National Environmental Management Laws First Amendment Bill: Department's briefing

NCOP Land Reform, Environment, Mineral Resources and Energy

25 February 2013
Chairperson: Ms A Qikani (ANC; Eastern Cape)
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Meeting Summary

The Department of Environmental Affairs (DEA) outlined the National Environmental Management Laws Amendment Bill (First Bill) to the Committee. It was explained that one Bill had originally been tabled in  Parliament, but that during deliberations by the Portfolio Committee it was decided to split the Bill into two parts. The second, which concentrated on processes under the National Environmental Management Bill, was still under consideration by the National Assembly, but this current Bill before the Committee dealt with Biodiversity related amendments and the Air Quality and Waste Act. It was primarily intending to enhance protection of threatened and protected species.

The legislation to be amended was described and the specific amendments to the Biodiversity Act were explained. There would be revision of the definitions of bioprospecting, commercial exploitation and commercialisation to ensure that suitable regulation was provided for the biotrading in indigenous resources. Secondly, amendments would enable South Africa to comply with its obligations and bring the definitions of derivative and genetic resources in the Act in line with the Nagoya Protocol. New definitions were amended also for “biodiversity sector”. The Department also intended to insert a provision in section 87 of the Act which would clarify responsibilities of the Ministers and MECs in respect of permits, but was still awaiting the Minister’s approval. It would also specify who was responsible for the listed threatened and protected species in terms of the permit system. The scope of Chapter 4 was broadened, so that threatened species, and indigenous species that were both listed and non-listed would be used only in an ecologically sustainable way. The Minister would be able to prescribe a system for the compulsory registration of professional hunters, outfitters and trainers in the hunting industry. Another important amendment would allow associations operating in the biodiversity area to be recognised, and to administer themselves. Chapter 6 was being amended to encourage the use of indigenous plants, and the  Bioprospecting Trust Fund provisions would be changed to allow beneficiaries to receive direct payments. Exemptions could be granted by the Minister, under a set legal mechanism, to use biological indigenous resources for household reasons. Instances were also provided for where permits may be delayed, declined, cancelled or suspended. A single aligned appeal process was being created under section 43 of the National Environmental Management Act. The Minister was being given the power to develop regulations. New offences were created, and an amnesty provision included. Amendments to the Air Quality Act would align penalties with other environmental legislation, and there were changes to the definition of waste under the Waste Act.

Members asked for clarity on the amnesty provisions, asked whether this legislation had any impact on the administrative capacity of provinces, asked for clarity on how the prospecting funds were currently managed and what the changes would entail, and where additional funding would come from if the permit tax was introduced. Members believed that the lists of invasive species should be brought in line, and asked how control operated in practice. The authority for registration of professional hunters, and the permit and appeal system, were also further questioned.  

Meeting report

National Environmental Management Laws First Amendment Bill (NEMLA): Department of Environmental Affairs briefing
Ms Nosipho Ngcaba, Director-General, Department of Environmental Affairs, noted that the National  Environmental Management Laws Amendment Bill [B13 -2012] had been tabled in Parliament in April 2012. It was at that stage one Bill, but during the debate in the Portfolio Committee, it had been decided that it should be split into the NEMLA First and NEMLA Second Amendment Bill. The NEMLA First Amendment Bill dealt with biodiversity-related amendments, and that was the Bill that had been passed over to the National Council of Provinces (NCOP) in November 2012, and that was currently in front of this Committee. The NEMLA Second Amendment Bill covered amendments to the National Environmental Management Act (NEMA) and it was still under discussion at the National Assembly.

The current NEMLA First Amendment Bill provided for biodiversity linked matters such as the permitting system and the implementation of the provisions on the threatened and protected endangered species, (generally referred to as TOPES regulation), and matters associated with other aspects of biodiversity management and air quality management. 

Mr Sibusiso Shabalala, Director: Law Reform, Department of Environmental Affairs, said that the NEMLA Bill included amendments to the following Acts:
National Environmental Management: Biodiversity Act No 10 of 2004
National Environmental Management: Air Quality Act No 39 of 2004
National Environmental Management: Waste Act No 59 of 2008
National Environmental Management Laws Amendment Act No 14 of 2008
National Environmental Management: Protected Areas Amendment Act No 15 of 2009.  

The Department of Environmental Affairs (DEA or the Department) was introducing these amendments to deal with the challenges it was experiencing. It was crucial that they be processed to allow for expediting the protection of threatened and protected species as well as dealing with the alien and invasive species.

Proposed Amendments to National Environmental Management: Biodiversity Act 2004
Mr Shabalala explained that the first set of amendments was intended to revise the definitions of bio-prospecting, commercial exploitation and commercialisation, to ensure that there was effective regulation of the biotrade industry, especially as it related to indigenous resources. The second amendment related to the definitions of derivative and genetic resources in terms of the Nagoya Protocol, which had been signed by South Africa. The amendments were necessary to ensure that the Act’s definitions were aligned to the Protocol.

The third amendment would insert definitions of the biodiversity sector and self-administration, to enable the Minister to make regulations on self-administration of the biodiversity industry, and enable the industry to comply with the relevant provisions of the Act. The other amendments proposed would revise the definitions of competent authority and issuing authority, in respect of issuing of permits, or registration under the Act, to include all the relevant MECs. The Department also intended to insert a provision in section 87 of the Act which would clarify responsibilities of the Ministers and MECs in respect of permits, but this particular proposal was awaiting the Minister’s approval. The proposed provision would also specify who was responsible for the listed threatened and protected species in terms of the permit system.

Mr Shabalala stressed that it was necessary that the ecosystem as a whole was protected, to avoid exploitation even of species that were not presently being targeted. The proposals to amend chapter 4 of the Act also broadened the scope slightly, to provide for the regulation of threatened indigenous species, to ensure that any utilisation of these species was done in an ecologically sustainable way. The listed and non-listed indigenous species were not of high conservation value, but they were commercially utilised on game farms and therefore needed to be properly regulated to ensure sustainability of this use in the long term. The amendments also allowed the Minister to prescribe a system for the compulsory registration of professional hunters, outfitters and trainers in the hunting industry.

One important amendment was that DEA was proposing that associations operating in the biodiversity area should be recognised, and be allowed to administer themselves. Some of these organisations were voluntary, and occasionally military, but were recognised as important role-players. Their members must comply with relevant sections of the Act and should be monitored in accordance with the prescripts of the law. He added that the scientific work proposed was important for the permits issuing authority and was also a significant component of the permitting system as a whole.

DEA was also proposing the amendment of Chapter 6 of the Act to encourage the use of indigenous plants according to the Protocol, as well as other international obligations. It was also proposed that the provisions on the Bioprospecting Trust Fund be changed, to ensure that, wherever possible, the monetary benefits from bioprospecting agreements were paid directly to beneficiaries who had established bank accounts.

The other amendments focused on a legal mechanism that would allow the Minister to exempt certain people, who used indigenous biological resources for domestic reasons, from the provisions of Chapter 6 of the Act. There were mechanisms now outlined for instances where a permit application or permit could be delayed, declined, cancelled or even suspended, in order to limit the abuse of the permit system. The legal mechanism provided for the national registration of professional hunters and hunting outfitters.  He explained that this would apply if, for instance, an applicant had applied for a permit, but was at the same time being investigated for a prior suspected poaching offence, in which case the new permit could be delayed, refused, or current permits cancelled. Persons who might not themselves kill an animal illegally but who could be an accomplice to this could also be found guilty of poaching.

The amendments also intended to cancel the separate appeal provisions under the Biodiversity Act, and to provide for a single and aligned appeal process under section 43 of the National Environmental Management Act. This was intended to address the DEA’s current difficulties with appeals, which were lodged in various ways according to the species.

The amendments also proposed extending the powers of the Minister in order to develop regulations on: the duty of care relating to the management of threatened or protected species, on self-administration within the biodiversity sector, on control and the eradication of invasive species and on a system for the registration and recognition of institutions, ranching operations, nurseries, captive breeding operations and other facilities.

New offences had been included for some activities, which would include a person engaging in a bioprospecting discovery without proper notification to the Minister, a person carrying out a restricted activity which had been prohibited, activities involving a listed invasive species, and, as already outlined, persons who were assisting in the commission of a crime, although not actually committing it themselves. Finally, the Minister could, in certain circumstances, declare amnesty from prosecution for activities that were intended to assist overall compliance with the provisions of the Act.

National Environmental Management: Air Quality Act, 2004
Mr Shabalala said there was only one proposed amendment to the Air Quality Act, which intended to align the penalties under that Act with other specific Environmental Management Acts.

National Environmental Management: Waste Act, 2008
The amendment proposed changes to the definition of waste under this Act.

Discussion
Mr M Makhubela (ANC, Limpopo) asked for clarification on what type of “amnesty” was meant, in relation to actions that helped compliance with national legislation.

Ms Thea Carroll, Director: Regulation and Monitoring Services, DEA, replied that the amnesty provision was intended to facilitate compliance with national legislation, as provincial legislation did not deal with certain aspects of environmental management accordance with the national requirement. The department would like to allow people to be compliant through the amnesty provision, for instance people who privately owned rhino horns might be concerned that they might be charged even if they did not own live rhino and therefore needed to apply for the permit. She said that people would be given specific periods in which they were requested to come forward and apply for the permit.

Ms Ngcaba replied that the amnesty provision was intended to facilitate compliance with national legislation, as provincial legislation did not deal with certain aspects of environmental management.

Mr Makhubela asked if the provinces had the capacity to execute their responsibilities and whether there would be an additional budget given to them.

Ms Ngcaba said that provinces were implementing the provisions on the issuing of permits in accordance with the Biodiversity Act, and that this was not an administrative burden for the provinces. She added that the Biodiversity Act had been in place for some time and the amendments would not affect capacity.

Ms Carroll said that provinces were implementing the provisions on the issuing of permits in accordance with the Biodiversity Act related to Bio prospecting and to the threatened or protected species. She emphasised that this was not adding on an administrative burden for the provinces, but, was to ensure that the Biodiversity Act was effectively implemented. For instance, to facilitate issues such as when to cancel, receive a permit or why there were different types of permits that needed clarity.

Mr Makhubela asked if prospecting funds were well managed and who would be responsible for this.

Ms Wadzi Mandivenyi, Chief Director for Biodiversity, Monitoring and Evaluation, DEA, said that the funds were managed by the Director General under the Bioprospecting Trust Fund. The aim of the amendment was to enable the ultimate beneficiaries to access funds easily. Any agreements reached that affected the Bio-prospecting Trust Fund should be reported on annually, to allow the Director General to engage with the affected communities.

Mr D Worth (DA, Free State) noted that Mr Shabalala mentioned a permit tax on section 87, and asked where the additional funding would come from.

Ms Ngcaba replied that section 87 dealt with generation of revenue. She said that, in relation to all the sections of national environmental laws where there was a potential for generating income streams, the DEA had already held engagements on both standardised systems with the National Treasury. Some provinces were able to generate revenue, and they should be able to account in terms of the Treasury Guidelines and other sections of the Public Finance Management Act.  

Mr Worth asked where the list of invasive species could be obtained.

Ms Thea Carroll replied that the Conservation of Agricultural Resources Act dealt only with the plants and that animals, invertebrates and the like were dealt with under another listing . She agreed that it was necessary to try to align the legislation.

Mr M Waters (ANC) asked what the relationship between the Biodiversity Act and the Conservation Agricultural Resources Act was, saying that this was not mentioned in the briefing. He also wanted to know how the DEA would control invasive alien species to ensure that local biodiversity was not replaced.

Ms Ngcaba replied that biological control was one of the mechanical controls, which was covered in the regulations, but not specified in the National Environmental Management Act. She agreed that part of the listing that they wanted to entrench in the system meant to facilitate areas of species to be investigated even if they were considered to be indigenous in South Africa, where there was scientific evidence that could be investigated in those areas. Therefore, there would be prohibition based on that scientific evidence.
She said that concerning the philosophy of whether its eradication or overall management they would take Mr Waters’ advice and there could be an improvement in terms of the language it captured in the documentation.  

Ms B Mabe (ANC, Gauteng) asked which body was responsible for the registration of the regulation of professional hunters, and outfitters and if the Department had the capacity to address that.

Ms Magdel Boshoff, Deputy Director: Biodiversity Policy Development, Department of Environmental Affairs, replied that registration of professional hunters would be done at national level by the national department, so there would be no additional administrative burden on the provinces to implement the amendments to the Biodiversity Act. However, permits would still be issued in terms of existing provincial legislation. She said that a person was deregistered by the DEA he/she would not be able to register to any province.  

Mr O De Beer (COPE, Western Cape) asked if the purpose of the Amendment Bill was that MECs would provide permits in the provinces, while the role of the Minister would be to provide an appeal structure. He also asked what would happen to the Marine Living Resources Act, if the marine matters were also clustered under the Biodiversity Act.

Mr Shabalala explained that in cases where the Department was to issue permits, the Minister would be the appeal authority. In cases where provincial authorities issued, the MECs were the appeal authorities. He said that the DEA shared some administrative matters with the Department of Agriculture, Forestry and Fisheries, in terms of the Marine Living Resources Act.

Mr M Mokgoro (ANC, Northern Cape) asked if there were fees charged by the Department for registration, and whether these were periodical, or once-off permits. He also asked whether there were steps taken to protect the extinction of rhinos.

Ms Ngcaba replied that the amendments were designed to improve the protection of endangered species, particularly rhinos.

The meeting was adjourned.

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