National Environmental Management Laws Amendment Bill [B13-2012]: deliberations; International Environmental Agreements: consideration of South Africa's ratification

Water and Sanitation

17 September 2012
Chairperson: Mr J De Lange (ANC)
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Meeting Summary

The first half of the meeting was the briefing by the Department of Environmental Affairs (DEA) on the International Environmental Agreements (2011-2012) Annual Report to Parliament and Ratification of the Belarus Amendment to Annexure B of the Kyoto Protocol.

The International Environmental Agreements was an annual Report presented to the Committee once a year in order for it to be kept informed of what international agreements and negotiations the Department was busy with or had settled on. This year’s briefing began with an overview of the agreements and then delved into the different branches. Each agreement was looked at in terms of its strategic importance, key outcomes and further action required. Under Branch: Oceans and Coasts, the agreements were the XXXIV Antarctic Treaty Consultative Meeting, the 23rd AGM of the Council of Managers of National Antarctic Programmes, the 34th Meeting of the Scientific group under the London Convention and 5th Meeting under the London Protocol, the 63rd meeting of the International Whaling Commission and the 30th meeting of the Convention on the Conservation of the Antarctica Marine Living Resources (CCAMLR). Under the Biodiversity and Conservation Branch there were the signing of the Nagoya Protocol under the United Nations Convention on Biological Diversity (UNCB), the signing of the Memorandum of Understanding (MoU) on the Conservation of Migratory Sharks under the Convention of Migratory Species of Wild Animals, signing of the MoU on promotion of South-South and Triangular Cooperation under the United Nations Convention on Biological Diversity (UNCBD), the 10th Session of  the Conference of the Parties (COP) to the United Nations Convention to Combat Desertification (UNCCD COP 10) and the 10th Session of the COP of the Convention on the Conservation of Migratory Species.  Under the Climate Change Branch there was the 17th Session of the United Nations Framework Convention on Climate Change (UNFCCC COP17). Finally, under the Sustainable Development and Trade Branch there was the 19th session of the Commission on Sustainable Development (CSD19).

The Belarus Amendment to Annex B to the Kyoto Protocol looked at the background to the amendment, provisions of the Kyoto Protocol, proposed amendment, advantages of acceptance and recommendation.

Members raised concerns around the motivation for South Africa's ratifying the agreement, levels of ambition and commitment, monitoring of the implementation of the resolutions, agreements pending and wanted the treaties with which the Department was busy to be made available to the Committee also. The Committee agreed to recommend that South Africa ratify the Belarus Amendment.

The second half of the meeting was a continuation of the National Environmental Management Laws Amendment Bill [B13-2012] (NEMLA) amendments. It was decided to split the Bill into two parts so that one half could go to the National Council of Provinces (NCOP) while the Department worked on the other half. The Department presented the Committee with a number of technical amendments to NEMLA and the National Environmental Management: Biodiversity Act (No. 10 of 2004) (NEM:BA). The Committee agreed to these amendments which were of a technical nature and not controversial and which related to the changing of definitions, deleting clauses and adding words.

Meeting report

The Chairperson said that there were on the agenda two international agreements that needed the Committee's agreement on South Africa's ratification.

International Environmental Agreements (2011-2012) Annual Report to Parliament
Ms Judy Beaumont, DEA Deputy Director-General: Climate Change (CC), briefly explained that the Annual Report on International Environmental Agreements was required to be made to Parliament once a year, in terms of Section 26 of the National Environmental Management Act (No. 107 of 1998) (NEMA). She said it was an overview of the national environmental instruments and various meetings and the outcomes of these meetings.

Mr Fundisile Mketeni, DEA Deputy Director-General: Biodiversity and Conservation, began by outlining the multinational agreements under branch: biodiversity and conservation. The first multinational agreement under this branch was the signing of the MoU on the Conservation of Migratory Sharks under the Convention on Migratory Species (CMS) of Wild Animals. Its strategic importance was the further enhancement of the conservation of migratory sharks and thereby improved the conservation of migratory sharks and South Africa, as a Party to the CMS, had a mandate to implement the Convention activities, of which conservation of migratory sharks was the main mandate..

The Chairperson questioned if there was an agreement signed and generally wanted more detail before the briefing continued.

Mr Mketeni said that a Memorandum of Understanding (MoU) had been signed with all state parties under the Convention on Migratory Species. He explained the MoU was to promote the cooperation between countries involved in the Convention. He also said the Department was busy implementing an action plan around the issue of migratory sharks.

The Chairperson said that next time he wanted to see the treaty the Department was working with as well as the actual agreement as it contained more detail and allowed for better understanding. He explained the annual reports were a bit different as it was not passed by the Committee but just noted.

Ms Beaumont replied there was a landscaping document which gave more details.

The Chairperson noted that he had only received the documents this morning.

Mr Mketeni carried on with the presentation picking up at the Signing of the Nagoya Protocol under United Nations Convention on Biological Diversity (UNCBD). Its strategic importance was South Africa as a Party to the CBD under which the Protocol was developed and adopted and ratifying the Nagoya Protocol will further enhance the implementation of the Convention objectives which were, conservation, sustainable use and access and benefit sharing. Key outcomes were fast tracking the process of ratification by all role players and further implementation of the BABS regulations.

He moved onto another multinational agreement under branch: biodiversity and conservation which was the 10th Session of COP to the United Nation Convention to Combat Desertification (UNCCD COP10). Its strategic importance was that RSA was a Party to the UNCCD and had areas affected by Desertification Land Degradation and Drought (DLDD). Key outcomes were that RSA had a National Action Programme (NAP) that was being implemented by a number of implementing partners to combat DLDD. Action required were a review of the NAP, allocation of resources to implement the Convention and considering hosting the forthcoming CRIC meeting.

The Chairperson questioned why the MoU on the promotion of South-South and Triangular Cooperation under United Nations Convention on Biological Diversity (UNCB) was not discussed.

Mr Mketeni said it was a cooperation which was not yet fully recognised by the CBD executive secretariat. He said it was initiated by developing countries to look at issues of concern. These countries were South Africa, Brazil, India and China. He said they were motivating the CBD secretariat to look at this South-South cooperation and provide secretarial services to it.

The Chairperson noted this was a report on agreements the Department was busy with or were pending. He said it should be presented to the Committee more often so that it was aware of developments.

Ms Beaumont noted that the presentation was to make the Committee aware of what international instruments the Department was currently busy with. She said this was so required in terms of NEMA.

The Chairperson felt this briefing should be a permanent item on the agenda of the Committee but wanted to know when the Department usually sent the report to Parliament.

Ms Beaumont explained that it was usually at the end of the financial year which was the end of March.

The Chairperson wanted to know which part of the year it should be made a permanent item.

Ms Beaumont said that this year it was tabled in April and noted the reports had been presented in this format for the last three or four years.

The Chairperson asked if the briefing only covered treaties that had already been agreed to or if it included those still pending.

Ms Beaumont said it only covered existing treaties but in certain cases, the Department presented on the progress made with certain protocols or negotiations like in the case of the Nagoya Protocol.

The Chairperson noted that the Committee wanted to be briefed on future matters also. He said he did not have a clue about what the Department was negotiating in terms of international treaties and neither did the Members. He said a resolution could be created to rectify this.

Ms Beaumont began with an overview of the 2011-2012 period. Looking at oceans and coasts, she noted the XXXIV Antarctic Treaty Consultative Meeting, 23rd AGM of the Council of Managers of National Antarctic Programmes, 34th meeting of the Scientific group under the London Convention and 5th Meeting under the London Protocol. She also mentioned the 63rd meeting of the International Whaling Commission and the 30th meeting of the Convention on the Conservation of the Antarctica Marine Living Resources (CCAMLR).

Looking at biodiversity and conservation, she highlighted the signing of the Nagoya Protocol under United Nations Convention on Biological Diversity (UNCB), signing of the MoU on the Conservation of Migratory Sharks under the Convention of Migratory Species of Wild Animals, signing of the MoU on promotion of South-South and Triangular Cooperation under United Nations Convention on Biological Diversity (UNCBD), 10th Session of  COP to the United Nations Convention to Combat Desertification (UNCCD COP 10) and the 10th Session of the COP of the Convention on the Conservation of Migratory Species. 

In terms of climate change, Ms Beaumont noted the 17th Session of the United Nations Framework Convention on Climate Change (UNFCCC COP 17). Looking at chemicals and waste, she highlighted the 5th Meeting of the Stockholm Convention of Persistent Organic Pollutants (POPs), 5th Meeting of the Rotterdam Convention on Prior Informed Consent (PIC), 10th Meeting of the Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes and their disposal and the 9th Meeting of the Vienna Convention and the Montreal Protocol for the Protection of the Ozone Layer.

Also under the Overview of 2011-2012, she noted the sustainable development and trade looking at the 19th Session of the Commission on Sustainable Development (CSD 19). International Governance looked at the Special Session of the Governing Council of the United Nations Environment Programme (UNEP) and Global Ministerial Environment Forum and under Africa and the Southern African Development Community (SADC) there was the all-important SADC Senior officials Meeting, Council of Ministers Meeting and Summit and the 18th Ordinary Session of the Summit of the African Union (AU).

Ms Beaumont then turned to Branch: Oceans and Coasts. The first multilateral agreement was the XXXIV Antarctic Treaty Consultative Meeting. The key outcomes were steps toward entry into force of the Annex VI to the Protocol on Environmental Protection to the Antarctic Treaty and liability arising from Environmental Emergencies Annex was accepted. The action required were that legal processes should be in place to ratify the Annex, critical need for the development of a National Policy on Antarctic tourism and development, as a matter of urgency, a position on bio prospecting.

The second multilateral agreement under Branch: Oceans and Coasts was the 23rd AGM of the Council of Managers of National Antarctic Programs. Its strategic importance was an opportunity for national programme and logistics managers to share knowledge and experience to facilitate the Antarctic Treaty principles of international cooperation. The key outcome was the Accidents, Incidents and Near-Miss Reporting (AINMR) system. Action required were the ageing vehicle fleet had to be replaced as a matter of urgency and the South African Maritime Safety Authority (SAMSA) and the port of Cape Town to ascertain Cape Town’s oil spill combating capability and capacity because all ships going to the Antarctic leave from Cape Town.

The third multilateral agreement under Branch: Oceans and Coasts was the 34th Meeting of the Scientific Group under the London Convention and 5th Meeting under the London Protocol. Its strategic importance was global conventions to protect the marine environment from human activities including marine pollution prevention. Action required was a complete mandatory annual report for 2011 and to submit it, to monitor progress with the development of “low-tech” guidance for assessing dredged material (WODA), review and provide input into the development of specific waste assessment action levels and action lists for the disposal of fish waste and implement the revised generic waste assessment guidelines and finally, monitor progress with implications of the amendments to allow trans-boundary movement of carbon dioxide (CO2) streams.

The fourth multilateral agreement under Branch: Oceans and Coasts was the 63rd Meeting of the International Whaling Commission (IWC). Its strategic importance was the central international legal arrangement for the protection of whales. Key outcomes were that all companies implemented appropriate monitoring and mitigation plans, resolution on improving the effectiveness of operation within the IWC that also incorporated some changes to its Rules of Procedure and Financial Regulations, resolution that condemned any demonstration at sea that were a risk to human life and property and recognition of the importance of the International Maritime Organisation with respect to safety at sea.

The fifth multilateral agreement under Branch: Oceans and Coasts was the 30th Meeting of the Convention on the Conservation of the Antarctica Marine Living Resources (CCAMLR). Its strategic importance was to highlight issues on the threat, protection and conservation of biodiversity, as well as “resource use”, ecosystem approach to fisheries and all issues related to fisheries stock assessment. Key outcome was the establishment of eastern Antarctic planning domain on a possible project on bioregionalisation of the Del Canto rise region and a possible spatial assessment for the implementation of a representative set of Maritime Protected Areas (MPAs) between Prince Edward Island and that of Crozet. Action required was for development of a capacity development funding application to the Global Environment Facility (GEF).

Ms Beaumont turned to Branch: Climate Change highlighting the first multilateral agreement which was the 17th Session of the United Nations Framework Convention on Climate Change (UNFCCC COP 17). Its strategic importance were the securing of legal multilateral rules and commitment through a 2nd commitment period under Kyoto, operationalized of the Green Climate Fund and negotiation of a new legal regime applicable to all Parties by 2015, to come into effect by 2020 under an ad-hoc working group (AWG) on a Durban Platform for Enhanced Action. Key outcomes were that COP17 adopted 19 COP and 17 Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol (CMP) decisions. Although these covered a wide range of topics the final high level Durban Package unlocked an outcome that strengthened the multilateral system by significantly advancing the global effort needed now and also sets a new path for the development of a fair, inclusive, ambitious and legal future multi-lateral, rules-based climate system.

Ms Beaumont looked the first multilateral agreement under Branch: Chemicals and Waste which was the 5th meeting of the Stockholm Convention on Persistent Organic Pollutants (POPs) also known as the dirty dozens. Its strategic importance was that South Africa used DDT for malaria control and had the largest import and export chemicals industry in Africa and the banning of chemicals had implications for the fresh produce industry. The key outcomes were that the Africa Institute (AI) hosted by South Africa was endorsed as the Stockholm Convention Regional Centre for capacity building and facilitating financial resources for English-Speaking African countries, Endosulfan (an insecticide), Hexabromocyclododecane (a flame retardant) and Short-chained chlorinated paraffins (flame retardant and plasticizers) were banned and South Africa successfully opposed the phasing out of DDT in the absence of sustainable and affordable alternatives. Action required was for investment in and support financially the development of DDT alternatives.

The second multinational agreement under Branch: Chemicals and Waste was the 5th Meeting of the Rotterdam Convention on Prior Informed Consent (PIC). Its strategic importance was that South Africa was President of this COP and had the largest import and export chemicals industry in Africa and the listing of all chemicals in Annex II of the Convention had implications for the fresh produce industry. Key outcomes were that Chrysotil Asbestos (consideration of decision to enlist asbestos deferred to COP6 due to Canada’s last minute refusal to accept the text), Endosulfan (an insecticide), Hexabromocyclodeodecane (a flame retardant), Short-chained chlorinated paraffins (flame retardants and plasticisers) were listed in Annex II and this was the most successful Rotterdam COP thus far. Action required was to take note of the outcome and to ensure the industry was prepared for listed chemicals.

The third multinational agreement under Branch: Chemicals and Waste was the 10th Meeting of the Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes and their Disposal. Its strategic importance was that South Africa hosted the Basel Convention Regional Centre, the African Institute and accepted hazardous wastes from most African countries for safe disposal. Key outcomes were the regional centres were encouraged to be more accountable, to have good governance systems in place, to open independent bank accounts and the finances should be audited at the end of each financial year and a governing body should be established. There were technical outlines on mercury, cement kilns, waste tyres and POPs were adopted while ship dismantling should adhere to International Labour Organisation (ILO) labour standards. Action required was to request the South African Ports Authority and the South African Marine Safety Association to monitor ship dismantling in South Africa.

The last multinational agreement under Branch: Chemicals and Waste was the 9th Meeting of the Vienna Convention and the Montreal Protocol for the Protection of the Ozone Layer. Its strategic importance was that South African had the largest refrigerant and coolants industry in Africa that used Ozone Depleting Substances (ODSs). Key outcomes were the replenishment amount approved should be adequate to enable developing countries to meet their obligations under the Protocol and the proposed amendment of the Protocol by other countries was successfully rejected while South Africa insisted as a matter of principle that it was only ODS chemicals that fell under the Protocol lest precedence was created. Action required was to enforce the building industry, as required by South African National Standard (SANS) 10147, not to fit new buildings with air conditioners with ODS.

Ms Beaumont reviewed the first multinational agreement under Branch: Environmental Advisory Services, the 19th Session of the Commission on Sustainable Development (CSD19). Its strategic importance was that South Africa pursued a policy position aimed at expeditious implementation of sustainable development on the thematic areas under review, transport, chemicals, sustainable consumption and production, waste management and mining. Key outcomes were the Global Ten Year Framework of Programme for Sustainable Consumption and Production (SCP) was agreed upon in the working group. Action required was that South Africa should ensure the development of a national framework on SCP and the adoption of global framework for Rio +20.

The second multinational agreement under Branch: Environmental Advisory Services was the Special Session of the Governing Council of UNEP and Global Ministerial Environmental Forum. Its strategic importance was that the UNEP Governing Council/Ministerial Environment Forum (GC/GMF) was the highest United Nations high-level environment policy forum. The key outcomes were the ministerial discussion in preparation for Rio +20 on Environmental change and Global responses and reaffirming the importance of sustainable consumption and production to the mandate of the United Environment Programme. Action required was to continue engaging in the debates with a view to influencing the UNEP work programs and policies mainstreaming environment into broader UN priorities.

Ms Beaumont did not go into detail on the Southern African Development Community (SADC) meeting noting they were system meetings to ensure that African countries raised their environmental issues and concerns. She noted most of the meeting revolved around preparation for COP17. 

Ms Beaumont noted that this was a rapid run through to give the Committee a sense of the large number and complexity of international agreements South Africa was engaging in. she said the delegates were working hard to ensure South Africa had a consistent position on these agreements.

The Chairperson questioned how the Committee could interact with these agreements without infringing on the executive but still to remain informed as a report once a year was not enough. He said role for the Committee in these processes should be etched out. He felt what was lacking were the agreements not yet passed. He suggested the inclusion of a small amendment to the clause to include agreements which were presentably busy being agreed to be included in the annual report. He said the process needed to be more dynamic as these agreements had a huge impact on economic growth and sustainability in terms of chemicals and so on.

The International Environmental Agreements (2011-2012) Annual Report to Parliament was noted and approved by the Committee.

Ms Beaumont noted that behind the summary she had presented there were a detailed set of reports which could be made available.

Ratification of the Belarus Amendment to Annex B to the Kyoto Protocol
Ms Beaumont said that many countries previously under the control of the Soviet Union were now seeking to commit to the Kyoto Protocol (KP). She said it was a really simple amendment, literally the case of adding the name of a country, adding their quantified emission reduction commitment and added that Annex B was the listing of the parties and their quantified emissions under the KP. She outlined the background to the Amendment which was a contribution to the global effort to reduce greenhouse gas emissions and to comply with the provisions of the Kyoto Protocol (KP). The Republic of Belarus proposed to amend Annex B to the Kyoto Protocol and to assume a legally binding quantified emission reduction commitment of 5% below their 1990 emission levels. In order for this amendment to enter into force, instruments of Acceptance must be deposited; the Amendment shall enter into force for those Parties having accepted it on the 90th day after date of receipt by the Depository of an Instrument of Acceptance by at least three fourths of the Parties to this Protocol.

She turned to the provisions of the KP which said that in terms of Article 21.7 of the Kyoto Protocol to the UNFCCC, “Amendments to Annexes A and B to this Protocol shall be adopted and enter into force in accordance with the procedure set out in Article 20”. In accordance with the provisions of the Kyoto Protocol, Belarus, by a letter dated 09 February 2006, thus proposed an Amendment to Annex B to the Kyoto Protocol. Decision 10 of the Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol (COP/MOP2) adopted the Amendment to Annex B of the Kyoto Protocol, which merely required the insertion of the word “Belarus” in the 1st column of Annex B and 95 in the second column. The proposed amendment to the Kyoto Protocol to the United Nations Framework Convention on Climate Change, to be inserted between the entries for Austria and Belgium.

Ms Beaumont said the advantages of acceptance would be that the Republic of Belarus will comply with the provisions of the Kyoto Protocol and will assume a quantified emission reduction commitment which was expected to result in the reduction in greenhouse gas emissions, if the Amendment came into force. She recommended that South Africa ratified the Belarus Amendment to Annex B to the Kyoto Protocol.

Mr G Morgan (DA) asked where the motivation was and why South Africa should ratify the amendment. He asked if Belarus formally asked the South African government to ratify.

Ms Beaumont answered that it would strengthen the total emissions reduction by Annex One parties and it was in the interest of the international community to add parties to the global emission reductions. She said Belarus’s request for ratification was made to the COP which supported the amendment but for the amendment to get ratified all parties had a national prerogative to agree to ratify or not.

Mr Morgan questioned the distinction between Annex B and Annex One and where Belarus fitted into this.

Ms Beaumont said that Annex One was Annex One to the Convention which was industrialised parties and Belarus was part of Annex One. She said the Convention was the umbrella instrument. She said Annex B under the Protocol was the Annex that needed to be amended to bring additional industrialised parties into the ambit of the KP.

Mr Morgan questioned South Africa’s view on the level of ambition of Belarus’s commitment.

Ms Beaumont noted that 5% was probably reached. She said there was more of an emphasis on large industrialised states that were able to reach more ambitions commitments. 

Mr J Skosana (ANC) asked how South Africa processed and monitored the implementation of resolutions from an administrative point of view.

The Chairperson added there was a report produced after COP on all agreements and decisions reached. He felt the Committee needed to take a briefing before COP18.

Ms Beaumont said it would be an important briefing to take. She said South Africa’s negotiating mandate was currently being drafted with three possible scenarios for negotiation outcome. After that, the document went to Cabinet in October so a briefing could take place in November. She noted that COP18 would not be an easy negotiation and as was indicative under COP17, there were different concepts on the speed of progress and what was achievable.

Mr Morgan questioned if there were any inducements offered by Belarus to South Africa ratify the agreement.

Ms Beaumont said that there certainly were not any inducements offered and if anything, South Africa had been a bit slow in getting the process going.

The Chairperson was worried about the official terminology. He said the wording should be totally accurate.

There was unanimous agreement on recommending the Ratification of the Belarus Amendment to Annex B to the Kyoto Protocol. 

The International Environmental Agreements (2011-2012) Annual Report to Parliament was also approved by the Committee.

The Chairperson said that five reports had been approved. He said that Ms Shireen Dawood, Content Advisor, had drafted resolutions on issues Members raised with other reports and would be given to the Committee. He said it was not vital that the resolutions were passed immediately. 

NEMLA Amendments
Annexure A: Urgent Additional Amendments to the NEMLA Bill, 2012 [B13-2013] Version 17 09 2012

The Chairperson asked if the Committee would be happy with splitting the Bill into two parts (first NEMLA and second NEMLA) so that one half can be sent to the National Council of Provinces (NCOP) while working on the second part.

The Committee agreed.

The Chairperson noted that Annexure A were technical amendments brought up during the public hearings with hopefully, no disagreement. He added that he was cautious and the process needed to be handled carefully to be in line with constitutional principles.

Mr Ishaam Abader, DEA Deputy Director-General: Legal, Authorisation and Enforcement, noted the Chairperson's point and said many of the new amendments were issues raised by the Chief State Law Advisor.

Clause 9: Delete Clause 9 from the NEMLA Bill
Clause 9 was intended to be included in the Bill to reaffirm the Department’s view that no exemptions may be granted from the requirements to obtain an environmental authorisation when intending to undertake a listed activity. However, it had the consequence that the inclusion of this Clause prevented the Department from exempting projects required to be undertaken in emergency situations.

Ms Linda Garlipp, DEA Chief Director: Law Reform and Appeals, explained that the Department was beginning to think that it was not a good idea to completely remove the right to exempt a person from obtaining environmental authorisation. She mentioned Acid Mine Drainage (AMD) as an example.

The Chairperson could not understand why the Department was removing the one thing the Committee liked.
 
Ms Garlipp used the example of AMD and how not having the power to exempt was a problem.

The Chairperson sought greater clarity. He did not understand how developers who were not following the right processes could get exemptions from obtaining environmental authorisation.

Mr Abader said there were emergency situations or instances were action needed to be taken quickly without an applicant going through the entire Environmental Impact Assessment (EIA) process, which could take anything from a year onwards, there had to be an alternative solution. 

The Chairperson questioned if the Department were referring to 24F and 30 emergency situations or instances outside 24F and 30.

Mr Abader said it was in reference to emergency situations outside 24F and 30.

Ms Dee Fischer, DEA Chief Director: Environmental Management Systems (EMS), said it granted exemption from going through the assessments and was a proactive measure to determine the best scenario. In terms of AMD, a decision was taken by cabinet which took away the ability of the EIA to inform. She said it was not really associated with emergency but with other situations involving EIAs.

The Chairperson said that in effect the exemption would be used to exempt the cabinet decision. He said it sounded wrong. He questioned if an exemption was the right thing. He suggested a different procedure was set up to deal with such issues. He said a potential problem was identified with the wrong solution.

Mr Skosana said this must be rectified so that everyone had the same understanding and could move forward.

Mr Morgan agreed with the sentiment and point the Department was making but was not sure the wording was correct. He did not support government doing something without going through an EIA which was what he understood would happen judging by the wording. He asked if this was undermining the key part of NEMA 1998 of the importance of consultations and public involvement in environmental decisions. He felt this created a problem and explicitly excluded the public.

Mr Abader said in some instances the Department wanted to avoid this process and noted there were many regulations that accompanied the exemptions and safeguards in terms of administrative decisions would apply as well.

The Chairperson asked what exactly had happened that made the Department feel it should include exemptions since they last met with the Committee.

Mr Abader said there were certain instances of imminent or immediate danger where the EIA process took too long and the harm that was meant to be avoided could have been done already.

The Chairperson said AMD was not a good example as for years the Department did not see it as an emergency.

Ms Fischer said an exemption can only be granted in certain circumstances and it never took away from the right of the public to be involved. She said consultations and assessment of impact still needed to be done even if an exemption was granted.

The Chairperson said the granting of an exemption should not even be an option. He said the argument made by the Department to delete clause nine was not convincing enough.

The Chairperson said this matter was to be referred back and should not be in this document. He flagged the issue for the Department to relook their arguments. He said it created a huge loophole and created potential for huge corruption.

New Amendment
Ms Garlipp explained that the Department wanted to include a new amendment to say that a prohibition or restriction notice should be accompanied by an empowering provision preventing a proponent from applying for an environmental authorisation completely within a specified geographical area.

The Chairperson said this issue was also not meant to be in the document. He said anymore issues like these should be skipped as he only wanted to look at the technical amendments to put under the new Bill (Biodiversity Bill).

Proposed Amendments to the National Environmental Management: Biodiversity Act, 2004
Clause 20

This amendment was to delete the words “clinical trials” in the definition of “commercialisation”.

Ms Laetitia Tshitwamutawni, DEA Deputy Director: BABS, said the Department was trying to refine the definition of “commercialisation” for bioprospecting.

The Chairperson agreed to the amendment.

New Amendment
This amendment proposed to amend the definition of “delegation”. The Committee agreed to amend.

New Amendment
This amendment proposed to amend the definition of “competent authority”. The Committee agreed to amend.

New Amendment
This amendment proposed to amend the definition of “issuing authority”. The Chairperson asked what kind of distinction the Department was trying to draw between “assign” and “delegate”.

Ms Magdel Boshoff, DEA Deputy Director: Biodiversity Policy explained it was to give the Minister the authority to decide whether she wanted to retain her power of delegation while only the MEC had the authority to decide to assign a function.

The Chairperson said it was easier for it to be left at “delegate or assign” as it allowed the Minister to decide and allowed for flexibility.

Ms Boshoff said it primarily related to issues of alien invasive species where the Minister was not envisaged to assign that function to other organs of state.

The Chairperson said that did not allow for flexibility. He agreed to amend the Clause in this way.

Clause 25
This amendment proposed the addition of certain words to strengthen the Department’s efforts in addressing some of the regulatory gaps within the permitting system. The Committee agreed to amend.

Clause 38
This proposed amendment was to expedite payment of monetary benefits arising from the benefit-sharing agreements to beneficiaries that have established bank accounts. The Committee agreed to amend.

New Amendment
This amendment proposed to further strengthen the Department’s efforts in addressing some of the challenges in the permitting system with respect to the hunting of threatened or protected species, alien or listed invasive species. The Committee agreed to amend.

Clause 47(b)/new amendment
This amendment proposed to delete Clause 47(a) of the Bill as well as subparagraphs (b)(i), c(i) and (ii), e(i) of Section 97(1). The Committee agreed to amend.

New Amendment
This amendment proposed to insert the phrase “or subsection 57(1A)” after the words “Section 57(1)”. The Committee agreed to amend.

New Amendment
This amendment proposed to provide adequate enabling provisions for the current amendments to the Threatened and Protected Species Regulations. The Committee agreed to amend.

New Amendment
This amendment created an enabling provision to assist in terms of specifying the circumstances in which permits may be refused or activities should be seized. The Committee agreed to amend.

New Amendment
This amendment arose because the Chief State Law Adviser advised that the duty of care in the Threatened or Protected Species Regulations pertaining to damage causing animals must be linked to an empowering provision in the NEMLA Bill. The Chairperson agreed to all the inclusions under Section 97 but suggested these were all included in a general clause upfront.

Mr Morgan questioned one amendment which related to boat-based whale and dolphin watching and asked what under legislation it fell under. He asked where the Minister currently got that power around granting. He also asked if the amendment had been discussed with the Department of Agriculture, Forestry and Fisheries.

Ms Garlipp said the specific section was transferred from the Marine Living Resources Act. She said the Department wanted to move all such activities to the Biodiversity Act. She said there was no dispute between the two departments that it would fall under DEA.

Ms Boshoff added the scope was much wider than what the Biodiversity Act allowed for. She said DEA had recommended to oceans and coasts that they develop regulations to deal with all these issue like licences.

The Chairperson was worried by this.

Ms Boshoff said the regulations and objectives could be moved to under NEM:BA. She noted this area was highly criticised by the Chief State Law Adviser.

Mr Morgan said the Department needed to move carefully on this issue and should eradicate the possibilities for a successful court challenge. He questioned the difference between licensing and what was already under the Biodiversity Act like in the instance of hunting.

Ms Boshoff said it related specifically to rhino hunting to ensure that hunters were bona fide.

The Chairperson clarified the question of Mr Morgan.

Ms Boshoff said there was a difference between the regulating of an activity and impact on a species and regulating the qualifications of the person.

The Chairperson said the law advisors were being too narrow. He said an empowering clause should be created.

Clause 50(a)
This amendment was proposed to include the word “activity” to include the entire business process of the use of the indigenous biological resource which was illegally bioprospected. The Committee agreed to amend.

Clause 50(b)
This amendment proposed the word “eradication” be replaced by the word “control” which was defined in the Act and included the “eradication”. The Committee agreed to amend.

Substitution of certain words in NEM:BA
This was a consequential amendment as a result of amendment to the definitions of “issuing authority” and competent authority. The Committee agreed to amend.

The Chairperson asked where the amendments to “and/or” were like under the definition of waste from the outcomes of the hearings. 

The Chairperson said the important thing now was to draft the amendments and get reports ready. He said the Department would now do the first whole Bill with amendments and the Committee would then go through them. The second thing was to go through NEMA to develop a documents which looked at all the amendments and difficulties the Department was facing in regard to them.

Mr Morgan asked when the briefing document on wildlife crimes penalties for poaching would be discussed.

The Chairperson said this document fell under the Biodiversity Act and would be looked at when the Department looked at the NEM:BA Amendments. Other outstanding documents relating to the legal opinions would also be looked at. He said the Members should have received a copy of the judgement the Department alluded to at the last meeting. He noted it was highly technical and not entirely useful. He said that he forgot to mention to the Minister that the Committee was looking at this issue.

Committee Business
The Chairperson mentioned to the Committee the addition of Ms Gwendolyn (Wendy) Crouwther, an American lawyer, who was now assisting the Committee as a voluntary researcher. He noted that he, Ms J Manganye (ANC) and Ms Dawood had met with her and recommended that the Committee make use of her services on an internship basis, in particular on the National Water Resource Strategy. He noted that she would be working with the Content Advisor and the Committee’s researcher. He said that he would circulate her curriculum vitae (CV) to the Members.

The Chairperson told the Committee that Members might not be able to go on their oversight visit to the Lesotho Highlands Water Project (LHWP) as there were problems with Members travelling during the constituency week.

The Chairperson noted that if he was not able to be present at tomorrow’s meeting, Ms J Mangaye (ANC) would be the acting Chairperson.

The dates of 08 and 09 October were set for the conference on waste while the Wednesday and Thursday would deal with water. The Monday would be on the Millennium Development Goals (MDGs). By the end of that week, two reports needed to be adopted. It was absolutely vital the Committee heard public opinions on the National Water Resource Strategy.

The meeting was adjourned.

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