Environmental Protection to Antarctic Treaty: Protocol Annex VI; Benguela Current Commission Convention; South African Weather Service Amendment Bill [B23-2013]; Integrated Coastal Management Amendment Bill [B8-2013]; Protected Areas Amnd Bill [B28-2013]

Water and Sanitation

07 October 2013
Chairperson: Mr J de Lange (ANC)
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Meeting Summary

The Department of Environmental Affairs briefed the Committee on Annex VI to the Protocol of Environmental Protection to the Antarctic Treaty. South Africa was a signatory to the Treaty. This Annex dealt with the liability arising from emergencies. The Antarctic Treaties Act would need to be amended to make provision for the state to assign liability in the event of any operator receiving a permit from South Africa causing environmental damage. The Committee requested more information as a matter of urgency so that the process of ratification could be completed.

The Committee was briefed on the Benguela Current Commission Convention. This was an agreement between South Africa, Angola and Namibia. Its purpose was to protect the ecosystem. South Africa still needed to ratify the Convention. Members wished to see the comments made by the State Law Adviser before proceeding with the ratification process.

The Committee considered the latest amendments to the South African Weather Service Amendment Bill. Norms and standards had to be followed, but in relation to the gathering of data on air quality, these were already found in the National Environmental Management: Air Quality Act. Members welcomed the operational independence afforded to the South African Weather Service (SAWS). They felt that the Minister should issue directives to SAWS in the event of any non-compliance. The Department felt that it would be difficult to consult with the Minister before issuing a severe weather alert but Members dismissed this objection. The Committee requested that clause 6 be reworded to prevent any incorrect interpretation.

Members discussed the clause dealing with the appointment, duties and possible removal of the Chief Executive Officer of SAWS. Some wording changes were requested Generally, Members were critical of the standard of the drafting work done by the Department. Amendments made by the State Law Adviser had not been incorporated. In several cases the wording of the Bill was poor. The Department was instructed to make the corrections directed by the Committee and present the updated version the following day.

The Committee considered the changes to the National Environmental Management: Integrated Coastal Management Amendment Bill. Members were irate that the resolution requested on mineral exploration in such areas had not been prepared as instructed. Some more consideration was needed on the definition of state land. Despite initial reservations, Members expressed their satisfaction with the changes made to the Bill and felt that it was close to being in its final form.

The Department had not completed the amendments to the Bill on mining, and would present this Bill the following day.

The Committee considered the amendments to the National Environmental Management: Protected Areas Amendment Bill. A number of comments made during the public hearings were discussed. Some wording changes were made, but Members were generally satisfied with the current version of the Bill. Some of the inputs made seemed to be more in the interests of the fishing industry than the environment.
 

Meeting report

The Chairperson outlined the status of pending legislation he emphasised the need for all outstanding reports to be completed, as Parliament would soon be dealing with the budget adjustments.

Annex VI to the Protocol on Environmental Protection to the Antarctic Treaty: briefing
Mr Henry Valentine, Director, Department of Environmental Affairs (DEA), said that South Africa was one of the original signatories to the Protocol on Environmental Protection to the Antarctic Treaty. It dealt with the territorial sovereignty of Antarctica. South Africa's area of interest was the Southern Ocean, Prince Edward Island, Marion Island, Gough Island , which South Africa leased from the United Kingdom, and the continent itself.

Mr Valentine said that the protocol was not specifically designed to protect the environment of Antarctica. The treaty had been ratified in 1991. Antarctica was a continent of extremes. Human activities elsewhere impacted on the continent, such as the ozone hole. Antarctica was slow to recover. There was an increase in tourism and Antarctic exploration.

The Chairperson summarised the question of liability. The Treaty set out the responsibilities on the states responsible for Antarctic activities, and for emergency procedures. He asked who would determine liability.

Mr Valentine said that the Treaty operated on a consensus base. In the event of an emergency, the parties to the Treaty would determine liability. It would up to the state responsible to recover costs from the operator concerned.

Discussion
Ms M Wenger (DA) asked if only the signatories were allowed to operate in the region, or if this could be sub-licensed.

Mr Valentine responded that Treaty members would have to grant permits for operations conducted by non-member states. If a company did not have a permit, it would be held liable for any resulting actions.

The Chairperson asked how liability would be determined. He asked if there was a procedure that a party from a non-member could be ejected from the region.

Mr Valentine explained that in such a case, the country of departure would be responsible for addressing any environmental damage. In Antarctica, logistic support was needed. The infrastructure was controlled by Treaty members.

The Chairperson sketched the example of an oil tanker from a non-member country.

Mr Ishaam Abader, Deputy Director-General (DDG): Legal Services, DEA, said that conditions were harsh in the region and only specialised vessels would venture there.

Ms Wenger said that there was an assumption that there were good intentions. This was not always true. Antarctica needed to be protected from exploitation from such persons.

Mr Monde Mayekiso, DDG: Oceans and Coasts, DEA, said that one could not access the continent from the sea. One needed helicopters and related infrastructure to move from sea to land.

The Chairperson asked what South Africa was doing to comply with the Treaty.

Mr Valentine said that there would be a permit system. This was in place. Unless the operator could prove sufficient insurance to cover any liability, the permit could not be issued.

The Chairperson asked for a copy of the permit system. Members would be interested to see the regulations.

Mr F Rodgers (DA) said that while 47 countries had signed the Treaty, only six had signed the Annex.

Mr Valentine replied that all parties agreed to the Annex, but this had to be incorporated into their respective national legislation. South Africa had an Antarctic Treaties Act. The Annex would be incorporated into the Act. An amendment would be needed.

The Chairperson said that the DEA must revert to the Committee when all the paperwork was ready. Time was of the of essence.

Ms Wenger noted cases such as a crashed Chinese helicopter. China was not one of the signatories.

Mr Valentine said that the countries involved were all part of the 47, but had not yet all signed off the Annex. They were all committed to doing so eventually.

The Chairperson said that the Committee could not proceed with this issue until the further information requested was provided.

Mr Mayekiso said that the first step was the ratification.

The Chairperson said that legislation could be created without a treaty. The country could create whatever obligations it felt appropriate. He wanted to see how far advanced the DEA was with the process before making any decisions. In the interim, the state would be liable for any damages that might occur.

Benguela Current Commission
Mr Sibusiso Shabalala, Director: Law Reform, DEA, said that the Benguela Current Commission involved South Africa, Namibia and Angola. The convention had been negotiated between 2010 and 2012. The three countries had signed the convention, with Namibia being the first to ratify the treaty in 2013. The Commission would only be created once all three countries had ratified the treaty.

The Chairperson asked if the State Law Adviser (SLA) had checked the Treaty. This advice should be given to the Committee before further action could be taken. In the absence of this document, the Committee could not make a resolution. The Commission could take decisions, and there should be no possibility of the sovereignty of South Africa being under threat.

Mr Shabalala said that the SLA had perused the document.

The Chairperson wanted to see a copy of this document.

Mr Shabalala outlined the principles of the Convention. The main principles were the protection of the environment and biodiversity, and protection against pollution. Management measures would be applied based on sound scientific evidence.

Mr Shabalala said that the Secretariat had already been created. This was based in Swakopmund in Namibia. The Commission would meet annually, and a conference would be held every two years.

Discussion
The Chairperson said that there was no provision for the ministerial conference to make decisions. This was the highest forum. There could be disagreement between the parties.

Mr Shabalala said that both the Ministerial Conference and the Commission were covered.

The Chairperson wanted a comment from the SLA on this issue. All other clauses only dealt with the Commission. The rest of the Convention was about structures, and he did not see any controversy. The country could withdraw from the Commission at any time. The Benguela ecosystem was a vital one and did need protection. He noted that the SLA had made a number of suggested amendments, and it was confirmed by DEA that these had been accepted.

The Chairperson noted the agreement of Members. He emphasised the urgency of dealing with the issue, as it also had to go to the National Council of Provinces (NCOP).

South African Weather Service Amendment Bill: deliberations
The Chairperson said that the first clause in the South African Weather Service (SAWS) Amendment Bill now dealt with the Minister setting policy. This should be moved further up in the long title of the Bill. He was not sure if the long title contained all the aspects.

Clause 1
The Chairperson said that there was a new definition for an 'advisory alert'.

Mr Shabalala said that both 'advisory alert' and 'warning alert' had to be defined after previous changes to the Bill.

The Chairperson was happy with this, but did not think that the definitions were new additions. However, there had been changes made of which the Committee was not aware.

Mr Abader said that there had been a letter from SAWS homing in on ambient air quality.

Mr Shabalala said that the word 'automatic' had been removed from the definition of 'emission'. The definition of 'severe weather warning' had been expanded to include a reference to economic loss.
 
The Chairperson was not happy with the version of the document presented to Members. While changes made at the last meeting had been incorporated into the updated version of the Bill, some of these were not properly indicated.

Clause 2
Mr Shabalala said that the contents of clause 2, which would create new sections 2A and 2B in the principal Act, had previously been found in clause 4, and had been moved up in the Bill in accordance with the instructions of the Committee.

The Chairperson was happy that everything suggested had been captured. The term 'policy framework' could be deleted, as 'policy' was a broad enough term to cover this concept. He suggested some changes to the sub-clauses and pointed out some repetition.

Mr Rodgers had a query on sub-clause (2) ( c ), which gave the Minister the discretion to issue directives. If SAWS was obliged to follow directives, then the Minister should be obliged to issue a directive in the event of non-compliance.

The Chairperson said that the norms and standards could already be incorporated in policies. He felt that the obligation for the Minister to issue such norms and standards could be discretionary. There was no problem with the policy and directives, but the norms and standards could be applicable to a wider range of stakeholders than just SAWS. Another entity could also be involved. Even in the event of a small non-compliance, there should be a directive and he agreed on Mr Rodgers's point.

Mr Abader said that the norms and standards would probably only be applicable to SAWS.

The Chairperson was also considering municipalities, as these had the primary role to gather air quality data.

Ms Judy Beaumont, DDG: Climate Change, DEA, said that the norms and standards relating to air quality would be in the National Environmental Management: Air Quality Act (AQA).

The Chairperson said that this power was the extension of the AQA.

Ms Beaumont said that the power being conferred related to the custodianship of the air quality information system. The regulatory power still fell under the National Environmental Management Act (NEMA).

The Chairperson said that the norms and standards should fall under this Act. The gathering of data fell under this Act. This could not be left for another Act. He asked if it was correct that this power was being given to SAWS.

Ms Beaumont said that there was a difference between receiving data and feeding the information into the National Air Quality Management System. (NAQIS). The power to acquire the data came from the AQA. This was the legal framework.

The Chairperson hoped that this was correct. If the statement made by Ms Beaumont was found to be incorrect he would be very vexed. Nevertheless, the wording was now much clearer. The concept of operational independence had been addressed to his satisfaction.

Mr Rodgers asked for clarity on his suggestion.

The Chairperson said that it was agreed that 'may' would change to 'must' regarding the issuing of a directive. SAWS was telling him that the question of norms and standards was addressed in AQA.

Clause 3, 4 and 5
The Chairperson said that changes to clauses 3, 4 and 5 were of a technical nature. The Minister should consult with any other Minister or stakeholder on air quality warnings.

Mr Abader said that SAWS said that there would be an impact on SAWS in adhering to this clause.

The Chairperson said that this was nonsense. He could not see how SAWS having to consult with the Minister could be seen as a problem. No warning should be stopped.

Ms Beaumont felt it was possible to find a middle solution. There would be an urgency in issuing an alert. The legal requirement to consult could result in a delay.

The Chairperson said that it was all about picking up a telephone.

Ms Beaumont had considered an SMS, but did not think that this would be sufficient communication.

The Chairperson had not wanted to give this power to SAWS. This should be a government function. He noted the agreement of Members to maintaining the approach.

Clause 6
Mr Shabalala said that clause 6 would include the powers of the SAWS board.

The Chairperson had thought that there should be a reference to policy set by the Minister before the list of the functions of the board.

Mr Shabalala said that the intention was to ensure that the powers were subject to the policy set by the Minister.

The Chairperson was not questioning the intention but the methodology. The board could not set policy. He asked why DEA wanted to word this clause differently to his suggestion.

Mr Shabalala said that the principal Act already made provision for the powers of the Board.

Mr Abader said that board must act within the policy determined by the Minister.

The Chairperson said that the current wording might suggest that (1) and (2) were not subject to the requirement for compliance with ministerial policy, and only (3) was applicable. This might create a certain legal interpretation. He suggested that the clause be reworded according to his suggestion. This was a technical amendment.

Clause 7
Mr Shabalala said that the focus in clause 7(8) had been on changes.

The Chairperson said that certain technical changes had been requested. These had all been highlighted in yellow on the updated document, and it was not possible to see which changes had been made. It was a massive job to process seven Bills, and he had stressed to the Director-General (DG) and the Minister the urgency required. The majority of the legislation with which he had dealt with in his term as Chairperson had been from DEA. He had repeatedly asked for the correct procedure to be followed. Instead of finishing this Bill, the Committee was now calling for a redraft. More wording changes were still needed to make it clear that the Chief Executive Officer (CEO) could be appointed for a second and subsequent term.

Mr Abader had misunderstood what the Committee had wanted with the amendment put forward by the Committee.

The Chairperson said that it would not be a re-appointment process. The full advertising process would be followed when the incumbent's term was coming to an end, and the incumbent would have to compete against other candidates. He wondered if the sentiment expressed by the Committee regarding a free and open process had followed the correct methodology.

Mr Abader said that the process would be captured in the regulations.

The Chairperson suggested new wording for (2). The appointment should not exceed five years. In addition, the appointment should be in terms of the procedure set out in sub-clauses (3), (4) and (5). If (2) was worded correctly, then (4) would be captured in the regulations. In drafting the regulations, the current CEO would only be the chosen candidate if there were no suitable competitors. A legal process would have to be followed, which could be challenged. He noted the agreement of Members.

The Chairperson noted that the powers given to the board were all delegated. Sub clause (8)(b) should also refer to functions.

Mr Shabalala said that the current wording made provision for the board to delegate all powers to the CEO.

The Chairperson asked why there was a distinction between powers and functions.

Mr Abader said that functions were assigned and powers were delegated in the principal Act. The Minister had the original power and could delegate powers. Functions were assigned to the board.

The Chairperson felt that the result of assignment and delegation would be the same.

Mr Abader asked if (6) should be changed to include duties and powers.

The Chairperson directed DEA to consider the Act. The wording had to be harmonised. As matters stood, the obligation was only to report on delegated powers and functions. If powers could only be delegated it was not necessary to specify this. All clauses should be drafted in the same manner.

The Chairperson asked what the consequences would be if a person was to remain in the position of an Acting CEO for more than six months.

Mr Abader said that this was in terms of public service practice. After six months, another person should be appointed as Acting CEO.

The Chairperson said that this was not law but an internal departmental arrangement. He had no problem with such an arrangement, but a legal obligation was now being created. It would be best to delete the reference to 'a period not exceeding six months.' The board and the Minister could then negotiate on the period. The description of the powers of an Acting CEO had been simplified. Sub clauses (2) and (8) still needed to be reworded, and he noted the agreement of Members.

The Chairperson queried the use of the word 'vacation' regarding the removal of the CEO from office. This sounded more like a holiday. There were other grounds for removal. He suggested that death be included as a reason for termination of an appointment. A CEO could also be physically present but refuse to provide proper reports. This could be classed as failing to perform duties and functions. He suggested the addition of 'adequately' before 'diligently and efficiently'. He noted the agreement of Members.

The Chairperson said that there had been amendments to sub-clause (3).

Mr Shabalala explained how sub-clause (4) had been rearranged. This made provision for the appointment of an independent investigator if a case of misconduct was to be pursued against the CEO.

The Chairperson agreed that it would be better if the Minister appointed an independent investigator.

Mr Shabalala said that there would be three conditions for the removal of the CEO, and these should all be complied with.

Mr Abader remembered an issue that there would have to be concurrence with the Minister should the Board not be satisfied. There should first be a disciplinary outcome. The concurrence with the Minister would be a safeguard against dismissing an otherwise competent CEO.

The Chairperson liked the idea contained in sub-clause (b) of a separate process. This should not apply to (a). This section should only deal with the removal of the CEO. Any investigation for another reason should be specified separately.

Mr Abader suggested that a new sub-clause (5) should be created to provide for an investigation not for the removal of the CEO.

The Chairperson had a reservation. While not the intention, an investigation could uncover a dismissible offence.

Mr Abader felt that this sub-clause could then be moved to (2). If the investigation revealed grounds for removal, then the removal procedure would come into action.

Mr Shabalala said that sub-clause (5) dealt with the investigation officer. A report should be compiled within thirty days. A separate sub-clause had been created to cover this.

Ms D Tsotetsi (ANC) said that provision should be made to disqualify any person with a criminal record.

The Chairperson said that 'fit and proper' was a generic term. Minor offences should not be held against an applicant.

Mr Shabalala said that while the previous sub-clause (8) had been deleted, sub-clause (14) would not cover disciplinary procedures.

The Chairperson felt it would be better that the Minister should have the ultimate responsibility for the removal of the CEO rather than board which had made the original appointment.

Clause 9, 10
The Chairperson said that the previous clause 9 was now clause 6. Some technical changes had been made. Clause 10 was the previous clause 7. The intellectual property (IP) rights of the person collecting ambient weather data would be preserved.

Clause 14
Mr Shabalala said that clause 14 would contain provision for the Minister to make regulations.

Ms Noluthando Mpikashe, Senior State Law Adviser, read a re-punctuated version of the clause. This had only been forwarded to DEA the previous day.

Mr Shabalala had not had the opportunity to print the document as revised by the SLA.

The Chairperson wanted to know what other clauses had been amended by the SLA. The instruction to DEA had been to prepare a final revision so that Members could take the Bill to their caucuses. It was clear to him the DEA was not interested in seeing the Bills being passed. The wording proposed by the SLA made more sense than that on the document.

Clause 15: Offences and Penalties
The Chairperson noted the amended wording of the clause dealing with offences and penalties. The previous clause 2 had returned. There was a question of the jurisdiction of provincial Directorates for Public Prosecutions (DPP), and he asked the SLA to advise whether such persons had jurisdiction over a province or a prescribed area.

Clause 16
The Chairperson noted that two sub-clauses had been deleted on the advice of Ms Beaumont.

Ms Linda Garlipp, Chief Director: Law Reform and Appeals, DEA, did not believe that the wording regarding the assent of the Bill was needed. Once the Bill was published in the Gazette it should become effective.

The Chairperson asked why the words 'assented to and signed by the President' had been added.

Ms Garlipp replied that this was how she had understood the request of the Committee.

The Chairperson could not understand why the Bill could not become effective immediately. He asked how long would be required to draft the regulations. He asked DEA to consider this matter. He would prefer to see a fixed time period in place for the adoption of the Bill. The DEA must advise how long it would take for all the clauses to become applicable.

The Chairperson asked if there were any outstanding public comments.

Mr Abader responded that there were no further comments.

State Law Adviser Amendments
Ms Mpikashe said that the SLA had agreed with most of the proposed amendments, but had proposed that the definition of 'watch alert' be removed. If a word was used less than once in the Bill, it would not normally be included as a definition. She agreed to the Chairperson's request that the definition be retained. In clause 2(A), the policy should only be published again if there were any changes.

The Chairperson asked if this would be tabled in Parliament.

Ms Mpikashe advised that this was covered in sub-clause (3).

The Chairperson noted the agreement of Members.

Ms Mpikashe said that in clause 4, a redrafted version was proposed on the issuing of severe weather warnings. The requirement to take action before issuing an ambient weather quality warning should be removed.

Ms Mpikashe said that in clause 7 (13), the CEO was appointed for a term not exceeding five years and could be re-appointed for an additional term.

The Chairperson said that this was not what Members wanted.

Ms Mpikashe said that clause 9 (13) (a) should include a reference to the date on which a resignation became effective.

The Chairperson said that the SLA must sit with the DEA delegation. He wished to see the updated version of the Bill the following day. He asked why the inputs from the SLA had not been included. They had received the proposals the previous day and should have incorporated these. The delays with this Bill were impacting on the Committee's work on the other Bills before it.

Mr Abader accepted the blame for the amendments not being done properly.

National Environmental Management: Integrated Coastal Management Amendment Bill
Ms Radia Razack, Director: Law Reform, DEA, explained the colour coding in the working draft of the Bill.

The Chairperson asked what had happened with the resolution requested by Members.

Ms Razack had not understood this as an instruction from the Chairperson This would be provided at the next meeting.

The Chairperson was irate. Some weeks had passed without this instruction being carried out. Mr Abader's staff had either forgotten about this instruction or had ignored it. The Committee had put aside public hearings in order to interact on the legislation.

The Chairperson opened the updated document. The index page was incorrect. He instructed DEA to correct the index. He assumed that Mr Abader would ensure that the long title and preamble were correct.

Clause 1
The Chairperson read through the definitions that had been added. He noted the agreement of Members. Some of the colour coding was misleading as the items had been changed earlier.

Ms Razack said that DEA was still trying to arrive at a satisfactory definition of state land. The current definition was to be seen in terms of the reclamation of land. She proposed a definition of 'land that vests in the hands of the national government.' The SLA was supposed to help with this definition.

The Chairperson asked why provincial governments were not addressed.

Ms Razack said that where land was reclaimed for commercial purposes, it was subject to a lease by the Minister. It made sense that land should be vested in national government. The land would fall under the Minister of Public Works. A definition could be provided that day.

The Chairperson noted that this was an outstanding issue.

Ms Razack said that some clarity was still needed on what was meant by 'sea space'. Harbours included channels and other areas.

Ms Mpikashe said that the definition of sea had been redrafted to include the suggestions made by the Committee. This would include harbour areas prior to the commencement of the Act.

The Chairperson said that the words 'sea space' had been removed from the definition and added at the end. He asked what the difference was between a 'turning basin' and a 'turning channel'.

Ms Razack said that this should be a turning channel and a basin. The intention was not to affect prior and present use.

The Chairperson said that the past could not regulated. This was an interpretation clause.

Clause 4
Ms Razack said that the Bill would only affect new constructions. The admiralty reserves were no longer an exclusion area, but leases would be regulated. This was specified later in the Bill

The Chairperson noted that there would not be an absolute approach taken as in the previous concept of the Bill. An admiralty reserve would now be state property, but any existing leases would be maintained.

Ms Razack said that the SLA had made an elegant proposal regarding mining rights.

The Chairperson did not see why this should be excluded from coastal property. Mining rights and ownership were separate issues. The extraction of mineral resources should not be addressed in this clause.

Mr Abader said that the three words used in mineral legislation were prospecting, exploration and production.

The Chairperson felt that these words should be included in the regulation of mining in coastal areas. If there were other laws to regulate extraction for mining or fishing purposes, it would be meaningless to include the provisions in this Bill if the activities were addressed in other legislation. The weight should be on protecting the marine environment. He was trying to determine if this Bill provided any more protection than that already afforded other legislation.

Ms Razack suggested that this be taken out altogether, as some aspects might inadvertently be omitted.

The Chairperson agreed. It was meaningless to craft the law to say the permission was dependent on another Act. This was why the regulation on mining in coastal areas was needed. He instructed the DEA to consider the wording of this clause.

Clause 5
Ms Razack said that clause 5 would insert a new section 7A. The section on land reclamation had now been split into two sections, one for state reclamation and one for reclamation for commercial gain. She proposed that the categories be renamed to state infrastructure and any other purpose.

The Chairperson read the clause. He noted that this was the only place where 'state land' was defined.

Ms Razack said that the SLA had advised that the definition be included, but the term 'state land' could be defined in the clause itself.

The Chairperson said that reclaimed state-owned land would have to be registered. There should thus be a reference to the title deeds for that land. In both state and other applications, the details of the funding should be included as part of the necessary information. This would prevent corruption. There did not seem to be any procedure to cover a pre-approval being ratified by Parliament. He suggested a new sub-clause (6) to make the procedure clear. The procedure for pre-approvals should also be given.

Ms Razack said that it must be stressed that ownership of such reclaimed land could only go to the state.

Ms Mpikashe said that this must still be discussed with DEA.

The Chairperson said that the state must give a lease to the developers. There must be a prohibition on the sale of such land A separate clause might work better. The financial implications and the need for an environmental impact assessment (EIA) should be included in both sets of provisions. He congratulated the DEA on this clause, and noted the agreement of Members.

Clause 10
Ms Razack said that clause 10 had been deleted.

Clause 11
The Chairperson said that a word should be found to described state owned property. He asked the DEA to work on this with the SLA. The important definition was that such land was public property and was held in trust by the state.

Clause 13
Ms Razack said that the Deeds Act did address the creation of servitudes in order to access coastal property.

The Chairperson asked what a public servitude meant.

Ms Razack said that this was the term commonly used by municipalities. Section 32 of the Deeds Act did make provision for servitudes to operate automatically. All the processes to register a servitude were discussed.

The Chairperson did not know if this had ever been done.

Ms Razack said that this had been done regularly. DEA was doing an audit with municipalities to look at access points.

The Chairperson said that part of the resolution should be for DEA to study the extent to which section 18 of the Act had been complied with. He was not happy with the clause but accepted the word of the DEA on this.

Clause 16
The Chairperson noted that extensive changes had been made to clause 16.

Ms Razack said that a Member of the Executive Committee (MEC) exercised powers in a coastal zone, but in some cases it was more appropriate for the Minister to exercise control.

The Chairperson said that his comment had been that a major power was being taken away from MECs without affording them the chance to comment. The 500 metre limit had been removed, and this would now only apply to national protected zones, and those areas straddling national and provincial boundaries.

Ms Razack said that this change had been extended to related clauses as requested by the Committee.

The Chairperson noted the agreement of Members. The clause was now narrower and better drafted.

Clause 21
Ms Razack said that DEA had looked at the composition of the National Coastal Committee. The Minister had not yet created this committee.

The Chairperson said that the DG and some experts should be on the committee. Other affected parties could be invited to attend. Permanent representatives should include a representative from each provincial committee.

Clause 31
Ms Razack said that the heading of section 65 would be changed to 'Use of Public Property'.

Clause 32
Ms Razack said that clause 32 had been changed to provide for a coastal use permit of 20 years.

The Chairperson suggested that a lease should be managed in a way as determined by the Minister. This would made room for DEA to prescribe norms and standards. Interim measures should be put in place.

Clause 36
Ms Razack said that there had been a change to the provision for dumping permits. Those would now be issued for periods of five years at a time.

The Chairperson said that there should not be an expectation of a renewal of the permit being provided.

Clause 38
Ms Razack said that there was a consequential amendment to section 79, as suggested by the Committee.

Amendment to section 87
Ms Razack said that the amendment to section 87 was consequential to the earlier change regarding the deletion of the reference to the 500 meter area.

The Chairperson suggested that this clause be moved to clause 22, and that section 87 be deleted.

Clause 50
Ms Razack said that section 95 of the Act had been muddled before, and would be amended. This dealt with existing leases of coastal public property. If the activity was not listed, it could be continued. If the activity was listed, it would have to cease within 180 days of notice being given.

The Chairperson suggested that this provision be given to the provincial governments that had originally commented on the original Bill for their perusal.

Clause 51
Ms Razack said that the word 'either' had been removed from 51(1) as suggested by the Committee. The SLA had made a comment on this.

Ms Mpikashe asked that the Committee reconsider the question of the removal of illegal structures. The Prevention of Illegal Evictions Act applied to all land in the country. A structure could not be summarily destroyed.

The Chairperson said that the Bill was not talking about summary demolition. He had never seen poor people building houses on beaches. There were now special steps. There was some protection, and he did not see the need for more protection. There should be consideration for child and women headed households, especially for those from the poorer sector of the economy.

Clause 54
Ms Razack said that the incorrect year had been cited in the short title in the original Bill.

The Chairperson wanted to know how long was needed to implement the Act. At present it was something of a blank cheque. Overall, despite the poor start, the Bill was looking good. He understood that there should not be a big, clumsy structure for the National Coastal Committee. He asked DEA to work on the Bill overnight, but a final version might be achieved by the following day.

National Environmental Management Laws Act amendments (NEMLA)
Mr Abader said that the Amendment Bill on mining was still not fully prepared.

Ms Garlipp said that the proposed amendments had been incorporated. This included the appeal procedures.

The Chairperson asked if there was an input on the NEMLA regulations. He asked that the document be printed out for the meeting the following day.

Ms Garlipp said that the Department of Water Affairs (DWA) was still waiting for the 'Committee Bill'.

The Chairperson asked why the DWA Minister was taking so long to sign this off. DWA had created a problem by not having an amended Bill. He wanted to see the amendment the following day. DEA was the lead Department and should be putting pressure on DWA and the Department of Mineral Resources (DMR) to process the Bills. He also wanted to see the regulations.

National Environmental Management: Protected Areas Amendment Bill
Ms Razack asked for guidance on how to proceed.

The Chairperson said that the Committee had not yet seen the Bill, and it would be best to proceed on a clause-by-clause basis.

Clause 1
Ms Razack said that the first definition, 'Department', was problematic.

The Chairperson noted that Members were satisfied with the definition. The definitions of 'fish', as a verb, 'marine protected area', 'marine waters', 'national protected area' and 'marine protected area' were accepted.

Clause 2
Ms Razack said that Prof Butterworth had objected to the use of the phrase 'representative network'. This was normally used in relation to protected areas. It was commonly understood as areas related to each other.

The Chairperson asked what was meant by 'representative'.

Dr Mayekiso said that a protected area would be representative of various endangered species. It was representative of kinds of ecosystems.

The Chairperson felt that representative was normally used in a totally different context. He thought a more appropriate word might be 'biodiversity'.

Adv Henry Smuts, SLA, said that representative could also refer to the different biozones.

The Chairperson noted that the DEA experts spoke about 'set' while 'network' was written in the Bill. The only amendment to section 2 was the addition of the words 'and marine waters'. The word 'network' would be retained, but he asked DEA to reconsider 'representative'.

Clause 3
Ms Razack said that clause 3 would amend section 4 by the addition of 'marine waters'.

Clause 4
Ms Razack said that clause 4 would amend section 14 of the Act.

Clause 5
Ms Razack said that clause 5 would insert a new Chapter 3 into the principal Act. This would deal with the declaration of marine protected areas (MPA).

Ms Razack said that the KwaZulu-Natal (KZN) government had noted that 'scenic areas' were not defined in the dictionary. DEA disagreed in that both words did have dictionary definitions.

The Chairperson noted the agreement of Members to retain this phrase.

Ms Razack said that the Western Cape government had proposed a grammatical change. Sub-clause (2) (e) was a bit clumsy. The changes were accepted. The word 'species' would be retained. Presenters had made three different proposals on providing for research. DEA proposed a generic sub-clause (g) to cover research and monitoring.

The Chairperson noted the agreement of Members. He asked for more clarity on what was meant by 'monitoring'. The proposed sub-clause (g) should appear before the current (f). It should be specified that such activities should be aligned to achieving the purposes of the Act.

Ms Razack said that Prof Butterworth had raised a problem with 'protect'. This implied that there could be no utilisation of resources. DEA felt that this was the Protected Areas Act. The word 'conserve' could be added before 'protect' to allow for limited utilisation of resources.

The Chairperson noted agreement.

Ms Razack said that evidence was needed to determine the consequences of an activity. Prof Butterworth had referred to international instruments which in fact underwrote the proportionality principle. These described the tests to be applied.

The Chairperson said that it seemed that Prof Butterworth might have been lying.

Adv Razack said that Prof Butterworth was not necessarily lying, but was perhaps building an argument on behalf of the industry for increased utilisation. She had not looked at the international treaties, but did not think that the interpretation of Prof Butterworth was the standard one. Prof Butterworth had proposed a different wording to the clause without suggesting what the words should be.

The Chairperson said that this was a catch-all phrase. There might some merit in making the wording more substantial. He was also leaning towards the suggestion of Prof Butterworth to use the wording 'likely to'.

Adv Razack said that there were restrictions on activities such as shark cage diving. The evidence of the impacts was not always as solid as DEA would like to see.

The Chairperson said that protected areas could be created under the clause. The current wording of 'may' might be too weak. He suggested that 'may' in sub-clause (f) be changed to 'likely to'.

Ms Razack said that Prof Butterworth had commented on fishing efforts. This was a specific industry term, talking to the number of vessels and the type of gear to be used. There should be limits on this. This could be used as a tool to keep catches within limits where there could not be enforcement.

The Chairperson felt that the rules regarding protected areas would apply.

Ms Razack felt that incorporating this suggestion would not be appropriate. Marine protected areas were more about conservation than determining allowable catches.

The Chairperson felt that the clause was in fact a restriction on fishing.

Ms Razack said that protected areas could be zoned to allow or prohibit specific activities. There were multiple uses within MPAs, and fishing could be one of them. Prof Butterworth had proposed that the whole area be declared.

The Chairperson said that there would be limitations on fishing in the MPA.

Mr Abader said that there was a contradictory situation. Compliance could not be monitored.

The Chairperson said that zones could be created with different levels of protection. Fishing could be allowed in a sustainable manner in some areas.

Ms Razack felt that this had already been covered. The proposed section 48A, to be inserted by clause 12, made provision for this.

The Chairperson said that the DEA opposed the proposal. There was provision for limited fishing in MPAs. There were other ways of achieving the goals set by Prof Butterworth.

Ms Razack said that the next comment from Prof Butterworth was on section 22 (a)(ii).

The Chairperson said that this was nonsense. The Constitution was based on reason.

Ms Razack listed some comments made by the Western Cape. Some of these concerned
technical and grammatical matters. These would be referred to the SLA.

Clause 6
The Chairperson said that words 'marine protected area' would be added to section 28.

Clause 7
Ms Razack said that the Western Cape had made a technical proposal. Prof Butterworth had said that the owner of land should be advised of the intention to declare a land area a protected area. Potential users of the sea should also be given the same right. She rejected this proposal as there was a public consultation process.

The Chairperson said that this would only be for major users.

Ms Razack said that Prof Butterworth wanted to see major users being advised by registered post.

The Chairperson agreed that this proposal should be rejected.

Clause 10
The Chairperson noted that clause 10 would amend section 38 to assign the management of an MPA to a suitable organ of state. SANParks was a national organ of state.

Ms Razack did not want to see SANParks being given this right.

The Chairperson said that this clause should then be rewritten to reflect the wishes of DEA.

Clause 11
The Chairperson said that zoning in a protected area should not clash with zoning in terms of section 48A.

Clause 12
The Chairperson noted that clause 12 would insert a new section 48A. This would prescribe a number of restricted activities. The Centre for Environmental Rights (CER) had made some proposals, including the removal of the provision for dredging as this constituted mining.

Ms Razack agreed with this, and the relevant clause would be redrafted. DEA agreed with the proposal from the South African National Biodiversity Institute (SANBI) to include rocks and certain minerals.

The Chairperson noted the concern of CER over the wide discretion given to the Minister. The Minister prescribed the different zones and activities for which a permit was required in terms of sub-clause (2).

Ms Razack said that the concern was over the unfettered powers granted to the Minister.

Clause 13
Ms Razack said that clause 13 would amend section 52. Zones could be declared within a park, but these should be consistent with the overall zonation.

The Chairperson said that the Minister must publish what rules applied in the Gazette. There should be consultation and then the rules should be published.

Clause 14
The Chairperson said that clause 14 would amend section 90. He was surprised to see that DEA agreed with the submission made by KZN.

Ms Razack said that KZN had made some general comments. Schedule 1 was the repeal of laws, and Schedule 2 was published in March 2013 setting out the national parks. DEA disagreed with KZN on this matter. Prof Butterworth had raised an issue over the power of the Minister to proclaim special fisheries management areas. There was a big difference between such areas and MPAs. MPAs were for conservation. Fisheries legislation did not apply in MPAs.

The Chairperson said that that was the end of that particular debate. He noted two additional amendments.

Ms Razack did not recognise the amendments. The repeal of section 43 had not come from DEA.

The Chairperson said that this was a simple Bill and could be fixed up relatively quickly. He asked for an input on the Waste Act to be prepared.

Ms Garlipp said that the National Economic Management Laws Amendment (NEMLA) 2 should have gone before the Select Committee in the NCOP that day, but she thought that this had not happened.

The meeting was adjourned.
 

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