Extension of Appeal deadline for Nuclear-1 12/12/20/994
For attention: The Minister of Environmental Affairs
We write to you because, for the reasons set out below, the appeal process in its current form is unduly confusing and provides inadequate time within which to prepare a properly substantiated appeal. Without a number of corrective actions, and an extension of the timetable, we are advised that the appeal process will not be defensible in judicial review proceedings.
- The first issue is that the public was not informed that any person may appeal. An appeal process commencing after 8 December 2014 is not dealt with under the 2010 EIA Regulations, but rather under the Appeal Regulations published under NEMA. Any reference to the 2010 EIA Regulations is accordingly wrong, and more importantly, neither NEMA, nor the Appeal Regulations restrict standing to appeal to only registered IAPs, or even to persons who are affected for that matter. NEMA provides that “any person” may appeal, and the Appeal Regulations applies to “a person who is entitled to submit an appeal …”. Given that any person is entitled to appeal, we believe that it is important that the public be informed of this fact because it would be procedurally unfair if members of the public did not note appeals on the basis of misinformation disseminated by the state and Gibbs that prior participation is required to lodge an appeal.
- Secondly, Gibb, Eskom’s EAP, failed to afford all registered IAPs with a notification of the Authorisation. I did not, despite being involved for nearly ten years, and attending every public meeting in Cape Town receive such a notification from the EAP.
- Thirdly, the department’s appeal guideline incorrectly provides that the public has 20 days within which to appeal, which is wrong, and procedurally unfair. I emailed your department to ask if notices of intention to appeal may be emailed to you, and received a positive reply on October 16 from Mmatsati Maboko, including an attachment with an 18 page document on your departmental letterhead titled Appeals Guideline.final.pdf. On first glance this appeared to be a very useful document, and I passed it on to many individuals and organisations I knew had been involved in the EIA process. I suggested they study it and use it as a basis for formulating an appeal should they wish to submit one. However, as we progressed with studying the many documents relating to this authorisation, we noticed that section 5.1 of the Guideline provides:
“An appellant must submit the appeal submission (the Appeal Questionnaire and Appeal and Response Form) to the appeal administrator, the applicant, and known interested and affected parties within twenty (20) days from: … the date that the decision for an application for an environmental authorisation...”
This differs from our legal advice, and from the document sent out by Gibb (not forwarded to all IAPs), which provides for 20 days within which to lodge a notice of intention, and another 30 days within which to lodge an appeal (50 days total). There is now much confusion, with many believing the appeal submission deadline to be 31 October 2017. The prejudice is twofold, namely (a) that persons with valuable contributions abstains from appealing due to an impossible deadline, and (b) that person who decides to appeal hastily finishes an appeal that would ordinarily take months to prepare properly. The current confusion caused by the department’s literature will accordingly have the effect of unjustifiably excluding and diluting appeals.
- The next issue is that persons were provided with materially different forms on which to note an appeal. Section 3.3 of the guideline states: “An appeal submission must be submitted in writing in the form obtainable from the Minister or MEC...” A form is included at the end of this guidelines document, leading to the reasonable assumption that this was the form referred to in section 3.3. However, a number of persons who submitted notices of intention to appeal received a reply containing a different form titled APPEAL RESPONSE REPORT. This was a subset of the form in the guidelines document, and from the title appears to be for the applicant, not the appellant, to complete. The questions labelled 1-7, and the declaration numbered 8, were omitted from the form attached the latter emails. At this time it is unclear which form section 3.3 refers to, and whether or not appeals which are submitted in a form other than the prescribed form will be rejected.
- Lastly, the ordinary period within which to prepare an appeal is inadequate when considering the extraordinary complexity and volume of information underlying this application. The application, EIR and decision consists of several million words, and many of the issues will require input by specialists who will likely not be able to start immediately on such short notice, and who, possibly not having perused the application before, must be given adequate time to read it, apply their minds to it, prepare their conclusions, and motivate how the decision is, or ought to have been affected by these conclusions. Experts will require more than 30 days within which to conduct a proper assessment of the application and decision, and a process which deprives the public (and the decision maker) an opportunity to put up relevant information by persons with valuable experience and expertise, cannot be said to be a fair process.
As set out above, in order for the appeal process to be fair, meaningful and legally defensible, the department will have to issue a number of corrective and explanatory public statements, and must direct the EAP to provide the public with more time within which to prepare their appeals. We are advised that a 90 day period within which to prepare an appeal is more realistic.
We therefore request that the department, (and the EAP where relevant) takes the following steps to correct the flaws in the current process:
- Inform the public and IAPs that any person may appeal;
- Accept appeals from persons who failed to note an intention to appeal because they considered 20 days an inadequate period within which to prepare an appeal;
- Circulate an amended Appeal Guideline with the correct timetable, and with the correct forms;
- Inform the public whether or not appeals not lodged in the prescribed form will be excluded; and
- Direct the EAP to provide the public with an appeal period of no less than 90 days from 31 October 2017, noting that the period between 15 December 2017 – 5 January 2018 may not be taken into account in the calculation of days.
We trust that you appreciate the importance of eliminating the prejudice caused by the current confusion, and inadequate time within which to appeal, and that you will act to avoid these fatal flaws.
30 October 2017