National Environment Laws Second Amendment Bill: Department of Environmental Affairs briefing

NCOP Land Reform, Environment, Mineral Resources and Energy

29 July 2013
Chairperson: Ms A Qikani (ANC, Eastern Cape)
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Meeting Summary

The proposed amendments in the Second Amendment Bill were initiated as part of the National Environmental Management Laws Amendment Bill [B 13-2012] (NEMLA Bill) before a decision was taken in September 2012 by the Portfolio Committee to split it into two Bills: National Environmental Management Laws First Amendment Bill [biodiversity amendments] and National Environmental Management Laws Second Amendment Bill (National Environmental Management Act amendments].

The original NEMLA Bill was tabled in Parliament in April 2012. The briefing to the Portfolio Committee on the NEMLA Bill was held on 14 February 2012. Public hearings were held on 21, 22, and 28 August 2012. Thereafter the Portfolio Committee discussed the NEMLA Bill clause by clause on 5, 18 and 19 September 2012.

On 19 September 2012 the Portfolio Committee took a decision to split the NEMLA Bill into the first Amendment Bill and Second Amendment Bill. The main reason for the split was that the proposed amendments to biodiversity amendments were urgent to address most of the challenges relating to the permitting system and the implementation of the new Threatened or Protected Species Regulations.

The Second Amendment Bill proposed amendments to certain provisions under the National Environmental Management Act, and most of the amendments were identified through the implementation of the Act and some originated from the Department of Cooperative Governance process of identifying legislation that hampered service delivery.

The Bill contained new additions and amendments proposed by the Department and the Portfolio Committee in order to enable the implementation of the provisions for environmental management planning, integrated environmental management and compliance and enforcement.

Members urged the Department to take the environmental impact very seriously. Asbestos mining was stopped decades ago but people were still dying because of the effects of asbestos, particularly in the Northern Cape and Limpopo. Mining did not only corrupt the land, it corrupted the water one drank.

The Department agreed that asbestos was a serious issue and the Department had commissioned a study in the Northern Cape, North West, Limpopo and Mpumalanga, where it had investigated the impact of asbestos on communities. Asbestos was still found in homes and school buildings in the cement used to put up buildings. Cabinet had been approached twice for funding to start a remediation process. Certain parastatals had done considerable work and spent considerable money in getting rid of some of the asbestos and a lot was happening in that regard. The issue raised by Cabinet was in regard to how the Department was currently protecting communities.

Members raised the concern that Mineral Affairs granted licences for mines to be started, with or without any environmental impact study being done, or sometimes only being undertaken years after the mine started, and without water licences. He understood there were at least 20 mines operating without water licences.
 

Meeting report

The Chairperson welcomed everybody after the recess, in particular delegates from the Limpopo, the Free State, Mpumalanga and Gauteng Legislatures; and the Director General and officials from the Department of Environmental Affairs. There were a lot of bills and the Committee had to finish the bills before the end of term.

Ms Nosipho Ngcaba (Director General) introduced the team from the Department as Mr Ishaam Abader (Deputy Director General); Ms Linda Garlipp (Chief Director: LR & A); Mr Sibusiso Shabalala (Director: Law Reform); Ms Frances Craigie (Chief Director: Enforcement); and Mr Franz Scheepers (Deputy Director: Policy and Regulatory Support).

Ms Ngcaba explained that the Portfolio Committee had decided to split the Bill and the Department would give a briefing on the NEMLA Second Amendment Bill. The NEMLA First Amendment Bill was on biodiversity but the Department needed more time on these aspects of NEMLA. The NEMLA Second Amendment Bill was tabled in Parliament as a Section 76 Bill in April this year and would now go through the provincial consultations.

National Environment Laws Second Amendment Bill: Department of Environmental Affairs briefing
Ms Linda Garlipp (Chief Director: Law Reform and Appeals) said the proposed amendments in the Second Amendment Bill were initiated as part of the National Environmental Management Laws Amendment Bill [B 13-2012] (NEMLA Bill) before a decision was taken in September 2012 by the Portfolio Committee to split the Bill into two Bills, namely, National Environmental Management Laws First Amendment Bill [biodiversity amendments], and National Environmental Management Laws Second Amendment Bill (National Environmental Management Act amendments].

The original National Environmental Management Laws Bill was tabled in Parliament in April 2012. The briefing to the Portfolio Committee on the NEMLA Bill was held on 14 February 2012. Public hearings were held on 21, 22, and 28 August 2012. Thereafter the Portfolio Committee discussed the NEMLA Bill clause by clause on 5, 18 and 19 September 2012.

On 19 September 2012 the Portfolio Committee took a decision to split the NEMLA Bill into the first Amendment Bill and Second Amendment Bill. The main reason for the split was that the proposed amendments to biodiversity amendments were urgent to address most of the challenges of the permitting system and the implementation of the new Threatened or Protected Species Regulations.

The Second Amendment Bill proposed amendments to certain provisions under the National Environmental Management Act (NEMA), and most of the amendments were identified through the implementation of the Act and some originated from the Department of Cooperative Governance process of identifying legislation that hampered service delivery.

The Bill contained new additions and amendments proposed by the Department and the Portfolio Committee in order to enable the implementation of the provisions relating to environmental management planning, integrated environmental management and compliance and enforcement.

The Bill aimed, amongst others, to achieve the following:

1. The Bill amends and inserts certain definitions to provide clarity and remove any ambiguity.

2. The Bill changes the timeframes for the preparations of environmental implementation plans and environmental management plans from four years to five years, in order to afford the elected government with the opportunity to implement its priorities.

3. The Bill also inserts a new section requiring the Department, provincial departments responsible for environmental affairs and, on a voluntary basis, the metropolitan and district municipalities to prepare and publish environment outlook reports. The local and provincial reports will feed into the national report. A new amendment was added by the Portfolio Committee that will provide the Minister with legal mandate to prescribe by regulation the process on the submission, adoption of and compliance with these reports.

4. A new section 23A has been inserted to promote or facilitate the mainstreaming of integrated, environmentally sustainable and sound management considerations into business processes, practices, technology and decision-making across the economy. The Minister may provide guidelines on the development, content and use of voluntary and or organisation-based instruments, consider such instruments and endorse or approve them.

5. Section 24 currently promotes the environmental authorisation as the environmental management instrument to ensure the integrated environmental management of activities. Section 24 has now been amended to enable, as appropriate, the use of spatial tools, norms and standards and environmental management instruments in decision-making as an alternative to the environmental authorisation procedure. The Bill makes provision for regulations laying down the procedure for the preparation, evaluation and adoption of such instruments, including criteria or conditions to be included in such instruments.

6. The current section 24C(2)(a) and (b) have been redrafted to provide legal clarity as to when the Minister would be the competent authority and when an activity had implications for international environmental relations and commitments.

7. The Bill also now provides clarity that any activity relating to a matter that has been declared a national priority by Cabinet, for example the renewable energy plan projects, must be processed by the national Department. The Bill prescribed a process to be followed prior to Cabinet decision and final publication in the Gazette.

8. The Bill makes provision that in the exceptional circumstances where the MEC either unreasonably or due to capacity challenges fails to take a decision within the prescribed timeframes the Minister may take the decision. The Portfolio Committee was mindful of the powers of the provinces as set out in s125(2)(b) and s125(3), which obliges the national government by legislation or other measures to develop the administrative capacity required for the effective exercise of their powers and performance of their functions. The Minister is obliged to report annually to Parliament on the exercise of this power.

9. Section 24E is amended to provide clarity that the minimum conditions of environmental authorisations must include a provision on the provision of rights and obligations even when there is no change in ownership in the property.

10. The current section 24C(2)(a) and (b) has been redrafted to provide legal clarity as to when the Minister will be the competent authority when an activity has implications for international environmental relations and commitments.

11. Section 24G has been substantively amended to address the abuse of the section. The Minister of Environmental Affairs, the Minister of Mineral Resources and the MEC responsible for environmental affairs are given substantive powers and can now issue directives for a number of reasons. The administrative fine has been increased from R1 million to R5 million. The requirements for the report to be compiled by the applicant have been tightened. The amendment now makes it clear that criminal prosecution may still be instituted despite the fact that a person has applied for an environmental authorisation in terms of section 24G. The amendment also allows the Minister of Environmental Affairs, the Minister of Mineral Resources or the MEC to defer a decision until such time that the criminal investigation has been concluded. The amendment will also provide legal clarity on the applicability of section 24G to the unlawful commencement of waste management activities under the National Environmental Management Waste Act, 2008. The Bill provides that the Minister must develop regulations relating to the procedure and criteria to be followed in the determination of a section 24G administrative fine.

12. The environmental management inspectors are currently experiencing a challenge when issuing a section 28 directive due to having to prove, before the issuing of the directive, that the measures taken in terms of the duty of care requirement were not reasonable. The amendment will de-link the duty of care requirement from the power to issue a directive. This amendment will make the issuing of the directive easier.

13. The Bill introduces amendments that clarify the distinction between an “incident” as referred to in Section 30 of the Act; and an “emergency situation” which will be regulated in terms of a new section 30A. Section 30 deals with the reporting and remediation duties of a person responsible for the sudden, unexpected and uncontrolled release of a hazardous substance. The new section 20A addresses a situation where a listed or specified activity is about to commence in response to an “emergency situation”, where the timeframes do not allow for normal assessments or applications for environmental authorisations.

14. The Bill provides the environmental management inspector to, without a warrant, search and seize any mechanism of transport. This amendment will enhance the enforcement provisions of NEMA, and will assist the environmental management inspectors in effectively performing their compliance and enforcement function.

15. All offences and penalties that were previously scattered across the Act, are now combined in new sections 49A and49B.

16. The Bill also provides the Minister with a legal mandate to develop regulations to control products that may have a detrimental effect on the environment. A similar provision was contained in the repealed provisions under the Environment Conservation Act, 1989 (ECA). For example, the asbestos regulations were developed in terms of a similar provision under the ECA. This provision will assist in dealing wlith products that pose a problem to the environment.

17. The Bill further provides clarity that the Department and Provincial Departments responsible for environmental affairs must table regulations developed under this Act at Parliament or Provincial Legislature before final implementation.

18. The Bill allows for the use of other mechanisms of delivering documents under the NEMA or other specific environmental management Act, namely, by fax, e-mail or ordinary mail. The Second Amendment Bill will ensure that the NEMA adapts to modern technology of conducting business.

19. The Bill is further amended so that all offences and penalties are contained under one section, and as a result this process resulted in consequential amendments to most sections of NEMA dealing with offences and penalties.

The Chairperson thanked Ms Garlipp for the presentation.

Discussion
Ms N Magadla (ANC, KwaZulu-Natal) asked for clarity on harmful products.

Ms Garlipp responded that one example of a product that was harmful was asbestos. Asbestos regulations prohibited the use of that product. That was done under the Environment Conservation Act and currently under the Waste Act. There were also other products that were harmful such as plastic bags.

Ms Ngcaba added that some products were harmful to the environment and to health. There had been a problem in KwaZulu-Natal with chemicals that affected communities. That was the type of prohibition that applied.

Mr D Worth (DA, Free State) was concerned that section 31J allowed environmental inspectors to search any vehicle, aircraft, pack animal or any other transport mechanism without a warrant but on reasonable suspicion that it was used in the perpetration of contraventions listed in the section. That could be problematic unless the Department provided clear guidelines under which environmental inspectors would be able to search and seize without a warrant.

Mr Worth noted that section 24 created conditions under which the Minister could be delegated with the powers of authorising authority to exempt applications from environmental authorisations when the action or project was deemed to be of national or provincial importance aimed at preventing and mitigating serious harm to the environment or property. Some sections of society could be concerned about this level of environmental management assigned to a single person. The Bill did not clarify what projects may be considered to be of national and provincial importance, which also created uncertainty.

Mr Abader responded that there would be certain instances where the Minister's approval would be required. For example, there was also another provision that related to instances where exemption was covered in emergency situations. The Act also made reference to where it was of national and international significance. The Department envisaged those types of instances where the Minister would have that ability. In terms of the Minister’s decision-making ability, the Act made provision for cooperative governance so there was very little that the Minister could do without consultation. Apart from the fora of the MinMEC and Mintech, where those issues were raised and generally brought to the Committee, they were thrashed out at official level at those before legislation was approved. There would be instances where provinces did not have the capacity and would request assistance.

Ms Ngcaba added that both the Minister and the provincial MEC were involved based on the importance of the activity identified. The provision enabled the Department to put guidelines in place, so there would be an outline of exactly what those activities were. There were also mechanisms in place beyond the EIA, such as the Environmental Management Framework and the Strategic Environmental Assessment, and those tools were provided for in law. So if one decided to go and work in a particular area proactively as a province would have that special information and know what sensitivity in that area pertained to the environment. It was well defined in the section (d) and (e) in the Amendment 5(24).

Ms M Malaka (Legal Advisor, Free State Legislature) referred to environmental authorisations. The Bill seemed to be allowing so many provinces to use their discretion and had now been amended to enable, as appropriate, the use of spatial tools, norms and standards and environmental management instruments in decision-making as an alternative to the environmental authorisation procedure. She understood from the presentation that provinces would have discretion of some sort and expressed concern. South Africa was a unitary state. She appreciated the unique situation in provinces, but would there be a mechanism to ensure each province did not veer away from the overall direction the country wanted to take?

Ms Garlipp responded that clause 5(a) and (b) in the Bill itself said the Minister or the MEC concurrent with the Minister. The MEC could only do it concurrently with the Minister, the idea being to ensure that there was guidance and all MECs acted in the same manner across the provinces. That was why the Department added the Minister or the MEC concurrent with the Minister.

Ms Malaka asked whether the rights and obligations would be covered by budgets so as not to be faced with unfunded mandates?

Ms Ngcaba responded it was an issue of obligations following functions of what could be deemed as government mandate. The environmental authorisation and environmental impact management was a concurrent responsibility. Nationally the framework established norms and standards but it was a provincial competence so it was not a new function, the current system was streamlined and improved on the current provisions. It would reduce administrative costs because in some areas the number of activities would be reduced. There was an element of core funding and supporting. There had been a cry from both industry and government in respect of how long the EIA would take. It was still a very important instrument to achieve and the Department still had to devolve the functions as outlined in the Constitution.

Mr A Matila (ANC, Gauteng) referred to environmental authorisations in Clause 6(e). In the exceptional circumstances where the MEC either unreasonably or due to capacity challenges failed to take a decision within the prescribed timeframes, the Minister may take the decision. Did that imply that the Minister would be monitoring and be able to take a decision, or would the MEC monitor progress? His understanding was there would always be somebody watching as to whether a decision had been taken or not.

Ms Garlipp responded that that could only happen if somebody applied to the Minister. The Minister often received requests saying applications had been submitted to the relevant provincial authorities but there had been no response and no environmental authorisation had been issued. The Act then prescribed the process to be followed. It could only happen on application. It was not as if the Minister would be constantly watching the provinces, it was only on application that the Minister could take the decision.

Ms Ngcaba added that if the MEC was not taking decisions, currently the EIA Regulations specified timeframes and there was therefore an expectation that compliance would be monitored with that. Currently there was the National Environmental Administrative System which provinces at national were capturing data in. The Department was working towards automating the whole environmental assessment process so at any point in time there could be multiple decision makers in the system to check that authorisation or that application. If you need a water licence it could happen concurrently with the Environmental Impact Assessment. It was a process of alignment and would report on performance whether to Parliament or whoever was the key authority. The Minister would have that tool to monitor as much as the MECs would use the same tool to monitor their performance in the province. In some aspects there were departments that required national intervention, in those instances there would be a consultation process with the MEC to see whether the process of MEC and Minister could be expedited. National could not make a decision without getting the information. Interventions were where there is a challenge, but also at the same time merely to streamline decisions.

Mr Matila also referred to search and seizure without a warrant. Would that be in conflict with the law or would it supersede the law?

Mr Abader responded that the issue of search had already been dealt with; the Department was now making provision for seizure. These provisions were aligned with the Criminal Procedure Act. If there were reasonable suspicion in terms of the Criminal Procedure Act the police could search, for example being stopped at a roadblock they were entitled to search a vehicle and if they found anything untoward in the vehicle, it allowed them to seize that. Once seized, it went into the process of the Criminal Procedure Act.

Mr M Mokgoro (ANC, Northern Cape) was concerned that he did not see any mention in the document of the mining sector that spoilt the environment. Not only did they leave dumps but corrupted the land itself, and the water. He would like the Committee to take a decision to redirect the Department to consider the mining sector in the Bill.

Ms Garlipp explained that there was a National Environmental Laws Amendment Bill that dealt specifically with mining asbestos and further alignment in relation to mining. There were two amendment acts in 2008, the National Environmental Management Amendment Act 2008, and the Mineral and Petroleum Resources Development Amendment Act 2008. In terms of the Acts in future all environmental impact assessments relating to mining would be done in terms of the National Environmental Management Act but the Minister of Mineral Resources would be the issuing authority for those environmental authorisations, although the Minister of Environmental Affairs would be the appeal authority. Both acts were currently in operation. The Mineral and Petroleum Resources Development Amendment Act 2008 was brought in on 7 June 2008, the status quo would remain for 18 months and after the 18 months the Minister of Mineral Resources would have to consider the environmental authorisations in terms of the National Environmental Management Act and the Minister of Environmental Affairs would be the appeal authority. Currently the Department of Mineral Resources had an amendment bill tabled in the National Assembly and it was being considered by that Portfolio Committee together with the National Environmental Laws Amendment Bill for further alignment.

Mr Mokgoro urged taking the environmental impact very seriously. Asbestos mining was stopped decades ago but people were still dying because of the effects of asbestos, particularly in the Northern Cape and Limpopo Province. Mining did not only corrupt the land, it corrupted the water we drink. Given that there was legislation dealing with mining, but for sustainability matters, there should be a clause in the Bill to specifically relate today’s thinking to the existing Act. The Committee should recommend to the Department that it was the concern of the Committee that there should be such a clause.

Mr Abader agreed with the crucial points raised. It was a major issue and the Department had commissioned a study in the Northern Cape, North West, Limpopo and Mpumalanga, where the Department investigated the impact of asbestos on communities. Asbestos was still found in homes and school buildings in cement used to put up buildings. It was a serious issue. Cabinet had been approached twice for funding to start a remediation process. Certain parastatals had done considerable work and spent considerable money in getting rid of some of the asbestos and a lot was happening in that regard. The issue raised by Cabinet was in regard to how the Department was currently protecting our communities.

Ms Malaka supported Mr Mokgoro, but the question still remained about the plight of those communities in those areas, that this law provide for that environment to be a good habitat for human beings. The laws of the country should be formulated in such a way that all its citizens were protected.

Ms Malaka wondered whether there were still gaps in the laws of the country or whether all the gaps had been filled in this amendment bill. All the ills of the environment, the chopping of trees and such seemed to be accelerating. Perhaps there was not sufficient legislation, or were we not implementing or enforcing?

Mr Abader responded that his colleagues in compliance enforcement could give statistics as to what had been done to improve the situation. For example, industry had spent millions on their systems.

Mr Matila asked whether the monitoring tool would be already there - going into implementation?

Mr Abader responded that if there is no decision, it would first be investigated as to why there was no decision. For example if there was no capacity, the Department could ascertain what capacity was required and the Department could assist in providing that capacity so that a decision could be made. A process was set out in terms of how that would happen.

Ms N Sikakane (ANC, Gauteng) asked whether the Amendment Bill would assist provinces? Gauteng was sometimes unable to deal with matters because powers were at national level. Provinces would need some power in order to deal with issues and remedy situations.

Mr Abader explained that those powers arose from the Constitution, it was a concurrent function, national and provincial, and so the powers were already there. Some of the issues raised were also to promote cooperative governance. There were also provisions in the Act that the MEC could write to the Minister and say this affects my province and would like authorisation. Similarly the Minister could write to the MEC and say the issue had national importance and would like to do the entire authorisation. Cooperative governance ensured that matters were dealt with comprehensively in a unified situation.

Mr Worth raised the concern that Mineral Affairs granted licences for mines to be started, with or without any environmental impact study being done, or sometimes only being undertaken years after the mine started, and without water licences. He understood there were at least 20 mines operating without water licences. He noted that Environmental Affairs had the last appeal, what exactly did that mean, and how would the three departments work in conjunction?

Mr Abader responded in relation to the environmental aspect, saying there were currently certain aspects relating to mining activities listed under the EIA regulations and the national and provincial departments had control over those things, but limited to that extent. The actual authorisations of mining licences happened at the Department of Mineral Resources (DMR) and the DEA had no direct control over that.

Ms Ngcaba again added on the issue of asbestos mining. Having undertaken the study on the impact on the environment and also on human health,  the Northern Cape, the North West, Limpopo and Mpumalanga, required huge investigation. In terms of the old mines, at the time of mining there were no environmental laws that made the requirement to comply with and those and they still had the fiscus to invest in some rehabilitation, and also deal with acid mine drainage, which was such a problem in Gauteng. Therefore that pollution was something that the Department had to intervene more reactively than proactively. The Department had provisions in the Amendment Bill in terms of identifying activities. Acid mine drainage could be covered in the activities that need licensing on how to deal with the infrastructure that had to be built and the treatment process and so on. So there was a process of quick facilitation of environmental authorisations that would enable the Amendment Bill.

In respect to aspects that related to the environment and trying to proactively manage so there was good habitat that would result in protecting South African citizens, the Department had provisions that were adequate in the various pieces of legislation. In the Waste Act Part 8 there was provision to deal with contaminated land and how that should be undertaken. That Act came into effect two years ago. Part 1 of those provisions did not come into effect because the Department had challenges with the banking sector as the provisions impacted on property development. The Department was saying in law that even the banks would have to take responsibility in respect of liability and there would be further negotiations in that regard. There were provisions to manage rehabilitation and ensure that the environment was proactively protected. We had wetlands in the rehabilitation programme that were supposed to restore the wetlands to achieve their normal function and prevent the Department spending a lot of money in water treatment.

In response to whether the Minister already had monitoring tools, yes, there was the National Environmental Administrative System but it was not required legally. Now by the provisions in the Amendment Bill the Minister would be able to call for data and access that information at any point in time. The Department could improve following those provisions and also the regulations for the Amendment Bill should therefore tighten the measure of ensuring monitoring could be undertaken by the Minister and also at times by the provinces themselves.

In respect of empowerment of the provinces in terms of delegation, because provinces had powers for key concurrent areas, but water quality was a national competence, including hazardous waste management and so on. The Department would then have to look at the requirements to delegate and therefore the provinces were free to make requests. The amendments did allow exercise of the function both by the Minister and the provinces MECs where there was concurrent function. But when it was not a concurrent responsibility, it would then have to undertake the responsibility. The cost for rehabilitation for …… institution …..R3.6 billion annually so over a ten year period figures may be adjusted.

The Chairperson asked the Department to record this in writing, the Committee to receive answers by the following day. The amendment bill was a Section76 Bill. She appealed to the provincial liaison officers to pressurise the provinces and the importance of provinces coming to listen to the deliberations on the Bill. The public hearings had to be done. If the provinces were not present, or representatives from the provinces, that gave the Committee a hard time because the Committee would have to send officials to the provinces. So it was very important to ask the provinces to think very seriously about the briefings. She also thanked those provinces that usually came to the NCOP and listened to these briefings on the bills. She appealed to the liaison officials, the Committee would be having briefings throughout the provinces – Gauteng next week, Limpopo, Western Cape 2pm that afternoon, Free State next week. She appealed to the liaison officers to write a letter to the other provinces to inform them.

The Chairperson thanked the Department; reports were expected the following day.

The Chairperson thanked delegates from the provinces that attended the meeting.

Ms Malaka concluded that 19 years of experience had taught that it took a community to raise a child. She asked the Chairperson to request the Office of the Minister to sit in the same room with colleagues in Land and Rural Development; Agriculture; and Minerals and Energy; to sit together and get their act together because it was only through teamwork – she was not convinced that the battle was being won. If those ministers could sit together and approach it from the same angle, listening to the answers, the answers need to align to the other departments.

The Chairperson thanked Ms Malaka and the meeting was adjourned.
 

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