Public participation: Paper vs Practice

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By Shanice Firmin
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The failings of the Environmental Affairs Portfolio Committee of the KwaZulu-Natal Legislature during the public hearings held in August 2018 on the Marine Spatial Planning Bill show that effective public participation in theory doesn’t always translate well to reality. Section 118 of the South African Constitution and the KwaZulu-Natal Legislature Rules put an obligation on our Legislative institutions to ensure that public participation is conducted in a way that meets everyone’s best interests – however, this doesn’t seem to be a given guarantee.

In the 1960s, S.R Arnstein established the ladder of public participation, which breaks the process down into four levels. Level 1 looks at informing the public and providing an opportunity for accessing information. At Level 2, the public is consulted and given the opportunity to provide input. Climb to Level 3 of the ladder, and the public is involved and given opportunities for dialogue and interaction. Reach Level 4, and you’re at the top rung – collaboration with the public and opportunities for partnering. The South African Legislature embraces public participation based on what it regards as the “best fit approach”; that is, the level of public involvement should take into account the limitations and constraints faced by the Legislature.

All meetings of the Parliament, the Provincial Legislatures and their committees are open to the public, unless there are admissible grounds for refusing public attendance. In reality though, we have witnessed instances where the Environmental Affairs Portfolio Committee of the KwaZulu-Natal Legislature undermined the public participation principle enshrined in the Constitution of South Africa.

In August 2018, the Environmental Affairs Portfolio Committee invited all relevant stakeholders, organisations, and members of the public – especially those who have interest in Coastal Planning matters – to attend Public Hearings on the Marine Spatial Planning Bill. However, the platforms employed to share this information were biased and selective, thus excluding the affected communities where these hearings were held in North, South, and Central areas of KwaZulu-Natal. Because the notices were poorly distributed, the public participation process was set to fail from the onset.

To achieve the goal of a meaningful and transparent democracy, the Legislature must use multiple tools to ensure that public hearings reach all interested and affected parties. When it comes to public hearings, the Public Participation and Petitions Unit should physically go to all potentially affected communities to notify the public of these opportunities to take part in the decisions that will directly affect them, and make the necessary arrangements to ensure they are able to attend and participate in the process.

With regard to the hearings organised to discuss the Marine Spatial Planning Bill, the Public Participation and Petitions Unit relied heavily on the few organisations on their database to communicate details of public participation opportunities. This is concerning: why should it become the responsibility of these organisations to ensure that interested parties are able to partake in this public engagement, while there is an entire unit within the KZN Legislature dedicated to this very task?

The South Durban Community Environmental Alliance (SDCEA) and its affiliates had no other choice but to take this responsibility upon themselves. The group mobilised various communities in North, South, and Central KZN region to attend these public hearings, after spending a day presenting on and exploring the benefits, negatives, and impacts of this Bill to their environment, livelihoods, and homes.

Thanks to these engagements, the venues of the public hearing meetings nearly overflowed with members of the surrounding communities. Lively discussions took place with the members of the KZN Provincial Legislature, who were taken aback with the views put forward by the many ordinary South African citizens in attendance. Had SDCEA and civil society not taken the initiative to reach out to the public and facilitate broader participation, we can expect that the halls would have been almost empty, and only a few people would have been able to provide relevant comments.

Let’s zoom in to the public hearing held in St Lucia, North of KZN, where over 100 angry residents gathered, prepared to challenge the KZN Provincial Legislature panel. Each person received a poorly packaged summary of the Marine Spatial Planning Bill, which did not accurately reflect some of the most controversial provisions of the Bill.

To many, the proposed Bill appears to serve parties interested in exploiting underwater minerals such as oil and gas. This exploitation is orchestrated by a collaboration of departments and institutions, notably the Department of Mineral Resources (DMR), Petroleum Agency South Africa (PASA), and the Department of Energy (DoE). Built into this Bill are mechanisms that effectively disempower communities and those affected by marine developments, due to the various committees and working bodies that would be able to make decisions whilst being far from the developments themselves.

The Bill does not make allowance for Free Prior and Informed Consent (FPIC). FPIC is a crucial component in allowing affected communities to make decisions on developments that impact them, as seen through the striking case and win of the Amadiba Crisis Committee in the Xolobeni community. Local communities must be informed about a project and given the chance to approve or reject the development in a timely manner – a clear contrast to the way in which the public participation process for the Marine Spatial Planning Bill has been carried out. Another red flag was that the public hearing in St Lucia  was held on 29 August 2018 – one day before the deadline for submission of public comments.

SDCEA has been involved in the proposed Bill since 2017, and has observed that the comments and submissions made previously have not been factored in the most recent iteration of the Bill. Issues such as cost-benefit analyses of the future developments, or compensation for the environmental damages and long-term livelihood loss are examples of issues that have been omitted in the Bill. Moreover, the Bill does not speak to community ownership of the projects. Those affected are excluded from the decision-making process, which will lead to disputes and marginalisation of community members.

While there is no obligation for government to include all the comments received from the public, it is concerning that most of these omissions were demands for more transparency, participation, and prioritization of the public interest over profits. This poses another question: to what extent is public participation meaningful, when members of the public seem to have no influence whatsoever on the decisions put before them?

SDCEA made submissions presenting the concerns of the public regarding the Bill – a piece of legislation that would severely affect the lives of thousands of South African citizens who are dependent on the ocean for their livelihoods, tourism, and recreation. However, whether these comments will be taken into consideration is a big concern on its own.

The Bill speaks of protecting only 5% of our Marine Protected Areas (MPAs).  As civil society, we are calling for all marine protected areas to be protected and prioritised. KwaZulu-Natal’s coastal community is a tourist destination; thousands of jobs are generated by this industry. With tourism a critical provider of jobs, there is no room to cater for oil and gas. The recreational well-being and livelihoods of thousands of people will be severely impacted if this Bill is passed as is.

When community members attending the public hearings asked how the Bill would affect tourism and their livelihoods, the panel could not satisfactorily answer. The KZN Provincial Legislature claims to be “an Activist People-centered Legislature”, yet this is contradicted by the the tick box approach applied to every public consultation. The institution displays an unapologetic lack of action or interest to address the key concerns of the people.

South Africa’s coastline is vulnerable, and so are its people. The principle of public participation is that those who are affected by a decision have a right to be involved in the decision-making process. This implies that the public’s contribution will influence the decision. That begs the question: does the law really work in the interest of South African citizens, or are we just being put through the motions at the expense of our ocean, our climate, and our future?
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