Finding NEMA: the National Environmental Management Act, the De Hoop dam, conflict resolution and alternative dispute resolution in environmental disputes

Abstract

This article considers the proposed De Hoop Dam on the Olifants River, Water Management Agencies, conflict between government departments and other organs of state, the involvement of NGOs and conflict-breaching mechanisms. The point of this article is not to debate the rights and wrongs of the project or to weigh in on behalf of either side in the dispute, but to show that there is a genuine dispute about the course which should be followed as well as interests which were not taken into account properly in the initial impact assessment and decision-making processes. Consequently, that this was (and is) an appropriate case for conciliation and dispute resolution mechanisms, which are key – and underutilised – features of the National Environmental Management Act 107 of 1998 and of the National Water Act 36 of 1998. If this case could be settled by means of alternative dispute resolution techniques, others might follow and future environmental disputes be settled with accommodation of a greater number of interests. The matter discussed in this article is not hypothetical, but a real and urgent legal and environmental problem.