Petroleum Resources Amendment Bill [B15-2013], National Environmental Management Laws Second Amendment Bill [B13-2012], marine mandates, emissions matters: Department of Environmental Affairs updates

Water and Sanitation

12 February 2013
Chairperson: Mr J De Lange (ANC)
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Meeting Summary

The Department of Environmental Affairs (DEA) briefed the Committee on several bills that were in progress. The first briefing related to the Mineral and Petroleum Resources Development Amendment Bill, where the main concern was to ensure speedy processing of the Bill, and to create unified legislation that catered for the interests of the DEA, and the Departments of Mineral Resources (DMR) and of Water Affairs (DWA), so that mining licence applications would be linked directly to environmental impact assessments and applications for water use licences, with the three applications being considered simultaneously, but officials retaining their powers on a joint committee. The Committee highlighted that the Department must ensure that the 2008 agreement between the Department of Environmental Affairs and the Department of Mineral Resources was reflected properly, and suggested that the best route to follow was a general Laws Amendment Bill by each relevant department. It urged that this legislation be prioritised.

A presentation was given on the Environmental Affairs Oceans and Coastal Mandate Divisions of the DEA. The Fisheries Department had been separated from the Department of Environmental Affairs, and had been moved to the Department of Agriculture, Forestry and Fisheries. Two Presidential proclamations were issued, but these were not clear on exactly which functions were transferred, and the case of Air Jaws v Minister of Environmental Affairs raised the issue that the proclamations issued by the President were vague, particularly in relation to regulation of whale watching and shark-cage diving permits. It was now agreed, between the officials of the departments, that the legislation needed to be clarified, and this must be confirmed now by the Ministers. Members suggested that the previous regulations and proclamations should be repealed, and new ones issued that dealt properly with the issues should be drafted, hopefully before June.

The DEA also advised the Committee that during 2010 the DEA had, after consultation with industry and the public, including a number of NGOs, issued a notice under the Air Quality Management Act, relating to emissions by industry, which was essentially a compromise. Industry had since advised the DEA that it was unable to comply with the requirements because more time was required to change processes, but NGOs had objected, maintaining that the standards should have been met some time ago. NGOs had asked parliament to arrange for public hearings. The DEA and Committee agreed that this would be useful as it could highlight the main points and illustrate how the sectors engaged on the issues.

The final briefing related to the progress on the National Environmental Management Laws Second Amendment Bill (NEMLA), in particular those related to biodiversity, which had been removed from the NEMLA First Amendment Bill, and several had been redrafted. The new definitions were highlighted, and the Chairperson suggested that section 24O should contain definitions specific to it, rather than the definitions section. The Chairperson wanted “evaluation or assessment” to be inserted into section 16 of NEMA. The heading of section 24 had been changed to “Integrated Environmental Management”. The Chairperson wanted the word “must” to be used. Members discussed whether section 24(2D) should be removed, and asked the Committee to report back with more suggestions. Section 24C had been amended for further clarity, but the Committee questioned the exclusions, saying that the national Department should be the competent authority. The Committee wanted to see both publication and tabling before Parliament, particularly in relation to regulations, to be inserted into this Bill, and indeed as a standard clause in all bills. The Committee wanted Section 24C to be further expanded to note that sufficient documentation must be provided, copied to the MEC and that decisions should be taken in one month. The Department suggested, and the Committee agreed, that an MEC failing to give a decision must be put to terms to give one within the following 30 days, in order to avoid a plethora of applications to the Department. The Committee was told that all the criminal provisions had, in line with the Committee’s earlier request, been moved to a separate clause in the NEMLA, but the Committee wanted this to be further clarified by specific references to offences, defences and penalties. The Committee also commented that the first-offender fine of R5 million was not that substantial and that perhaps this should be left in the discretion of the Court, with particular considerations given to the value of damage. Section 24G should be amended further to specify that illegal activities must be brought to a halt pending investigations, and include the power for the Minister to make directives and give directions. The Committee asked that sections 24M(1A)(1) and (2) be harmonised. Section 30A(1) should be linked to the Disaster Management Act. The Committee also asked if a provision could be included requiring a person to seek authority from the Department before taking actions. The Committee also wanted an addition to section 39A to give the Minister power to regulate or prohibit. There was no need to include a clause relating to binding the State, as this was covered in the Constitution so section 48 of NEMA could be deleted. 

Meeting report

 

First term programme
The Committee adopted the First term programme, after the Chairperson had advised on some changes. On 13 February the Committee would consider a matter about the emissions list, on which targets had been agreed at some stage. He suggested that public hearings were necessary about the complaint, involving the business sector and NGOs. The Committee was in favour of reducing emissions, but maximum consensus on the point was needed, given the potential for consequences to the industry, health and environment. He asked the Director General of the Department of Environmental Affairs (DEA or the Department) to send the original and amended documents to everyone. He suggested that the matter be further debated after the budget hearings.

On 19 February there would be a briefing from the Water Research Council.  and, on Wednesday 20 February 2013, a briefing from the Department of Environmental Affairs on COP 18, as well as two other briefings on Waste Management Solution and a briefing from the Department of Environmental Intelligence. A workshop was planned to discuss the criteria for performance indicators and performance targets in the Department of Environmental Affairs (DEA or the Department). The Chairperson noted that the Auditor-General had brought out some reports on departments, dealing with consultants’ performance audits. After the budget hearings, the Committee would attend to processing the Integrated Coastal Management Bill, the Green Paper on Oceans, Environmental Impact Assessment Public Hearings.

Mineral and Petroleum Resources Amendment Bill: Department of Environmental Affairs briefing
Ms Nosipho Ngcaba, Director General, Department of Environmental Affairs, updated the Committee on the 2008 agreement between the departments dealing with mineral resources and environmental affairs, to have a single and standardised environmental system for the country, which meant that all  environmental-related activities would be regulated through the National Environmental Management Act (NEMA). Ministers of Mineral Resources and of Environmental Affairs had now resuscitated the agreement and asked the two departments to work together on amendments. The National Environmental Amendment Acts (NEMA) amendments would facilitate a system that integrated mining activities and considered the impact of mining on the environment. However, the Bill actually effecting the amendments was drawn by the Department of Mineral Resources, and the DEA was still working on similar amendments through the NEMA amendment process.

Ms Ngcaba noted that there was a need to stream water licenses with Environmental Impact Assessments (EIAs) and the Environmental Management Programme. She sought guidance whether the Committee would prefer one all-encompassing, or three separate bills to deal with the matters.

The Chairperson asked the DEA to expand on the 2008 agreement.

Ms Linda McCourt, Chief Operating Officer, Department of Environmental Affairs, said that all the functions that related to environmental management under the Mineral and Petroleum Resources Development Act (MPRDA) had to be removed from that Act, and transferred to NEMA, which would in future apply also to mining and any other industry that affected the environment.  Some amendments were made to accommodate specific issues that were previously related to mining.

In relation to the administrative responsibility for processes and appeals, it was agreed that, although the regime would operate under the NEMA, provincial offices of the Department of Mineral Resources (DMR) would act as a competent authority and would be issuing the environmental authorisations. The role of the Minister of Environmental Affairs as the overall custodian of environmental matters would be reflected in the fact that this Minister would be the appeal authority. All sections in the MPRDA that related to environmental decisions had to be moved into, and dealt with under the National Environmental Management Act (NEMA) and the EIA Regulations. It was agreed that there would be a time frame in which rehabilitation must happen.

Both amending bills were submitted to Parliament in 2008, and were considered by a joint committee, which had concluded that further amendments were still needed. Transitional phases applied in respect of the functions, but in terms of the bills that were passed at that stage, certain clauses were to come into effect, in some cases, in three years, and in some eighteen months after the bills had come into effect.

The DEA had brought the NEMA Amendment Act into operation, but the similar clauses in the MPRDA were not brought into effect, which therefore hindered the effective transfer of operations.

DEA started renegotiating on this agreements in the last year, and agreed that some amendments were required to follow an integrated environmental process, where environmental authorisation and the mining rights process would be fully aligned, where there were the necessary steps taken to set up the competent authority on a permanent basis, and to deal with the arrangement about rehabilitation and the rehabilitation fund. This was the amendment that currently needed to be effected.

The Chairperson noted that it seemed the departments were now back where they had been in 2008 and asked for an explanation on what still had to happen.

Ms Linda Garlipp, Chief Director: Law Reform and Appeals, Department of Environmental Affairs, said that the DMR had published its bill on 20 December 2008, for public comment. However, alignment was still needed with this Bill by DEA, which was drafting its Bill. The DEA had submitted some comment to DMR and was trying to get this alignment sorted out. It was necessary to ensure that there was an agreed notification process, when an applicant submitted a mining license application, so that the DMR would request that applicant to then submit an application for environmental authorisation both to the DEA and the Department of Water Affairs (DWA). The departments had agreed on some time frames, within which the environmental authorisation, the mining licence and water use licence must all be issued simultaneously, after a committee had sat to consider all applications jointly.  

The Chairperson interjected to ask what “joint-decision” meant

Ms Ngcaba explained how the coordination would work, saying that the current authorities who were responsible for making decisions would retain their authority.

The Chairperson clarified that there was going to be Committee that made sure that deadlines were met, but ultimately the decision-making function remained with the relevant authority.

Ms Ngcaba stressed that the DEA would either introduce a General Laws Amendment Bill, or have separate bills, namely the NEMA Amendment Bill, a Water Act Amendment Bill and a MPRDA Amendment Bill. The MPRDA Amendment Bill would contain some issues already in the public domain, such as the fact that the definition of certain mining activities would have to comply with the requirements of the Environmental Management System, rather than being as wide as they were previously. DEA was now awaiting the outcome of the Minister’s meetings, and would then be able to bring the necessary amendments to facilitate the alignment process.

Discussion
The Chairperson advised that the regulations to all three Bills would also be amended. He would prefer that one bill be introduced by each of the DEA and DMR, encompassing amendments to the three necessary Acts, so a General Laws Amendment Bill would make better sense. The Portfolio Committees on Environmental Affairs and Mining should process them jointly. He added that it was important to process the bills speedily, and at the same time, and processes must be in place to check that the agreements were properly reflected in the legislation and regulations. All the principles had apparently been agreed upon. He noted that at the moment the main problem was that a mining license might be given, but there would be no water authorisation yet. The agreement was clearly pronouncing that the environmental laws should be followed.

Mr J Skosana (ANC) agreed that to avoid contradictions, the three departments must work together. He urged the two departments to take the processing of the Bill seriously and for their administrative departments to ensure that there would be speedy processing of the Bill. He agreed it was very important to come up with one Bill that would assist the country in environmental issues.

The Chairperson said the DEA needed to start the processing in the next week or two, and give priority to it, to ensure that the 2008 agreements were implemented.

Jurisdictional problems in relation to Marine Life Act: Department of Environmental Affairs and Department of Agriculture, Forestry and Fisheries
The Chairperson said that the Fisheries function, formerly under the DEA, had been moved in 2009 to the Department of Agriculture, Forestry and Fisheries (DAFF) . Presidential proclamations had been effected to transfer some powers with the fisheries, to DAFF. The DEA had kept the power to issue shark-cage diving and whale watching licenses. This had been challenged in a court application that claimed that the Proclamation was vague and failed to specify exactly what powers were left with DEA. Court cases in relation to fisheries were still pending. He asked for further clarity.

Ms Ngcaba clarified that the background, as stated by the Chairperson, was correct in relation to the split of functions. The Marine Living Resources Act was assigned to the Minister of DAFF, but the functions for certain sections of the Marine Living Resources Act were being exercised by the Department of Environmental Affairs. There was an agreement that both departments had to regularise their legislation to avoid ambiguity.

Environmental Affairs Oceans and Coasts Mandate Divisions: Briefing
Ms Radia Razack, Director: Legal Services, Department of Environmental Affairs, said that the case of Air Jaws v Minister of Department of Environmental Affairs concerned a permit allocation for white shark diving. The applicant, Air Jaws, was unsuccessful in getting a permit, although it had previously been operating (but had been the poorest performer) in the False Bay area. It had appealed to the DEA’s Minister, but lost the appeal, and then took the matter to the High Court. The main question was who had the power to issue the permit. The President had made two proclamations. The first, in 2009, merely transferred the aquaculture function to DAFF. The February 2010 Proclamation transferred the capture fisheries powers to DEA. The Proclamations did not, however, highlight what was not transferred to DEA. The Marine Living Resources Act dealt with powers relating to fisheries, and, at the time, environmental considerations were divided; with the bulk of the Act’s powers going with the fisheries function to DAFF, but regulations in relation to whale watching and cage diving being left with the DEA. The fact that certain functions were not defined clearly had led to confusion and disagreement.

In order to resolve this, discussions had now been held between DAFF Officials, DEA Officials and officials from the Presidency. The Marine Protected Areas and the White Shark Cage Diving were both an environmental mandate. The proclamation was not the ideal way to the split the powers between the departments. Ultimately, the officials negotiated the drafting of a new proclamation, which would be designed to address the division in functions more specifically, and to state each of the powers and functions been given to DAFF and to DEA. The Chief State Law Adviser must then present this to DAFF Officials and to the President. A parallel process by DEA and DAFF was needed to clarify these issues.

The Chairperson suggested that it would be ideal for DEA to draft its own Proclamation that indicated the powers and functions that were transferred to it. He commented that he had come under fire from people who wanted shark diving licenses. The regulations setting out powers that were transferred to DAFF must be repealed, and completely new ones drafted. He urged that DEA and DAFF must meet to agree on how things must be processed, so that one consistent process between the two departments was followed. He also noted that this must be done with speed.

Ms Ngcaba replied that now the political principals had to meet, for the officials had done their part and the Ministers had to finalise the matter. DEA had proposed that it would need to amend the Protected Areas Act, that dealt with both marine and terrestrial environments. Responsibility for the Species regulations were transferred to the Cabinet, as a clean-up of the remnant of the functions of the departments.

The Chairperson suggested that there should be an agreement on the process, with deadlines also agreed for the legislation.

Ms B Ferguson (COPE) suggested that the DEA must revert to the Committee before June.

The Chairperson advised DEA to keep the Portfolio Committee posted about the Proclamation. He also suggested that it should make a press statement about the shark cage matters.

Ms Ngcaba said that currently there were no applications or appeals for shark cage diving.

The Chairperson also asked for copies of documentation related to the court case.

Emissions complaints from Non-Governmental Organisations
The Chairperson asked for a briefing on the complaints made by non-governmental organisations about emissions, and asked exactly what issues were involved.

Mr Sibusiso Shabalala, Director: Law Reform, Department of Environmental Affairs, explained that in 2010 the Air Quality Act included a list of activities that were identified as making emissions into the atmosphere, and this emission standards were published in 2010. Issues in regard to emissions had been discussed between members of the public, industry and non-governmental organisations (NGOs). The critical issues that were raised were the time frames within which industries had to comply with the standards, as well as different activities that were previously regulated under the Atmospheric Emissions Prevention Act, but were now captured under the Air Quality Act. The emissions list had essentially been a compromise in 2010.

However, there had since then been a process followed to amend the 2010 list. DEA had identified dates for implementation of standards and wanted to amend certain requirements in relation to substances, emission numbers and compliance time frames. The DEA contacted the affected industries and NGOs. The latter had raised their concerns about the extension of time frames for compliance with emission standards, and had requested the Portfolio Committee to arrange public hearings.

Ms Ngcaba added that the DEA also received submissions from private sector businesses, stating that DEA’s expectations around changing their industrial processes were perhaps not feasible, and that it would require a further reasonable time to comply with the emission standards. NGOs, however, were contending that the industries should have complied with the standards long ago. A compromise was reached with the publication of the notice.

She said that public hearings could be useful, for this would enable DEA and the Committee to assess how both the private sector and NGOs engaged in these matters.

The Chairperson said that the documents must be sent to the Portfolio Committee, and confirmed that public hearings would be arranged.

National Environmental Management Laws Second Amendment Bill (NEMLA): Progress briefing by Department of Environmental Affairs
The Chairperson reminded the Committee that part of the National Environmental Management Laws Second Amendment Bill (NEMLA) amendments related to biodiversity. He asked the DEA to summarise the amendments in the second part of the NEMLA.

Ms Garlipp reminded the Committee that after some public hearings and deliberations by the committee, the DEA had decided to split the NEMLA into two parts. The less controversial amendments had been passed as the National Environmental Management First Amendment Act, but further amendments requested by the Portfolio Committee and suggested by the Department itself, in relation to biodiversity, were transferred to the NEMLA Second Amendment Bill.

She took the Committee through the changes. The DEA had added two new definitions for “disaster” and “adopted”. It had adjusted the time-frames for the preparation of environmental management and environmental implementation plans. The Bill now provided for the submission of environment outlook reports, by municipalities. DEA had added an empowering provision to prescribe the process for submission, scrutiny, adoption and compliance with the environment outlook reports, as requested by the Committee.

The heading that previously read “Environmental Authorisation” had been amended to read “ Environmental Impact Management”. There was now reference to  “Integrated Environmental Management” so as to broaden the scope of the provisions. The Minister would be empowered to restrict or prohibit the granting of an environmental authorisation for certain listed or specified activities in certain geographical areas, for a certain period of time.

DEA had also added an amendment that stated that a competent authority may not accept further applications, and pending applications would be deemed to have been withdrawn. Mrs Garlipp explained that the purpose of the section was to avoid wasting time if the Minister had refused the application.

The power to develop norms and standards, activities, geographical areas, and sectors were expanded upon. A new section 24C would clarify when the Minister would be the competent authority.  She stated that the original intention was to clarify the section.

The Chairperson interrupted, saying that this was one of the clauses to which opposition had been noted. The word “other” was deleted from the section ,which meant that all the powers of the provinces were removed. He said that this was clearly not what was intended.

Ms Garlipp referred to an amendment inserted to state that the Minister would be the competent authority if the activity “is, or relates to, a matter that has been declared a national priority by means of a Cabinet decision”. There were certain requirements around empowering the Minister to take a decision in the instances where the MEC failed to take a decision. Further amendments might be needed to the provision.

She noted that all the criminal provisions were now in one place in the Act, in the new section 23. The new section 24F said that no person may commence with a listed or specified activity without an environmental authorisation, or in terms of an applicable norm or standard, and it would be an offence to fail to comply with this. The new amendment, relating to the raising of an emergency situation as a defence, was qualified it now being specified that this defence could not be used by the person who had caused the emergency. The response must be proportionate to the threat to human life, property or the environment.

Ms Garlipp noted the change of the heading of the new section 24 G  to “Consequences of the unlawful commencement of an activity”, which would clarify that the DEA was not rectifying an unlawful commencement of an unlawful action. The new section 24G would be applicable to a person who commenced a listed or specified activity without an environmental authorisation, and a waste management activity without a licence. She said that the Western Cape Province still wanted this provision to include reference to provisions in the Air Quality Act, but the Department was still busy amending the Air Quality Act.

A new Provision had been added that the Minister/ MEC/ Minister of Mineral Resources may direct the applicant to cease the activity, pending a final decision, and to compile a report. The Minister/ MEC/ Minister of Mineral Resources may refuse to issue an environmental authorisation, or issue an environmental authorisation that was to take effect from the date of issue, and could also defer a decision pending the outcome of the criminal investigation, criminal proceedings, appeal or review proceeding.

Mrs Garlipp stated that the Department added another new amendment that increased the fine from R1 million to R5 million. It was clarifying that the submission of an application or the granting of an environmental authorisation in no way derogated from the authority’s legal authority to initiate or conduct criminal investigation or prosecution. The DEA had also added the power to make regulations relating to the criteria and set out the procedure to be followed in the determination of the administrative fine. There would be no exemptions allowed from obtaining an environmental authorisation when required. There was a new power that provided for an exemption of a project that was of national and provincial importance, and was aimed at preventing and mitigating serious harm to the environment or property. However, this would still not serve as an exemption as certain assessments would still have to be done in terms of section 24.

Ms Garlipp also pointed to another amendment that provided for the consideration of adopted environmental management instruments when considering an environmental authorisation. Amendments to section 28 would make it easier for the authority to issue a directive and would empower the authority to, among others, direct a person to cease any activity, operation or undertaking.

Another new provision had been added, to allow a person to commence with a listed or specified activity to prevent, contain and mitigate the effects of a disaster without an environmental authorisation. Environmental Management Inspectors would now be able to seize vehicles, vessels, aircraft, pack-animals or any mode of transport under certain circumstances

Another provision had been added that the Minister may from time to time regulate, prohibit or control the production, sale, distribution, import or export of products that may have a substantial detrimental effect on the environment.

The amendment that provided for consultation with Cabinet Members whose areas of responsibility will be affected had been amplified.

Provisions regarding the additional methods of delivery of documents were also added. There were amendments to the offences and penalties clauses. Finally, there was an additional amendment that specified that this Act would bind the State, without exception.

Discussion
The Chairperson asked if there were any amendments to the Long Title

Mrs Garlipp replied that DEA had aligned the Long Title with the amendments that had now been added to the Bill

The Chairperson said that the definition of “adopted” was unusual. Noting that this word appeared only in the new section 24O, he suggested that the adoption should rather be specified in that section.

The Director General highlighted that S24O referred to the Minister and the MEC, and that moving the definition to that section might not work.

The Chairperson noted that a copy of the new Bill was needed. He noted that “disaster” as used in the amendment must be linked to (b) of the existing section 24.

The Chairperson requested that the procedure for the environmental outlook reports be added to section 16A (5). He asked, in relation to this clause, what “scrutiny” meant.

Mr Shabalala replied that it meant to consider a report, to go through it and to adopt it

Ms Ngcaba stressed that reports without any significance should not be submitted, merely for the sake of compliance

The Chairperson advised that the words “evaluation or assessment” must be inserted in section 16A(5) if needed. He highlighted that the current draft meant that local reports go to the province, and became that province’s report, and thus the same happened for local outlook reports, which would be the province’s outlook reports.

Mrs Garlipp said that the heading of section 24 was being changed to “Integrated Environmental Management” because it describes better the content of the section.

The Chairperson said that “must” or “shall” should replace the word “may” in section 24(2A)(b)

Ms Vuyokazi Ngcobozi, State Law Advisor, Office of the Chief State Law Adviser, agreed that “must” would ensure more consistency.

Ms Ngcaba wondered if the clause should be left as discretionary.

The Chairperson highlighted that making the clause discretionary would not make sense. He said it must be constructed so that no further applications were allowed.

Ms Ngcaba said the Department was not allowed to change geographic areas.

The Chairperson responded that in this case the provision should be made applicable to sub-section (a) of section 24(2A)

Mrs Garlipp said that the amendment in section 24(i) was made to provide flexibility for making norms and standards. It referred to norms and standards for geographic areas as well.


Ms McCourt noted that there was reference to section 24(2D) of the Act, which permitted an exclusion from obtaining authorisation where there was a norm or standard.

The Chairperson noted that if (2D) were removed, it would broaden the provision. This section referred to activities and was very specific. Where there were no EIAs, the Department wanted norms and standards to apply. He asked the DEA to look into this section and report back to the Committee.

Ms Garlipp said that section 24C was clarified because it created confusion in the public. She noted that the sub-paragraphs (i) to (vii) were excluded from the powers of the Minister

The Chairperson said that the competent authority that dealt with section 24C would still retain its authority. Originally, the Department wanted to take out the word “other”, and that would mean removing all the powers from other competent authorities, including provinces. He pointed out that “other than” meant “excluding”.

The Chairperson said that the next two amendments had huge constitutional implications. If Cabinet decided that the national Authority would be a competent authority, that would be followed. The national priority had to be performed by the National Department, to make the provision clearer

Ms Ngcaba said it provided for a more strategic programme, like the strategic infrastructure programme. Currently Cabinet was considering a Bill to streamline the authorisation process so that infrastructure delivery was not undermined.

The Chairperson said Cabinet could pronounce on certain environmental issues at national level

Ms Ngcaba said that it was important to work in the spirit of co-operative governance, with the relevant authorities. It was essential to have an integrated decision making process.

The Chairperson asked what process would be created to facilitate transparency. He suggested that publication and tabling in Parliament could be the ideal two processes. A standard clause must be inserted into all legislation, in his view, to note that any publication of regulations or notices must be tabled within Parliament within 30 days. This would give the Department the chance to made corrections and have engagements with the Portfolio Committee. The wording of section 24B(f) should be clear and precise.

The Chairperson said that the Constitution assigned legislative power to both national and provincial government in relation to the environment. In relation to section 24C(4), if there was any dispute, section 143 of the Constitution would apply, and the court would decide where the legislative power lay. Section 125 of the Constitution dealt with concurrent administrative powers, so that when a national environmental law had been passed, it would be administered by the provincial government . He commented that section 24C(4) had been expanded by requirements that sufficient documentation must be provided, must be copied to the MEC and that the decision must be taken within one month. He recommended that it should also be stated that, whether or not a response was received from the applicant, an MEC could make directives and decisions.

Mrs Ferguson asked whether the MEC should be given a time frame

The Chairperson replied that after he had been given a time frame, he could make a directive 

The Chairperson also noted that the Minister would be the last resort if the section 24C process failed.

Mrs Garlipp said that the words “this Act” were defined in the definitions clause and included schedules, regulations and notices issued under the National Environmental Management Act. She was concerned that if the time frame lapsed without the MEC having responded, there could be a flood of applications to the DEA. She suggested that after the time frame, the MEC must then be put on terms to respond, by the applicant.

The Chairperson added that a 30-day period should then be allowed to the MEC, and only after that too had lapsed should the applicant be able to approach the Minister. Only exceptional cases should reach the Minister. He added that he wanted a report to Parliament, when the process was applied.

Dr S Huang (ANC) said that the directives must be within a clear 30 days.

The Chairperson agreed that time frames must be clearly stated.

Mrs Garlipp referred to the request, by the Committee, that all criminal provisions be moved to a separate chapter, and these were now set out in the new clause 23 of NEMLA.

The Chairperson asked for an amendment to S24G(i), to specify that illegal activities must stop, pending the investigations. The Minister must be given be given the power to stop illegal activities and obtain a report for such activity. The Minister must be given power to issue directives and directions to able to achieve the objectives of Clause 24. The issue of prosecution must be dealt with strongly if investigations were still pending. There must be options in the section.

Mrs Frances Craigie, Acting Chief Director: Enforcement, Department of Environmental Affairs, said that the idea in the new sections was to avoid burdening the administration. Illegal activities would be dealt by the enforcement process.

The Chairperson said that the Minister must be given powers to make directives and directions, as this would not be unduly burdensome, and would allow flexibility that may be of benefit to the Department.

The Chairperson also called for additions to section 24(2A)(4). The police must be given the right to conduct investigations and the prosecuting authority should have a right to prosecute. The Minister must have the power to exempt a project of national or provincial importance and this must be added as an amendment to section 24D.

The Chairperson stated that sections 24M(1A)(1) and 1A(2) should be harmonised. He suggested that it made sense to draft one exemption clause for all exemptions.

The Chairperson reiterated his view that the definition for “adopted” must be moved to the start of section 24O.

Ms Garlipp noted that she had section 30 of NEMA was amended by the deletion of subsection (11), because this related to the earlier comment on the criminal offences being brought together.   

She said that the intention of section 30A(1) was that any person can take action to prevent or mitigate a natural disaster.

Ms McCourt advised that section 30A(1) must be linked to the Disaster Management Act and to the specified activities in section 24(1)(a)(ii). She said that section 30A(1) was drafted for the interests of the environment and for the protection of people. Taking action to mitigate a natural disaster would be a defence to acting without environmental authorisation.

The Chairperson said that the problem with section 30A(1) was that any person could start any activity to prevent a disaster without any authorisation. He thought that a person starting an activity should somehow be requested to contact government.

A DEA representative said that the section could be linked to the Disaster Management Act in terms. There was of course still the question of liability of the person responsible for the activity.

Mrs Garlipp said that section 30 of NEMA dealt with the control of natural incidents

Mrs Ngcobozi suggested that if an emergency happened, a report should be given by the person.

The Chairperson said that attempts to obtain authority to act should be covered under section 30, including the possibility of a person making urgent applications before taking action in a disaster situation.

Ms McCourt said that there was a fundamental difference between a natural disaster and section 30, which related to an applicant responsible for that disaster.

The Chairperson suggested that section 31J should be made wider so as to link with all the other offences.

Ms Craigie, in relation to section 31J, said that were causing serious harm to the environment was an offence

Ms Garlipp noted the removal of criminal provisions from section 31N, by subsections (1) and (3) being deleted.

The Chairperson said that in section 39A, the Minister must be given power to regulate or prohibit

Mrs Garlipp stated that an administrative fine was added to section 44 of NEMA.

The Chairperson noted again that a clause must be inserted to state that all regulations must be tabled in Parliament 30 days before publication.

Mrs Ngcobozi said that clause 18 of the NEMLA Bill sought to amend section 48 of the Act and to delete words relating to criminal liability. The state could not institute legal action against other state institutions, and the state could not be held criminally liable.

The Chairperson stated that there was no need for a clause that will bind the state, as this was already covered in the Constitution.

The Chairperson and the Committee agreed to the removal of section 48 from NEMA. The Chairperson said that the new clause must contain all references to offences, and that should be divided into separate headings, dealing with offences, defences, and penalties.

The Chairperson also wanted disasters to be covered in a separate section.

Ms Garlipp emphasised that R5 million was the new penalty for first time offenders, with R10 million for second-time offenders.

The Chairperson noted that R5 million was not that high a penalty, for wealthy offenders, and he would prefer this not to be stated as the maximum penalty, so that the Court would have a discretion to impose whatever it deemed appropriate.

A DEA official added that other environmental legislation had some provisions around flexibility of sentences, which could be used as a guideline. He suggested that the commensurate value of the impact of damage to the environment, or the commensurate value of efforts to rehabilitate the area could be suitable guidelines for penalties

The Chairperson asked that the new amendments be presented back to the Committee within one month. He commended the drafters on their efforts to date.

The meeting was adjourned.

 

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