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Exam preparation Notes for Environmental Law Environmental Law
- Course
- Environmental Law
- Institution
- University Of South Africa (Unisa)
Exam preparation Notes for Environmental Law Environmental Law in South Africa
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QUESTION 1.1 (OCT/NOV 2014 EXAM)Below there are ten questions. Each question is provided with a number of options
as possible answers. Only one option or statement in each question is correct. You
must, therefore, identify the correct option and write it down next to the question
number. You also have to state why you have chosen a particular option, in
other words, you have to give reasons for your answers.
2.1 The term “environment”, as defined in NEMA, represents …
(a) a restricted perspective as it excludes social, cultural, economic and most facets
of the spatial environment.
(b) a narrow perspective referring only to the natural environment.
(c) a realistic perspective of the term.
(d) the definition of the term as contained in the Constitution.
c: The term “environment”, as defined in NEMA, represents a realistic perspective of
the term. It does not exclude social, cultural, economic or most facets of the spatial
environment and is therefore not a narrow perspective referring only to the natural
environment. “Environment” is not defined in the Constitution.
2.2 The following norm or principle is NOT contained in NEMA as a national
environmental management principle:
(a) environmental justice
(b) the public trust doctrine
(c) the precautionary principle
(d) the right to development
d: The right to development is not one of the national environmental management
principles, although some authors (Birnie & Boyle) include this as a substantive
element of sustainable development in the international sphere. Environmental
justice, public trust doctrine and the precautionary principle are contained as national
environmental management principles in section 2 of NEMA.
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,2.3 The historical development of environmental law reflects the following:
(a) The 1970s signalled a new direction in environmental law.
(b) Prior to the 1970s there had been no environmental laws.
(c) The Stockholm Conference on the Human Environment had no influence on
environmental law, since it is “soft law”.
(d) International concerns, such as climate change and events like the Torrey
Canyon spillage, had no influence on environmental law.
a: The historical development of environmental law reflects that the 1970s indeed
signalled a new direction in environmental law. Prior to the 1970s, there had been
environmental laws; the Stockholm Conference on the Human Environment; climate
change and events like the Torrey Canyon spillage all had a significant influence on
environmental law development.
2.4 International environmental law …
(a) comprises customary rules and treaties.
(b) is a blend of “hard law” and “soft law”.
(c) is known for the absence of any co-operative strategy or effort.
(d) is a coherent body of law that is justiciable and enforceable.
b: International environmental law is a blend of “hard law” and “soft law” and
therefore comprises more than customary rules and treaties and is not a coherent
body of law that is justiciable and enforceable. “Soft law” in particular provides for a
co-operative strategy and effort.
2.5 Since South Africa is a party to the Framework Convention on Climate Change
(FCCC) of 1992…
(a) South Africa is not obliged to take action to mitigate climate change by limiting
the emission of greenhouse gases and protecting natural resources, particularly
forests.
(b) South Africa is not obliged to assist with the stabilisation of greenhouse gas
concentrations in the atmosphere.
(c) South African courts must consider the FCCC when interpreting the Bill of Rights.
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,(d) South African courts may consider the FCCC when interpreting the Bill of Rights.
c: Since South Africa is a party to the Framework Convention on Climate Change
(FCCC) of 1992, it must take action to mitigate climate change and to assist with the
stabilisation of greenhouse gas concentrations in the atmosphere. South African
courts must consider the FCCC when interpreting the Bill of Rights (s 39(1)(b) of the
Constitution – must consider international law).
2.6 “Some treaties place restrictions on certain forms of trade that are harmful to the
environment … Moreover, domestic legislation sometimes places constraints on the
import of certain products in order to persuade supplier nations to comply with
conservation measures.” A consequence of the latter is the following:
(a) there is reconciliation of the competing interests of international trade and the
protection of the environment, as illustrated in the US Tuna Ban Case
(b) there is reconciliation of the competing interests of international trade and the
protection of the environment, as illustrated in the Shrimp Turtle Case
(c) legislation of this kind can never be in conflict with a state’s obligations under the
General Agreement on Tariffs and Trade (GATT), which is designed to promote free
trade
(d) legislation of this kind may be in conflict with a state’s obligations under the
General Agreement on Tariffs and Trade (GATT), which is designed to promote free
trade
d: “Some treaties place restrictions on certain forms of trade that are harmful to the
environment … Moreover domestic legislation sometimes places constraints on the
import of certain products in order to persuade supplier nations to comply with
conservation measures.” As a consequence of the latter legislation of this kind may
be in conflict with a state’s obligations under the GATT, which is designed to
promote free trade. There is therefore conflict between the competing interests of
international trade and the protection of the environment, as illustrated in the US
Tuna Ban and the Shrimp Turtle cases.
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, 2.7 In terms of section 33(2) of the Constitution, everyone whose rights have been
adversely affected by administrative action has the right to be given written reasons.
The following statements reiterate the importance of being given reasons for a
decision:
(a) It obliges the decision-maker to rationalise the decision.
(b) It does away with the necessity of explaining why a decision is reached.
(c) It exonerates the administration from public scrutiny.
(d) It does away with the provision of a basis for an appeal or review.
a: In terms of section 33(2) of the Constitution everyone whose rights have been
adversely affected by administrative action has the right to be given written reasons.
The furnishing of reasons is important as it obliges a decision-maker to rationalise
their decision. The other options are incorrect as reasons indeed explain why a
decision is reached; expose the administration to public scrutiny and provide the
basis for an appeal or review.
2.8 The right of access to information (section 32 of the Constitution)
(a) discourages the democratic values of participation and accountability.
(b) is an important safeguard in the administrative system.
(c) does not conform with international law trends to foster accountable and
participatory government.
(d) provides that national legislation must still be enacted to give effect to this right.
b: The right of access to information (s 32 of the Constitution) is an important
safeguard in the administrative system. The other options are incorrect as they
indeed encourage the democratic values of participation and accountability and
conform to international law trends to foster accountable and participatory
government. The PAIA has been enacted to give effect to this right.
2.9 Section 24 of NEMA provides for criteria that must be taken into account by
competent authorities when considering applications for environmental
authorisations. Which of the following is NOT one of these criteria?
(a) The ability of the applicant to implement mitigation measures.
(b) Feasible and reasonable alternates to the activity that is the subject to the
application.
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