National Environmental Management: Waste Bill & Integrated Coastal Management Bill: Negotiating Mandates
NCOP Land Reform, Environment, Mineral Resources and Energy
09 June 2008
Chairperson: Rev P Moatshe (ANC; Mpumalanga)
Meeting Summary
The provinces presented their negotiating mandates on the National Environmental Management: Waste Bill and the National Environmental Management: Integrated Coastal Management Bill. The Department of Environmental Affairs and Tourism provided responses to the proposals of the provinces. Committee Members were concerned about the late arrival of the mandates from the provinces. On the powers of the NCOP with regards to Section 76 Bills (provincial competence matters), they felt that the NCOP was not given the recognition it deserved by allocating sufficient time for proper consideration of the Bills by the provinces.Meeting report
Negotiating Mandates on the National Environmental Management: Waste Bill
The following Provinces supported the Bill without amendments:
The Northern Cape supported the Bill with some proposed amendments:
Chapter 5 Licensing Waste Management Sites
This Chapter was in need of a clause that stated at the onset of the Chapter what and who needed to be licensed. A clear reference should thus be drawn to Schedule 1 of the Bill, and not only the definition of “waste management activity” should direct the reader to the said schedule.
Thus their proposed amendment was:
Licensing requirement-
All waste management activities as indicated in Schedule 1 of the Bill, needs to be licensed in accordance with this with this Chapter”.
Other provincial delegates did not agree with the amendment.
Definition of Waste
The definition of waste was not broad enough to cover all aspects of waste, whether in the mining, medical or any other sector. Waste should be broad enough to include those.
Delegates agreed to the proposal.
Ms Cobbinah said that the Department did not get Mpumalanga Mandate.
Ms Dlulane felt that delegates should speak to their provinces and tell them to forward the Mandates on time.
KwaZulu-Natal
KZN supported the Bill with proposed amendments:
Ms Oliphant (ANC Kwazulu-Natal) said that while her province supported the introduction of the Bill, KwaZulu-Natal wanted the definition of waste to be expanded to include mining waste, health care waste, waste from ships and so-called white waste or electronic waste.
All provinces agreed and the Chairperson moved for this.
The Chairperson asked provinces not to make general statements but rather suggest specific amendments.
Ms L Garlipp Acting Chief Director: Legal Section DEAT, responded to the KZN negotiating mandate and said that the Department agreed to the 1st proposed amendment there be the substitution of “Financial and Fiscal Commission Act 1997 (Act No. 97 of 1997) with” Intergovernmental Fiscal Relations Act, 1997 (Act No.971997).
The Chairperson moved for the amendment. All the provinces agreed with the amendment.
On the 2nd proposed amendment Ms Cobbinah said that the Constitution does not allow the MECs to set tariffs, the municipalities had the powers to set norms and standards.
Mr Adams (ANC,
The KZN delegate [On Page 11 line 35 to delete line 35,36 and 37 entirely] was read out but any decision was pending further advice from the state law adviser.
Mr Oliphant KZN delegate amendment 3 said that [On Page 12, after line 7, the insertion of:
“(3)The MEC with the concurrence of the MEC for Finance may, by notice in the Government Gazette , set provincial standards in respect tariffs for waste services provided by municipalities.”
On Page 12 line 8, the renumbering of the subsequent subsection.”
Ms Cobbinah said that they disagreed with the proposed amendment. She added that each municipality was going to perform its executive duties including waste collection, waste disposal services at an affordable price as stipulated in the Municipal Act Chapter 8. There was nothing in the Constitution that made provision for MEC to set norms and standards at local government level.
Ms Garlipp said that on the proposed amendment No 2 the Minister must not be allowed to set norms and standards for tariffs, in terms of Section 44 Subsection 2 of the Constitution the National Minister has the mandate to set norms and standards for tariffs.
The provinces agreed, but the State Law Adviser would have to look at the amendment
On the proposed amendment the No 3 the provinces agreed to shelve it for further consultation with the State Law adviser.
The KZN amendment 4, [On page 13, line 20, the substitution of the words, “another official” for “other officials].
The delegates did not agree to the amendment.
All Provinces agreed to the amendment pending further advice from the State Law Advisor.
The Chairperson raised his concern about the absence of the State Law Advisor at the meeting.
Ms Dlulane said that the meeting could not finalise the Bill without the help from the State Law Advisor and emphasised the importance of the State Law Advisor.
Mr O Baloyi, Deputy Director: Waste Information Systems explained that it was not the role of the Department to invite the State Law Advisor to such sessions. His Department had brought their Head of Legal Services.
KZN amendment 5 [On Page 21 line 28 the insertion of the words “within a stipulated timeframe” after the word “municipality”.
Ms Cobbinah said the Department accepted the proposed amendment.
All Provinces agreed.
- KZN amendment 6 [On Page 21 Line 30 the insertion of the words “within a stipulated timeframe” after the words “affairs”].
Ms Cobbinah said the Department agreed with the proposed amendment No 4.
All the Provinces agreed to the amendment.
- KZN amendment 7 [On Page 24, line10, the insertion of the word “and MEC “after “Minister.”]
All Provinces agreed to the amendment.
- KZN amendment 8 [On Page 25, line 35, insertion of the words “or the MEC, as the case may be,” after the word Minister.”]
All the provinces agreed to the amendment.
- KZN amendment 9 [On Page 28, line 12 substitution of the word “may” for the word “must”]
All provinces agreed to the amendment.
On page 35, after line 37, the insertion,”(7) A waste management officer must stipulate the Documentation and information that should be included in the reported.”
All Provinces agreed to the amendment.
On Page 43, line 7, the insertion of a suitable time period after the word “waste.” It is submitted that this should over what time period the 25 tonnes of inert waste is measured.
Provinces did not agree to the amendment.
Where it appears in the Bill the Substitution of the word “effluent” for the words ”water containing waste in order to be consistent with the National Water Act.
All Provinces agreed to the amendment.
The
Clause 29 on page 21, in line 27, after “Minister“ insert “and the MEC.
All Provinces agreed to the proposed amendment.
On clause 35, in line 43, to omit paragraph 2.
All Provinces agreed to the proposed amendment.
Ms L Garlipp said that the Department agreed with the proposed amendments on page 4 and 5, and all provinces agreed.
The Department of Environment and Tourism felt that the Minister had the powers to set norms and standards. The provincial delegates agreed with 3 on Institutional and Planning Matters. On Chapter 4 did not agree provinces agreed, on 5 and 6 of the Bill the Department said that they accepted the insertion of the word “or environment.
The Committee together with the Department then agreed with the amendments on line 32 to include “which process involved”. On 7 the Department felt that it was a duplication of wording and the provinces agreed.
On 8 the Committee agreed with the amendments as amended by the Portfolio Committee Environmental Affairs and Tourism.
Ms Cobbinah Acting DDG said that the department asked for the substitution of the word “may” with “must”,
On proposed
amendment 10 the Department agreed with the Provinces but they said that they wanted to change the words “waste management officers” to “environmental management inspectors”. She added that the title of EMI had already been mentioned in subsequent subsections.
The
The Acting DDG Ms N Cobbinah said that the word ‘effluent’ could mean many things but, “water containing waste” was much more simpler.
Mr A Watson felt that liaison officers were not doing their jobs effectively because they had not been forwarding the mandates on time. He mentioned that he only had only got the mandates that morning.
Ms Dlulane supported these sentiments and said she suspected that the problem lay with the provinces.
Mr Bhengu said that Bills would sometimes sit with the National Assembly for months on end. The process with Section 76 Bills should start with the National Council of Provinces.
Mr Adams felt that Ministers should introduce Bills as early as possible.
The Chairperson said that he agreed with the sentiments of the Members, but the Committee should be dealing with the matters at hand.
There were no proposed amendments from the
Mr
Mr C Van Rooyen Free State agreed with the
Ms Garllip said that Department felt that Section 28(1) explained the powers of the Minister. Section 29 gave government departments powers to prepare plans on behalf of the polluting sectors.
Ms Garlipp explained that Section 29(1) dealt with national powers and 29(2) with provincial powers. Amendments should be on Section 29(2) not Section 29(1).
Mr Watson felt that Section 29(2) was a duplication.
Ms Dlulane suggested that the Committee should accept what the Department suggested but the State Law Adviser would scrutinise the proposal later on. She asked the Committee Clerk if he had invited a State Law Adviser to the meeting.
The Chairperson could not understand why there was no apology from the State Law Adviser regarding his absence.
On his arrival the State Law Adviser apologised, stating that he was not aware that the meeting started at 8am. He said that he did not have sight of the documents beforehand.
The Department suggested that Clause 29(2) be removed and 29(1) be amended.
The State Law Adviser said that the two sections should remain as they were.
The Chairperson (
Mr Watson enquired about Clause 35 (2) which exempted the banks. He said that banks would be enjoying certain advantages that other sectors did not enjoy. Mr Van Rooyen (Mr Van Rooyen) agreed.
Mr Adams (WC) suggested the omission of 35(2).
Ms Garlipp replied that the clause was hotly debated in the National Assembly. The Department initially had the feeling that banks should not be indulged.
Ms Cobbinah added that banks owned land that they had no control over it when it was polluted. The international experience showed that banks were excluded
Mr Van Rooyen (FS) objected to the Department’s viewpoint. He suggested that the exemption might make mining companies and agriculture go to the Constitutional court and cite the exclusion of banks.
Mr Bhengu special delegate (KZN) said that the NCOP was not there to rubber stamp decisions taken by the National Assembly Committee. The NCOP was carrying the mandate of the provinces. The Chairperson said that he sympathised with the Members’ sentiments, however, due to time constraints, delegates should deal with the issue at hand.
The delegates agreed with the amendment of Clause 35 (2).
For Clause 69 (line 46) Mr Adams (W C) proposed that illegal waste disposal sites which existed when the Act came into being, had to be transferred from the national Department to Provincial Departments and for the funding of that process.
Ms Garlipp said that the provinces would have the powers, and Ms Cobbinah agreed.
Ms Dlulane (EC) said that the State Law Adviser had to be given a chance to go through the clause.
Mr Watson (
The Committee agreed to the
Ms Dlulane (EC) said she was waiting for the correct version of the mandate but supported the Bill in principle.
These provinces said that they would bring their mandates later but they supported the Bill in principle.
Mr Adams (WC) asked for a chance to take back the proposals to provinces. The Chairperson pointed out that provinces tended to submit their very proposals late.
[Missing information about the missing mandates from other provinces]
National Environmental Management: Integrated
Adv Razak, Director: Legal Affairs said that Section 14 (5) did protect individuals who had property affected by the high water mark as determined by nature ie climatic conditions, not by man. If the high water mark moved over a period of 3 years then the boundary would be automatically be moved accordingly. The natural processes would determine those boundaries.
Dr N Malan, Deputy Director: Coastal Integration, DEAT, explained that as the high water mark shifted towards the sea. The individual property owner would be getting more land. When it shifted towards the land, property owners would be losing some of their land. The Bill and the Seashore Act said that if there was uncertainty on the boundary, then a straight line would replace the original boundary that had been affected by the high water mark. The effects of the high water mark would be stipulated in the Title Deed.
On 32(2)(b) the Department and Provincial Delegates agreed on the amendment that 32 (1).(b) should be 32(2)(b).
All Provinces agreed to the amendment.
KZN
Proposed amendment No 1On page 10, the definition of “effluent” should be amended at line 25 to include before the word ”any”, the words “any storm water into which the sewerage has been discharged”.
Dr Malan said that he disagreed with changing the definition of ‘effluent’ and the Department wanted the wording to be retained without amendment.
The delegates agreed with the Department not to change the wording.
Proposed amendment 2, Adv Razak said that on page 15, line 19, the insertion of the words: “Except as provided for in sections 65 and 66” before the words “ coastal public property”.
Delegates agreed did not to the insertion to the amendment.
Proposed amendment No 3, Dr Malan said that the Department felt that they wanted the retention of the word “may” rather than use ‘must’.
Provinces agreed to the proposed amendment.
Proposed amendment No:4 On page 16, line 44, the substitution of the words “the owner or occupier” with the words” no person…”
Delegates agreed.
Proposed amendment No: 5, On page 16, line 51 the deletion of the words “except as provided for in this Act” the Department asked for it to be shelved for later deliberations. Dr Malan said that the wording should remain as is.
The delegates agree to the Amendment.
Proposed amendment No 6 and 7 Chief Director: Adv Razak said that the Department wanted the wording of “erf” to be changed to “land unit”,
The Provincial delegates agreed with the proposed amendments.
Proposed amendment No: 8 On page 19, after line 24, the insertion of: “any” should be removed and the words “within” the coastal protection zone’ after “land”.
Delegates did not agree to the amendment, but it was rectified by department, as page 19 should be page 17.
Proposed amendment No:9 on page 19, line 26,the insertion ”provide the for the rehabilitation or mitigating purposes”. Dr Malan suggested that the amendment should be 23 (3) (e).
The delegates did not agree to the amendment.
Proposed amendment No 10, Dr Malan said that on page 20, line 24 the word “may” should not be changed to ‘must’.
Mr Oliphant (KZN) agreed with the Department.
All provinces agreed with the amendment.
The
The Chairperson urged Members to move forward due to the heavy workload and very little time.
Proposed amendment No:10 and 11, on page 20, line 34, the substitution of the word “may” with the word “must”
Dr Malan said there was no need to change the “may” to “must”
Delegates did not agree to the amendment and they supported the Departmental suggestion.
On page the 23 line 32, the substitution of the word “may” with the word “must”.
The delegates agreed not to change the wording.
Proposed amendment No 12, change the word “may” to “must”
The Provinces agreed with the amendment.
Proposed amendment No:13 on page, 23 line 15, substitution of the word “person” with “body”.
The delegates agreed to the amendment.
Proposed amendment No:14 The Department objected to the proposal on Clause 17 because they felt that it was a critical part of the Bill.
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The provinces agreed with the Department.
On proposed amendment No17, Dr Malan said that there was no need to change the word “may” to “must”.
The provinces agreed to change the wording.
On proposed amendment No 18 Adv Razak felt that it was not necessary to put it into legislation, the provinces agreed with the proposal of the Department
On proposed amendment no 19 the Department and provinces agreed to keep the original wording of the Bill.
On proposed amendment No 20 to 24 Adv Razak felt that the clauses talked to the same issue the Department preferred to keep the clause as it was.
The provinces agreed.
Ms Jenny Hall, Department consultant and environmental lawyer, felt that proposed amendment No 25 to 27 referred to fines and Members agreed. She said that the issue dealt with fines that needed to be reviewed annually.
On Clause 28 the Delegates agreed with the proposed Amendment
These provinces had no specific proposals but they supported the Bill.
Western Cape
Mr Adams said that the Western
The Delegates agreed with the amendments from the western Cape
Department proposed amendments to Bill [B40-2007]
Ms Razak asked the Chairperson to give the Department a chance to present their proposed amendments. She said that the department had proposed four improvements.
The Chairperson replied that it depended on the Members to accept them.
1Adv Razak said that the first one was on Clause 27 the definition of “government purposes”. The definition was that the exercise of functions by an organ of state that were in the national interest of national security, but does not include donation, leases of more than 20 years or alienation by that organ of state.
She said that said that public entities like Transnet had argued vehemently for the use of the definition. The Department wanted the definition to exclude donation, leases for more than 20 years that would ensure there that, would not be reclamation of land that would later be sold to private developers. The Department wanted accountability even when land was used for government purposes. She felt that ports could be expanded in a illegal manner.
2 The next one was Clause 9 where the Department proposed the deletion of ‘Minister of Agriculture and’.
The delegates agreed to the proposal.
3 The third proposal was Clause 26 to change ‘MEC’ to ‘Minister’. She emphasised that the change was a cross reference to Clause 23. The purpose was not to take away powers from the MEC.
The Delegates agreed to the amendment.
4 The last one was Clause 95 where she said the words ‘land or premises that forms part of’ were restrictive. The Department proposed that the words be changed to ‘coastal property’.
The delegates agreed.
Mr Bhengu said that as provincial delegates they were only there to submit mandates from their respective provinces. He had problems with agreeing to the proposals from the Department.
The Chairperson replied that delegates would still have to take the proposed amendments to the provinces for consideration for the final mandates.
Mr Watson agreed with the Chairperson saying that the respective Provinces could reject or accept the proposals.
Mr T Hurcules, Advisor to the Minister, proposed that the appropriate place for the Department’s proposed definition of “government purposes” would be for Clause 27 only and not the rest of the Bill.
Mr Watson objected saying that all definitions belonged at the front of the Bill with all the other definitions.
Mr Hurcules said that the definition was only applicable to Clause 27.
Ms Razak said that the Department did not feel very strongly about the issue because it was only drafting style.
Provinces agreed that the definition be inserted into the relevant section.
Members raised their concerns regarding the late arrival of the mandates from the provinces. They said the Committee section put them at a disadvantage position.
The Committee Clerk replied that the Mandates arrived late in bits and pieces.
The Chairperson said that he understood the problem, but the Committee had very little time to deal with mandates.
Mr Bhengu said that Section 76 of the Constitution states that the NCOP had more powers when dealing with certain Bills.
Mr Tau (ANC) disagreed saying that it depended on the Minister to recognise the NCOP, he said as long as Ministers did not appreciate the role of the NCOP, then nothing would change.
After the Committee adopted the minutes of 20 May 2008, the meeting was adjourned.
Audio
Documents
- Mpumalanga Negotiating Mandates: NEM: Waste Bill
- North West, Western Cape Negotiating Mandates: NEM: Waste Bill
- Kwazulu-Natal, Limpopo, Northern Cape Negotiating Mandates: NEM: Waste Bill
- Eastern Cape, Free State, Gauteng Negotiating Mandates: NEM: Waste Bill
- Eastern Cape Negotiating Mandates: NEM- Integrated Coastal Management
- Mpumalanga,Kwazulu-Natal Negotiating Mandates: NEM- Integrated Coastal Management
- Kwazulu-Natal,Gauteng Negotiating Mandates: NEM- Integrated Coastal Management
- Western Cape, Northern Cape,Limpopo Negotiating Mandates: NEM- Integrated Coastal Management
Bills
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