National Environmental Management Laws Amendment Bill [B 13-2012]

Meeting report

The Chairperson outlined the documents that Members should have been given and briefly explained what each document dealt with.

The Chairperson made it very clear that no party in the Committee had formed any positions on the Bill yet. He said at this stage, the Committee was simply commenting on the public submissions and was not making concrete decisions. He said decisions would be taken much later and parties can then consult and make their positions. He said for now, the Bill was only being processed and that the views of Members should be seen in this context.

Review Processes of the Department
Mr Sibusiso Shabalala, Director: Law Reform for DEA, said that the Department would be looking at four possible amendments to the Bill in the next coming financial year. He said the first issue dealt with would be the National Environmental Management Amendment Bill of 2013 relating to the national environmental management of mining areas as well as issues around Section 24G.

The Chairperson asked what more would be looked at under Section 24G.

Mr Shabalala said the working groups felt the principle of Section 24G should be looked at especially so in terms of technical aspects of the Section as an administrative tool.

The Chairperson said technical aspects could be looked at now.

Mr Shabalala said Chapter 3 Environmental Management Plans (EMPs) and Environmental Implementation Plans (EIPs) would also be reviewed. He said there was a need for greater consultations with certain departments, like Energy, to make sure they fully understand the processes dealt with under this Chapter. This also involved consultations with provinces.

The Chairperson felt that Section 24G can be looked at during the meeting. 

Mr Shabalala said comprehensive amendments to the Biodiversity Amendment Bill including threatened and protective issues; bio prospecting and alien species issues in terms of the implications of amendments on these issues would be reviewed. Linked to this review, would be the need to look at the different ordinances between provincial legislation and the overarching NEMA Bill and potential conflicts.

The Chairperson said there was not much controversy in this Bill so there was no problem. He asked why the weather services bill was withdrawn.

Ms Linda Garlipp, Chief Director: Law Reform and Appeals for DEA said it was because of certain wording like pollution control. She said controversial wording needed to be reviewed. She noted most of the comments on this wording came from Parliament and not from the public, which made the review process difficult for the Department. She said the comments from the Parliamentary process were too short for the Department to dedicate a thorough review to.

The Chairperson found this understandable but at the same time reminded the Department that the legislative authority of the country was Parliament. He told the Department that next time such problems arose they should consult the Committee to prevent wasting of time. He also noted the issue was not related to the Bill currently being looked at by the Committee and formed part of a separate process.

Mr Shabalala said possible amendments to the Waste Act would be reviewed. He noted the input from the working group on the amendments were due in October on this issue. 

The Chairperson asked if the Waste Act had been implemented by the Department of Water Affairs or by Human Settlements.

Mr Shabalala noted that the issue of sanitation related to the Water Services Act.

The Chairperson felt that the issues under review by the Department did not impact the Bill that the Committee was currently deliberating except maybe Section 24G so he felt that the proceedings for the day could go ahead.

Ms Garlipp said the definition of waste was raised in the Committee and that the Department felt it should not be looked at as it impacted considerably on the scope of the Waste Act.

The Chairperson noted that it was an issue centred on incorrect wording. He said that the Department really did not need a technical committee to look at this when they knew the wording was wrong.

Mr Ishaam Abader, Deputy Director-General: Legal, Authorisation and Enforcement for DEA, said it was an issue raised by the cement producers.

The Chairperson said that the Committee still needed to look at this as part of public submissions. He said the Department must be clear.

The Chairperson told the Committee that one of the legal opinions in their document pack dealt with the powers of Members of the Executive Council (MECs). In response to this matter, he said the Department needed to go through the Constitution when it looked at the powers of the MECs. He noted the Constitution created three tiers of government and if the Constitution granted powers to a tier, that power could not be taken away as it was entrenched in the Constitution. He said the power at a tier of government needed to be looked at in at least three ways, namely, legislative power, which implemented law once it was made (administrative power) and financial or budgetary power. What was important for this discussion was to distinguish between which powers were exclusively national powers (like police, defence, justice and labour), which were exclusively provincial (like refuse collection) and which were concurrent powers like social services, education, health and the environment. Concurrent power meant that both the national and provincial level had the full power to legislate over a certain issue. He said conflict under concurrent legislative powers would be decided on by a court using Section 14 of the Constitution. He said that most opinions looked at legislative functions while the issue to be looked at in this meeting was administrative function. He said this was discussed under Section 125 of the Constitution, which outlined processes of what can be done when things were not working in provinces. He said that it stated the Constitution gave provinces power over environmental laws except where the Constitution or an Act of Parliament prescribed otherwise. He said this was often overlooked but was very important. Section 100 outlined other mechanisms that could be carried out when provinces were not functioning optimally such as the intervention of national government to temporarily take over a function from a province so that once the problem was resolved, provinces could take over the function again as was being done in education. He told the Department it was not their law that gave provinces the power over certain functions and processes but rather the Constitution. He noted that any changes that the Department wished to carry out in their legislation needed to bear these Sections in mind. He said he was trying to sketch the framework for the Department for when issues were debated.

Mr G Morgan (DA) wanted to discuss if the provision to bump decisions up to national would be desirable or a good idea, apart from discussing the legality.

The Chairperson agreed but felt the question of desirability should only be discussed after the legality was decided. 

The Chairperson asked for the opinion of the legal advisors on Section 18 (Traditional Leaders Governance Framework Act to NEMLA). He noted this was a procedural point that could not be dealt with under the amendments. 

Ms P Ngema, Parliamentary Legal Advisor, first outlined what Section 18 of the Traditional Leaders Governance Framework Act and Clause 38 of the NEMLA stated. Based on these two sections, she was of the opinion that issues dealing with customary law needed to be taken to the Traditional Leaders House and not so much issues of an administrative nature. Hence, there was no need to refer this Bill to the Traditional Leaders House. However, she felt it would be advisable to seek the comment of the Traditional Leaders House as a stakeholder even though it was not procedurally wrong to not consult them.

The Chairperson was happy with this opinion. He said that the advisors did very good work.

Mr Morgan advised the Department to consult with the House of Traditional Leaders so as to avoid making assumptions on what was customary or what had an effect on customs.

The Chairperson understood but said this was more of a legal and procedural issue. He said it was clear that the clause under debate did not deal with bio prospecting but dealt with bank accounts. He suggested Mr Morgan’s point was looked at when discussing the clause.

National Environmental Management Laws Amendment Bill: Comments and response table
Clause 1: Amendment to section 1 (Definition)

The Chairperson noted his concern about the long title of the Bill. He told the Department to draft an amendment on this before deciding on anything concrete.

The Chairperson said the Western Cape Provincial Government (WCPG) made a number of submissions related to technical wording of the clause.

Definition of “Competent Authority”

Mr Shabalala said the concerns of the WCPG related to inclusion of the Minister of Minerals in the clause. He noted they also raised concerns about the definition of “competent authority” and “listed activities”.

Ms Garlipp noted that an agreement was reached in 2008 between the Ministers of Environmental Affairs and Mineral Resources that the Minister of Mineral Resources would be allowed to issue environmental authorisation for mining related activities in terms of the National Environmental Management Act. She said the Act for Environmental Affairs had come into operation while the Act for Mineral Resources had not. She noted the Department had provided explanation for this in writing.

The Chairperson had a problem with legislation coming up that was not in operation and thus had no effect.

Mr Abader said the point of the Chairperson was very valid.

The Chairperson gave the Department a general instruction to look at the Bill and to check if anything passed now would be in contradiction to their other plans for amendments.

Turning to the proposed amendment on the definition of “competent authority” by the WCPG, the Chairperson asked for greater clarity on this in relation to emergency interventions.

Mr Shabalala said it was raised in the context of whether emergency intervention can be taken before applying for Section 24G.

The Chairperson asked why this was a bad idea as he felt it created a more certain context. 

Ms Garlipp noted there was a difference between the scope of the definitions of “incident” and “emergency” in Section 24E.

The Chairperson felt the disparity between the scope of the two definitions created problems for the Department especially when applying the clause. Because of this, he felt the submission by the WCPG had merit.

The Chairperson suggested “competent authority” stand over for it to be looked at, at a later stage or a proviso could be created.

The Chairperson questioned the issue in the submission of the WCPG on the implications of waste management licences and atmospheric emission licences on the Waste Act and the Air Quality Act in terms of the definition of competent authority. 

Ms Garlipp said that the waste management licence was issued in terms of the Waste Act using the NEMA processes.

The Chairperson said he understood this but as he did not fully understand the processes involved, he felt the point of the submission needed to be checked.

Mr Abader tried to explain the definitions of “competent authority” in terms of the issuing of licences and permits between NEMA and the specific acts like the Air Quality Act.

Ms Garlipp said that “competent authority” was not used in the case of Section 24G.

The Chairperson said the problem was one of tautology between the different levels of authority.

Definition of “listed activities”

The Chairperson wanted greater clarity on the submission of the WCPG on the environmental authorisation of non-listed mining activities listed in the NEMA 2010 EIA Listing Notices.

Ms Amanda Britz, Director: Integrated Environment for DEA, explained that the WCPG wanted clarity that the activities that were listed in NEMA still required environmental authorisation even if it was related to a mining development.

The Chairperson suggested the Department re-looked at the definitions of “listed and non-listed activities” to prevent confusion.

The Chairperson wanted the Department to draft a resolution for these issues raised. These resolutions could be looked at when the Bill was passed.

Definition of “specific environmental management Act”

The Chairperson questioned the submission from Erasmus Attorneys that the definition of “Specific Environmental Management Act” included the National Environmental Management: Integrated Coastal Management Act, the National Environmental Management: Waste Act and the World Heritage Convention Act for the integration of the overall framework for environmental governance.

Mr Mark Jardine, Director: EMI, Cap Dev and Supp for DEA, explained the schedule of NEMA needed to be updated with the Waste Act and the Integrate Coastal Management Act. He said the Minister had already approved this and it just needed to be gazetted.

Mr Morgan raised a question about the World Heritage Act.

Mr Abader noted the area of heritage would soon move to Arts and Culture by proclamation so it would be excluded from the Specific Environmental Management Acts (SEMAs).

Definition of waste

The Chairperson said this issue of changing the definition of waste could go under the review process of the Department.

Clause 2: Amendment of section 11 (Environmental implementation and management plans)

The Chairperson questioned the submission of environmental implementations plans (EIPs) by organs of state.

Ms Garlipp said Section 11 of NEMA outlined which organs of state were meant to submit these plans. Departments were listed in Schedule One while provincial departments were listed in Schedule Two. She said Schedule 13 of NEMA outlined the content of these plans. She said what was important was that provinces were responsible for ensuring that the plans for each of their municipalities were compiled and submitted.

The Chairperson said that was a good answer but wanted to know what happened in practice.

Mr Abader said DEA needed to ensure there was an alignment between national, provincial and municipal plans.

The Chairperson suggested that this be another point added to the list of resolutions.

Looking at the submission from Afriforum, the Chairperson noted that although they were not able to present their submission, they could still use the written submission. He said the point of Afriforum on the timeframes for EIPs, the Department needed to re-look at this and have it stated clearly in the regulations. If it was not in the regulations, he said the issue should be listed in the resolutions.

Clause 3: Inserts S16A in Act of 107 of 1998 (Environment outlook report)

The Chairperson looked at the submission of Erasmus Attorneys on the point of publication of environmental outlook reports at national, provincial and municipal levels.

Ms Garlipp said this was outlined in Section 16(5) of NEMA which stated the Director-General (DG) needed to keep record of all EIPs, EMPs, relevant agreements between organs of state and other reports be made available for public inspection. 

Clause 4: Amendment of section 24 (Environmental authorizations)

The Chairperson agreed with the submission made by the Centre for Environmental Rights (CER) on the principle of giving additional powers to the Minister to prohibit and restrict the granting of environmental authorisations for certain activities or areas. He noted however, the prohibition of certain substances could create an anomaly and would be difficult to control as those in possession of the substance, like arsenic, could justify their possession by saying they acquired it before the Act came into operation. He wondered if there was a need for a bridging clause on how this issue was to be handled. He asked if any thought was given to this.

Ms Garlipp said the Minister would issue a notice.

The Chairperson realised that the point he highlighted was raised later in the document. He would make the point again in the area where it was applicable.

Substitution in 10(1) a) (i)

In the submission by Business Unity South Africa (BUSA) they stated the extension of norms and standards beyond listed activities could create a slow pace of adoption of such norms and standards. The Chairperson felt this in fact could speed the process up.

The Chairperson suggested the submission of BUSA related to their concern over the limited progress made in implementing the provisions of 24 (5) (Ba) which enabled the prescription of environmental management instruments, be added to the list of resolutions of the Department. He also requested a report from the Department on the extent each of the tools listed in BUSA’s submission was used in practice. He felt this information was important for the Committee as BUSA’s submission had merit.

The Chairperson felt the submission by the WCPG on amending the wording of certain clauses in Section 23, be sent to the review and resolutions of the Department.  This also applied to section 24(10) (a).

The submission by the Association of Cementitious Material Products (ACMP) under this clause was noted. It was decided the submission by the ACMP of the adoption of a waste protocol would be placed under the review of the Department as well as under the resolutions.

The submission by Erasmus Attorneys on correcting the Section 2A (a) of NEMA to state “human health or well-being” instead of “human health and well-being” in order for it to resonate with the Constitution, was agreed to by the Department and the Committee for amendment.

The submission by Erasmus Attorneys on the proposed public participation provided for in the envisaged Section 2A (d) namely publication in the Government Gazette was inadequate and not compliant with the requirements of the Promotion of Administrative of Justice Act (PAJA) which required that persons that stand to be affected by administrative decisions must be informed thereof and afforded an opportunity to make representations in respect thereof, was debated.

The Chairperson asked what happened if the Minister restricted or prohibited a certain activity and another authority did not comply with that apart from going to court. He asked if there were mechanisms or clauses in place to outline the process of such instances. He asked the Department to flag this issue.

Clause 5: Amendment of section 24C (Procedure for identifying competent authority)

The Chairperson noted the submission by the CER around the implications of appeals falling to the Minister if he/she took a decision.

On the submission by the WCPG on the removal of the word “exclusion” and the implications for this on certain areas like the Cape Floral Kingdom, the Chairperson sought an explanation on this removal by the Department.

Ms Britz said those areas would be covered by international environmental instruments so it would be duplication to mention all these areas.

The Chairperson said that he did not really understand this. He wanted a reason for why these areas would now fall under national.

Ms Britz said the exclusion of the words “other than” created confusion for applicants as to what fell under the scope of national and what fell under the scope of provincial governments. The argument of the Department was that if something fell under the scope of national, national should be the competent authority otherwise province would be the competent authority.

Mr Morgan raised a concern around the implications for a biosphere reserve, like the Cape Floral Kingdom, which fell under the remit of the Western Cape Government.

The Chairperson said that if authority were taken away from province, the capacity to take over these functions would have to be created in national and taken away from provinces. He said this would be the effect of such an amendment. The Chairperson suggested the Department explored the idea of making the authority a concurrent one between national and provincial instead of simply changing the legal position overnight to result in a compromise.

Mr Abader said this needed to be looked at in relation to other sections of the legislation.

The Chairperson agreed but added the possible implications of the amendment were important to discuss. He felt the softening of this amendment needed to be looked at so that structures of cooperative government could be looked at instead of the complete removal of authority from provinces.

Mr Morgan was concerned about the practicalities of such an amendment; especially for areas classified as World Heritage Sites.

Mr Abader took the point raised by Mr Morgan very seriously and felt the Department had not fully considered the implications and should therefore go back and re-look at the issue especially in terms of the practicalities in the case of the Western Cape.

The Chairperson felt the implications of the entire clause was huge and thus suggested that the entire clause be put up for review. He said this clause would be flagged for the Department to examine the implications further before reverting to the Committee.

The Chairperson said many international agreements were not binding on domestic issues but rather created moral responsibilities. He noted that another factor for the Department to look at would be what the Heritage Sites legislation defined as the competent authority. He said that while not many people commented on this Section in their submissions, it was a very important issue in terms of all the implications and their practicalities.

Mr S Huang (ANC) raised a concern around the international implications.

The Department said this would be taken into consideration when they looked at all the issues.

On the issue of a proposed provision to empower the Minister to take a decision away from an MEC if an MEC missed timeframes was raised in the submission of both the WCPG and Erasmus Attorneys. The Chairperson suggested that the Department look at adding more steps or levels in the process before simply removing the decision-making power from the MEC where taking over the power was used as a last resort. Furthermore, it should be stated exactly what would happen if the Minister removed the decision-making power from the MEC in terms of the transferral of relevant documentation. He said this would mean the process would be more nuanced and defendable if it faced a court challenge. He suggested the Department draft something on this issue. He noted this had to be done properly as the legislation stood in the meantime.

Mr Morgan agreed with the Chairperson. He raised other concerns around this amendment.

The Chairperson said the Department needed a good amount of time to look at this issue thoroughly and to consult with various people like the Minister. He said the clause was on ice until there was further information.
Clause 6: Amendment of section 24E (Minimum conditions attached to environmental authorizations)

The Chairperson wanted an explanation for the submission by the CER on section 24E related to the requirements for the financial and/or technical capacity to take transfer of rights and obligations in terms of an environmental authorisation.          

Ms Garlipp said the transfer of rights did not always relate to property.

The Chairperson said both the submissions by the CER, Erasmus Attorneys and AfriForum on the transfer of rights was not read correctly by the organisations and are thus not considered. He said the clause did not deal with the transfer of rights but rather environmental authorisation.

The Chairperson said the submission by the WCPG on confusion of certain wording in the clause was correct and the Department should take out the amendment. Other than this, there was agreement that clause 6 was fine as an amendment.

Clause 7: Amendment of section 24F (Offences related to commencement or continuation of listed activity)

The Chairperson told the Department that the issue of criminalisation needed to be very clear. He said the Department should take another look at it especially in relation to norms and standards so that it was clearly defined as to what was being criminalised.

The Chairperson wanted the Department’s response on the submission of the CER related to section 24F (3) (which provided that it was a defence to a charge of having committed an offence if it was shown that the activity was commenced or continued in response to an emergency) should include an element of proportionality so that the circumstances that constitute the “emergency” were, in fact, sufficiently serious to warrant committing the offence. 

Mr Jardine said it wanted to put qualifications on the defence clause to ensure that only real and genuine instances of an emergency situation were taken into account.

The Chairperson said this was the common law offence of necessity while this legislation created a statutory law offence. He asked what was wrong with the submission of the CER. He felt it should be included but reminded those present they were not making concrete decisions but merely drawing up a list of possible amendments.  The Chairperson also accepted the submission by the CER that property be included in an emergency response situation as outlined under section 24G (4).

There was some discussion around the submission of the CER that dealt with increasing the maximum criminal fine for contraventions of section 24F (2). They felt R5 million was too low to constitute a proper disincentive for illegal activity. The Chairperson asked the Members for their comments. He reminded them that R5 million was the maximum penalty for prosecutors.

Ms Garlipp noted the Department was continually aligning the maximum fines with conviction sentences so that first time offenders received R5 million fine or five years in jail and second time offenders received R10 million or ten years in jail and so on. She noted however, this section had not been amended in this way yet.

Ms Ferguson (COPE) felt that there should be some kind of scale when considering fines for the multi-million rand developments. She said this was especially so knowing that developers factor the fines into their budgets.

The Chairperson noted he did not have a problem with this was but was concerned about the practicality of doing this in legislation. He said at best, they could increase the fine to R20 million or 20 years in jail.

Ms Garlipp noted the National Biodiversity Act limited fines to R10 million and prison sentences to ten years.

The Chairperson questioned when this Act was passed because of the implications of the devaluation of the Rand. He agreed that a maximum of R10 million or ten years in jail was sufficient for the time being and was a nice compromise between his opinion and what the Department wanted.

The submission of BUSA on the wording of section 24 (10) (a) (i) was agreed on.

The Chairperson noted the submission on BUSA related to the Act not clarifying under what circumstances the proposed standards would become mandatory would depend on the norms and standards.

On the submission of the WCPG on the applicability (National Environmental Management: Air Quality Act (NEM:AQA), the Chairperson asked the Department to check this.

The Chairperson wanted the Department’s opinion on the submission of the WCPG related to exclusion for criminal liability under section 28A.

Ms Garlipp noted the Department had not fully debated this proposal and its implications fully.

The Chairperson said it should be added to the review for consideration as well as to the list of resolutions.

Most of the proposals in the submission of Erasmus Attorneys under this clause had already been dealt with.

The Chairperson wanted a clause somewhere to state that the paying of a fine cannot in any way be used as a way of not going ahead with criminal sanctions.

Ms Garlipp noted this was suggested under the urgent amendments for the Department.

The Chairperson was pleased with the Department and their hard work.

The Chairperson thought Clause 8 dealt with many issues and should be discussed in the next meeting. He reminded everyone that ideas were being thrown around and no formal positions on any sections were formed yet. He asked the Department to begin their work looking at the clauses covered in today’s meeting. He also asked them to start drafting the resolutions roughly.

The Chairperson noted that next week’s meetings would deal with the Department of Water on the Water Resource Strategy. The week thereafter would deal with DEA and the clauses again. He reiterated how pleased he was with the work that the delegation had done over a short period of time.

Meeting was adjourned.