National Environmental Management Amendment (NEMA) Laws Bill [B13-2012]: Public hearings day 3

Water and Sanitation

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

In the third day of the public hearings on the National Environmental Management Acts Amendment Bill, the Committee heard two detailed submissions. Erasmus Environmental, Development and Property Law Attorneys were primarily concerned with the power of the Minister to take over, when the MEC failed to deal with matters timeously. This amendment was intended to deal with dysfunctionality in provinces, but it was submitted that it was unconstitutional, unworkable and ran counter to the principles in the Promotion of Administrative Justice Act. It could also be abused by developers. All the relevant information for authorisations was held by the provincial, not national body, and it raised difficulties with the question of appeals. The Western Cape Provincial Government also raised the potential problems that this would create in regard to appeals. Erasmus Attorneys were opposed to removing the word “property” from sections 24F and G, and felt that there was not sufficient link between the emergency and the response. The amendments to section 24G were heavily criticised as not taking account of the realities, and it was suggested that a greater distinction had to be made between administrative procedures and administrative fines. The submission questioned why registers of NEMA applications did not lie open for inspection, and that a person wanting to see the applications had to make application under the Promotion of Access to Information Act. Members asked for examples of the practical problems that were foreseen, and why it was suggested that the fact that the Minister could take a decision highlighted dysfunctionality of provinces, and it was clarified that Erasmus Attorneys believed that action had to be taken, but this was not the correct framework.

The Western Cape Provincial Government Department of Environmental Affairs and Developmental Planning said that some further definitions were needed, and raised the question of the environmental authorisations for non-mining specific activities, given that the NEMA was not applicable to the Minister of Mineral Resources. New wording was suggested for definitions of “listed activities”, “specific Environmental management act” and “competent authority”. The submission questioned why municipalities were excluded from the preparation of environmental implementation plans (EIPs). Concerns were raised on amendments to section 24A and 24C. There was uncertainty, and new wording was suggested for section 24F, and 24G, and it was stressed that a definition was needed for “emergency response situation”. The administrative fine should not be payable when someone was directed to undertake a listed activity. Criminal liability should not attach, under the amended section 28, if a person was directed to commence a listed activity, and the ambiguity around “emergency incident” also had to be corrected in the revised section 30.

The Committee indicated that it would now commence deliberations on the submissions from 4 September. The Committee programme for the remainder of the term, and the start of October, was outlined.

Meeting report

National Environmental Management Amendment Laws Bill: Public hearings day 3
The Chairperson noted an apology from the Afriforum representative, who was unable to attend after being involved in a car accident, and conveyed his regret and best wishes to this person.

Erasmus Environmental, Development and Property Law Attorneys submission
Mr Gideon (Kallie) Erasmus, Attorney, Erasmus Environmental, Development and Property Law Attorneys, noted that the South African framework for environmental governance was not working well in favour of three key groups of stakeholders - namely, those affected by environments harmful to their health or well-being and environmental decisions, developers and investors, and government. He expressed his concern about the fundamental shift and the fact that people were seeking to “bubble-wrap” the environment. He urged that there was a need to find a balance between conservation and development.

Mr Erasmus turned to the proposal in the Bill that the Minister could be empowered to take a decision where an MEC failed to do so. He felt this was an acknowledgment of dysfunctionality in provinces, but said that it ran the danger of being unconstitutional and therefore unlawful, as well as unworkable and contrary to the principles of the Promotion of Administrative Justice Act (PAJA). He said it would create problems since all the relevant information for authorisations was held exclusively by a province. It also created lack of clarity around the system of appeals, because the wording did not clarify whether an MEC who failed to take a decision would still have the ability to make decisions on appeals, and the effect of this on the relevant interested parties.

The Chairperson interjected to ask what alternative Mr Erasmus proposed. He noted that the Constitution, in Section 125, made provision for the situation that executive power could be taken away from a province, except where the Constitution or an Act of Parliament prescribed otherwise. He felt that the wording of the amendment fell squarely within this section.

Mr Erasmus noted this comment. He then turned to the amendments proposed for sections 24F(3) and 24G(4) and noted that he was strongly opposed to removing the word “property” from the emergency situations clause. He felt this was anti-development, cruel and environmentally unsound. He said people were attached to tangible things and not just to the environment broadly. He added that there was no link between the scope and nature of the response, and the scope and nature of the emergency, and this was a dangerous precedent.

Mr Erasmus highlighted the amendments proposed to section 24G, and said he was “gobsmacked” that the amendment seemed to imagine that people would not unlawfully commence with prohibited activities, and that it was quite irresponsible to fail to have a process in place to rectify such a situation.

The Chairperson suggested that the bigger problem was that there were eleven institutions applying the rules, and no uniform legislation to guide them.

Mr Erasmus said there was no prohibition against prosecuting someone who had applied for rectification in terms of Section 24G. He also submitted that the distinction between administrative procedures and administrative fines must be made more clear.

Mr Erasmus then turned to the proposals for section 43(7) of NEMA, and was surprised to see this provision. He expressed the view that this provision “sterilised” the most fundamental check and balance against flawed decision-making. This had severe legal ramifications, and said that in cases where appeals were successful, nobody would be held to account. He said it was inconceivable that decisions could be overturned on appeal, even in cases where the damage to the environment had already been done.

The Chairperson said this provision was not being amended.

Mr Erasmus questioned why the registries of NEMA applications were kept confidential, and why a person wanting access to them would have to make application under the Promotion of Access to Information Act (PAIA). He said it made no sense that those registers were not made readily available for inspection by the public, and that the process under PAIA would have to be followed. He suggested that Regulation 11 needed to be amended or that the authorities should be told to make the registers available.

The Chairperson asked what Mr Erasmus felt was wrong with this procedure.

Mr Erasmus started to set out an example to illustrate his point.

The Chairperson asked him to forward an example to the Committee, saying that this perceived difficulty could be considered separately from the current process.

Mr G Morgan (DA) asked what Erasmus Attorneys’ practical experiences had been of the kinds of problems in having applications turned around, and in getting decisions from competent authorities. He asked why the provinces were experiencing so many problems, in order to substantiate his submission.

Mr Erasmus said the Department of Environmental Affairs (DEA) received some “shockingly poor” submissions, and was trying essentially to fix processes that were already broken. The DEA was far too reluctant to hold environmental assessment practitioners and applicants responsible in cases where their submissions were non-compliant, and this led to the problem that managers were not doing their jobs properly, which in turn compounded the problems of high staff turnover rates and incomplete submissions. He accepted that perhaps he may have over-exaggerated the situation by making reference to “dysfunction” in the provinces, but he had wanted to stress that he saw this amendment as far too draconian.

Mr J Skosana (ANC) wanted Mr Erasmus to elaborate on his submission that allowing the Minister to take over a decision that normally lay with the MEC was to be seen as recognition of the dysfunctionality of provinces, and would like to get some more comment on this in writing.

Mr Erasmus noted that the answer to this question was to be found in the written submission from Erasmus Attorneys. He regarded “dysfunctionality” as being a situation where the provinces were unable to carry out their statutory and constitutional mandate.

Mr Morgan asked what circumstances should warrant raising a decision to the national level.

Mr Erasmus suggested this should not be allowed to happen or be possible. He said the Promotion of Administrative Justice Act (PAJA) needed to be taken into consideration. There were a number of matters where the provinces alone had jurisdiction, and if this matter was elevated to the national Minister, he believed that it would be a flawed decision.

The Chairperson noted that all the matters that Mr Erasmus was highlighting could simply be answered by redrafting the clause.

Mr Erasmus reiterated that he did not believe the national Minister should ever become involved. All the information required for the decision lay in the hands of the province and he did not think it could simply be passed on.

The Chairperson said that the first concern was whether it would notionally be possible to follow this procedure, before considering whether it was legally feasible. His main concern was what the correct remedy would be, if the competence did not lie with the province.

Mr Erasmus said he was not suggesting that government should take no action, but he believed that the proper framework was already provided for in the legislation. He had some difficulty with the notion around the relocation of information that would be needed from provincial to national level, so that an informed decision could be made. He felt it would make more sense for the Minister to be given the power to delegate this decision to a particular provincial authority, and within a particular framework.

The Chairperson noted his appreciation that this was the first submission that highlighted this particular aspect as problematic. Other submissions had been in support of this amendment. He said that more careful consideration would need to be given to the wording.

Mr Morgan said he really wanted to get a sense of problems such as back-logs of applications in provinces. He was concerned that the transfer of decision making from the provincial to the national level would completely clog up the systems at a national level.

Mr Erasmus said that not a single decision was taken within the prescribed timelines, during his investigations. He expressed his concern that it was much harder to address the issues of back-logs and bottlenecks at a national level than at a provincial level.

The Chairperson noted that this shift in decision making did not happen automatically, but only if the applicant applied to the Minister.

Mr Erasmus added that he worked with many developers who would be very keen to make immediate application, on day 91, to have their applications pushed through to national level, and, from a practical standpoint, this would be a recipe for disaster. People tended to have more confidence in the efficiency shown by national, rather than provincial government. He also added that this would apply not only to applications that may be made in the future, but also to the backlogs which would come through after promulgation.

The Chairperson noted that the DEA was involved in a larger-scale review of legislation, and said that many stop-gap solutions had been proposed, pending this final review. However, he was awaiting a memorandum from the DEA that would give more clarity on this. He asked how the DEA was intending to  deal with the public comments, and how this would link into the process of review.

Mr Ishaam Abader, Deputy Director-General: Legal, Authorisations and Enforcement, DEA, said that he was not sure that Mr Erasmus fully understood the comprehensive process.

The Chairperson warned Mr Abader not to pick a fight with Mr Erasmus and to answer the question.

Mr Abader explained that the Department was engaging with the public as well as conducting a private, comprehensive process of engaging with provincial departments and officials. He said all the comments would be incorporated before the amendments were finalised.

Mr Erasmus noted that he was an expert on the process and many of the processes that he had explained showed the shortcomings of the legislation. He questioned why the various interest groups were not invited to collaborate in this process, from the beginning.

The Chairperson responded that some government processes were unable to be changed. If Mr Erasmus wished to raise any other points, he should make them available to the DEA via the Parliamentary Committee. However, he had no power to tell the Minister how to run her Department.

The Chairperson reminded the DEA that he did not want any argumentative dialogue in the Committee, and if the DEA did not agree, then it should not counter the submissions. The DEA was not attending in order to engage with the presenters, but merely to hear the submissions at this point. All suggestions would be processed at a later stage, after conclusion of the hearings.

Western Cape Government Department of Environmental Affairs and Developmental Planning
The Chairperson noted his appreciation for this submission, saying that the Western Cape Department had been the only government structure to make its comments known.

Advocate Gary Birch, Deputy Director: Environmental Legal Support, Western Cape Provincial Government Department of Environmental Affairs and Developmental Planning, noted a general comment, at the outset, that the Bill should cater also for the amendments to be made to the schedule contained in NEMA. He noted, in respect of the Schedule, that there needed to be an amendment on the definition of “Minister”. He sought clarity on the environmental authorisation for non-mining-specific activities listed.

The Chairperson wanted clarity on this point.

Mr Birch said there was a dispute, between the Department of Mineral Resources (DMR), and DEA, on the authorisation of non-listed mining activities, and he was looking for clarification on this issue. He said that if this clarification was not provided, further disputes with other departments could occur.

The Chairperson agreed with this difficulty, but asked for a suggestion how NEMA would be able to make  mention of the Department of Mineral Resources, without actually making the Act applicable to it.

Another official from the  Western Cape Government added that the commencement of the listed activities had not begun as yet, on which the Minister of Mineral Resources was the competent authority, according to the amendment.

The Chairperson wanted to know, from a technical point of view, why the Act, or at least this particular section, was not applicable to the Minister of Mineral Resources.

Mr Birch mentioned that the previous Amendment Bill had provided further clarity on that point.

The Chairperson noted that this particular legislation had not come into operation so that it was of no force and effect. He asked if the DEA had an answer on the application of the legislation to the Minister of Mineral Resources.

The Western Cape Government official remarked that the Constitutional Court had also not provided clarity on this issue.

Mr Birch then outlined his suggestions for the amendment to the definition of “listed activities”, “specific Environmental management act” and “competent authority”, and noted that new wording had been suggested (see attached document for details).

Mr Birch wanted to know why, under section 11, municipalities were excluded from the preparation of environmental implementation plans (EIPs). He also questioned the reason behind strict adherence to timeframes under the EIPs for others, when they were voluntary for municipalities.  

The Chairperson agreed and said the issue of the exclusion of municipalities was flagged as a political concern.

Mr Birch turned to clause 4, amending section 24A(c) and said he was concerned the provision may impede on the Ministers concurrent powers. He suggested the wording of this amendment be reconsidered.

The Chairperson was confused as to where in the Bill the clause was discussed.

It was discovered the Mr Birch was using a different version of the Bill to the one being used by the Chairperson and the DEA.

Mr Birch then moved to clause 5, amending section 24C and noted his concern that the deletion of the word “exclusion” would lead to very wide interpretation and potential implications for the Minister. He was particularly worried that the proposed provision would empower the Minister to take a decision, instead of the MEC, where the latter had missed a timeframe.  He sought clarity on how this process would work.

The Chairperson noted that he was concerned about the fact that this clause did not currently reflect anything in the Constitution. He wanted further comments on what buffers could be created before applications were taken over by the Minister on a practical level.

Mr Birch said he was concerned that this provision would be open to abuse by developers, and that delays might be created in an attempt to move the process to the national level. This also had implications for the appeal process.

The Chairperson said the referral to the national executive should be not be an option, and he believed that the whole application should remain at the provincial level until the applicant had complied. He said the clause could not be retained in its current form.

Mr Birch turned to clause 7 and noted his uncertainty over whether section 24F applied to the Waste Act and the Air Quality Act. He proposed different wording to make the section clearer (see attached presentation). He added that under this section,
it must be determined whether a Section 31L Compliance Notice could be issued for non-compliance with a norm or standard for non-listed activities, since this would have implications on whether there were any administrative enforcement mechanisms that could be used to enforce compliance.

Mr Birch then proposed that the wording of clause 8, amending Section 24G, should be changed to create greater clarity and recommended an alternative (see attached presentation).  In addition, in respect of section 24G(4), he said that the absence of a definition for “emergency response situation” would hinder enforcement officials, as they would have to refute claims from members of the public to the effect that a listed activity had been undertaken in order to protect human life or the environment. He said it was also open to manipulation by transgressors in order to avoid paying an administrative fine. He proposed that this wording be amended
so that the Section 24G administrative fine would not be payable when someone was directed to undertake a listed activity. 

The Chairperson indicated his support of this proposal.

Mr Birch turned to clause 11, amending Section 28, and suggested that this clause should be reworded to specifically exclude criminal liability in cases where someone was directed to commence with a listed activity under Section 28 and/or 30. Alternatively, an exclusion from paying Section 24G(2A) administrative fines should apply.

The Chairperson said the process could be stipulated in the regulations, such as a requirement that a form be completed, and processed by the Department very quickly. He wanted an example of such an emergency in practice.

Mr Birch moved on to clause 13, amending section 30, and said the current wording of the Clause was problematic, as it allowed for ambiguous interpretation of what an “emergency incident” could be. He presented an alternative wording and definition for consideration. He said one example could be an oil spill from a tanker, or natural disaster.  

The Chairperson said the submission was very technical in nature but all the amendments would be processed in a cooperative way.

Mr Birch noted that he had tried to include all the relevant sections and clauses in the Bill in the submission.

The Chairperson thanked the Western Cape Government and reminded Mr Birch to get the copy of the correct version of the Bill.

Closing remarks
The Chairperson noted that all those making submissions could raise more submissions, which would be circulated to the Members. The Committee would now process the submissions, clause by clause, starting on 5 September.

Mr Abader listed the issues on which the Chairperson wanted greater clarity from the DEA.

Committee programme
The Chairperson outlined the changes to the Committee programme, noting that on 4 September, the Committee would get a briefing on the new water resource strategy, with time also allowed, if needed, on  5 September. On 5 September, the Committee would also consider four international agreements (Lesotho Highlands Phase 2, Annexure B of the Kyoto Protocol, Nagoya Protocol and African Convention on Conservation of Nature and Natural Resources), and would debate the content of the public hearings in the afternoon session. On 6 September the Committee would continue with the Bill, and receive a briefing on mineral resources.

The Chairperson noted that the Recycling and Economic Development Initiative of South Africa(REDISA) and waste tyre management also must come to the Committee.

Mr Morgan suggested alternative wording for the briefing on the waste tyre plans so the Committee was not seen as biased toward a certain plan. 

The Chairperson noted that more information was needed.

The Chairperson continued to summarise the programme. 7 September was earmarked for a meeting, if necessary. The deliberations on the Bill would continue on 11, 12, 18 and 19 September. On 12 September the DEA must brief the Committee on progress of the Millennium Development Goals.

In the next term, on 8 and 9 October, the Committee would be visiting East London to give directions on issues of waste and sanitation problems. The Department of Water Affairs would brief the Committee in preparation for the Budget review and Recommendation Report. Two weeks of public hearings were scheduled for public hearings on national water resource strategy, and the Committee would hear progress reports from the rhino workshop, a waste management progress report, and briefings on the long term solutions to acid mine drainage. It would be holding a joint meeting on 14 October with the Portfolio Committee on Human Settlements, Standing Committee on Public Accounts, Department of Water, and National Treasury on the sanitation policy On 21 October, it would hear a briefing on the practicalities of the environmental impact assessment regime.

Mr Morgan suggested that the climate change issues should not be included, because of the overlap with COP18.

Mr Morgan was concerned the Water Tribunal was not meeting, had not had a chairperson since the previous year, and was apparently using mediation to work out water disputes. He also thought an update was needed on how the Department of Water Affairs (DWA)  was handling water licencing, backlogs and to hear its timeframes.

The Chairperson suggested that Mr Morgan raise this issue when the DWA came to the Committee.

Mr Skosana asked if there was anything on the programme related to the Steering Committee on COP17.

The Chairperson said it was important to find out Parliament’s plan for the Conference of Parties (COP 18) in Qatar, so that input could be made on the Committee programme.

The Chairperson told the Committee he had received a “nasty” letter from the Department of International Relations and Cooperation (DIRCO) regarding the trip to China, but he would now go straight to the Chinese embassy.

Mr Morgan asked the Chairperson to consider a trip to the Lesotho Highlands if the Chinese trip did not work out.

The Chairperson agreed.

The meeting was adjourned.

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