National Environmental Management Amendment (NEMA) Laws Bill [B13-2012]: Public Hearings

Meeting report

National Environmental Management Amendment (NEMA) Laws Amendment Bill: Public Hearings
Centre for Environmental Rights (CER) submission
Ms Melissa Fourie, Director, Centre for Environmental Rights, said that this submission was supported by the Legal Resources Centre (LRC) but that the latter would also be making its own submission dealing with different issues. This joint submission was also supported by a number of other organisations.

The Centre for Environmental Rights (CER) was generally supportive of the NEMA Amendment Bill (the Bill) and was appreciative of consultations that the Department had held with the CER.

However, there were two issues of concern; namely the proposed new sections 24F and 24G, which dealt with emergencies. CER was concerned that these provisions might be open to abuse and would prefer to see an element of proportionality included, as well as provisions noting that people would not be able to claim protection if they had been responsible for creating the “emergency”, as well as increased penalties in line with other provisions.

CER had made a detailed submission on the proposed new section 24G, labelling it “a monster”. Whilst the Department of Environmental Affairs (DEA or the Department) had tried to sort out the issues, the CER still felt that in its present form it could become a tool for wrongdoers to buy their way out of criminal prosecution and to avoid the lengthy Environmental Impact Assessment (EIA) processes.

The Chairperson interjected at this point to say that whilst he understood the concerns of CER, this section could not simply be deleted. He questioned how CER felt that transgressions could be dealt with, other than through prosecution.

Ms Fourie said other options were available, and practices in other countries should be examined. She suggested that the DEA should issue directives on rehabilitation, although she conceded that there was difficulty around big developments. She said whatever tool was used needed to have a wide range of inbuilt discretion for the Department to decide on the appropriate remedy.

The Chairperson noted that maybe the solution would be to structure the remedies differently.

Ms Fourie answered that another possible option, although not ideal, was to go through the prosecution and verdict first, before allowing transgressors to re-apply.

The Chairperson said he would not think that it was preferable to wait on the prosecution, but he understood the position of the CER. He said a more structured approach was needed, but there was a need also to look at other responses. He asked what other mechanisms were in the Act, other than the issuing of directives or criminal prosecution that could be made part of the process.

Ms Fourie said that she could not, offhand, think of other options, apart from barring people from applying again for certain periods of time.

The Chairperson noted that this was a good suggestion.
 
Ms Fourie added that the CER had made more detailed submissions, some years ago, on alternatives to Section 24G, dealing with different levels of fault. The CER was, however, now calling for the complete overhaul of the provisions. The content of a Master’s thesis: A Critical Analysis of the Application of S24G Provisions of NEMA: The Gauteng Province Explained  affirmed the arguments of the CER around the abuse of Section 24G, and highlighted other important research.

CER was concerned about vested interests in the section, particularly related to the Department funding posts from the revenue accrued through the fines.

The Chairperson asked if CER had attempted to re-draft the Section and, if so, asked that it be provided to the Committee.

Ms Fourie responded that CER had not re-drafted the Section, only the different levels of fault.

Ms Fourie then turned to administrative penalties, saying that the CER felt that relying on criminal penalties alone was too difficult and was not enough of a disincentive. Good examples of administrative fines could be found in the Competition Act.

The Chairperson queried why the DEA had not opted for this.
 
Ms Fourie responded that DEA had not responded on that particular issue. However, it was possible that it was not unwilling to consider it, but that the institutional overhaul might be a possible reason.

She noted that the CER was busy compiling a document on integrated planning and how it would look.


The Chairperson noted the Committee supported integrated permitting.

Ms Fourie said, in conclusion, that whilst CER supported the Bill, it did not want the scope of Section 24G to be expanded, and suggested, instead, that this either be scrapped, or amended. CER also felt that meaningful administrative penalties should be introduced to improve compliance with environmental legislation, and that integrated permitting should be implemented to ensure streamlined permitting process for activities that impacted on the environment.

Discussion
The Chairperson wanted the CER to provide practical examples of what was happening under Section 24G.

Ms Fourie said many examples were seen in the mining sector, such as in Eastern Mpumalanga, where mines were opened and built without authorisation. Developers then sought permits after the damage to the environment had already been done, and some even used this as motivation for authorisation and permits. Other examples were seen of companies simply budgeting for fines. This was the result of lack of clarity or uniformity around the process for EIAs.

The Chairperson asked if there were regulations or provisions under Section 24G to tell different entities how to regulate this power.

Adv. Linda Garlipp, Chief Director, Legal Services, DEA, replied that there were not.

The Chairperson questioned whether part of the reason was the potential huge loss of revenue of mines opening without authorisation.

Adv. Garlipp said the current provisions had a number of quick fixes, but the DEA was debating Section 24G, and would propose further amendments, if necessary, during the next amendment Bill. At the moment, Section 24G was not applicable to mining, but rather to auxiliary activities.

The Chairperson questioned why the clause was not applicable to mining and the Minister of Minerals, and asked if this sector was specifically excluded.

Adv. Garlipp said it was applicable to mining, in terms of the 2008 Amendment Act, but this Act was not in force.

The Chairperson said if the Amendment Act was not promulgated, it was not legally binding, and therefore could not be used by the Department as part of its reasoning.

Ms Fourie said more examples related to mining activities were relevant to Section 24G, and the CER could provide these to the Committee.

The Chairperson said this would be useful. He said that it was possible to arrange for “stop-gap” measures until the amendments were passed.

Ms Fourie suggested that increasing penalties would be a good solution.

Ms Francis Craigie, Acting Chief Director: Enforcement, DEA, explained the process of fining under Section 24G. She said an application to the DEA was made for each unlawful activity, and the DEA would then make its requirements known, which could include assessments, studies and reports. Once that was completed, the DEA would assess the information and use a specific calculator to assess the level of environmental impact. An enforcement panel would sit, to recommend a fine, which would then be issued against the offender. The offender had the opportunity to appeal the fine to the Minister. After the appeal process was completed, the fine must be paid, if applicable. The DEA would then consider whether to grant authorisation for the activities.

The Chairperson wanted to know why the Department did not prosecute offenders.

Ms Craigie said there were instances where section 24G processes and prosecutions were carried on at the same time. She noted that a major challenge was that the National Prosecuting Authority (NPA), in some districts in particular, did not always agree to prosecute on Section 24G offences, especially when fines had already been issued.

The Chairperson asked if the passing of regulations by the national DEA, to bind people to the processes, would help in harmonising the situation across the country.

Ms Craigie responded that the issuing of directives and compliance notices by the national DEA was the first step.

The Chairperson asked the Department when it anticipated finalising the other processes.

Adv Garlipp replied that DEA intended to table a new Bill in Parliament by June 2013.

Legal Resources Centre (LRC) submission
Ms Angela Andrews, Attorney, Legal Resources Centre, gave a submission that focused on clause 38 of the Bill, which dealt with Section 85(5) of the Biodiversity Act. This covered benefit sharing and indigenous resources in areas with traditional leadership, and had significant consequences for these communities.

Ms Andrews providing context by explaining that the purpose of the NEMA Biodiversity Act was to protect indigenous resources and to support the fair and equitable share of benefits. It did this through regulation, and the setting up of a Bioprospecting Trust Fund paid out to the stakeholders. She said the new proposal stated the money should instead be placed with the traditional authorities. However, there was no further follow up on this, and that was of concern to the Legal Resources Centre (LRC).

The Chairperson interjected to ask for what purpose the money from the Fund was used.

Ms Andrews said that, currently, it was not clear where the money went. She added that there was also nothing under the Traditional Governance and Leadership Framework Act (TGLFA) that clarified this any further.  Regulatory controls could vary from province to province, depending on how the TGLFA was applied.

Ms Andrews also noted concerns of the LRC around the definitions under Section 85(5), particularly the term “stakeholder”.

Another concern was the geographical spatial arrangement in terms of the boundaries and legitimacy of traditional authorities. She said this left room for huge conflict. It also was in violation of Constitutional provisions and international agreements, and could be challenged on these grounds.

The Chairperson wanted to know if there was a definition for “indigenous community”.

Ms Andrews said that there was not. She said such issues discouraged development of or investment in indigenous resources, due to the lack of clarity and uncertainty around property rights.

The Chairperson questioned the reasons behind and examples used in the drafting of the Bill came from.

Mr Sibusiso Shabalala, Director: Law Reform, DEA, said the intention of the amendment in regard to the trust funds was to benefit indigenous communities directly. However, if there was uncertainty, the money would have to be channelled to the Director General of DEA first.

The Chairperson said this needed to be looked at further, as he did not think the Bill could presently be interpreted in that way. He also commented that there was a possibility that the Bill may now be procedurally incorrect. Any issue that concerned traditional leaders needed to be referred to the Council of Traditional Leaders for comment, before coming to Parliament. He asked that this procedure be checked.

Ms Andrews responded that this would also create an unequal regime, between those who were, and those who were not, under the control of traditional authorities, which amounted to an unfair legislative dispensation.

The Chairperson questioned the problematic definitions.

Mr J Kharika, Director: Resource Use, DEA, explained the workings of the Fund. In some cases the DEA was advised to create a suspense account, if there was uncertainty around the correct beneficiaries. He added that bona fide communities would be identified, so that money could be paid directly to these people.

The Chairperson asked where this duty was created.

Mr Kharika said it was in the regulations.

The Chairperson remarked that this was the least draining of all duties on the DEA, as the money was meant to simply go directly to a Fund, but the problem now came in setting up a different system for these communities. He was worried about the possibility for fraud that this presented, and asked to what extent there was certainty that the money was going to the correct bank accounts.

Mr Kharika said the possibility of direct payment from the Director General did not completely fall away.

Ms T Tshitwamulomoni, Biodiversity Office, DEA, clarified that the definition of “community” and “stakeholder” was drawn from NEMA.

The Chairperson said he understood that point, but wanted to know who determined what were “communities”.

Ms M Wenger (DA) said she was more confused than before because of the many parallel laws, amendments and exclusions in the legislation. She felt that if the amendments were to work properly, one set of regulations needed to apply equally to everyone.

Ms Andrews reiterated that one of the concerns of the LRC was the space for conflict that was created, since the amendments, as currently drafted, did not take into account all the complexities involved. She suggested that no changes were needed in respect of the Fund, and it should remain as it was before.

The Chairperson asked Adv Garlipp to draft a short memorandum setting out the DEA’s processes.

The Chairperson further requested that the State and Parliamentary Law Advisors give an opinion on the legality of the process followed, in relation to the referral to traditional leaders.

Business Unity South Africa (BUSA) submission
Dr Lorraine Lotter, Executive Director, Business Unity South Africa noted that BUSA’s main concerns related to the increased stringency without motivation, the additional EIA instruments that were now proposed, particularly given the fact that the 2009 amendments had not been implemented, and the fact that challenges faced by the regulated community had not been addressed.

Dr Lotter dealt with amendments to the umbrella NEMA. She suggested a minor amendment to the definition of “waste”.

In relation to section 24(2A)(a), BUSA suggested that a review of the provisions around the Minister was needed. BUSA questioned, in relation to section 24(2A)(b), what effects the new provisions would have on existing authorisations, and said that greater clarity on this was needed. Under this section, there should be provision for specific consultation with the affected landowners in the case of prohibitions and restrictions in specific geographic areas.
 
Turning to the amendments for section 24(10)(1)(a)(i), Dr Lotter acknowledged the norms and standards for listed activities set out by the Department in 2009, but said that the country had yet to see any proof of these norms and standards being implemented. BUSA wanted to know what provision the legislation made for non-listed activities, and how it would be controlled through the mandatory application of norms and standards. BUSA requested that the Committee should call for a progress report on the implementation of the current provisions, before proceeding with the amendments, and in particular should call for clarity on how non-listed activities were treated.

In relation to section 24C(5)(c), Dr Lotter stated that BUSA appreciated the introduction of provisions for applicants to apply to the Minister, when the MEC failed to take a decision within the timeframes, but wanted to know the exact timeframes for the Minister to respond in such circumstances, so that further delays were avoided.

In relation to Section 24F, BUSA was concerned with the failure to include the term “adopt”. She also said when “mandatory” was used in this Section, the circumstances termed as “mandatory” needed to be clarified.

Dr Lotter said it was often believed that all private entities were looking for a way to evade Section 24G, but this was not the case. She felt the section needed to be used to remedy failures on the part of the applicants or project developers. She felt it was necessary to prescribe time periods in which decisions were made, and applicants should not be prosecuted once their applications were in process.

The Chairperson interjected to note that BUSA would not find support on that point. He pointed out that an offence remained an offence, and those committing an offence should be charged. He thought it should be made obligatory that all transgressors of this section be prosecuted, to avoid companies thinking they would simply get a “slap on the wrist” with a fine.

Dr Lotter turned to section 24M and said BUSA felt there was always a case for exemptions to be justified and so felt the provisions for exemptions should be retained.

The Chairperson pointed out that exemptions allowed for entities not to deal with problems and processes of authorisation.

Dr Lotter then looked at Section 24O. She explained that BUSA felt it impossible to comply with instruments that were not clearly stated. She said such instruments needed to be gazetted for comment before implementation.

The Chairperson asked if the new clause did not make things easier, by saying instruments were now “adopted” instead of “developed”, which made the clause stronger.

Dr Lotter said she did not have the same understanding of “adopted” as the Chairperson did. She was concerned about the delay that the lack of clarity around such wording could create.

The Chairperson said the inclusion of the term “adopted” tightened up the legislation, making it clear where compliance was required.

Dr Lotter asked why, in relation to section 28, the provision for consultation was removed. BUSA felt that, at the least, consultation with the Director General and provincial Heads of Department was required.

The Chairperson said this was dealt with in the Promotion of Administrative Justice Act.

Dr Lotter continued, still on section 28, that BUSA was concerned that “reasonable measures” to address significant pollution were taken out. This presented a challenge to EMIs. She also questioned the rationale for “ceasing activities”, which BUSA felt should be used as a last resort.

The Chairperson said the Memorandum should not be considered, pointing out that this did not form part of the Bill, and was often drafted at the end of the process by junior clerks. The Bill seemed to make sense, apart from some minor technicalities around wording.

Dr Lotter said that companies would find it unreasonable to complete all the measures.

The Chairperson noted the importance of administrative law, saying that perhaps government should be taken on review for not complying with administrative justice, as a law, which was crucial to the process, was in place to ensure better governance. He urged Departments not to re-state administrative law provisions in other pieces of legislation, as problems could result from contradictory wording. This was particularly pertinent to the DEA. He urged Adv Garlipp to amend the loose wording.

Dr Lotter turned to the amendment of section 44, and said BUSA did not understand the motivation behind putting the power to make regulations in this provision.

The Chairperson said the Department had already been cautioned on this point, in relation to health issues, but noted that the issue should be flagged, as this was a substantive power to the Minister.

Dr Lotter concluded by saying BUSA recognised that the NEMA laws needed to be updated and improved. BUSA felt, however, that amendments should be well motivated, and not increase the regulatory burden unless this was balanced by improved outcomes.

The Chairperson said all the issues highlighted would be further considered. He asked the Department to present its challenges with EIAs.

Adv Garlipp said the DEA was in the process of preparing comprehensive responses to all comments. She also stated that, with regard to environmental instruments, norms and standards were being set for special geographic areas, like roads for 4x4 vehicles in sensitive areas, which were otherwise constricted by a limited list of activities.

The Chairperson commented that some useful issues had been raised. However, there were difficulties when the DEA was involved in a separate process of review of stop gap amendments.

The Chairperson noted that the Chamber of Mines had given notice that it did not intend to make its submission, and wondered if this had anything to do with the Lonmin tragedy. He asked BUSA to check on this point.

Dr Lotter said the Chamber of Mines had indicated that BUSA had covered most of its concerns and did not think it worthwhile to repeat the same submissions.

The meeting was adjourned.