Strict environmental regulation and increasingly rigorous enforcement makes environmental compliance a key consideration to doing business in South Africa. As in many international jurisdictions specialised counsel is required to effectively manage corporate environmental risks and decision-making.
Bowman Gilfillan is one of South Africa’s leading environmental law firms, with the Environment, Natural Resources and Climate Change practice group offering real depth and a broad range of expertise, including legal risk mitigation and management, permitting advice, project and development advice, environmental appeals, litigation and administrative appeals, advice on specific environmental impacts, due-diligence investigations and compliance auditing.
Relying on a skilled and experienced nucleus of lawyers with a practical understanding of both the law and its application by the regulators, our group is also able to draw on the wide range of legal expertise within Bowman Gilfillan as a whole to ensure that our clients’ environmental risks are seamlessly managed in alignment with their broader business requirements and priorities.
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In 2010 and 2011 we were ranked first in the Environmental group. Claire Tucker, head of the group, was one of only three South African lawyers listed as “Leading” in these years.
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The practice group offers a wide range of environmental legal services to clients, which include: Mining and petroleum resources and the environment
Across all its services, the practice group has specific expertise and experience in advising on and assisting in environmental issues associated with prospecting and mining and production activities in terms of the Mineral and Petroleum Resources Development Act, 2002. This includes advising on and litigating about the interrelationship between the environmental requirements in terms of mining and petroleum legislation and the compliance requirements in terms of other environmental laws.
We assist clients in identifying and resolving environmental impact related risks and liabilities. We provide advice on strategies to address any anticipated effects and we participate in the interaction with the authorities regarding the impact mitigation process. What’s more, our lawyers work closely with environmental assessment practitioners, environmental scientists and with engineers on impact and process related regulatory issues and risks on a frequent basis.
Our group handles all forms of environmental litigation, including High Court actions and applications, criminal matters and administrative appeals, hearings and enquiries.
We also have extensive experience and expertise in challenging the decisions and procedures imposed by the regulators in the statutory environmental impact assessment and other permitting processes. Specific areas where our attorneys have assisted clients in administrative disputes include:
High Court judicial reviews and interdicts in respect of environmental decisions.
We offer a full service on all aspects and for all scales of developments and projects. Our involvement ideally commences at the conceptualisation stage as we are then able to ensure that the land use, zoning, environmental impact and permitting processes and strategies are integrated into the project plan. On-going advice and assistance may be provided throughout the permitting processes and into the construction and commissioning stages of the project, including assistance in all aspects of project related litigation and in addressing administrative or other challenges to the project.
Our group provides advice to clients on all aspects of environmental permitting, licensing and authorisation requirements associated with new and existing operations, including Environmental Impact Assessment (EIA) requirements, water uses and required entitlements, waste management and disposal practices, heritage issues and air emission regulation.
We provide advice to Environmental Assessment Practitioners and other consultants responsible for handling permitting processes on the adequacy of the processes they have followed, and of their process documents in terms of the requirements of the governing legislation. In order to ensure compliance, we undertake legal reviews of process documents such as Basic Assessment Reports, Scoping Reports, Environmental Impact Assessment Reports, integrated Water Use Licence applications and Atmospheric Emission Licence applications prior to their submission to the regulatory authorities.
We provide mines and industries with advice on the implications and the actions required in the context of contaminated land, including under the current statutory regime and in light of the pending commencement of the contaminated land provisions of the National Environmental Management: Waste Act, 2008, which will have retrospective application when in operation. This includes assistance that is focussed on transactions entailing the transfer of ownership or an interest in contaminated land and the mitigation of the risks and potential liabilities to our clients in such transactions.
Our practice area advises financial institutions on the potential for lender liability in South African law, either generally or in respect of specific transactions, as well as on mechanisms to mitigate the potential risks to the bank.
We 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 and water user associations, and all other aspects of compliance with the National Water Act, 1998. We have assisted in dealing with issues arising from the status of existing lawful water uses and water use licences for numerous large industrial and mining clients and we have experience in matters associated with securing water rights on the transfer of agricultural properties. We have defended and taken matters to the Water Tribunal on behalf of clients, many of these matters having involved disputes on behalf of mining companies.
We also have expertise on the laws governing water and sanitation service provision, including compliance with the requirements of the Water Services Act, 1997, and public and private sector transactional arrangements.
Our group has extensive experience in all matters concerning waste law, including licensing issues relating to listed waste management activities and advising on corporate, delictual and contractual liability in respect of pollution and waste management. Amongst those we have advised are oil recyclers, hazardous disposal site operators, general landfill site operators, tailings dam operators, and medical waste generators. Members of our practice group have acquired specific expertise in the regulatory requirements for the transport of dangerous goods (including hazardous substances and medical waste) in South Africa.
As part of a leading commercial law firm we frequently deal with all environmental 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 provision for mining companies.
In conjunction with attorneys from our Project Finance team, we have been involved in CDM projects, requiring an understanding of the technical emissions reduction issues, liaising with the Designated National Authority and an understanding of the manner in which such regulatory bodies function and the extent of their power, in addition to skills in putting together the commercial, financing and related transactional documents.
With Bowman Gilfiilan’s Energy group, the Environment, Natural Resources and Climate Change group area has been at the forefront of the development of South Africa’s renewable energy resources. Members of this group have acted in a regulatory capacity and as environmental law advisors to the Department of Energy and the National Treasury in their IPP Procurement Programme to procure 3725MW of wind, PV and CSP solar, hydro power and landfill gas power. Using strict Chinese Walls within the firm, other members of the group have acted for wind, solar PV and solar CSP developers and lenders to these developers.
We have extensive experience on advising on all regulatory and environmental aspects of such power stations, including advising on the siting options for proposed new nuclear power stations, construction of the Medupi and Kusile Power Stations and environmental administrative challenges to such power stations.
Environmental due diligence investigations are routinely conducted as a component of M&A transactions on which Bowman Gilfillan is instructed. Our extensive experience within the group allows for issues to be investigated and assessed following the appropriate protocols, and for our clients to be advised on which risks and liabilities should be seen as being material - given the nature of the transaction.
Our group provides Safety, Health and Environmental legal registers that are tailored to meet the specific operations and needs of the client. The Registers are designed to ensure that the legal compliance obligations associated with the environmental aspects and health and safety risks and hazards of the client’s operations are appropriately addressed in a format and structure that fits in with the client’s management systems.
In accordance with the requirements of environmental management systems such as ISO 14001, we undertake comprehensive environmental legal compliance audits for the commercial, industrial and mining sectors. We provide a balanced assessment of the state of compliance at the operation and we identify not only the compliance concerns but also the priority steps that should be taken by the operation to achieve compliance. We also identify the potential for criminal or administrative sanctions, including any instances of possible director and employee personal clean-up cost and criminal liability.
We offer a range of services in mine and occupational health and safety sectors, including all aspects of advice on the governing legislation and its application, health and safety compliance audits and health and safety legal registers. We assist in investigations and inquiries in terms of the Mine Health and Safety Act, 1996 and the Occupational Health and Safety Act, 1993 and assist clients in addressing prohibition notices, directives and “stop” notices in terms of this legislation. Legal development Members of our group have been involved in the drafting of environmental legislation at a national, provincial and local level.
We have provided advice in the field of wildlife and nature conservation law, and have acquired particular expertise in the field of game farming and eco-tourism in South Africa. This includes drafting and advising on concession agreements and providing advice on the export, import and translocation permits required for protected species of plants and animals in terms of the various provincial and national legislation and international agreements such as CITES. We have also assisted with the creation and regulation of protected areas.
Our significant expertise and experience go a long way to achieving harmonious solutions.
Our Environment, Natural Resources and Climate Change group also develop training courses that assist in understanding and implementing specific aspects of environmental law. The courses aim to raise awareness and understanding of the risks and responsibilities for employees of parastatals and other entities, and for various levels of management – including directors. 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, to intensive training courses in the full spectrum of environmental risk for environmental officers.