CATCHMENT MANAGEMENT: RULES OF ENGAGEMENT

1. CATCHMENT MANAGEMENT: RULES OF ENGAGEMENT Conference on public participation in developing catchment management strategies Decision-making:Objective legal viewpoint Hubert Thompson Thompson & Thompson Consulting Engineers and Legal Advice Services Telephone (012) 804 8494

2. TABLE OF CONTENTS • Introduction • Legal requirements • Involving in decision-making • Affected persons • Interested persons • Developing catchment management strategies • Analysing the frameworks • Conclusion

3. INTRODUCTION • Why an objective legal viewpoint • Answer lies in following a process based on the legal requirements • Concepts • Catchment management agency • Department of Water Affairs and Forestry • Minister

4. INTRODUCTION/cont • Public participation is a spectrum or range • Inform - to provide public with balanced and objective information to understand the problem • Consult - to obtain public feedback on decision. It acknowledges concerns and providing feedback on how input has influence the decision • Involve - to work directly with the public to ensure concerns are understood and considered • Collaborate - to work with the public as a partner including the development of alternatives • Empower - to place decision-making in hands of the public

5. INVOLVING AFFECTED PERSONS • Promotion of Administrative Justice Act • Legal basis for review • Sets out procedures to be followed • Only applicable to affected persons • Replaces the common law audi alteram partem rule

6. INVOLVING AFFECTED PERSONS/cont • Does not mean that the Court • determines whether the decision is correct • agrees with decision • Decisions should be reasonable • Directed at soundness of process followed • Not directed to the content of the decision

7. INVOLVING AFFECTED PERSONS/cont • The purpose is to discipline decision-makers • record of decision must support the decision • decision should be supported by by persuasive reasons • decision should make logical sense

8. INVOLVING INTERESTED PERSONS • Need to involve other that affected persons • make a contribution towards the decision • facilitate, negotiate and mediate (communication) • obtain a benefit or information from the process • provide financial, technical and other assistance • build capacity and expertise among the role-players • educate and create awareness among role-players • be an observer of the process • promote own goals and objects • No requirement in the common law to involve

9. INVOLVING INTERESTED PERSONS/cont • If there is a need to involve, policy and legislation should state who, how and when • Various pieces of legislation already require that • National Environmental Management Act • Development must be sustainable • Participation of interested and affected persons in environmental governance must be promoted • All persons must have the opportunity to develop the understanding, skills and capacity to achieve effective participation

10. DEVELOP CATCHMENT MANAGEMENT STRATEGY • Original power of catchment management agency • What does this mean? • Agency is responsible and accountable • Minister, Department and Courts may only intervene as provided for in the law

11. DEVELOP STRATEGY/cont • Strategy only established with the written consent of the Minister • Agency must consult with • The Minister • Organs of State with interest • Persons, or their representative organisations • Activities that could affect water resources • Who have an interest in content and implementation of the strategy

12. DEVELOP STRATEGY/cont • Refer the proposed strategy to the Minister for consideration and determination if the strategy • raises a material question of policy • raises a question concerning relationship between DWAF and other organs of State • raises a question on implementing strategy by others • Publish proposed strategy for comments and consider comments received

13. DEVELOP STRATEGY/cont • There is no appeal to a decision or the content of the strategy • Decisions or the strategy may be taken on review to the Courts • Minister may establish guidelines • Disputes may be resolved by mediation • Aspects of the process may be included in the NWRS

14. ANALYSING THE FRAMEWORKS • Catchment management agency is responsible and accountable for the strategy • Should take final decision • Requires information and input • Due process should be followed • Decision could interfere with rights • Interferences must conform with procedures • Affected and interested persons should be involved

15. ANALYSING THE FRAMEWORKS/cont • Process should include • Roles and responsibilities of role-players • Way and manner how they should be involved • Participation or consultation • Who represent the different sectors • How it should be funded • Meaning of the word involve • The public does not take decision together with agency

16. CONCLUSION • Catchment management agency should make final decision • Due process should be followed involving role-players to obtain information • How and when to involve role-players depends on the circumstances of each case • NWRS and guidelines should set out process

17. CONCLUSION/cont high AFFECTED Complex process Involved process Simple process Involved process low high INTERESTED