National Environmental Management: Protected Areas Amendment Bill [B28-2013]; National Environmental Management: Air Quality Amendment Bill [B27-2013] & National Environmental Management Laws Amendment Bill [B26-2013]: public hearings day 1

Meeting report

The Chairperson noted some changes to the programme.  The Committee would deal with all aspects of the National Environmental Management Laws Amendment (NEMLA) Bill.  There were three Departments involved -- the Department of Water Affairs (DWA), the Department of Environmental Affairs (DEA) and the Department of Mineral Resources (DMR).  Henceforth, all environmental issues in mining would be dealt with in terms of NEMLA.  The Minister of Environmental Affairs would be the ultimate appeal authority.  Sensitive environmental areas would not be made available for mining.  It was clear that the public did not understand this.  The competent authority on mining matters, in terms of mineral laws, would be the Minister of Mineral Resources.  When looking at amendments to Regulations, the processes were totally integrated.  Mining without an environmental impact assessment (EIA) or a water licence, would no longer be tolerated.  The whole system would be integrated.  This would give certainty to business.  He thought this was the first time such a procedure would be adopted by government.  There would be a provision that both the departments and Parliament would have to agree on any amendments to legislation and Regulations. 

National Environmental Management Laws Amendment Bill: Mining
Briefing by Western Cape Provincial Government
Adv Gary Birch, Department of Environment and Development Planning (DEADP), Provincial Government of the Western Cape( PGWC), said that the agreement of 2008 made provision for a three-phased approach to the implementation of the National Environmental Management Act (NEMA).  The first phase had started on 7 June 2013, during which the status quo would remain.  The interim phase would run from December 2014 to August 2016.  This was related to prospecting and mining.  The Minister for Mineral Resources would be the competent authority in terms of EIA Regulations.  After the 18-month period, decisions would revert to the environmental authorities. 

Adv Birch said that the proposed amendments were the repeal of sections 13 and 14 of the Act.  The Western Cape did not support this amendment.  Decision-making should not be transferred to the Minister of Mineral Resources and the DMR.  Mineral and petroleum resources should enhance future development.  The current definition in NEMA emphasised the need for sustainable development, while the Mineral and Petroleum Resources Development Act (MPRDA) called for sustainable mineral development. 

The Chairperson said that the agreement was that the two laws would apply.  Removing the first definition of 'sustainable mineral development' would address the Western Cape's concern.

Adv Birch replied that the Minister of Mineral Resources would still be the competent authority.  A lot of the MPRDA would have to be removed to satisfy his concerns.  There was an inherent conflict between the two pieces of legislation and their intentions.

The Chairperson said that the Constitution required that these two aspects be reconciled.

Adv Birch replied that the tension would lead to conflict.  If the Minister in charge of mining also made decisions on the environment, a broad range of concerns would be raised.

The Chairperson said that the law would be applied by the DMR.  They would now be obliged to consider environmental affairs, and the DEA would hear any appeals.  A new provision was for the exclusion of sensitive areas.  The province should show what difficulties would be created.  In 2008, decisions had been made but had never been implemented.  One department should not be able to block laws made by another department.  The Constitution did create tension, but both sets of rights had to be considered.  The debate had moved on.  He asked which part of the MPRDA would be impacted. 

Adv Birch said that the Minister of Mineral Resources would not be able to administer NEMA in an unbiased and objective manner.  Land should be used for the most sustainable purpose.  The Macassar Sands matter had gone to the Constitutional Court.  A licence had been granted for sand mining, despite the site being bordered by two schools and being the home of some endangered vegetation.  Environmental legislation should look at alternative sites, as there were numerous other examples in this case.  Despite the Minister being able to appeal, there would still be a public perception of bias.

The Chairperson said that it was impossible to legislate against bias.

Adv Birch said that this would lead to continuous court cases.  There would be an increase in litigation and appeals based on perceived bias.

The Chairperson said that the intention was never to put this system in place.  The system should support corporate governance.  The scenario sketched by Adv Birch could not happen in reality.

Adv Birch said that the Minister of Agriculture would be the next recourse.

The Chairperson said that the Minister of Agriculture had never become involved.  The heart of the county was minerals.  He did not like the power that they wielded, but it was up to Parliament to make these realities work.  For five years, such a case had never come to light. 

Adv Birch said that the interim measures would come into force.

The Chairperson said that there was nowhere in government where this issue had been resolved.

Adv Birch submitted that the repeal of sections 13 and 14 should be reconsidered.

The Chairperson said the reality was that for five years no one had been able to do as Adv Birch had suggested.  All references to the environment would be removed from the MPRDA.  Any contradictions would be amended. 

Adv Birch said that the alternative argument would be that if the competent authority was the Minister for Mineral Resources -- for mining and prospecting activities -- then associated activities should not fall under the same portfolio.  Mining areas included adjacent land and any land connected by infrastructure or services, such as a power lines, even if owned by another party.  The definition was so broad as to encompass half of the Western Cape.  More applications would have to be granted than was currently the case. 

Adv Birch said that the activities listed in NEMA would still fall under the DMR, but the DEA should be the competent authority for the associated areas.  The competency of the provincial ministers would be removed by the current legislation.  At present, the provincial minister would be granting authority for the associated activities, with the national Minister being the appeal authority.  These powers were now being removed, and this should be assessed for constitutionality.  Provincial ministers had a more detailed background on local areas. 

The Chairperson asked, if the legislation was retained in its current form, would it help to involve the provinces as a recourse for appeal.   Even the Minister was now losing some of her competency.

Adv Birch said that the province would be a commenting authority, but taking away the authority would have constitutional implications. 

The Chairperson said that the Constitution gave national government the authority to remove all administrative powers.

Adv Birch agreed that national legislation could do this.  There might be an area where more red tape and more need for authorisation could be created.

The Chairperson said that the new legislation would shorten the process, and would eliminate the current chaos.  About 40 mines were operating without a water licence.

Adv Birch said this was a case of companies operating illegally.

The Chairperson would look at the points raised.  He asked Adv Birch to highlight any other areas of potential conflict.  The process had been shortened to a general standard of 30 days, rising to 90 days in the most complicated cases.

Adv Birch said that it was unclear why the period for comment had been reduced to 30 days.  This would lead to more administrative pressure, as there was already a challenge in meeting the current 40-day period.  The reason given for the 40-day period was the complexity of state institutions.  This would now be reduced effectively to 20 working days.

The Chairperson would look at this, perhaps with a distinction between simple and complex cases.

Adv Birch said that other written comments had been submitted.

Discussion
Mr J Skosana (ANC) said that when legislation was drafted, government thought of the needs of the masses.  The ideology expressed in the presentation was that of federal thinking.  The Western Cape was a government within a democratic country, but the ideology presented was different to that expressed in the Bill.  The submission should be made directly to the Department so that they could look at the issues together, rather than making a public presentation.  Where the presentation spoke to bias, this was not contained in the law which should apply to every organ of state.  He sympathised with the provincial authority, but disagreed with the federal ideology.

Adv Birch responded that at working group 11, which was within the environmental affairs spectrum, the submissions made on the competent authority were supported by all provinces in attendance.  The legislation could make the Minister for Mineral Resources the competent authority.  The perception of bias was enough for a court to set a decision aside.  His main function was to defend environmental decisions on behalf of the provincial government.  There were about 60 cases before the court at present in the province.  The only people really benefiting were the legal fraternity.  A decision by the provincial minister could be appealed to the national Minister.  This process could take up to three years, and then still be challenged in a court.  He submitted that this proposal would support, rather than hamper, development.

Briefing by Association of Cementitious Material Producers (ACMP)
Dr Dhiraj Rama, Executive Director, (ACMP), agreed with the developments taking place.  The first area of concern was the management of residues and stockpiles.  Many of these were waste, and there were unintended consequences.  Cement production should also fall under this constraint.  Some of the residue would be low grade and could be considered waste, although it could be used for construction.  It should not be classified as waste, with the associated controls.  The end of the waste status protocol should be considered. 

The Chairperson asked what Dr Rama was suggesting.  The Waste Bill would still be presented. 

Dr Rama said that the NEM:Waste Act (NEMWA) would provide for the management of waste.

The Chairperson said that only that Bill would address this issue.  This Bill was still with the State Law Advisers (SLA).  There was a link to NEMLA, but the definitions were currently in the Waste Act.  He did not have the Act in front of him and could not engage with it.

Dr Rama said that another option would be to leave the definitions in NEMA, rather than in the Waste Act.  The amendment would empower the Minister to empower officials of the DMR.  He asked if the conditions mentioned would imply that the staff should go through the same grading as those of the DEA.

The Chairperson said that DEA would train the staff of the DMR in the relevant areas.

Dr Rama said that there would be an impact on work processes and health and safety regulations during the training period.   Some level of corporate governance was needed.  The DEA should establish procedures to align its activities with those of the DMR.  Appropriate amendments to the NEM: Waste Act would be needed.  The protocols came from the European Union.

Discussion
The Chairperson was dubious over the EU protocols, as his experience was that Europe only used developing countries as a dump site.  He was a bit worried on the enforcement side.  There were no comments from Members.

Briefing by Treasure Karoo Action Group Presentation
Ms Jeanie le Roux, Director: Operations, Treasure Karoo Action Group, supported an integrated system for mining operations, but was concerned.  The mandate of the DMR was for mining development, while the DEA had the mandate of protecting the environment and were better equipped to deal with environmental issues.  By 2012, more than 5 800 mines were ownerless and derelict.  The DMR had a poor record, and there seemed to be a lack of capacity for law enforcement.  There was no improvement in sight.

The Chairperson found it unfair to blame the current DMR for historical problems in the industry.

Ms le Roux countered by citing the inaction of Minister Shabangu on illegal mining.  All environmental aspects needed to be evaluated.  In mining applications, an environmental management plan (EMP) was submitted together with the mining application.  The EIA should be the first process, but only followed this process.  New and contentious procedures, such as shale gas mining in the Karoo, could harm the environment.

Discussion
The Chairperson said that while the agreement reached had left all parties dissatisfied to some extent, it would eradicate many of the problems put forward by Ms Le Roux.  Even the appeal process would be finalised before moving to the next step.  The Minister of Environmental Affairs would deal with the appeal process.  There were no further comments from Members.

Briefing by Centre for Environmental Rights
Ms Melissa Fourie, Executive Director, Centre for Environmental Rights (CER), had not received the invitation to the presentation the previous week.  She said that much had been achieved in the mining field.  Civil society had been calling for changes to NEMA for some time.  The most obvious benefit was the obligation for water and environmental authorisation before mining was allowed.  This would bring more certainty.

Ms Fourie was less happy in that the DMR had not gone far enough.  She had presented on behalf of eight organisations the previous week, on the MPRDA.  There were fundamental concerns over the powers being given to the DMR.  Specific concerns were capacity, track record, inherent conflicts, unjustifiable special treatment, constitutional difficulties and the inefficient use of public funds.

The Chairperson said that there would be an implementation plan to address some of these concerns.

Ms Fourie said that the DEA had spent a lot of money, but had been able to process only 10% of applications.  There was a potential conflict between mining rights and the needs of the environment.  Other departments such as the Department of Transport did not have the authority to grant environmental approval to entities under their control.  Mining was a national competence, but there was some argument that provinces should have some authority.  The fact that provinces had never had a role in mining did not make it constitutional. 

Ms Fourie mentioned some examples where concerns raised by CER had been ignored.  The amendment would address many concerns, but some remained.  The first specific concern was the financial provisions of section 1, 24P, 24R and in the regulations.  The second was regarding clause 4, which dealt with an amendment to section 24O (consultation).

The Chairperson said that safety clauses would be created.  There would be powers of intervention.  The DEA was still busy with this.

Ms Fourie said that CER's biggest concern was about appeals, as addressed in clause 7.  The whole appeal must be finalised before a decision was made, in terms of the MPRDA.  She did not see any sign of this.

The Chairperson said that there would be strict appeal processes, which would have to be dealt with completely before the next stage.  This process was described in the regulations. 

Ms Fourie stressed the need for suspension of activities during an appeal process.  A large bulldozer could cause irreparable damage in a few weeks.  On NEMWA, it was appropriate that this legislation should fall under the DEA and not the DMR.  Considering the areas concerned, there was an effect on land use planning.  The MPRDA did have some useful provisions, such as the obligations on the directors of a company to meet any civil liabilities  This provision should be retained and transferred to NEMA, and should apply to all forms of industry.  There was no longer an obligation to consider the comments of any state department, but this should be retained.  At present, there were consequences for companies which came into effect only on a criminal conviction.

Discussion
The Chairperson asked DEA to provide a summary of the comments made during the hearings for the next round of meetings.  He asked Ms Fourie to go through the Regulations.  There had not yet been an input on these.  The only suggested change to date was that all appeals procedures should be with the Minister.  The Committee took this matter very seriously.  It was important to create certainty.  Government had not yet reached the ultimate solution, but at least the Departments were now talking to each other.

The Chairperson noted the absence of the Law Society.

Submissions on National Environmental Management: Air Quality Amendment Bill
Briefing by ACMP
Dr Rama said that the members of ACMP felt that the National Environmental Management: Air Quality (NEMAQ) Amendment Bill was an important development.  Locally published policies and standards needed to be implemented more efficiently.  Policies were implemented by the different spheres of government.  He welcomed the adoption of an integrated approach,  and the creation of an advisory committee.  The initial intention was that the Air Quality Advisory Committee (AQAC) would have been established under the National Economic Advisory Forum, under NEMA, which had never happened.  The forum could provide some leadership.  The extended time frame was welcomed.

Dr Rama said that there might be different scenarios for the commencement of unlawful activities.  The way ACMP read the Bill, this could range from completely illegal activities to non-compliance with a single condition.  There should be some leeway.  On administrative fines, a single activity could contravene two different laws.

The Chairperson felt that in such a case, there should be different penalties for each offence.

Dr Rama said that in some cases, there could be consequential offences.  The monitoring plan had been included in the amendment.  There were normally conditions included on reporting.  He asked if this was referring to the same plan.  ACMP understood that the Minister would be the licensing authority, even if there was some delegation to provincial authorities.  Hazardous waste licences were issued by national government, but general waste licences by provincial government.  He asked if one application would cover both categories of waste.

Dr Rama said that atmospheric emission licences (AEL) were issued by local authorities, but some harmonisation was needed.  The amendment made provision for a provisional licence to be valid for one year.  This might be too short, given the time taken to develop infrastructure.  Tests might not be sufficient.  Applications should be sector-specific.  The term 'commissioning' should be clearly defined.  One year would be sufficient if this was understood to be at the end of the construction process.  Some certainty was needed.

Dr Rama commented on the offences for non-fuel transgressions.  There was no reference in the Act to controlled fuels.  Generally, some wording changes were suggested on the basis of grammatical mistakes.  The advisory committee should be set up urgently.  

Discussion
The Chairperson suggested that the DEA talk to Dr Rama to clear up some issues.  There were no comments from Members.

Presentation by BUSA
Ms Jane Molony, Business Unity South Africa (BUSA), apologised for the absence of Dr Lorraine Lotter.  BUSA welcomed the amendment to NEMAQ Amendment Bill.  This was a consequential amendment to NEMA.  BUSA submitted that the AQAC should not be an optional institution, but that its establishment should be mandatory.  The wording of Section 13 of the Act was 'may,' where this should rather be 'must'.

The Chairperson could not understand why 'may' had been used.  This had to be changed to 'must'.

Ms Molony said that the fines should be aligned.  She suggested that the maximum fine should be set at R5 million.  The approach seemed to focus on state-owned projects.  Applicants would prefer to have the Minister named as the competent authority.  An integrated approach was needed in terms of Section 36.

Section 38 could be understood to apply to all applications.  BUSA felt that this should refer only to applications that would trigger an EIA.

The inclusion of a time frame in Section 41 was welcomed.  However, experience showed that one year would be too short for finalisation.  She proposed a two year period, or an open-ended licence, provided that the applicant applied for an Atmospheric Emission Licence (AEL) within the one year period.

The Chairperson noted that some municipalities were very weak and could not pay attention to air quality.  He agreed that certainty was needed over the period.  A clause was being created to allow the applicant to approach the Minister to intervene where local authorities failed to meet the time frames

Ms Molony welcomed that proposal.  The simultaneous publication for comment and public hearings did limit the potential interaction.  BUSA was committed to working with the Committee.

Discussion
The Chairperson explained why the simultaneous approach was being followed in this case.

Mr Skosana felt that the presentation was relevant to the Bill.  It seemed that the phrase of 'competent authority' came up time and again.  Presenters should understand that there were specific applications for mining.

Briefing by Western Cape Provincial Government
Dr Joy Leaner, Director, DEADP, PGWC, did not have any objections to the NEMAQ Amendment Bill.  Some guidance was needed on the methodology of imposing administrative fines.  There was concern over the challenges to provinces and district authorities in the monitoring of parastatals.  Currently the province was the licence holder for environmental activities, but district municipalities were the custodian for industries.  There was a public perception that district authorities were not doing enough to ensure clean air.

The Chairperson did not see a reference to parastatal bodies.

Dr Leaner said that the Eden District Municipality was the licensing authority for PetroSA, and gave some other examples.

The Chairperson said that these related to nationally planned projects.  In such cases, the Cabinet would declare a project a national priority.  The terms of this section would not apply to specific organs of government unless the province itself applied, or where a project transcended provincial boundaries.  He asked if the process described in NEMA to declare a national project had been followed.

Dr Leaner found this input useful.  There was still a concern over monitoring compliance and dealing with complaints.  This function would now be devolved to district authorities and provincial government, as these bodies dealt with compliance and complaint issues.  The recommendation was that provincial, district and metro authorities be retained as the licensing authorities.

The Chairperson said that the idea was for national control over national projects.  There was no intent to take over the normal functions of provincial and local authorities. 

Mr Ishaam Abader, Deputy Director General (DDG), DEA, said that monitoring took place at both national and provincial level.  If a licence was issued, DEA inspectors would ensure that all conditions were met.  Provinces provided this function where they granted the licence.  The problem occurred at a local level, where a joint effort from DEA and the provincial authority was often needed.

Mr Alf Wills, DDG, DEA, said that the environmental management inspection system would come into play.  These bodies would function at all levels of government.  As the Western Cape had pointed out, there was a compliance monitoring system and an emissions monitoring system.  These were normally implemented at provincial and local level, with reports being made to the national statistics centre.  If non-compliance was detected, the licensing authority involved should take action.

Mr Abader said that the national emission monitoring inspectors (EMI) would ensure compliance in the case of a national project.

Dr Leaner said that the procedure was clear for compliance.  Complaints could come in at any time of the day.

Mr Abader said that when a complaint was reported to the DEA, the first action was to liaise with the provincial authority.  There was a national complaints hotline.  Every complaint had to be dealt with.  This was normally a collaborative effort.

Mr Wills said that the public could not be directed where to complain. 

The Chairperson was worried that not all the steps in NEMA were visible in this Amendment.

Mr Wills said that the Amendment should be read in conjunction with NEMLA 2.

The Chairperson felt the process of linking the matters together was very abstract.  The process must be made very clear.

Dr Leaner said that there were no further objections to the Bill.  The City of Cape Town had made a strong representation on air pollution.  An existing company could apply for a new licence while still operating under an existing licence.   

Discussion
The Chairperson said that the process should be clear.  It was important to receive inputs from provincial and local government.  The provision for national projects would be used sparingly.  He used the example of an empowerment project on the Backsberg farm that had been delayed by continuous problems in obtaining permission from various national departments.  He was not sure that the amount of power given to local municipalities regarding air quality management was working.  Many municipalities were dysfunctional.  The issue warranted debate.  The failing municipalities needed to be assisted.  Government should not be inflexible. 

Submissions on National Environmental Management: Protected Areas Amendment Bill
Briefing by Centre for Environmental Rights (CER)
Mr Marthán Theart, representing the CER, said they had experience in applying the National Environmental Management: Protected Areas (NEMPA) Act, especially with regard to mining.  He welcomed the incorporation of the marine protected areas (MPA) proclamation.  Most of these were housed in NEMPA.  The DEA was now the responsible authority, and this was a better placement than under the Department of Agriculture, Forestry and Fisheries (DAFF).  NEMPA made provision for protected areas. 

Mr Theart said that there was no specific ban on the exploration for petroleum resources in the MPA.  Seismic exploration was a major source of noise -- so intense that it could be lethal to certain species and affected migration patterns.  Experience in other countries showed the devastating impact that could be wrought on marine areas.  The CER was opposed to exploration and mineral exploitation in the MPA.  There was an increased interest in offshore prospecting on the South African coast, and one of these was in the De Hoop conservation area. 

Section 48 of NEMPA prohibited prospecting and mining activities and exploration in a protected environment.  The MPRDA made a distinction between mining, and prospecting for minerals and petroleum products.  His proposal was that Section 48 be reworded to read “No person may conduct commercial prospecting, mining, production, exploration and related activities” in a protected area.

The Chairperson noted the agreement of the DEA to this proposal.

Mr Theart referred to Clause 12, an amendment to Section 48A.  The CER would like to see the restricted activities contemplated in Section 48, including the dredging or extraction of sand or gravel in protected areas, being made illegal.  This could be termed a form of mining.

The Chairperson asked if this was a call for the total prohibition of dredging in protected areas.

Mr Abader asked for the chance to discuss this internally before the DEA committed itself to an answer on this.

The Chairperson asked what the difference was between a sensitive and a protected area.

Mr Alf Wills said that a sensitive area might not necessarily be a protected area.  Management authorities should not be prevented from dredging operations in order to open estuaries, for example, in the course of ecological management activities.  The NEMPA did make provision for this.
 
Mr Theart did not think that there was anything sinister on the part of the Minister, but there might be an expectation on the part of oil and gas companies that concessions might be made.  If the proposal was not followed, then the CER proposed that the list of restricted activities be split into separate lists of restricted and prohibited activities.  Exploration and production should be included in the prohibited activities.  Allowing a window for such operations in protected areas would be contrary to the purposes of declaring MPAs, as contained in Clause 5 of the Bill.

Discussion
The Chairperson felt that the presentation had been clear.  There were no comments from Members.

Briefing by Doug Butterworth
Mr Doug Butterworth, Marine Resource Assessment and Management Group, Department of Mathematics and Applied Mathematics, University of Cape Town, proposed that Section 48A(2) should be amended.  Some fishing activities could be allowed in MPAs, such as surface trawling.  This would bring the law into line with international practice.  There might be problems of interpretation.  He offered a definition of 'protected area' as adopted by the Convention on Biological Diversity. 

Section 15 of the Marine Living Resources Act (MLRA) made provisions for a restriction on the take in fisheries management areas.  He proposed that NEMPA Section 42 be amended to provide for restrictions on take. 

Mr Butterworth suggested that 'may' in Section 22A (2), which provided the purpose of an MPA, be changed to 'are likely to'.  The section currently read “to restrict or prohibit activities which may have an adverse effect on the environment”.  This would be in line with the intent of the Rio Precautionary Principle.  This was a hard test to meet, involving tests for irreversible damage.

The Chairperson felt that the text of the principal Act was being interpreted incorrectly.  He understood that the lack of scientific proof should not be used as a means to allow potentially harmful practices.

Mr Butterworth replied that the opposite was the case.  Where a ruling had been made, the burden of proof lay with the applicant.  The provision in the Act posed a weak burden.

The Chairperson said that a restriction was not an absolute prohibition.  This was perhaps why 'may' had been used in the drafting.

Mr Butterworth suggested an addition to section 22A (2).  An important application of control measures was where it was not practical to control the extent of fishing.  Declarations of closed areas, permanently or temporary, was an important tool in allowing for the recovery of fish stocks.  This should be explicitly stated in the Act.  Another suggested inclusion was a provision to allow for a limited take for research.  This seemed to have disappeared from the original version of the Bill.  It should be possible to declare areas off limits temporarily in order to compare the yield to that in unprotected areas.  He further suggested that there be a provision that the declaration should include a rationale for declaring a restricted area, and the practicality of doing this.

Mr Butterworth said that the word 'network' had a specific meaning.  Using this made sense terrestrially, but it did not make sense to refer to a 'network of protected areas', as they were not connected like land-based systems.  At present, section 33(1)(b) provided for notification to land owners.  In the marine environment, this should be extended to major users.

Discussion
Ms Radia Razack, Director: LR&A, DEA, said that Section 43 would be repealed and a different regime would be put in place.

Mr Wills took the point regarding Section 15.  Mr Butterworth's suggestion regarding the maintenance of a catch limit should be incorporated.  At the same time, this should not be a repeat of the provisions of the MLRA.

The Chairperson asked if there had been negotiations with DAFF yet, as some provisions still fell under them.   There had been a court case relating to shark cage diving.  This aspect now fell under DEA.

Ms Razack would forward the documents.  NEMLA now contained provisions for marine life, including a permit system for shark cage diving operations. 

Mr Wills would double-check that the correct sequence of events had been followed.  There was still a motivation under DAFF to maintain a particular catch effort.  There should not be a duplication of powers.

Mr Butterworth said that the practice of maintaining fisheries areas was similar to the provisions for an MPA.  More thought was needed to ensure that the legislation was not duplicated.

The Chairperson instructed the DEA to engage with Mr Butterworth.  Once the legislation was passed, there should be no further problems.  There had to be an empowering clause in the Act, although the detail could be contained in regulations.  There were no further comments from Members.  The Law Society representative had not arrived.  This concluded the hearings on the three Bills.  However, the DEA must take both written and oral submissions into account.  He noted that there were still four submissions to be dealt with the following day.

Comments on National Environmental Management: Integrated Coastal Management Amendment Bill
Ms Razack had made a list of the issues to be reworded in the National Environmental Management: Integrated Coastal Management (ICM) Amendment Bill.  The first area was the definition of an 'access fee'.  This would now be the fee for a member of the public to access a coastal public property and launch a boat.

The Chairperson noted agreement on the definition of 'adverse effect', 'authorisation', 'coastal authority', 'deletion of coastal lease', 'coastal management line', 'coastal protection zone' and 'deletion of coastal management line'.

Ms Razack said that using 'subject to Section 26' in reference to an estuary, had been deleted.

The Chairperson continued to review the definition of 'coastal zone'.  He asked Members for agreement on the use of 'or' in the definition of an estuary.  Members accepted the definition of ‘harbour'.  There seemed to be two definitions of 'harbour'.

Ms Razack said that the Committee had requested a differentiation between a 'harbour' and a
’port'.  'Port' should not be included under the definition of 'harbour'.  This was a new definition.

The Chairperson said that the original wording must still be retained, albeit within square brackets.  He looked at more definitions.  There had been discussion over the definition of 'municipality'. 

Ms Razack said that the existing definition would be retained.

The Chairperson assumed that the terms 'harbour' and 'port' had been used correctly throughout the Bill.  There had been an inclusion of 'for maintenance purposes' in the definition of dredging.

Ms Razack said that one of the submissions by Dr Whittington had included an objection to the definition of 'estuary' including 'sea'.  The Bill had now been scanned for unintentional consequences.  DEA felt that the concept of an estuary should be included in the definition of 'sea'.  All references to 'living waters' had been deleted.

The Chairperson said that the main point had been to check on the appropriateness.  He looked at the definition of 'state land' and 'waste assessment guidelines'.
 
Mr Luke Hilton, SLA, was standing in for another SLA and had not been able to read through the amendments.

The Chairperson asked if 'sea space' was correct.  Two words had been proposed which would be more technical in nature to describe areas within a port and harbour.  Transnet had wanted ownership of the water.  He had proposed that the Bill should rather refer to the use of the water, rather than the ownership.  Some more work was needed on this interpretation.  Transnet was concerned that they might lose an asset. 

Ms Razack wanted clarity.  Square brackets were normally used for text that was currently in the Act.  Admiralty reserves were big areas.  Some areas contained buildings leased by the Department of Public Works (DPW).  Not the entire reserve was excluded, but only the portion leased.  The area belonged to the citizens, but not those buildings.  If DEA took them over, it would have to manage the leases.  These areas remained as parts of the Coastal Protection Zone.

The Chairperson asked what the state could not do in these areas.

Ms Razack said that the leases could be continued at a commercial rate.  Any further developments would be subject to the same procedures contained in the Bill.  Coastal public property had various restrictions on development.

The Chairperson said that Transnet had already been told that there would be no special relationships with government structures.

Ms Razack said that the DPW had not asked for this exception.  The need for this had been realised only when the size of these expanses had been appreciated. 

The Chairperson said that all other leases were being terminated.  A separate regime would apply in the admiralty reserves.  This was creating a weaker regime over which government had no say.  Pieces of coastal public property were now being left up to Departments and local authorities.  It would be better to have created a separate regime for admiralty reserves. 

Ms Razack understood the point being made. 

The Chairperson suggested that a separate clause be drafted to cater for leases.  Clause 7 (1) was a most important clause.  There was an interpretation clause on how this clause should be read.  He had given an instruction, but this did not seem to have been adhered to.  This clause should be 'subject to environmental laws'.

Ms Razack suggested that the clause be reworded as 'notwithstanding subsection (1)'.

The Chairperson did not like that wording.  More thought was needed on this clause.  In Clause 7A there was a description of coastal property. 

Ms Razack said that there had been extensive changes to 7B.  This dealt with private and public reclamations.  The clauses should not conflict with each other.  There had been confusion over what was state and public land.  It was difficult to divide this clause into two sections.  There were some applications on state land that would not apply to government land.  No person would be able to reclaim land without the permission of the Minister, who could impose conditions.  Parliament would have to ratify any such decision.  The process for submitting an application was described.  The clause was a logical, practical step.  Developers might get a positive Record of Decision after conducting an EIA.  The application to reclaim then went to the Minister for authorisation.  A positive environmental approval would have to be provided.

The Chairperson said that the environmental decision should be positive.  At present, the clause referred only to a decision.  This clause needed to be reworded.

Mr Wills asked if the approval of the Minister was not required before an EIA would be conducted.  The EIA would determine the desirability of a proposal, and what conditions might be imposed.  The intent of prior approval was to satisfy all the non-environmental requirements first.

The Chairperson said that the Minister would be deciding on an application before the EIA had been conducted. The Minister would also be the appeal Authority.

Ms Razack said that the thinking was that if the Minister rejected the application on some other grounds, the process would be terminated before the need for an EIA. 

Ms M Wenger (DA) said that something was wrong if the Minister was also the appeal authority.

The Chairperson suggested wording more like a pre-application process.  If the development was for financial gain, it should first be approved by Parliament.  The more important aspect was the money involved.  It was unusual for Parliament to play a role, but there was a major chance of corruption.  The wording had to be correct.  There might be other considerations. 

Ms Razack liked the idea of a pre-approval process, but proposed that Parliamentary approval be the last step.  Under the Sea Shore Act, Parliament must approve all leases.

The Chairperson said that in terms of commercial gain, it should be an extraordinary procedure.  He did not want to see off-shore islands being created, and this was the sort of thing that only casinos could afford.  This aspect had been left vague in the past.    Parliament did not like the commercial gain aspect, and thus wanted tougher laws.

Mr Wills proposed that reclamation could be specified as being for public good only.  There was a potential that an owner of reclaimed land could approach the state for assistance in the event of damage by high seas.  There was a stretch of coast that was pro-grading, in the Richard's Bay area, but the rest of the coast was retrograding.  The state was now picking up the costs of the harbour development in Cape Town, where there had been large-scale reclamation in the past.

The Chairperson instructed the DEA to redraft the provisions for reclamation in the public good, and to consider the case of developments for commercial gain very carefully.  Even public reclamation should be tabled in Parliament and published in the Gazette.

The Chairperson noted no further changes to Clause 8.  Clause 10 had been removed as it had been worded exactly the same as Clause 8.  It was unclear why this clause had been inserted.  There was some thought that this had been introduced in the interests of beneficiation.  The procedure specified in Clause 8 was simpler.

The Chairperson read through Clause 11.

Ms Razack said that the Western Cape government had raised the issue of ownership.  The word 'use' could be deleted.  Marine living resources were defined as a national competency in the Constitution.

The Chairperson said this was a bad attempt at a short-cut.  There was a power being granted.  He asked if this issue was not covered by the legislation on mining.  He asked if 'exploitation' had a wider meaning in mining legislation.

Ms Razack said that mining was included.  Resources could be exploited, provided that this did not happen in an MPA.

The Chairperson suggested that the definition of living resources should be restricted to fish and plants.

Ms Razack said that the intent was to provide that one could not claim a right to exploit.

1he Chairperson said that the authorisation should first be procured without any explanation on how it could be done.  The authority would be in terms of national legislation.

Mr Abader said that one must be careful not to omit any category.

The Chairperson said that mining was dealt with elsewhere, as were fish resources.  Without having to consider these resources, it was meaningless to have this clause.

Ms Razack said that this clause had originally been elsewhere in the Bill.  There had been a call at the public hearings to move it into this clause.

The Chairperson said that the rights of the people to the coast were guaranteed.  It was clear where ownership was applicable.  The next clause then suggested that the rights were not inalienable.  'Use' was covered in the rest of the Act.

Ms Razack suggested that this clause be moved to Clause 7.

The Chairperson disagreed.  It could be spelled out that mining and fishing issues belonged in different Acts.  It seemed that there were more things being added under ownership.

Mr Abader agreed that the content could be moved to Clause 7, as there would be a better flow.  A separate clause could be introduced.

The Chairperson said that if it was necessary to spell out what could be done with coastal land, then it should be done.  Public use must be in terms of something.  'Exploit' was a nasty term.  The current wording was helping no-one.

Mr Wills agreed that issues of use should be separated from ownership.  He could not see a difference between a right and a use.  The Minister of Mineral Resources could confer the right to exploit mineral deposits.  Coastal property and marine resources should be seen as separate issues.

The Chairperson asked if there were any rights regarding mining on coastal public property.

Mr Wills said that the Act contained 63 provisions regarding mining.

The Chairperson concluded that clause 11 was not strictly true.

Mr Abader felt that he could own land, but someone else could have the mineral rights.

Ms Razack said that section 63 gave the conditions for ownership.

The Chairperson felt that this was ineffective.  The wording was that the Minister must take the concerns into account.  The only real requirement was for an EIA.

Mr Wills said that the provisions of Chapter 5 would apply in the case of a sensitive area.

The Chairperson said that this must be clarified.  Even with his legal training, he was struggling to understand what was happening.  One now owned the right to exploit, but not the land.  He asked if there were any norms and standards for sea mining.  It was fine to say that the DMR was the competent authority, but without environmental laws being in place, this would be a hollow competence.  Mining rights could not be given in a vacuum. 

Mr Kgalita Mokoena, Director: Mine Environment, DMR, said that this was an area that should be looked at.  The Department was currently looking at developing norms for oil and gas production.

The Chairperson felt that this was a problem area.  The DEA must think about how the clauses would be linked.  Prospecting and production of minerals should be governed by a different clause.  A resolution could be the whole discussion around coastal mining. The DEA and DMR should embark on a process to create legislation and guidelines to govern undersea mining.

Mr Wills said that there were uses for renewable and non-renewable resources.  Oil and gas could not be replaced.

The Chairperson said that the ecosystem was changed irreparably when dunes were disturbed in order to mine the sand deposits.  Attempts to rehabilitate dunes often resulted in scars on the landscape.  He used the area between Richard's Bay and St Lucia as an example.

The Chairperson moved on to the amendment to Section 13.  He was reassured that there was a prescribed sanction.  There were a number of consequential amendments.  The amendments to Section 14 had been updated from the suggestions made by Prof Whittington.

Ms Razack said that the Committee had requested that subsection (6) be deleted.

The Chairperson said that adopting the clause in that format would have had major implications for the state.

Ms Razack said that the amendments to Section 15 were covered in NEMA.  Some wording had been clarified in the amendments to Section 16.  The original clause had been broken up to cater separately for rivers.

The Chairperson noted that there were no further amendments to Section 17. 

Ms Razack said that the suggestions of the Eastern Cape government regarding access servitudes had been adopted in the amendment to Section 18.  This land belonged to the government.  The wording had been clarified.  There was legislation relating to transport that had similar provisions.

The Chairperson was concerned by the object of the clause.

Ms Razack said that public servitudes could be created by law.  This could be registered afterwards, but there was no obligation.

The Chairperson wanted to see this in the Deeds Act.  There were no amendments before Section 25.

Ms Razack said that when a Member of the Executive Committee (MEC) in a province established coastal setback lines, he or she must be aware so as not to draw the line through existing private property.  The amendment to Section 26 came from public comments.  One of the criteria in the determining of coastal property would be public opinion.  The amendments to Section 31 were consequential.  The first change to Section 33 was due to a technical error in the drafting.  There was an attempt to address accountability in estuarine management.  The challenge was enforcement against other identified authorities. 

The Chairperson said that the responsible authority could be a municipality.

Ms Razack responded that the municipalities could include these matters in by-laws.

The Chairperson suggested that the phrase 'if applicable' be included in this amendment.  Once the legislation was there, it would surely be part of the estuarine plan.

Ms Razack said that reporting should be on the essence of the plan.  Annually was implied, but this could be made more clear.

The Chairperson decided to leave Chapter 5 for a later date due to the detail it contained.  There were not many changes in Chapter 6.  There were consequential changes in Sections 56 and 59.  The title 'MEC' had been added in the amendment to Section 59.

Ms Razack said that there had been no time period attached to the amendment to Section 66.  This clause had not received much attention. 

The Chairperson found it odd that a coastal use permit would be valid for 20 years, after which a renewal could be requested.

Ms Razack did not have an answer on the difference between new permits and renewals.  She understood this had been incorporated in terms of the dumping legislation.  The DEA was not married to this.

The Chairperson said that fishing permits were short term.  Twenty-year permits should relate to the use of coastal property.

Mr Ryan Pote, Deputy Director, DEA, was responsible for the renewal of permits.  The amendment was largely a result of the change in coastal environments.  A new application was required as a result of drastic changes that could occur in the period.

The Chairperson felt that 20 years was a long time.  He proposed that the provision for renewal be removed, after which a new application must be made.  In terms of dumping permits, the period of validity would be extended to five years, whereafter a new application must be made.  He noted that the provision for cases to be tried in the High Court, with higher penalties applicable, had been included.  He asked if 'convicted' or 'prosecuted' was more appropriate.

Ms Razack said that a penalty could be awarded only after a conviction.  The normal wording was 'found guilty of an offence'

The Chairperson thought that that phrase sounded better.  There was an error in the amendment to Clause 83.  The phrase 'and bid' must be deleted.

Ms Razack said that a gap in the Act had been pointed out.  Provincial parks were controlled by MECs.  The Act, in Section 22, gave MECs the power to excise coastal protection zones from park areas.  The Act had given MECs and the Minister the power to excise the portion of the park from the coastal protection zone.  There were many consequences.  The Minister could exercise a similar power in national protected areas.  Not all the legal consequences had been considered.  The MEC had the power to do almost anything in coastal protections zones, and the Minister in coastal public property.  The exceptions in national protected areas had not been created for the use of MECs.  MECs were still making regulations over national protected areas.  The clause had been written to address this.

The Chairperson noted that all of the areas described would now apply to the Minister.  This was a huge task, covering the whole coast to a depth of 500 metres.  It had been a serious oversight not to include this originally.  The affected sections should all be amended.  In Section 23, there were provisions for who had the authority to adjust coastal boundaries.  The wording of this clause was poor.

Ms Razack said that the coastal protection zone went beyond the high water mark.  The provision would be applicable only in certain cases.  The MEC would exercise powers in all areas except in a national protected area, across provincial boundaries and across national boundaries.  The problem was in sub-clause (a).

The Chairperson felt that (b) should rather be changed.  Substantive changes were being made, but no-one outside the room knew about this.  He instructed that this provision be reconsidered.  There would be no opportunity for public comment on this.  Section 26 (1)(b) could be reworded.  This dealt with the powers of the MEC, and could be modified to say that the Minister would still have authority in a national protection zone.

Mr Xola Mkefe, Director: Coastal Biodiversity Conservation, DEA, said that an MEC could get involved in a national park.

The Chairperson said that this power could be summarily removed.  There had been no consultation on this matter.  This law could not be introduced without giving MECs a chance to be aware and make comments.

The Chairperson continued to review the comments on the amendments.  There were several minor errors.

Ms Razack said that the Chairperson had objected to the use of the word 'stay' and had ruled that 'stop' should be used in the amendment to Section 91.

The Chairperson said that effluent reports must still be presented.  Throwing effluent around was becoming a national tradition. 

Ms Razack described how the issue around leases had been resolved in the amendment to Section 96.

The Chairperson felt that more had been said.  It seemed that the lease would be allowed to continue for two years.   There should be a provision that the lease could be renewed, subject to the application for a coastal use permit.

Mr Wills suggested a change to (ii), providing for activities to be halted immediately and an application made.  The point of (iii) was to ensure that an application for a permit was made.  If this was not done within two years, then the lease would lapse.

The Chairperson said that this would not have to be an offence, but the lease would lapse within two years.  If it was a prohibited activity, then this should cease immediately.  There were also listed activities that were only restricted.  The regulations around permits could not be open-ended.

Ms Razack said that (iii) was intended to be a transitional arrangement.  This should be renewed, to talk to the validity of the application.  She asked if the two cases were not linked.  There was a list of prohibited activities, and a list of those activities that could only be pursued with a permit.

The Chairperson said that the clause read that all activities must cease, with the exception of certain activities.  There could be a situation that was not the same as in (ii).  There would have to be an application for a permit.  The ordinary 24-month period could not apply.  This authorisation might take some time.  It might be better to be pedantic in this case, with provision for the lease to lapse within a given time period.

Mr Wills said that there must be provision for a procedure in the event of the application for a permit failing.

The Chairperson said that once the permit was granted, then the lease would lapse.

Ms Razack said that this was an extremely difficult issue.  The DEA had understood it when the clause had been rewritten. 

The Chairperson said that exceptions were being created, and this would undermine the legislation.  The legal consequences had to be spelled out.  In the case of a prohibited activity, the person involved should be given a notice to cease the activity. 

Ms Razack said that the SLA had introduced the Bill with a provision to cover squatting.  This was an amendment to Section 96.

The Chairperson said that Ms Razack had introduced the Bill without the provision, but the SLA had added this subsequently.  He had been concerned that this provision would be used against poor people.

Ms Razack said that the SLA had introduced this provision.  The Act had not been amended, and still made provision to protect rich people.  She was now putting forward a request that the Act be amended.  The demolition of shacks was subject to the Prevention of Illegal Evictions Act.

The Chairperson noted that there was no enforcement clause.

Ms Razack said that this was addressed later. 

The Chairperson said that no obligation had been created. 

Ms Razack said that in the case of a demolition, it must either be done by the person erecting the building or that person should pay for the destruction thereof, and the rehabilitation of the site.  The person must either apply for permission, or demolish the structure.

The Chairperson said that the person could apply for the permit and not demolish.

Ms Razack linked this to listed activities.

The Chairperson could still not see how an obligation could be enforced in terms of (b).

Ms Razack said that the DEA would not know where all the illegal structures would be.  The erectors should demolish the building.  If they did not do so, then an order would be issued to order the person to pay the costs of demolition.  The clause could be reworded.   She asked if the Chairperson was satisfied with the wording of sub-section (3).  If one did not demolish the structure in question, then a notice would be issued.

The Chairperson said that this wording was a step in the right direction.  The problem was still that only listed activities were contemplated.  He did not think that all the changes could be made overnight.  Many of the changes were of a technical, rather than a policy nature, such as the reclamation issue.  He instructed the DEA to have all the changes ready for the first meeting in the following session of Parliament.  He hoped that the issues surrounding the South African Weather Services (SAWS) Amendment Bill had been solved.

Mr Sibusiso Shabalala, Director: Law Reform, DEA, said that the only issue outstanding was the definition of 'severe weather'.

The Chairperson said that he also needed a presentation on how the issues raised were addressed in Regulations.  It was difficult to process six Bills simultaneously.  Any further amendments should be minimised.  Time was running out to get the Bill through Parliament.  There would also be several amendments regarding NEMAQ.  The time schedule was really tight.  Mining was the top priority, and if this was close to finalisation by the end of 2013 he would be satisfied.  ICM and SAWS could be dealt with quickly, followed by Air Quality and Protected Areas.

Mr Abader reported that the NEMLA Amendments would be voted on in the National Council of Provinces that night.  If there were no complications, then it could be processed in the National Assembly quickly.

The meeting was adjourned.