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The Environment Management Act, 2002 Part VIII - Public Participation

CONTENTS | PART I | PART II | PART III | PART IV | PART V | PART VI | PART VII | PART VIII | PART IX | PART X | PART XI | SCHEDULE 1

PART VIII - PUBLIC PARTICIPATION

Register of Environmental Information

50. (1) The Authority shall create and maintain an environmental information registry.

(2) The registry shall contain information relating to the environment, including the following information:

a. a copy of this Act, the regulations, any international environmental agreements to which Swaziland is a signatory, and any policies, plans, guidelines, studies, reports, decisions, recommendations, and other publications relating to the environment published by the Authority, the Minister or the Government;

b. a copy of every Environmental Management Strategy and Environmental Management Strategy Review Report issued by any Ministry of the Government;

c. any information relating to ambient environmental quality held by the Authority or the Ministry;

d. every State of the Environment Report and every National Environment Mgmt Action Plan;

e. every National Waste Management Strategy;

f. any information relating to contaminant discharges held by the Authority or the Ministry;

g. a copy of each application for a licence under this Act;

h. a copy of each licence, order and approval issued under this Act;

i. details of all charges laid and convictions entered for contraventions of this Act; and

j. an explanation of the means by which a person may, under this Act, comment on an application for a licence or appeal a decision to issue a licence under this Act.

(3) The registry shall be in the form of paper documents that are kept in one location and are accessible for public viewing during ordinary business hours.

(4) The registry shall be created no later than 6 months after the coming into force of this Act.

(5) Any person may apply in writing to the Director requesting that any information that is not in the public domain should not be included in the Registry, on the basis that it is commercially confidential or for reasons of state security.

(6) If the Director is satisfied that the information is of a confidential nature and that maintaining that confidentiality would not unreasonably prejudice the purpose of this Act or the public interest, the Director may exclude the information, or aggregate, edited or otherwise presented it in a manner which would protect the interests of concern.

(7) If the Director is not so satisfied the Director shall advise the applicant in writing that the information will be made public within 30 days unless the applicant applies to the Minister for a review of the decision in accordance with section 82 in which case the confidentiality of the information shall be maintained pending the determination of the appeal.

Requests for environmental information

51. (1) Any person may request from the Minister, the Authority or any other organ of Government any information relating to the environment that is not available in the registry but that could reasonably assist that person in contributing to the enhancement, protection and conservation of the environment and the sustainable management of natural resources.

(2) Upon receiving a request in accordance with subsection (1), the organ of Government shall assess the request, and shall:

a. if the request is too vague or uncertain to enable identification of the information sought, or if that organ of Government is unaware of the existence of the information sought, notify in writing the person requesting the information that this is the case; or

b. provide an opportunity for the person to view or copy any available documents.

(3) No information need be provided under this section if it is exempt from being made public under another section of this Act.

(4) The organ of Government responding to the request may charge an administration fee that will cover:

a. the expenses of providing copies; and

b. the other administrative costs of dealing with the request, including labour costs, if more than one day was reasonably required to respond to the request.

(5) Fees charged under subsection (4) shall be paid into a fund established for the purpose of collection fees and revenue for use by that organ of Government; or if no such fund is established, to the Consolidated Revenue Fund.

Public Review

52. (1) The responsible authority shall, before finalising any document that is required by this Act to be subjected to public review:

a. distribute copies of the document to the Ministry, the Authority, and to Ministries and other parties who have an interest in, or are likely to be affected by, the contents of the document ; and

b. inform the public that the document is being made available for public review by advertising the public review in the Gazette and in a national newspaper circulating in Swaziland at least once a week for two consecutive weeks-

i. specifying the place(s) and the times where copies of the document will be available for inspection;

ii. inviting interested or affected persons to submit objections, comments or representations; and

iii. specifying the procedure for the submission of objections, comments and representations and the date on which the public review period will terminate, which shall not be less than 20 days calculated from the date of the last notification in the newspaper.

(3) The responsible authority shall immediately after receipt of a submission, acknowledge receipt of it, and send a copy to the Authority.

(4) The responsible authority and the Authority shall not, if so requested by a person who made a written submission, disclose or make public personal or other information provided by that person.

Public Hearings

53. (1) The responsible authority shall request the Minister to convene a public hearing if at least ten written and substantiated objections have been submitted during the public review process, and after considering all submissions the responsible authority is of the opinion that the high degree of public concern over the document, or the sensitive or significant nature of the matters referred to in the document, require that the public should have the opportunity to make submissions or comments at a public hearing.

(2) The responsible authority shall within 60 days of the end of the public review period, decide whether or not to request the Minister to convene a public hearing and shall notify the Authority in writing giving reasons for its decision.

(3) The Authority may, within 30 days of being notified that the responsible authority has decided not to request the Minister to convene a public hearing, apply to the Minister for a review of the decision of the responsible authority in accordance with section 82.

(4) Where the Minister is requested, or decides to convene a public hearing the Minister shall:

a. publish a notice, at least once a week for two consecutive weeks, in at least two national newspapers circulating in Swaziland, stating the date and place where the public hearing is to be held at least 15 days before the public hearing is held; and

b. display and make available for inspection and copying all relevant reports, documents, and written submissions made during and after the period of public review until the public hearing is finalised.

(5) A public hearing shall be held within 30 days of the date of publication of the last newspaper advertisement in accordance with subsection (4).

Findings of Public Hearings

54. (1) The chairperson of the public hearing shall make and deliver within 60 days after that public hearing a report of its findings approved by all the appointed hearing officers who participated in the public hearing, to the Minister for a decision.

(2) The Minister shall make the report of the public hearing available for public inspection for a period of not less than 20 days, and shall advertise details of where and when it may be inspected and copied.

Public participation in licensing decisions

55. (1) No licence may be issued or refused under this Act until four weeks after the day that a copy of the application for the licence was first placed on the registry.

(2) Any person may comment on a licence application by lodging a notice of comment on the registry.

(3) The Director shall consider any comments placed on the registry at least one week prior to issuance or refusal of the licence, and shall respond collectively to all comments other than frivolous or vexatious comments, by placing a notice of response on the registry no later than the day upon which the Director makes a decision on the application.

(4) The Director shall, as soon as possible after deciding whether or not to grant a licence, notify each person who submitted a comment in respect of a licence application of the decision and of where further details may be obtained.

(5) Any person may, within 10 days of the date on which the licence is issued or within 10 days of being notified of the decision under subsection (4), apply for the review of the decision or of any terms or conditions of the licence in accordance with section 82.

Orders initiated by the public

56. (1) Any person may in writing request the Director to issue an order under this Act.

(2) The request shall set out reasons for the request, including the detailed factual grounds upon which the Director would have jurisdiction to issue the order.

(3) The Director shall consider the request and within two months shall decide whether or not to issue an order, and shall notify the requesting person in writing of that decision, the reasons for that decision, and, if applicable, the date upon which the Director intends to issue the order.

(4) If the Director decides not to issue an order the requesting person may within 10 days of the date of being notified of the decision under subsection (3), apply to the Minister for a review of the decision in accordance with section 82.

(5) Without prejudice to any other grounds for review, an application for review made under subsection (4) may be made on the grounds that the Authority has failed to discharge its function under the Act to take all reasonably practicable steps to enforce the Act.

Prosecutions initiated by the public

57. (1) Any person may in writing request the Director to investigate an alleged contravention of this Act.

(2) The request shall set out reasons for the request, including the detailed factual grounds for believing that a contravention has occurred.

(3) The Director shall consider the request and within one month shall decide whether to commence an investigation, and shall notify the requesting person in writing advising of that decision, the reasons for that decision, and, if applicable, the date upon which the Director intends to commence the investigation.

(4) If the Director decides not to commence an investigation, the requesting person may lay a charge and initiate and conduct the prosecution and may obtain the assistance of any person in so doing.

(5) Any person acting under subsection (4) shall in writing notify the Director prior to laying the charge.

(6) No costs or damages shall be awarded against a person who initiates a prosecution after informing the Director in accordance with this section, unless the court finds that the primary motivation for the prosecution was not a concern for the public interest or for the enhancement, protection and conservation of the environment.

Civil Actions

58. (1) Any person may sue for damages or for an interdict in respect of acts or omissions that constitute a contravention of this Act or that could cause an adverse effect, whether or not that person or any person has suffered or is likely to suffer, any loss or harm from the acts or omissions.

(2) The right of action in subsection (1) is in addition to any other legal rights or remedies available to the plaintiff or applicant.

(3) In any proceedings under subsection (1), the court shall order any damages awarded to be applied in the following order:

a. firstly, to compensate the plaintiff or applicant for any actual legal costs that are not fully compensated by a costs order against the defendant or respondent, and to compensate the plaintiff or applicant for any damages that person may have suffered;

b. secondly, to compensate other parties for any damages suffered and to remedy any adverse effect caused by the acts or omissions; and

c. thirdly, the balance if any shall be divided in equal parts between the Environment Fund and the plaintiff.

(4) No costs or damages shall be awarded against a person who initiates civil proceedings under subsection (1) unless the court finds that the primary motivation for the proceedings was not a concern for the public interest or the enhancement, protection or conservation of the environment.

Regulations

59. (1) The Minister may make regulations that enhance the ability of the public to acquire environmental information, to participate in decision-making and to protect the environment, and without limiting the generality of the foregoing, may make regulations:

a. expanding the scope of the information held in the registry;

b. improving public access to the registry;

c. enabling persons to request and obtain copies of documents maintained in the registry upon payment of an administration fee that will cover the expenses of providing those copies;

d. establishing rules, procedures and mechanisms for the enhanced provision of information to the public through responding to requests for environmental information;

e. protecting employees from dismissal, discipline, penalty or other forms of coercion or intimidation for complying with this Act or the regulations or for notifying the Authority or the Ministry of any non-compliance;

f. establishing rules and procedures and prescribing forms in relation to the registry, in relation to making decisions under this Act, including decisions on licences, orders and approvals, and in relation to proceedings under this Act; and

g. providing for technical and financial assistance to be given to members of the public and to non-governmental organisations for the purpose of activities identified as advancing the purpose of this Act.

CONTENTS | PART I | PART II | PART III | PART IV | PART V | PART VI | PART VII | PART VIII | PART IX | PART X | PART XI | SCHEDULE 1

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