National Environmental Management Amendment Laws Bill [B13-2012]: Departmental briefing

Water and Sanitation

14 August 2012
Chairperson: Mr J De Lange (ANC)
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Meeting Summary

The Department of Environmental Affairs briefed the Committee on the National Environmental Management Amendment Laws Bill (the Bill), outlining, in some detail, the proposals on the National Environmental Management Bill (NEMA), the National Environmental Management Biodiversity Bill (NEMBA) and the National Environmental Management Air Quality Act (NEMAQA). Many of the amendments were directed to definitions, but it was indicated that they were also intended to achieve better alignment across the range of environmental legislation, to close regulatory gaps identified in the various pieces of legislation, to enhance implementation and enforcement, to give the Minister of Water and Environmental Affairs (the Minister) more flexibility, particularly in making regulations in certain areas, and to clarify text that had been uncertain. The DEA had held various consultations and workshops around the drafts, and the Committee was holding public hearings on 21, 22 and 28 August. Despite the wide advertising and call for submissions, surprisingly few written submissions were received. Members noted that in previous meetings, various issues had been raised around rhino poaching, cementation products and waste that would also be relevant to the consideration of this Bill, and the Chairperson asked Members to refresh their memory on these issues.

The amendments to the NEMA included definition changes, lengthening of the time periods for environmental plans and reports, and the Minister’s powers to prohibit or restrict development in environmentally sensitive areas, widening the power to develop norms and standards for activities, sectors and geographic areas, and
environmental authorisation. In this Act and others, it was clarified that certain instances of non-compliance with laws and regulations could be regarded as a criminal offence. However, there were also important amendments relating to exceptions in which otherwise criminal conduct would not be criminalised, for reasons of emergency. Administrative fines were to be increased from R1 million to R5 million, and greater powers of seizure were to be given to environmental inspectors. The Minister would have the power to “control” products that could cause harm to the environment. Greater clarity was given on the provisions binding on the State, without exception, and on the issuing of directives. Members asked for more clarity on the directives, questioned the “control” by the Minister, particularly why issues of “human health” were mentioned, as this fell under the responsibility of the Department of Health, and asked for clarity on the role of the municipalities. The DEA was asked to provide case studies to illustrate its challenges, and to discuss the definitions of “state” and “organ of state” with the State Law Advisors. They asked what consequences other than criminal prosecution would apply, the reasons for changing the timeframes and the effectiveness of administrative fines.

Amendments were proposed to definitions in NEMBA, and the Chairperson thought the Long Title also needed to be clarified. The mandate on bio-prospecting was to be amended, and a separate Bio prospecting Fund would be created to benefit communities. The Minister’s power to regulate species would be extended, and greater clarity was provided on permits
and documentation that would protect the Department’s international agreements. More flexibility would apply to the system of registration for professional hunters, outfitters and trainers. Amendments were also effected for the South African National Biodiversity Institute (SANBI). The Minister was empowered to develop regulations on self-administration within the wildlife industry, control and eradication of invasive species, systems for the registration of institutions, ranching, nurseries, captive breeding operations and other facilities. New sections being introduced related to emergency interventions for control or eradication of alien species or listed invasive species, and the Minister’s power to grant amnesties from prosecution if this would facilitate compliance with the Act. Heavy penalties were to be provided against large national and multi-national industries found guilty of bio-prospecting-related offences. Members requested copies of the Minister’s recent speech on bio-prospecting, asked about the effect of the amendments on biodiversity and rhino poaching, the effectiveness of current penalties for rhino poaching and how the DEA intended to address the issue. Members also questioned the permit systems for hunters, noted the challenges posed by provinces issuing permits and the need for a standardised national system, and debated whether specialist environmental courts would be of benefit.  

The NEMAQA proposals related to amendments of penalties, and incorrect citations were corrected. Members raised no specific queries on these.

Meeting report

National Environmental Management Amendment Laws Bill
Chairperson’s opening remarks
The Chairperson noted that the Department of Environmental Affairs (DEA or the Department) would brief the Committee on the National Environmental Management Amendment Laws Bill (the Bill), and would address some issues raised already as concerns. He noted the apology of the Minister, who was overseas. He noted that public hearings would be held in the following week, but that only a few submissions had been received, despite the Committee sending invitations for submissions on two occasions and publishing a media statement. He summarised that submissions had been received from the Association of Cementers and Materials Producers, Centre for Environmental Rights, Legal Resources Centre, the Pulp and Paper Manufacturers Association of South Africa, Rand Water, Erasmus Environmental and Property Law Attorneys, Business Unity SA (BUSA), Afriforum, the Endangered Wildlife Trust and the Environmental and Planning Affairs Department of the provincial government of the Western Cape.

Department of Environmental Affairs Briefing
Mr Ishaam Abader, Deputy Director General: Legal, Authorisations and Enforcement, DEA, summarised the acronyms used in the presentation, and their full titles. By way of background, he said that the Bill aimed to close regulatory gaps in the various pieces of legislation that it sought to amend, address  cooperative governance issues, enhance implementation and enforcement of the legislation, provide the Minister of Water and Environmental Affairs (the Minister) with greater flexibility, and to clarify some text.

The process followed had included an initial draft, various consultations and presentations, Cabinet approval, and said that public hearings were followed by final drafting and certification.

He then summarised the key amendments to each of the environmental Acts, as outlined in the Bill.  

National Environmental Management Act (NEMA) proposals
Mr Abader noted the amendments to key definitions under this umbrella Act. These included changes to the definitions of  “Department”, “Director General”, Environmental Assessment Practitioner”, “Minister”, “Minister of Minerals and Energy” and “specific environmental management Act” (see attached presentation for full details).

The amendments in respect of  environmental plans and reports would lengthen the timeframes involved.

Amendments made in relation to environmental impact management related to the powers and mandate of the Minister, especially in regard to prohibiting or restricting certain developments in sensitive areas. Other amended mandates for the Minister related to the
legal power to develop norms or standards for activities, listed activities, sectors or geographical areas, and powers of environmental authorisation. These amendments were intended to simplify the process. In addition, they would make it clear that non-compliance with laws and standards would be regarded as an offence.

Other important amendments were the de-linking of criminal offence requirements, clarification of the role of the Department in emergency response situations and exceptions to these situations.

The Chairperson interjected to request an explanation for the de-linking of criminal offence requirements.

Mr Abader explained that de-linking of criminal offence requirements related to emergency situations in which exceptions were provided for conduct that might otherwise be regarded as criminal. These requirements were set out in the proposals for section 24F of the Act.

Mr Abader then noted that the proposals for section 24G included the increase of administrative fines from R1 million to R5 million, and clarification around the fine for a person acting under an emergency situation.

He highlighted that the amendments to the provisions on enforcement were effected because there was a need to create an offence for non-compliance, and to grant greater powers of seizure to environmental inspectors.

Mr Abader then listed more general amendments. These would give the Minister power to control products such as asbestos, that had a harmful effect on the environment, provided greater clarity on regulations, provided for other delivery mechanisms of documents and provided clarity on what provisions of the Act were binding on the State without exception.

The Chairperson asked other officials also to expand on other changes to sections of the NEMA.

Ms Frances Craigie, Acting Chief Director: Enforcement, DEA, clarified the issuing of directives and de-linking of the duty of care provision, under Section 28. The Department, in order to issue a directive, was generally required to show clearly the harm that was being caused. However, in practice, it had been found that there were difficulties in issuing some directives, but the DEA had nonetheless been issuing them to try to force those doing harm to take remedial action.

She highlighted the amendment to section 48, indicating what wording was to be removed, and said that there had been difficulty in prosecuting certain organs of state. However, there were still certain Constitutional provisions on which the DEA could rely for the necessary protection.

Ms Linda Garlipp, Chief Director: Law Reform and Appeals, DEA, also addressed the de-linking of the criminal offence requirements, and emphasised that exclusions were granted from criminal prosecution in instances where otherwise prohibited actions were necessary to protect human life, property or the environment, as explained under Section 24G. This also applied to waste management.

Mr P Mathebe (ANC) asked for clarity on the issuing of directives by the Minister.

Mr Abader explained that the proposed amendments would give the Minister the ability to control matters that were harmful and detrimental to the environment, such as plastic bags and asbestos, but that the Minister was still bound to consult on the issues.

The Chairperson wanted to know what exactly was meant by “control” and what specific powers were given to the Minister. 

Mr Abader pointed to Clause 15 amending section 24, and explained that the Minister could control sales, imports, exports, distribution and prohibition of products that may have a profound substantial detrimental effect on the environment or human health.

Mr Mathebe questioned what power the Minister had over production.

The Chairperson raised a question around the inclusion of “human health”, saying that this was surely the responsibility of the Department of Health. The Minister of Water and Environmental Affairs should not be making regulations that fell under the remit of another Department.

Mr Abader felt the context needed to be considered, as the section spoke to the effect of the environment on human health.

The Chairperson responded that in that case, the wording of the text needed to be reconsidered, to make it quite clear. He noted that this was still an early stage of the proceedings and therefore the Department could accept that there might be a need for better clarity on some matters.

Mr G Morgan (DA) requested the Department should present the Committee with case studies, covering a number of real life examples, to illustrate the challenges the Department had in practice. This would assist the Committee in coming to grips with the problems and better contextualising the amendments.  

The Chairperson agreed with that suggestion.

Mr J Skosana (ANC) questioned the role of other Departments, and also asked how it was intended to enforce this in the provinces.

The Chairperson said he would like to see a definition for “state” and “organ of state”. He also wanted to know why the amendments were stated as not including local government and municipalities.

Ms Craigie explained that the definition for “organ of state” and “state” were linked to the decision on a case that the Department had prosecuted in 1998. She noted that the definitions were a blanket term for entities, but excluded those not related to or owned by government.

Mr Abader added that the Bill’s definition for “organ of state” matched the definition in the Constitution.

The Chairperson said the Department needed to be clear in its definitions, and recommended that the DEA’s legal drafters should discuss the matter with the Office of the Chief State Law Advisor (OCSLA), particularly in regard to any sections dealing with prosecution, criminality and administration.

Mr Abader added that the legislation in fact applied to all spheres of government, including municipalities, and the Bill provided that those municipalities who failed to comply could be prosecuted.

Ms M Wenger (DA) questioned whether a municipality, company or individual would be charged in cases of contravening the legislation in areas of development when the municipality had granted approval.

Ms Craigie said a company, and not a municipality, would be prosecuted, even if the municipality had  permitted the development.

Mr Sibusiso Shabalala, Director: Law Reform, DEA, expanded on the amendments to the environmental plans, distinguishing between Schedule One and Schedule Two details, and why municipalities were not listed in that section.

The Chairperson asked what was the policy behind excluding the municipalities.

Mr Abader suggested that DEA should provide the Committee with a full response on this issue at another meeting.

Mr Mathebe questioned the appeal process, and the reason for amending it.

Ms Garlipp explained that appeals were dealt with only by officials to whom that authority had been delegated. The Minister did not deal with the appeals processes, but rather with a review process.

The Chairperson questioned what consequences, apart from criminal prosecution, would attach to a failure to comply with laws and regulations.

Ms Craigie said there were other enforcement mechanisms in the Act, such as the issuing of non-compliance notices, or directives to stop harmful practices, to clean up or to retract products. The fact that non-compliance with laws and standards was now being specifically named as an offence meant that there was now a further option to prosecute, and this was outlined in the revised Section 31L.

Mr S Huang (ANC) questioned why the timeframes for the preparation of environmental implementation plans and environmental management plans were changed from four to five years.

Mr Shabalala said the intention behind the changing of the timeframes was to allow more forward planning and to ensure that reports could be prepared and considered before plans were changed.    

Mr Huang asked how effective the administrative fines were.

Ms Craigie pointed out that it was felt that the administrative fines were not effective as a deterrent against contravention of the law in some cases, but this differed from organisation to organisation. Certainly they were not effective in the case of repeat offenders. However, the DEA was considering increasing the maximum fine and criminal prosecution precisely so that they would provide a greater deterrent.

The Chairperson again recommended the DEA meet with the State Law Advisors to discuss the definition of organ of state in order to clarify specific clauses. He also reminded the officials about the suggestions raised by Mr Morgan and asked that they note issues raised by other Members.

National Environmental Management Biodiversity Act (NEMBA) proposals
The Chairperson pointed out that the wording of the long title of the Bill needed to be clarified.

Mr Abader outlined the proposed amendments to the definitions of “bio-prospecting”, “commercialisation”, “commercial exploitation”, “derivative” and “genetic resource” (see attached presentation).

He added that amendments would be made in respect of the DEA’s mandate on regulations for bio-prospecting. Funding gained from bio-prospecting would now be placed in a separate Bio-prospecting Fund, to benefit communities and enhance socio-economic development.

There were also amendments in relation to the provisions on species. These included
giving a mandate to the Minister to regulate species that were not of high conservation value, in order to ensure that they would be sustainably used in the ecosystem, as well as to provide clarity on permits and documentation that would protect the Department’s international agreements. The Minister would also be empowered to deny permits to certain people based on specific conditions. The Minister would be given a more flexible legal mandate in respect of the system of registration for professional hunters, outfitters and trainers.

Amendments were to be made to the legal mandate of the scientific authorities who assisted the Department in its scientific work.

The Chairperson questioned whether representatives from the South African National Biodiversity Institute (SANBI) should not be present, to explain its role and facilitation of its work.

Ms Carroll, Director: Regulations and Marketing Services for the Department, said SANBI’s role was to provide scientific and administrative support for the scientific activities of the Department, but there was also a specific committee of SANBI that advised the Minister on certain issues. The proposed amendments would further clarify the legal mandate behind this scientific assistance.

Mr Abader said that this was addressed clearly in section 60.

Mr Abader then explained the amendments to permits and issuing authorities, and said that they would grant greater flexibility to the decision-making process.

Further amendments in respect of the Minister’s mandate included the ability to develop
regulations on self-administration within the wildlife industry, on control and eradication of invasive species, on the control of the system for the registration of institutions. Other aspects included ranching operations, nurseries, captive breeding operations and other facilities. The Minister would also be given the legal mandate to differentiate between the penalties for any contravention of the regulations.

Mr Abader outlined the new sections that were being introduced by this Bill. The Minister would be given a legal mandate to declare an emergency intervention for the control or eradication of alien species or listed invasive species, if the Minister was satisfied that such species constituted a significant threat to the environment. Another new section would provide the Minister with the power to declare amnesty from prosecution for the purposes of facilitating compliance with the provisions of NEMBA. Amendments would also be made to the offences sections, to ensure that heavy penalties were imposed against large national and multi-national industries found guilty of bio-prospecting-related offences.

The Chairperson asked if the Minister had recently made a speech on bio-prospecting.

Mr Maleso Kharika, Director: Resource Use for the Department, confirmed this, saying the speech had been made when permits were handed over and issued at a recent special public event.

The Chairperson requested that the Committee be provided with a copy of this speech, so that Members could consider the points raised in conjunction with the Bill.

Mr Morgan asked what effect this “suite” of interventions would have on biodiversity and on rhino poaching. He also wanted the Department’s opinion on whether the penalties for wildlife poachers were adequate.

Ms Carroll replied that there were a number of interventions aimed at rhino poaching, particularly as related to section 9 of the Biodiversity Act, and this had resulted in a significant decline in poaching. The amendments now proposed that would directly address poaching included transitional provisions, but she admitted that there was still a challenge in this area. Deferring of decisions related to permits was another intervention that was addressed at addressing the poaching syndicates, and amendments to the penalties were also proposed. However, she conceded that in most cases, fines were not an effective deterrent in most cases, and imprisonment was the better option.

Mr Morgan followed up by asking if a person convicted of killing two rhino could be given an extended sentence. He felt that a separate presentation on penalties for wildlife crime was warranted, given the responsibilities of this Committee.

The Chairperson agreed. Each case would also depend on how the prosecutor decided to prosecute, and these matters should be highlighted during the training of prosecutors.

Mr Mathebe questioned the amendment related to the Minister’s mandate over the registration of permits for professional hunters. He noted that, in his province, a large number of people were hunting without being accompanied by rangers. He asked if the issuance of hunting permits could be delegated to park managers.

Ms Carroll responded that provincial legislation allowed certain people to register to be professional hunters. They would have to undergo training, through accredited schools, and had to assist clients on a certain number of hunting trips in order to then be accredited as a hunting outfitter who could market overseas hunts. She noted that the challenge lay in the fact that provincial legislation governed this issue and there was currently nothing to prevent a person who had contravened legislation in one province from being prohibited from applying for permits or registration from another province. Uniform legislation was needed across the provinces for a national system of registration for hunters. She also noted that people were, at times, allowed to hunt without permits in privately owned property, but no hunting was allowed in nationally protected areas.

Mr Huang asked for more detail about the environmental courts that were in operation in other countries.

The Chairperson noted this fell under the remit of the Department of Justice and Constitutional Development. Personally, he was opposed to creating specialist courts for one department, as they may then be demanded in another and this resulted in “cherry-picking”. He felt that it would be far more effective to have specialist prosecutors, as they, rather than the court itself, were the key deciding factors in such cases.

Mr Abader added that the option to establish environmental courts had been investigated, but was found not to be feasible.

Ms Craigie added that the National Prosecuting Authority (NPA) had appointed specific advocates and prosecutors for environmental cases, and that had had a significant positive impact over the last year.

National Environmental Management: Air Quality Act (NEMAQA) proposals
Mr Abader tabled the amendments to penalties for contravening regulations. He said that these amendments were aimed at aligning the penalties with other pieces of environmental legislation.

The general amendments were mainly concerned with rectifying incorrect citations. 

Chairperson’s closing remarks
The Chairperson called on Members to raise any issues from previous meetings that would be relevant to deliberations on the Bill. He noted suggestions on waste, cement issues and rhino poaching.

He noted that the Minister would be appearing before the Committee on another date.

The Chairperson finally noted that the public hearings would commence on Tuesday 21 August, with the Centre for Environmental Rights, BUSA and the Chamber of Mines making submissions. They would be given more time for their submissions than previously, because of the number of legislative amendments. Those making submissions on the following day would be Legal Resources Centre, Rand Water and Afriforum, with other submissions scheduled for the following Tuesday, 28 August.

Finally, the Chairperson noted that there had been some problems with the plans for the trip to China, particularly with the Embassy.

The meeting was adjourned.


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