National Environmental Laws A/B [B66-08]; National Environmental Management: Protected Areas Amendment Bill [B67-08]: public hearings

Meeting report

Business Unity South Africa (BUSA) submission
Dr Laurraine Lotter, Chairperson of Standing Committees: BUSA, stated that this was a controversial Bill. She explained that BUSA was a confederation of business organisations, including chambers of commerce and industry, professional and corporate associations and unisectoral organisations. Altogether, these entities contributed 85% of the GDP. She said BUSA had no difficulty with the stringency of the environmental legislation or the enactment of the law. Many provisions of this Bill would, however, be far-reaching and the public had had only a short time to comment on it. While BUSA had requested an extension, this had not been granted. More time was needed in view of the complexity of other regulations which had been published and they could not do justice to scrutiny of the Bill. She said BUSA had always maintained constructive engagement with the Department, but in this instance could not understand the need for the Bill.

There was a lack of alignment between the monetary fines stipulated in the Bill and the year’s prison sentence, since if 5 years equated to R5 million, then R10 million should equate to ten years and not five years imprisonment as well. This did not imply that BUSA was opposing stiff fines.

Clause 6 of the Bill referred to the disbanding of NEAF (National Environmental Advisory Forum), which was a statutory body from which the Minister would seek advice. Even if this body did not work optimally at present, this was no reason to disband it completely. Dr Lotter suggested that this decision be reconsidered and that there be an investigation into its inefficiencies. Many new environmental Acts were being implemented and yet there seemed to be a lack of internal coherence as far as auditing and enforcement was concerned. She suggested that NEAF could look at these. Clause 3A which left the establishment of committees up to the Minister’s discretion, could lead to a situation where the Minister chose not to be advised.

The previous version of the Bill provided for the retrospective application of National Environmental Management  Act (NEMA) as well as for pollution likely to occur to constitute an offence under the Act. This provision had been deleted from this version and BUSA was in agreement with this. In the event of its reinstatement, BUSA commented on Clause 12(b), which referred to the concept of “anticipatory costs”, which an offender may have to incur. This definition could lead to ambiguity and disputes. She suggested the definition change to “reasonable expenses to be incurred for the purposes of taking reasonable measures under Clause 28(7)”.

Anticipatory costs further posed a problem where they could be claimed from innocent successors-in-title, who did not cause the pollution. BUSA did not oppose the criminalisation of pollution offences, but Clause 12(c) was unacceptable as it did not define pollution as having to be “significant pollution or degradation” in order for an offence to have been committed. The failure to insert this amendment would mean that the criminal provisions of the Act would not be aligned with the trigger for the duty of care. Clause 13 referred to a criminal offence being punishable with R100 000 or ten years imprisonment. This did not align with other fines in the Bill. Clause 30 referred to incidents, accidents or fires, which led to pollution, having to be reported. Criminalising the failure to report posed a problem. Clause 15 was problematic, as an Environmental Management Inspector (EMI) should carry a notice issued to him or her so that those over whom he or she intended exercising powers were able to determine for which specific environmental laws he or she was appointed.

Clause 19 seemed unnecessary as the powers granted to EMIs were sufficient in this regard. Clause 20 referred to remedial measure being ordered by the court. This was problematic unless the Act was also amended to provide for appropriate and extensive evidence by properly qualified officials and experts. She felt that the proposed amendments were hasty and that to create new offences under existing legislation was ineffective.

In conclusion, Dr Lotter said that BUSA was still committed to compliance with environmental legislation where there was incorrect behaviour. She trusted members would address these concerns.

Discussion
Mr G Morgan (ANC) asked for elaboration on the lack of opportunity to comment and engage on the Bill and further explanation regarding NEAF. He asked what BUSA's involvement with NEAF was.

Ms J Chalmers (ANC) said NEAF was only a statutory body to call on for advice. It was expensive and not meeting regularly. There were sub-structures available for the various functions it had fulfilled. She asked if BUSA expected officials to carry notices besides their identification in order to conduct searches.

Mr D Maluleke (ANC) asked for an explanation of functions by environmental inspectors, as they seemed to have similar powers as law enforcement officers. Their uniform would distinguish them, which, together with identification and insignia, should be sufficient.

Ms M Ntuli (ANC) asked for details on the consultation process and how this was deemed to be insufficient. Regarding Clause 12, she said the responsibility for cleaning up environmental messes should be taken seriously and the government should do everything in its power to ensure that the perpetrators take full responsibility. The environment should receive equal consideration to the economy. She said NEMA should be hands on in dealing with neglectful behaviour.

Mr Zita asked for alternatives to the fines and penalties being touted and a definition of anticipatory costs that BUSA would be satisfied with. He asked how she suggested claims that could fall onto successors should be dealt with. Someone should be held liable. Regarding the point raised about Clause12(c), what definition of pollution should be used?

Dr Lotter compared and contrasted the consultation process that had occurred with the Waste Bill. The Department had held workshops with sectors of society and had redrafted the Bill, as a result of the consultation process. She said they had asked for an extension from the Minister in this case and there had been a delay in response. However, the extension had not been granted because they said it was already in Parliament. She asked why the Bill was so urgent, as it contained significant provisions, the need for which did not seem clear. The Waste Bill on the other hand had gone through smoothly and BUSA had had very little problem with it because of the comprehensive consultation process. BUSA had also been unaware that the Department was considering a further amendment to the B36-2007 Amendment Bill. It came as a shock. She said that the further amendment allowed for thirty days comment period. This was not a short piece of amending legislation, and it required consultation with all affiliates. The Waste Bill reflected its solidity. It was a balanced piece of legislation due to extensive consultation.

She answered that NEAF had two business people on it, but who were not representatives of BUSA. She agreed it was expensive, but that this was relative. She did not understand why NEAF had become involved with research, as this should not have been its function. One should take the legislation that one has and make it work in an integrated way. Stakeholders could undertake research themselves. Not meeting regularly was not a good enough reason to disband NEAF. Other structures did not have the same status, and the Minister did not have to attend them.

On the matter of the notices, she said these needed to indicate the area of expertise of the inspector. A notice to check compliance should be required to search and seize evidence, the same as the police, as this could lead to criminal arrest. She agreed that responsibility must be taken by perpetrators who commit environmental offences and that they should carry the full cost of this. She agreed there should be a mechanism to recover costs where they did not clean up. The Department should not undertake the work themselves, otherwise costs could be unreasonable. In the case of accidents during transport, the matter should be controlled by the Department of Transport as there was extensive legislation for this. There needed to be more coherence between environment and transport.

Regarding the alignment of penalties, R10 million should be equal to ten years imprisonment fine, a R5 million fine could not also equate to ten years. This was simply illogical. The penalty should be proportional. She added that they would be pleased to assist with the definition of anticipatory costs. The fining of successors needed more thought, especially when perpetrators left a legacy of environmental damage. She agreed the word “significant” should not to be removed.

Animal Rights Africa (ARA) submission
Ms Michelle Pickover said South Africa’s parks and protected areas were both national and international heritage sites and unique and precious environmental treasures of incalculable value. The Kruger National Park, in particular, was a flagship, both internationally and nationally and comprised two million hectares. South Africa was not only charged with the guardianship of the park on behalf of South Africans, but on behalf of the global public as well. These areas were of such enormous consequence to humanity that their value could not be equated to any potential they may financial earnings. Therefore by allowing Clause 5 to be included in the Bill, would place the government in breach of its obligation to promote and protect these heritage sites for present and future generations.

Ms Pickover said that National Parks were not private goods and that the objectives of SANParks were social rather than financial.  They were a living heritage with intrinsic value to which commercial accounting principles could not be applied. They should be recognised as assets held in trust by the government and appreciated for the non-financial benefits they provide to society.

Legally the management of a national park could only be assigned to the South African National Parks or an equivalent Schedule 3A Public Entity. Therefore the functions, responsibility and management of national parks and protected areas could only be transferred to another public entity. Clause 5 was illogical, dangerous and counter-intuitive. It was totally irresponsible. It ignored the onerous public accountability provisions and considerations. No company or trust or body should be given absolute rights over our natural resources. The assets and the proceeds of SANParks had to be prohibited from being transferred or disposed of to a non-state body even if it had objects similar to those of the South African National Parks and which itself was exempt from income tax in terms of section 10(1)(cA) of the Income tax Act. The phrase “objects similar” was worrying in that it was vague and open to abuse. The citizens of South Africa should be concerned by the creeping shift toward private and corporate control of the management of our national parks.

SANParks was established in terms of national legislation and was accountable to Parliament. Clause 5 would open up our national parks to what was tantamount to theft and plunder. It ignored public accountability provisions and considerations.

ARA asked for the replacement of Clause 5 with the following wording: “Upon its winding-up or dissolution, South African National Parks must transfer its remaining assets or the proceeds of those assets, after satisfaction of its liabilities, to an equivalent Schedule 3A Public Entity which had the same objectives as SANParks.”

Discussion
Mr Mokoena said certain areas were sacrosanct. He could not understand how one could tamper with the “family silver”.

Mr Morgan thanked Ms Pickover for her passionate presentation. He suggested the clause in question was perhaps just a poorly drafted clause, without carrying any evil intentions of actually dissolving SANParks. He suggested that it be rephrased, while still fulfilling legal requirements. The state should remain the custodian of our national parks. SANParks might not be the correct vehicle for the management of such structures.

Ms Pickover said that should it be taken over by a different management structure that body should be a government agency, accountable to the public.

Mr Morgan asked whether this had been copied out of other legislation and whether there was a legal impediment to insert limitations.

Ms Chalmers was baffled why the words “other institution, board or body” had been inserted.

Mr Maluleke asked whether the Department opposed the suggested amendment.

Mr Ishaam Abader, Deputy Director-General: Corporate Affairs: DEAT, said the Department had no intention of dissolving SANParks. The provision merely dealt with a possible tax issue. They were not opposed to the rephrasing, as a regulated Schedule 3 entity, it could be dissolved. The clause was not part of some generic wording structure which had been used elsewhere and its purpose had been for the provision of securing the assets.

A legal advisor from the Office of the State Law Advisors said that as the amendment stood now, it provided for the winding up of SANParks, and created the impression that it was to be dissolved. SANParks could only be wound up by an Act of Parliament.

Mr Zita still did not understand the reason for the insertion of the clause if the dissolution of SANParks was only possible through an Act of Parliament.

Mr Abader, in his general response, said the Department did agree with the alignment of fines with prison sentences and that this would be changed accordingly. He said that currently NEAF was non compliant with existing legislation. The Minister still called together a forum. The Department had to abide by budget constraints and the controlling of costs in NEAF had been an administrative nightmare. He said that NEAF was not representative, while a forum would be more so. Regarding the comments on anticipatory costs, the Department had to look up front at the cost of remediation where environmental cleanup was needed and that they had needed a way of recovering these costs. The cost was determined through evidence-based costing and would involve expert input. It was a practical problem where the state simply could not be saddled with the cost of remediation.

Mr Zita asked whether the Department would agree to work with BUSA to regulate these matters

Mt Abader agreed to this. He commented that the run-of-the-mill, ordinary compliance inspections could result in non-compliance which constituted a crime. The Environmental Management Inspectors were identified according to their mandate and authority. When such an instance arose, the issued directive was usually challenged anyway.

Mr Abader said that Clause 5 had been inserted into the Protected Areas Act in the event that a public entity got into trouble, in order to secure its assets and to deal with the tax problems.

Mr Zita asked what the Department foresaw would happen in order for it to even consider dissolution at all.

Mr Abader replied that there was currently no provision, if another body was needed to do the same thing.

Mr Zita asked why they did not simply change the law when that moment came along. They would not be able to bypass Parliament on such an important issue.

Mr Morgan suggested that the amendment might be necessary but that it could not be left as it was. Any decisions taken in this regard should be subject to the highest law of the land and should have to go through Parliament.

Ms Chalmers asked if Clause 5 would be changed as per the suggestion of ARA, in addition to an amendment requiring parliamentary involvement.

Andrew Wardle’s submission
Mr Wardle claimed the public and Parliament were being misled with regard to the real motivation behind the proposed insertion of Clause 5 into the Protected Areas Act. He had a national diploma in nature conservation and had followed the life courses of national parks in several countries in Africa, not only in South Africa. He urged the members to carefully consider the implications of Clause 5. The amendment clause was there not just for tax implications.

They had to ask themselves who would take over SANParks if the possibility presented itself. South Africa seemed to be on the road to privatisation and SANParks was already on the road towards being commercialised. A company had been established, called African Park Management and Finance Company, which was headed by the Mr Msimang and Anthony Halmartin. This company was seeking to take over management of national parks all over Africa. Mr Wardle claimed that in Ethiopia, this company had gone so far as to burn down homes of dwellers in the Nechi Sar national park. The company had applied for public benefit status, in order to be exempt from tax. Cyril Ramaphosa was on the board of this company, the very father of privatisation. In 1993, South Africa agreed to the International Monetary Fund structural programme, which contained certain conditions that had effectively meant turning one’s back on the Freedom Charter.

He continued that the purchase by Dubai World of a part of the Kruger National Park, which had also purchased part of a park in Rwanda, showed that intentions were less than ethical. He questioned what would happen to our land and sea if this sort of activity were allowed to continue and suggested further investigation into the matter which should be made public. Certain public property should always remain public. He was also concerned about activities which would include the takeover of state forests as well.

Discussion
Mr Zita said there was no need to worry about this, as it was simply not going to happen. Biodiversity for the next generation had to be protected and maintained. They needed to strengthen the legislation in this regard and decide what proportion of the vote should be required to facilitate any changes in ownership of the SANParks areas. He suggested that it be a unanimous vote in Parliament. They would have to consider private parks beyond their value for tourism and commercialisation as well, since biodiversity had become of strategic importance to the country. It had been shown that America preferred a relationship with Ecuador than one with Saudi Arabia, simply because the former had more biodiversity to offer. It was unacceptable to allow private control over public resources.

Mr Mokoena said this confirmed his suspicion that the whole issue was more complicated than it appeared. He maintained that the insertion of this clause would constitute the thin end of the wedge, which could open up the possibility for opportunists to take advantage of the situation. It was his absolute contention not to insert any amendment at all, in order to avoid the possibility of opening up any loopholes. He did not see the need for this change in the legislation all of a sudden.

Mr Morgan commented that the Committee would be dissolved soon and that some of the members might not be on the Committee any longer in the Fourth Parliament. He suggested that the Committee might have a chance to review the situation with SANParks when their audit report was presented in September or October this year. The Committee could then reassess the commercialisation strategy that was in place. He said there seemed to be frustration with the management of many parks in South Africa at present, perhaps partly because they were also under funded. Only a few were financially viable by means of gate takings. The money being ploughed into these parks by the state was very little in comparison to the innate value of the parks. He suggested that one look at commercialisation only for the public good. Greater support from the state was needed to deal with problems they were having.

Mr Zita said these commentaries provided a wake up call to government that biodiversity must be kept intact. Tourism and environment had mutated into areas of strategic importance. The strengthening of public control over these assets was paramount. A full house consensus should be required if such an Act were to be passed. Regarding the climate change scenarios, government had caught up to this understanding and that it should have control over flora, even in private parks, in a bid to protect our biodiversity.

A Cape Nature representative said that stewardship was comprehensively covered by the Protected Areas Act, which referred to provincial nature reserves on private land. The Protected Areas Act allowed for very strict governance, which allowed the National Parks to conduct audits of these reserves once a year, but had to allow the owners to make a living. This was a country wide programme, ensuring that natural heritage on private land was being well governed.

Mr Zita reiterated that they had a responsibility to ensure that plants were not put to scientific use and that these forms of usage should be anticipated through legislation. Biodiversity was one of the few things Africa still had and that matter should be addressed even as far as Pan African legislation was concerned.

The meeting was adjourned.