South Africa’s Supreme Court makes Arcelor Mittal toe the line on transparency

3122014

South Africa’s Supreme Court makes Arcelor Mittal toe the line on transparency about environment-related information

Dear all,

The South African Supreme Court of Appeal has recently ruled that Arcelor Mittal, that country’s steel production giant make environmental information in its custody accessible to the people. On 26 November, 2014, the Court dismissed the appeal filed by Arcelor Mittal, South Africa (AMSA)challenging the judgement of the High Court which directed it to disclose information about its compliance with environmental regulations to an NGO. Readers may recollect that Arcelor Mittal is headed by Mr. Lakshmi Mittal of Indian origin who was dubbed one of the richest men in the United Kingdom a few years ago.

What was this case all about?

In December 2011, Vaal Environmental Justice Alliance (VEJA) filed an information request with Arcelor Mittal under the Promotion of Access to Information Act, 2000 (PAIA) demanding access to their Environmental Master Plan including details of how the Vanderbijlpark site would be rehabilitated. Later in February 2012, VEJA filed a second request under PAIA demanding a wealth of information about compliance with the environmental laws and regulations relating to the Vereeniging site also known as Vaal disposal site. Under PAIA, any citizen may seek information from a private entity such as AMSA for the protection of any right recognised in law. VEJA’s lawyers explained in their request that they had a right to get all this information in order to ascertain whether the AMSA was complying with all environmental laws and regulations. They argued that the information was being sought in public interest.

AMSA’s lawyers responded late explaining that the festive season had caused the delay. Later they delayed a proper reply stating that AMSA required more time for internal consultations on whether to disclose all the said information or not. Even later they asked what was the mandate of the VEJA’s lawyers to demand information and how they could usurp the role of environmental regulatory authorities. However to its credit, AMSA, did give some copies of information such as environmental authorisations and consents that they had been given in relation to their operations.

Finally, in February, AMSA formally conveyed its refusal to part with other information sought by VEJA arguing that they had not clearly established the nature and scope of the right that was sought to be protected by disclosure of information. They also argued that VEJA had not satisfactorily shown how disclosure of such information would help in the protection of the right they had claimed, namely, the right to environment guaranteed by Article 24 of the Constitution.

VEJA challenged this decision before the High Court as there was no provision for an Information Commission(er) under PAIA then, to appeal such rejections. The Appeals Court upheld VEJA’s right to get copies of the information they sought. The main grounds on which the judge recognised the right of access to information are described in the attached judgement (1st attachment). Not satisfied with this decision, AMSA filed an appeal before the Supreme Court of Appeal.

How did the Court Rule?

The Supreme Court accepted the public interest argument that VEJA had put forward for seeking the information even though AMSA tried to discredit it by terming it as vague and amounting to usurping the role of the environmental regulatory authorities. It also argued that the Environmental Master Plan was obsolete and based on wrong data and had never been accepted by the company. Instead the data had plan had been revised through the commissioning of newer studies later on. It also argued that inspection reports from the envvironmental authorities had testified to the fact that it had cleared up some of the sites where pollution was found earlier. Further, AMSA argued that being a private company it cannot be made subject to the stringent requirements of PAIA like State departments and agencies covered by that law.

The Court found that AMSA had in its Annual Report of 2010 declared its intention of engaging with key stakeholders including environmental NGOs, government, community and the media in relation to its industrial operations. So, the refusal to part with information was not justified in any way. Determining the meaning and test needed to satisfy the word ‘required’ contained in Section 50(1) of PAIA, the Court ruled that it meant ‘reasonable requirement’ i.e., adducement of reasonable facts why the information was required which VEJA had adequately done so in its requests. VEJA had pointed to the past history of AMSA as a polluter in the area because of which obtaining such information was essential to ascertain further compliance. The Court noted at para #52 of its judgement that AMSA was ‘a major polluter, if not the major polluter’ in the area where it conducts its operations.

The Court noted that the constitution and other environmental laws guaranteed every person including associations of persons to come together to protect the environment, so VEJA was not usurping any regulatory role. Instead it was exercising its rights under the law of the land. In response to AMSA’s argument that they cannot be subject to stringent requirements of transparency like public authorities, the Court said: “Corporations operating within our borders, whether local or international, must be left in no doubt that in relation to the environment in circumstances such as those under discussion, there is no room for secrecy and that constitutional values will be enforced. AMSA espoused environmental sensitivity in its Annual Report but adopted an obstructive approach when it came to disclosing information that would assist a collaborative effort.” The Court held that the information sought by VEJA does not fall in the category of trivial or frivolous. Instead the Court said: “it concerns us all”. As AMSA had committed itself to dealing with environmental issues in a participatory and consultative manner, its objections to disclosure could not be justified. The appeal was dismissed as being without merit.

The South African judgement is a major victory not only for environmental activists in South Africa but also for advocates of transparency in the operations of private corporations across the world.

Right to Environmental Justice in India

In India the Courts have passed several orders requiring transparency and accountability of public and private companies companies that pollute the environment. In the case of Essar Oil Ltd. vs Halar Utkarsh Samiti and Ors. [AIR 2004 SC 1834] the Supreme Court of India declared that people’s right to know was an inseparable part of the right to life guaranteed under Article 21 of the Constitution (2nd attachment). The Court observed: ” Besides the citizens who have been made responsible to protect the environment have a right to know. There is also a strong link between Article 21 and the right to know particularly where secret Government decisions may affect health, life and livelihood. The role of voluntary organisations as protective watch-dogs to see that there is no unrestrained and unregulated development, cannot be overemphasised. Voluntary organisations may of course be a front for competitive interests but they cannot all be tarred with the same brush… Organisations have championed the cause of conservation and have been responsible for creating awareness of the necessity to preserve the environment so that the earth as we know it and humanity may survive.”

Arcelor Mittal has major operations in India as well. Its leading lights are often photographed in the company of ministers and lawmakers at public functions. Some think of such companies as the saviours of the economy who will bring unprecedented development under the new Government in Delhi. Whether the prosperity they bring will be equitable, whether their operations will leave the environment unharmed remains to be seen. The rush with which labour laws, environmental laws and land acquisition laws are sought to be amended and the speed with which environmental clearances are being given to corporations to set up or expand operations in India in recent months seem to make environmental justice more difficult to attain in India.

Venkatesh Nayak

Commonwealth Human Rights Initiative

http://www.humanrightsinitiative.org/