Tuesday 19 June 2012

No transparency ! No transpancy

Accessing Information through Promotion of Access on Information Act

Vaal Environmental Justice Alliance received training from South African History Archives about PAIA and how to use this legislation to access environmental and other information. Since December 2011, VEJA has been working with the Centre for Environmental Right(CER)  to request access to information from Sasol Chemical Industry, Natref, Ominia, Anglo Coal: Thermai Coal, ArcelorMittal, as well as various government department.

We, the affected community, living in highly industrial area, and the water we are drink and air we breath are highly toxic. We have every right to have access to information so that we able to protect our constitutional right to a healthy environment and participate meaningfuly as interested  and affected parties.

What is Promotion of Access on Information Act and its Purpose

The purpose of the Act is to give effect to the constitutional right of access to any information held by the State and any information that is held by another person and that is required for the exercise or protection of any rights. The Bill of Right is the cornerstone of South Africa democracy and section 32 contains the right.  The information tha  VEJA requests is to exercise or protect environmental rights, but also impacts on human dignity and social rights.

The Promotion of Access to Information Act was promulgated in 2000, amongst other things was to
- foster a culture of transparency and accountability in public and private bodies by giving effect to the right of access to information;
- actively promote a society in which the people of South Africa have effective access to information to enable them to more fully exercise and protect all of their rights.

PAIA provides that access to information must be granted, unless there is a valid ground in PAIA to refuse such access,. If a requestis refused, adequate reasons must be provided for the refusal, including the provions of PAIA relied upon. If a requester wants to challenge the decision of a private body to refuse access to documents, court proceedings must be lodged within 180 days of the refusal. In the case of a decision of a public body ( such as a government department), PAIA makes procedure for an internalappeal to be lodged before court proceedings are launched.

So far, On behalf of VEJA, the CER submitted several applications to the companies set out below:

1. Environmental Master plan and related documents, and numerous documents related to its Vaal Dump site: to ArcelorMittal;
2. Water use license ( and any pending applications),as well as water monitoing results: to Sasol; Natref; and Omnia; and 
3. Mining right and permit/license( and any pending appliactions); the current approvedEnvironmental Management Programme( EMPR); all compliance reports submitted to the Departmentof Mineral Resources ( DMR) in terms of the EMPR from date of issue to date; the quatum and method of approved financial provision for rehabilitation; the water use licence( and any pending applications ) and water monitoring results submitted to the Department of Water Affairs( DWA) in terms of the water use license from date of issue to date: Anglo New Vaal Colliery.
These and other revalent documets were also also requested from the relevanjt government departments.
1. Environmental Master Plan and illegal Vaal Dump site 
Access to all of this information was denied by ArcelorMittal. ArcelorMittal. In about 1996 , following extensive pollution by the steel-making industry, Iscor ( as it then was) presented the Department of Water Affairs & Forestry( DWAF- as it then was) with a 10 year" Strategic Water Management Pla". This plan was appareantly subject to a gap analysis and the outcome of the analysis provided the basis on which the Environmental Master Plan was formulated by Mittal to address its environmental issues and the serious pollution in the area. Studies for the Master Plan were initiated in July 2000. Over the years, the Master Plan has been has been a crucial document during Iscor's/ArcelorMittal'S negotiations with DWAF/DWA nad in license appliacations.

The DWA refused VEJA access to the Master Plan on the bases that: it was neither the originator , nor the custodian of the information requested. The Gauteng Department of Agriculture  and Rural Development( GDARD) has refusedto give VEJA any documents relating to the Vaal Dump site because they say that the discloure of the records could prejudice the future supply of similar information, or infomation fromthe same source; and it is in the public interest that such information continue to be supplied.

For various reasons, VEJA and CER take the view that thse departments cannot rely on these grounds for refusal. Internal appeals have been submitted in relation to both the DWA and GDARD refusals. Although the time period in PAIA for providing responses to the internal appeals has expired, no response has yet been received, GDARD has indicated that the MEC has yet considered the internal appeal, and that VEJA and CER will be advised as soon as the MEC has done so.

Sasol Infrachen, Natref, Omnia and Anglo Coal New Vaal Colliery

VEJA and CER also used the PAIA to request documents from these companies that forms Leei-Taaibochspruit  Catchment Management Forum (LTF) in the northern Free State Province. As set out above, the documents that were requested were water use licences( and pending applications), as well as water monitorng results. 

In realtion to Anglo, various other documents were requested, as there is currently an envieonmental authorisation process underway in relation to the Lethabo power station. In this regard, a PAIA application was also made to the DMR. It has also only provided certain of the information requested, but failed to provide reansons for the refusal to provide other documents. The CER in regular contact with the DMR in this regard, and VEJA intends to launch an internal appeal

The requestas relating to water use licences and water monitoring results were prompted by the experience of VEJA's water team in participatingin the LTF- it found out that all these big companies in the catchment were not reporting their water effluent results to the stakeholders at the forum level. Although the results were sent to DWA, it was not making them available to the stakeholders.

CER and VEJA mae the request in April 2012, and ( apart from Anglo which made its water use lincence and mining right available), these companies responded with letters requesting meetings with VEJA and CER before they would make documents available. In early May 2012, VEJA and CER met with Anglo; on the 10th May 2012, we met with Saspl, and with Natref on the 30th May 2012. Following the meeting with Anglo, it refused to make any other documents available, claiming that they needed tp protect commercial information of a third party and a private body. Sasol and Natref provided 4 months of water monitoring results, copies of water permits and exemptions in terms of the old Water Act, 1956, as well as some detail relating to its pending applications for a water use licence. Omnia refused access to information on the same basis as Anglo. CER has sent follow-up letters with various queries to all of these companies.

In response to the PAIA application to it, the DWA only provided a copy of the Omnia water use licence and indicated that the other licences were still pending. VEJA's water team asked the DWA why the other water use licences were still pending, and has not been provided with a satisficatory response.

CER has written to the DWA with varoius queries, including a request for copies of the applications for water use licenses. Should this information not be provided, VEJA intends to launch an internal appeal.

In the letters to Sasol, Natref and the DWA, enquires were made as to which reasonable steps hasd been taken to ensure that the companies do not ensure that the companies do not commiut ant act or omission: which polluters or is likely to pollute a water resource; and which detrimentally affects or is likely to affect a water resource; and that they had taken all reasonable measures to prevent pollution of a continuing or recurring.

This exercise has proven to VEJA that there is little accountability and transparancy to the public. This information we have sought should be made public - it will enable us to evaluate and monitor effectively. it is concerning that , in many cases, both industry and governement appear to be hindering communities' access to this information.

The documents that were requested are relating to Water Use Licence and any Permit and Water results for the last 4 month from all these companies.

These came after VEJA water team participating in Leei-Taai Boshspriet Water Forum found out that all these big companies in the catchment they were not reporting their water effluent results to the stakeholders at the forum level and the results were sent to Department of water affairs and the department where not making them available to the stakeholders.

CER and VEJA started these processes in April and immediately these companies responded with letters demanding to meet with VEJA and CER. In April VEJA and CER met with Anglo Coal, on the 10th we met with Sasol and Natref on the 30thMay 2012. Anglo gave mining right and water use license, Sasol gave us water permits and exemption and Natref gave permits, exemption and the result of their effeluent. These documents were issued under the National Water act 54 of 1956. Omnia Respond is that they water use licence as well as the data requested contain confidential business.
These accompanies where supposed to be operating under the national water act of 1998 and all of them where supposed to have a water used licence so that the department of water affairs caN monitor compliance in the Leei-Taai Catchment in terms of National Water Act of 1998.

The water Team has asked the DWA why they have not processes the water use licence of all these companies and no response has been given
This exercise has proven to us that there is no accountability and transparency. This information that we asking we for its public information. It will help us to be able to evaluate and monitor effectively. But industries and government want to make sure communities do not get this information.

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