environment, natural resources and climate change

During the past two decades, corporate and institutional attitudes towards environmental and resource management have changed to such an extent that specialised counsel has become necessary in order to effectively manage corporate environmental and resource strategy.

The Bowman Gilfillan Environment, Mining, Energy and Natural Resources Group constitutes a powerful and skilled nucleus of environment, mining and natural resources law expertise. Our alliance with strategic partners in fields such as environmental engineering, environmental consulting and township development enables us to satisfy our clients' broader objectives, priorities and environmental and mining needs, effectively and efficiently.

The Environment, Mining, Energy and Natural Resources Group covers all aspects of environmental and natural resources management, ranging from the conservation of species and habitats, to applications for mining rights and the conversion of existing rights in terms of new legislation, through to waste management and pollution control. Particularly, we specialise in the following areas:

environmental auditing, due diligence

Auditing procedures, which incorporate internationally-accepted methodologies of environmental auditing, have been adopted and adapted by the firm for the commercial, industrial and mining sectors. The environmental audit and due diligence exercises undertaken by the Group are specifically focused on addressing the legislative and regulatory compliance of the "audit subject". They allow for an alliance with technical and scientific experts. Environmental and occupational health and safety audits often form part of a larger audit of environmental management aspects of a facility, and as such, foster the development and implementation of environmental management systems. Due diligence studies are conducted as an essential component of commercial transactions on which Bowman Gilfillan has been instructed.

We have experience and expertise both in challenging the findings and procedures imposed by government in the statutory environmental impact assessment process and in conducting and facilitating environmental audits and due diligence procedures, and attending to the legal aspects of environmental management systems, such as ISO 14000. We are well placed to advise clients on all aspects of environmental impact assessments, particularly land use planning, rezoning and development projects.

environmental permitting

The Group provides comprehensive legal advice to the public and private sector, commerce, mining houses and industry on all environmental permit, license, and other administrative requirements in sectors such as mining, nuclear processing, power generation, water use, effluent discharge and waste disposal.

waste law and hazardous substance control

The Group has extensive experience in all matters concerning waste law, including drafting new legislation, permitting issues relating to landfills, the development and commissioning of landfills, and advising on corporate delictual and contractual liability in respect of pollution and waste management. The Group regularly advises clients on matters related to waste law, including waste minimisation, recycling, re-use and disposal requirements, safe-handling, storage and transportation of waste, soil degradation, land management, mining waste management and all forms of pollution control. We have been involved in the development and commissioning of large public-private and private foreign donor-assisted waste facilities.

public law and infrastructural development

Bowman Gilfillan acts for a number of government organisations and state-owned enterprises, including the Industrial Development Corporation, the Development Bank of Southern Africa, a number of major metros and privatised utility providers, the Land and Agricultural Bank, Telkom, Portnet, Spoornet, Eskom, Transnet, Working for Water, the Department of Water Affairs and Forestry, the Department of Environmental Affairs and Tourism, the Gauteng Department of Agriculture, Conservation, Environment and Land Use, the Human Rights Commission, and Rand Water. These and other clients are extensively advised inter alia on environmental and development planning, interpretation and application of laws, administrative action and the application of government policies. The Environmental, Mining, Energy and Resources Group's expertise in environmental, constitutional, and administrative law makes us an integral part of each project team.

Bowman Gilfillan has a long history of advising international development agencies such as the World Bank, the International Finance Corporation and the International Monetary Fund. The Group has been involved in advising on some of the major transactions relating to the restructuring of state-owned enterprises. The Group regularly provides opinion advice, drafts legislation and regulations and defends government departments and state entities in judicial review actions. Notable matters in these areas include:

• Advising a large metro on the interpretation and application of the integrated development planning requirements in local government legislation;
  
  
• Conducting a survey for DANCED of the environmental aspects of the land reform programmes of the Department of Land Affairs;
  
  
• Drafting a review of the structure and policy objectives of the Working for Water programme;
  
  
• Drafting the Gauteng Health Care Risk Waste Regulations and the Waste Information System Regulations; and
  
  
• Drafting relevant legislation governing the South African National Rail Regulator.

mining law

The Group has established itself as a leader in the field of mining law in South Africa, and was instrumental in the development of the new mining law regime. We regularly advise on all matters relating to mining assets and the conversion, acquisition and disposal of mining rights and titles. Our expert advice is sought for general environmental, occupational health and safety and related regulatory issues associated with the practice of mining. The Group also has expertise in advising on a wide range of natural resource exploitation and beneficiation projects, ranging from forestry to gas.

water law

Having been called upon to provide specialist advice to the Minister during South Africa's water law reform process, the Group is uniquely placed to provide advice on all aspects of water resource management in South Africa, including water use licensing, pollution issues, pricing issues, the establishment of catchment management agencies, the establishment of water user associations, and all other aspects of compliance with the National Water Act, 1998.

The Group has in addition developed specialist skill and expertise to advise on the laws governing water and sanitation service provision, including advice on compliance with the requirements of the Water Services Act; and particularly public and private sector transactional arrangements.

service delivery organisations and agreements

The Group has been involved in providing specialist environmental legal advise for a number of high level service delivery organisations, such as privatised utility providers. Our advice covers issues such as constitutional functional areas, co-operative governance, drafting service delivery agreements and advising on environmental impacts.

local government capacity

Bowman Gilfillan is committed to playing a meaningful role on a micro and macro level in the social, economic, legal and political life of South Africa. The Group is able to offer a full legal service in the local government sector with respect to environmental and natural resource issues. Due to the extent of regulatory experience of the Group, we are able to add value to such matters in a number of ways that go beyond the traditional service provided by law firms. The Group has particular expertise in water services, sanitation and waste disposal projects. We have previously advised government and private sector investors in a number of municipal restructuring and service provision endeavours. The Group's considerable experience and expertise in this area is due in part to our participation in the drafting process of much of what is currently applicable South Africa legislation and regulation in this area. This also ensures we have a good working relationship with the government departments and officials involved in these areas. Our clients include the City of Johannesburg, to whom the Group provides ongoing comprehensive advice in relation to a number of matters, including issues related to its Waste Water Treatment Plant, and its integrated development plans.

Particularly, we offer specific assistance in local government partnerships in the following areas:

• advising on constitutional responsibilities with municipalities, divisions of responsibility between spheres of government and the co-operative government requirements of the Constitution, and training local government officials in this area;
  
  
• developing law, regulations and by-laws in the areas of municipal responsibility;
  
  
• training government, parastatals and all levels of management in understanding, implementing and developing environmental law, regulatory frameworks and administering services in South Africa's constitutional context.

public private partnership

The Group specialises in projects requiring multi-disciplinary regulatory, constitutional and commercial input, and has a great deal of experience in infrastructure, natural resource and environmental matters throughout Southern Africa.

The Group has experience in conceptualising, negotiating, implementing Public Private Partnerships in the municipal area and is able to provide expertise in the regulatory, developmental and environmental issues that are a central part of such partnerships.

In addition to BOTT and turn-key Public Private Partnership work, we have also assisted a number of South African local authorities in developing policy in this area and have been involved in the development of transport infrastructure. The Group was responsible for redrafting the development of an Integrated Pollution Control and Waste Management Plan for the Kyalami metropolitan area. We have acted for both private and public entities in private-public partnerships for utilities contracts (such as acting in the recent Greater Johannesburg Metropolitan Council restructuring, and including acting for private investors in a large metropolitan restructuring of the gas services).

The Group has had extensive experience working in partnership with external organisations and implementing development projects. For example, the Group assisted Namibia, under the auspices of the Food & Agricultural Organisation of the United Nations (FAO), in the drafting of Namibia' s water legislation. We have worked with the FAO on a number of other projects throughout South and Southern Africa, as well as worked on a number of DANCED, DFID, NORAD and USAID projects.

training

Members of the Group regularly develop training courses in understanding and implementing the law, understanding risk and responsibility for employees of parastatals and for various levels of management.

Courses focusing on relevant laws and government policies are conducted on a number of levels: from introductory courses in environmental risk and responsibilities and the law's role in management systems for senior management figures; to intensive training courses in all aspects of environmental risk for environmental officers.

land development

The Group offers a full service in all aspects of physical development. Our involvement usually commences at conceptualisation stage and by early involvement we are able to ensure that the land use, zoning, environmental impact and permitting processes are integrated into the project plan. Developments involving the exploitation of natural resources, those that have the potential to impact on sensitive environments and developments involving multiple uses, are areas of particular expertise.

inter-regional and international trade

The Group has advised on a number of issues related to SADC, and trade within the SADC areas, particularly in the areas of standards, technical barriers to trade, product safety, and environmental issues and we are involved in the development of SADC policy in these areas. We also advised on international trade beyond SADC, covering import and export restrictions, and transactions relating to natural resources, products with safety risks, product safety, food safety, sanitary and phyto-sanitary standards, technical barriers to trade, national and international standards and in permitting issues related to the above. We have worked with international organisations involved in these areas extensively.

litigation

Drawing on Bowman Gilfillan's team of experienced litigators, the Group handles all forms of environmental litigation, including High Court actions and applications, criminal matters and administrative hearings and enquiries.

commercial contracts

The Group has the expertise to deal with all environmental and mining law issues pertaining to commercial contracts. This includes matters of environmental sensitivity, mitigation, rehabilitation obligations, land-use planning issues, warranties, indemnities and undertakings, as well as the establishment of appropriate environmental remediation trust funds.

legal development

Members of the team have been intricately involved in the drafting of environmental legislation at a national, provincial and local level. Through our involvement in the drafting process, the Group has gained a unique insight into the law and its application.

climate change

Professionals from our Project Finance and Environment, Energy and Natural Resources teams have been involved in CDM projects in the past. These projects essentially require skills in understanding the technical emissions reduction issues, liaising with the Designated National Authority and understanding the manner in which such regulatory bodies function and the extent of their power, as well as putting together the commercial, financing and related transactional documents. These are areas in which our Project Finance and Environment, Energy and Natural Resources teams excel and which made their transition to CDM projects an easy one.

From the trading perspective as South Africa does not yet have targets and timetables in terms of the Kyoto Protocol, carbon trading instruments and exchanges in South Africa are in its infancy and most South African CDM projects serve the target and time table needs of European clients (the US has, of course, not signed the Kyoto Protocol and so does not have agreed targets and timetables). Bowman Gilfillan’s long-standing relationships with overseas law firms have assisted us in carrying out CDM projects and in getting support in this newly developing area. Our capital markets teams have had experience in the tradable instruments side of the CDM.

We have the following specific experience in this area:

• We acted for the sponsors on all aspects of the PetroSA biogas to energy project in Mossel Bay which is the first approved carbon emissions reduction project to be operational.
  
  
• We have been involved in a number of emission reduction projects involving the flaring of methane and potentially the production of electricity, by the reuse of landfill methane gas. In this regard we have represented amongst others Ener-g a UK based company and municipal utilities. We have been involved in all aspects of such projects, including contractual negotiations and dealings with the Designated National Authority.
  
  
• We provided advice on the establishment of a trading mechanism for carbon credits to a Cape Town-based client.
  
  
• We have acted for a large cement manufacturer on various carbon emissions reduction projects which they have negotiated with European entities.
  
  
• We have provided general advice and opinions on CDM related matters including: renewable energy production; fuel switching (in industry, transport, residential sector, etc); solid waste management; advanced coal-based power generation technologies; renovation and modernisation of old plant; demand-side management; and industrial energy efficiency improvement.
  
  
• We understand the mechanisms of carbon trading which allows certified emissions reductions generated from emissions reduction projects (like CDM projects) or emissions reductions which are caused by the closure of heavy industries to be traded and have dealt with the South Africa Designated National Authority regarding these projects.
  
  
• We have a relationship with the Freshfields carbon trading unit which has undertaken numerous carbon trading transactions within the established European carbon trading mechanism.