The Role of Good Environmental Governance in the Sustainable Development of South Africa

This article seeks to analyse good governance decision-making in the environmental context through an understanding and interpretation of the relationship between good environmental governance (evidenced inter alia by decision-making by public authorities) and sustainable development in South Africa. It critically assesses recent case law in an attempt to understand the way in which our courts are evaluating authorities’ environmental decisions. In reaching its objectives, this article considers also how environmental decisions are made in the first place and asks the question: what are the value choices underlying government’s decisions and what role does sustainable development play in informing decisions for good environmental governance.

These challenges to environmental decision-making have the potential to contribute to good governance imperatives such as transparency and accountability, as they highlight not only the substance of decisions, but also the process and procedures followed, especially the issue of consultation of interested and affected parties. 4 At the same time these challenges raise a wider concern as they highlight the value choices employed by officials in making decisions. These are often choices that seem to elevate economic or wider developmental considerations at the expense of the environment.
This raises the further question: how are decisions which enhance good environmental governance made? What are the value choices underlying these decisions, and what role does sustainable development play in informing decisions for good environmental governance? This article seeks to analyse good governance decision-making through an understanding and interpretation of the relationship between good environmental governance and sustainable development in the South African context. It also critically assesses recent case law in an attempt to understand the way in which our courts are evaluating these decisions.

Governance for the Environment
Governance is a function of public administration which has been defined as ...the use of managerial, political and legal theories and processes to fulfil legislative, executive and judicial governmental mandates for the provision of regulatory and service functions for the society as a whole or for some segments of it. 5 It has also been described as all processes, organisations and individuals (the latter acting in official positions and roles) that are associated with carrying out laws and other policy measures adopted by the legislature or the executive and interpreted by courts. 6 It essentially involves a process of decision-making, i.e. decisions relating to managerial, political and legal processes, and that grant privileges and powers. Good governance depends on how these decisions are made, implemented and executed. Section 195 of the Constitution 7 is instructive in this regard. It requires that public administration be governed by the democratic principles and values enshrined in the Constitution and that it be inter alia accountable, transparent, and efficient and that it should involve public participation. Section 195 thus sets a yardstick for decision-making from a good governance perspective.
The values referred to in section 195 of the Constitution include the values enshrined in the Bill of Rights. The nexus between section 195 and the Bill of rights is created in section 8(1) of the Bill of Rights, which binds the legislature, the executive, the judiciary and all organs of state, and section 7(2) of the Bill of Rights, which provides that "the state must respect, protect, promote and fulfil the rights in the Bill of Rights". These two sections confirm that governance should accord with the Bill of Rights.
Environmental governance should therefore adhere to values such as transparency, accountability, public participation in decision-making and freedom of association. These are values that are indispensable in Kotzé 13 explains the connection between environmental governance and sustainable development as follows: A management process executed by institutions and individuals in the public and private sector to holistically regulate human activities and the effects of human activities on the total environment (including all environmental media, and biological, chemical, aesthetic and socioeconomic processes and conditions) at international, regional, national and local levels; by means of formal and informal institutions, processes and mechanisms embedded in and mandated by law, so as to promote the present and future interests human beings hold in the environment.
In order to be able to measure whether or not environmental governance takes sustainable development into account, one needs to fully understand the concept of sustainable development. The next section thus explores the concept of sustainable development and focuses specifically on the origin and development of the concept as well as its normative value.

Development
It has been argued that sustainable development is by no means a modern concept and Weeramantry J noted in the Gabčikovo-Nagymaros case 14 that The publication of the Brundtland Report is widely viewed as the moment in environmental history at which sustainable development became a broad policy objective or at least an aspirational goal, 22 and its main concept has been endorsed by governments, international organisations and non-governmental actors alike. Despite this general acceptance of the principle, divergence continues to exist over its meaning and what has been termed its "core normative content". 23 Sands 24 takes the approach of identifying the "legal elements" of sustainable Sands International Environmental 253. 26 S 2(4)(a) of NEMA. According to this sustainable development requires the consideration of all of the relevant factors including (i) That the disturbance of ecosystems and loss of biological diversity are avoided, or, where they cannot be altogether avoided, are minimised and remedied; (ii) that pollution and degradation of the environment are avoided, or, where they cannot be altogether avoided, are minimised and remedied; (iii) that the disturbance of landscapes and sites that constitute the nation's cultural heritage is avoided, or where it cannot be altogether avoided, is minimised and remedied; (iv) that waste is avoided, or where it cannot be altogether avoided, minimised and reused or recycled where possible and otherwise disposed of in a responsible manner; (v) that the use and exploitation of non-renewable natural resources is responsible and equitable, and takes into account the consequences of the depletion of the resource; (vi) 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; actions of all organs of state that may significantly affect the environment. 27 It follows that these principles are the guiding principles for environmental governance in the South African context.
Field notes that in trying to capture a pithy definition of sustainable development, the principle of integration is most often emphasised. 28 Principle 4 of the Rio Declaration captures the integration principle and states: In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it. 29 It has been argued that the principle of integration is central to the attainment of sustainable development and indeed it forms the backbone of sustainable (vii) that a risk-averse and cautious approach is applied, which takes into account the limits of current knowledge about the consequences of decisions and actions; and (viii) that negative impacts on the environment and on people's environmental rights be anticipated and prevented, and where they cannot be altogether prevented, are minimised and remedied. 27 S 2(3) of NEMA states that "[D]evelopment must be socially, environmentally and economically sustainable." S 2(4)(a) delineates a number of requirements for sustainable development. It states: "(4) (a) Sustainable development requires the consideration of all relevant factors including the following: (i) That the disturbance of ecosystems and loss of biological diversity are avoided, or, where they cannot be altogether avoided, are minimised and remedied; (ii) that pollution and degradation of the environment are avoided, or, where they cannot be altogether avoided, are minimised and remedied; (iii) that the disturbance of landscapes and sites that constitute the nation's cultural heritage is avoided, or where it cannot be altogether avoided, is minimised and remedied; (iv) that waste is avoided, or where it cannot be altogether avoided, minimised and reused or recycled where possible and otherwise disposed of in a responsible manner; (v) that the use and exploitation of non-renewable natural resources is responsible and equitable, and takes into account the consequences of the depletion of the resource; (vi) 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; (vii) that a risk-averse and cautious approach is applied, which takes into account the limits of current knowledge about the consequences of decisions and actions;27 and (viii) that negative impacts on the environment and on people's environmental rights be anticipated and prevented, and where they cannot be altogether prevented, are minimised and remedied." 28 Field 2006  From an environmental governance perspective, it represents the objective of decision-makers; i.e. making decisions in the present that would not instil undue environmental burdens on future generations.
As noted above, this earlier definition has been elaborated upon by more recent authors through the identification of different elements of the concept of sustainable development. I would suggest that these elements can, in turn, be viewed as the "means to achieve the end". These means would therefore include sustainable utilisation of natural resources, the pursuit of equity in the use and allocation of natural resources, and the integration of environmental integration in the context of the Brundtland report is not that it is one of three pillars, but rather that it is a foundation supporting two pillars.

Figure 1: Winter "Two Pillars"
He suggests in the three-pillar version, in contrast, that the term "sustainable" loses its reference to this material basis and merely means that the three factors should coexist as equivalent entities. In the event of conflict they are to be balanced, mutual consideration must be given to them, and a compromise found.
by Sands are, however, the most widely recognised elements of sustainable development. 36 Winter "A Fundament and Two Pillars" 24 27.

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The above paradigm is often illustrated by way of three intersecting circles with the "sustainable development solution" integrated amongst the three circles.

Figure 2: Winter "Two Pillars"
Winter critiques this three-pillar approach and argues that it could easily lead to mock compromises. Prevailing short-term economic or social interests might lead to the sacrificing of the environment, with results that would be detrimental to the economy and society in the long run. 37 He illustrates his argument by referring to the annual decision of the EC Council to set fishing quotas that are regularly larger than the reproduction rate of certain fish species. This type of governance decision is justified by references to job and food security considerations. However, as entire fish populations may eventually be lost through over-fishing, this short-term compromise could rebound on humans in the long run.
Whilst Winter is correct in claiming that short-term compromises, where the environment is concerned, will eventually lead to long-term problems or even disasters, not all governance decisions based on a three-pillar approach have these extreme outcomes. Furthermore, a three-pillar approach may sometimes come closer to true compromise. In scenarios such as the above, good governance practice provides, of course, for the review of decisions, and it would be up to senior decision-makers (such as in the case of an internal review) or the courts (in the case of judicial review) to measure the decision against the requirements for sustainable development and test whether good faith decisions were or were not in fact made.
In practice, when a decision-maker, whether an administrative official or a judicial officer, takes into account sustainable development in the decisionmaking process, he or she inevitably makes a value-based judgement. While this judgment is informed by the values of environmental, social or economic sustainability as part of the integration process, one (or sometimes two) of these values may trump another. Tladi therefore suggests a more nuanced approach in the application of sustainable development, one that provides three variations of integration based on the value that is the preferred one in cases of conflict. In the economic growth-centred variation, economic growth takes centre stage, whilst in the environment-centred variation, the natural environment triumphs. Finally, in the human needs-centred (or social needs centred) variation the social needs of humans are placed at the forefront. 42 He argues that such a varied approach allows decision-makers to decide which 42 Tladi Sustainable Development 80. His idea is not that placing one value centre stage would obliterate the others, but rather that this would reinforce the other two. The Sachs J, however, departed from the majority decision with respect to the materiality of the failure to consider socio-economic considerations. In essence he provides us with the application of the abovementioned "variation" approach to the integration element of sustainable development and takes NEMA as his "legitimising base". With regards to the application of the preamble and principles of NEMA he notes that "economic sustainability" is not treated as an independent factor to be evaluated as a discrete element in its own terms, but rather that the focus is on the inter-relationship between economic sustainability Given the centrality of the integration principle the article has sought to highlight the way in which the three pillars of sustainable development are employed in decision-making. The dissenting opinion in the recent Fuel Retailers decision provides a good starting point. The Sachs approach could be termed "applied variation," as it gives us some guidance on how to interpret governance instruments at the heart of decision-making, such as legislation and policy that requires sustainable development. In applying the model not only to the majority decision in the Fuel Retailers case but also to the decision in the BP case, both are exposed as inadequate and ultimately unsatisfying applications of the notion of sustainable development. Whilst both decisions were at first glance "good for the environment", they were really motivated by socio-economic considerations, and amount to the application of the economiccentred variation of integration.
Ultimately what section 24 of the Constitution and NEMA require is that decision makers employ the environment-centred variation of sustainable development, which in essence entails making a value-laden choice in favour of the environment. It is hoped that the Sachs dissent will provide some food for thought in this regard.