly with the few points raised by the Appeals, found in favour of the appellants and gave permission for Alternative 5 to proceed. We were devastated, believing that the Minister had failed to give any adequate reasons for her decision. We contacted the DEA and were told that we could not appeal the Appeal. We decided that our environmental rights had been infringed and approached the South African Human Rights Commission as well as the Public Protector. We analysed what the role of these bodies was under the constitution and framed our appeals to them in terms of the powers and responsibilities they had. Sadly, both bodies, after due consideration, concluded that our problem did not lie within their ambit and that the courts were our only recourse. We felt particularly disappointed that the Human Rights Commission had declined an opportunity to really broaden the scope of the rights they protected! Neither head office nor our local branch had the resources, time or emotional energy to pursue a court challenge. We have had to resign ourselves to the reality of Alternative 5 going ahead. In November 2016, the project formally began. We resolved to remain involved and engaged, attend all public stakeholder meetings and ensure that the final road is the best we can push for, despite it not being what we felt was right. So how did we end up here? How do we analyse this process in retrospect, and hopefully provide lessons for others using this same legislation and process? Here are the lessons learnt, and pointers for future environmental conflicts of this nature. • Getting involved early on was crucial and necessary. • Having someone who understood exactly how the process worked was vital - even if, as in our case, that person was a lay person with little experience and learnt as he went along! • Being fully engaged was also vital. Respond to every report when given the opportunity.

Respond to every point raised, whether positively or negatively. Attend every meeting, participate in every study. • Keep both consultant and client on their toes - don’t let untrue assumptions go by without challenging them. • If you believe strongly in your case, and the evidence supports you, you can win, at least the first round. • The final battle is sadly probably impossible to win because, under the current system, the Minister can take responsibility for the final Appeal decision. This changes the nature of the decision from a technical one, taken by bureaucrats using set criteria to a political decision taken by a Minister based on purely political considerations, albeit dressed up in technical language (and in our case, rather poorly disguised!) THIS IS THE MAJOR WEAKNESS IN THE SYSTEM OUR CASE HAS HIGHLIGHTED. • Final victory can most likely only ever be achieved through the courts, so if you are serious about your issue, prepare for this from the outset, but even then the process must be followed through all the way to give you the best chance later in the courts. • Our mistake – the weak decision in our favour; having won the initial decision, the fact of our victory blinded us to the poor nature of that decision. While we believed the DEA decision was correct, it did not use all the evidence gathered during the EIA to support it. A few flimsy reasons were given, and this made it easy for the Minister to overturn on Appeal. We needed the initial decision to set forth clearly all the compelling arguments which had emerged during the whole process. Could we have appealed the decision even though it was in our favour? Could we have found some other manner to ensure the reasons underlying the decision were stronger? It is possible that even then, the Minister would have found a way to overturn it, but it would have made it much harder and would have led to a much stronger position if the matter had eventually gone to court.

Vegetation fringes the old Sani Pass - this is a special attraction, both in its own right, botanically, scenically and as a home to rich birdlife which attracts a great deal of avitourism! Can it be saved? Will it be ‘replaced’, and if not, will it ever naturally rehabilitate?

of the art drainage features would reduce erosion substantially and, at the same time, keeping a gravel surface would retain the essential ‘sense of place’ and thus allow the tourism product to retain its integrity and attraction. We further recommended a full-time, dedicated maintenance team, living on the Pass and working full-time on the road with picks, shovels and wheelbarrows, would create long-term, sustainable employment ,while ensuring the gravel surface was kept in as good a condition as possible. It is impossible in an article of this nature to give a complete rundown of the many and complex arguments advanced, but our response was certainly exhaustive in this regard. The Final Environmental Impact Report, complete with our dissenting submission, was submitted to the Department of Environmental Affairs for their ‘judgement’. The design engineer suggested a positive answer might be forthcoming within weeks. Some eight months later, the DEA finally delivered their verdict - Alternative 3 was the preferred solution! Local people on both sides of the border were jubilant! Early on the skeptics told us not to waste our time with the EIA, that it was a done deal with the agreement already signed at Sani Top. The consultants assured us that the legal process had to be followed, that we had our chance to have our say and influence the outcome. We all felt vindicated by the decision. The process had been well conducted

Elixir of Eternal Youth - a special feature of the Sani Pass, which will be bypassed by a bridge in the new road

by Arcus Gibb, and had allowed us our say. Specialist studies had supported our views, and the last minute attempt to muddy the waters had failed. We trumpeted our success in the media, claiming it was a vindication of our environmental legislation and the whole EIA process. But we celebrated too soon! Within the prescribed period, both the KZN Department of Transport AND Ezemvelo KZN Wildlife lodged appeals. The DEA apparently found

Russell Suchet Chairman – Sani Wildlife Branch of WESSA

info@sanilodge.co.za www.sanilodge.co.za

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17 | African Wildlife & Environment | 65 (2017)