Different modes of public participation in a public trust regulatory model

Abstract

Section 24 of the Constitution creates the foundation of a conceptual framework for a public trust regulatory model through which access to and the use of the environment and natural resources are regulated. "Public trusteeship" and "state custodianship" are phrases that have only recently been incorporated in the South African natural resources related legislation. The concept of public trusteeship was first introduced through section 3 of the National Water Act and section 3 of the Mineral and Petroleum Resources Development Act. The concept of public trusteeship statutorily entrenches the state and government's duty to act as a guardian of either the environment, or specific natural resources for the benefit of the public as a whole. The section 24 environmental right places a fiduciary obligation on the government as the public trustee of South Africa's environment to protect and conserve the environment in the public interest, while vesting in the trustee the necessary power to regulate access to and the use of the resource for the benefit of current and future generations. The vesting of a fiduciary responsibility pertaining to the regulation of the environment in the government ensures that the public interest in the environment is upheld and protected. Public participation is the mechanism used to provide interested and affected parties with the opportunity to provide their perspectives when decisions are taken through which they may be affected or in which they may have an interest. Public participation consists of different processes that take place at different stages in the decision-making process. Through these processes the public interacts with government to enhance decision making to safeguard the interest of the public. Provision is made for public participation in the environmental law and natural resources legislation. The NEMA serves as example providing for public participation through set principles and specific clauses. The National Water Act contains certain provisions with a limited discretionary provision for public participation. The Mineral and Petroleum Resources Development Act also makes provision for public participation in terms of a notification, comment and consultation process.