National Environmental Management Laws Amendment Bill [B26-2013]: deliberations

Water and Sanitation

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

The Committee processed the amendments of the National Environmental Management Laws Amendment Bill, 2013 (NEMLA) 3. The Committee used a colour-coded flow diagram to facilitate working through the amendments, and asked for assurances that important processes had been clearly stipulated with the Department of Mineral Resources and the Department of Water Affairs.

The amendments for the definitions of applicant, mining area, community, environmental management inspector, environmental mineral resources inspector and financial provision were discussed and finalised. The Centre for Environmental Rights had proposed a definition for financial provision, which was accepted. A definition for ‘residue deposits’ had been added to the portfolio of the Minister of Mineral Resources, so this had to be added to this Act.

The Committee discussed Mandates in Section 31D of NEMA. The powers of authority of the different Ministers, as they appeared in the Act, were discussed.  The Committee discussed appeals and the competent authorities in the appeals process. The difference between the authority of a Minister and an Accounting Officer was cleared up, and agreement reached that only a delegated power may be appealed. The wording was changed in Section 43(8) to ensure that appeals were dealt with first.

Section 47C on the extension of time periods and condonation was amended so that time frames in the Act and time frames that dealt with processes were separated, because the whole idea that was that the two Ministers must together agree to extend the condonation; and it should be done only in exceptional circumstances when the process had reached a level of maturity.  Amendments regarding delegation by the Minister of Mineral Resources and the National Environmental Management Amendment Act transitional provisions were discussed.

Meeting report

The Chairperson said that Members had been given copies of the Act, colour-coded to show how the Bill fitted into the Act. Members were also provided with the resolutions, but these would be looked at later when the Bill was passed.

The Centre for Environmental Rights (CER) had indicated that Section 22A was not necessary, because there already was Section 24G. The Department had refuted this, and was trying to rework the section in such a way that it made more sense. Drafts had been produced this morning, but had not been looked at yet.  Most of the Bill related to air quality could be dealt with, but those two clauses would have to be redone.  The Chairperson said he had checked the suggested amendments, and they should be in order.  There were problems with the printers, but hopefully they could be sorted out on Thursday, and the printed amendments could be taken to the different caucus groups. 

Tomorrow, the National Environmental Management Laws Amendment Bill (NEMLA 2) would be ready for voting. The next two days would be spent on NEMLA 3. A press statement had been prepared on the Waste Act.  The Committee would be unable to look at the Waste Act this year.  Submissions would be available and the Committee could then conduct public hearings at the beginning of next year. Issues had been raised around particularly around agency and that more Boards were not desirable.  These would have to be addressed before the public hearings.  Next week, after the caucus meetings, voting would take place on Tuesday on the four Bills and the two Treaties. The Chairperson asked how the day’s session should be started.


Mr Ishaam Abader, Deputy Director-General: Department of Environmental Affairs (DEA) said that a diagrammatic representation would give the Members a good sense of what would follow.  

Ms Amanda Britz, Director, Integrated Environmental Management: Framework and Policy Support, DEA, explained the diagram, and said the second slide indicated the regulations that gave effect to the different time frames in the process. The Basic Assessment Report (BAR) related to the basic assessment process of which the maximum process was 197 days. The different time frames for the different steps which added up to 197 days. The little blocks in yellow were the regulations that gave effect to those time frames. The Final Impact Environmental Report and Management Programme would then be submitted. This report had to be acknowledged, accepted or rejected within the time frames in flow diagram given effect to by Regulation 34(2). Once the reports had been accepted the authority had to issue the Environmental Authorisation decision within 20 days and that was given effect to by Regulation 35(1).  (See document: Updated Flow Diagram)

The Chairperson asked if the DEA had given an assurance that important processes had been clearly stipulated.

Mr Abader replied that the DEA had had interactions with the Department of Mineral Resources and colleagues from Water Affairs.

The Chairperson raised the four issues that had to be covered when the amendments were dealt with. These issues were:
キ The definition of mining – there was the possibility of constitutional challenge, because it allowed an environmental function to be dealt with by the Minister of Mining;
キ The appeal procedures were not necessarily in line;
キ Powers should not be given at different levels, without the possibility of intervention; and
キ The amendments could not be amended without permission.

The Chairperson asked for a list of what was in the presentation pack.

Mr Sibusiso Shabalala, Director, Law Reform: DEA, said in the pack were the comments and response report, followed by the consolidated NEMA – which included the amendments as the Bill was tabled, which were highlighted in yellow. The areas that required further amendment proposals from the Department were highlighted in green. The areas in red were proposals received from the public with regard to comments submitted the last time.

The Chairperson asked if the DEA were in agreement with the areas highlighted in red, or was some discussion still needed. 

Mr Abader said that they were put in as comments from the public, but the Department had not formed a view on them as yet, so they could be deliberated upon as the discussions continued.

The Chairperson said that the areas highlighted in green were where a view had been formed on what was being suggested.

Mr Shabalala said that the Flow Diagram that Ms Britz had explained was also attached, as well as the Environmental Impact Assessment (EIA) Regulations. The areas in yellow were where the DEA wanted to make amendments. The Appeals Regulations were also attached. The other colours were just reminders. The yellow areas were the most important ones.

The Chairperson said that “Waste” had been added, but should not have been. He asked that it be ignored.

Definitions

applicant

Mr Shabala said that the first green area was the definition of applicant. The proposal was to add the underlined words to make sure the “applicant”, as per the definition, was properly aligned to the process of environmental authorisation.

“applicant” means a person who has submitted[or who intends to submit ] an application for an environmental authorisation to the competent authority and has paid the prescribed fee;

The Chairperson said that this was acceptable.

community

Mr Shabalala said that the definition of ‘community’ had to be aligned with the Mineral and Petroleum Resources Development (MPRD) Bill in terms of what was meant by community when those activities related to mining. The area highlighted was similar to the one contained in the Mineral and Petroleum Resources Development (MPRD) Bill.

in relation to environmental matters pertaining to prospecting, mining, exploration, production or related activity on a prospecting, mining, exploration or production area, means an interested and affected party and [a group of historically disadvantaged persons with interest or rights in a particular area of land on which the members have or exercise communual rights in terms of an agreement, custom or law: Provided that where as a consequence of the provisions of this Act, negotiations or consultations with the community is required, the community shall include the members or part of the community directly affected by prospecting, mining, exploration or production on land occupied by such members or part of the community] a coherent, social group of persons with interests or rights in a particular area of land which the members have or exercise communally in terms of an agreement, custom or law;

The Chairperson said that it seemed incoherent. It should only be land on which mining was going to take place. If the definition was as wide as above it could mean any land.


Mr Shabalala said that in Section 24C, which this meeting still had to come to, the Department had tried to limit the actual activity to that area where that mining right had been issued. He asked if the same wording could be used, as was used in Section 24C.

The Chairperson said the meeting should go to Section 24C to address the issue.

Section 24C

The Minister of [Minerals and Energy] Mineral Resources must be identified as the competent authority in terms of subsection (1) where the listed or specified activity constitutes prospecting, mining, [reconnaissance,] exploration[,] or production [or a related activity occurring within a prospecting, mining, exploration or production area.], as contemplated in the Mineral and Petroleum Resources Act, 2002 (Act No. 28 of 2002), in the area for which

Mr Shabalala said that ‘mining’ had been defined very broadly.  Also, when one applied, one applied for a specific prospecting area.

The Chairperson asked what the previous wording was.

Mr Shabalala said they were the words that were highlighted, but in the square brackets. The area in the square brackets was going to be taken out. 

The Chairperson suggested that ‘or a related activity’ be taken out. Instead of ‘in’ it should say ‘within the prospecting mining, exploration or production area’, and ‘then’ should be added in front of ‘area, for which the right has been applied.’

Mr Shabalala said definitions for ‘prospecting mining area’, ‘exploration area’ and ‘production area’ should be added in NEMA.

The Chairperson said the definitions should be added and amended.  The Act might have to be changed because of the amendments.  They might be consequential amendments, and this could be checked with Ms Britz. 

environmental management inspector

The Chairperson said that the next item was  ‘environmental management inspector’ in Section 31B.

Mr Shabalala said that Section 31B (a) was added when the Act was amended in 2003. Section 31B (a) allowed the Minister of Water Affairs to appoint environmental management inspectors within the Department of Water Affairs.  This item was merely to correct an error at that time.
 
financial provision

Mr Shabalala said that the next definition was ‘financial provision,’ and was a suggestion from the Centre for Environmental Rights (CER),

financial provision” means the insurance, bank guarantee, trust fund or cash that applicants for or holders of a right, permit or environmental authorisation must provide in terms of section 24P guaranteeing the             availability of sufficient funds to undertake the approved works programme, to undertake the approved environmental management programme, to undertake the rehabilitation of the impacts of the prospecting, mining, reclamation and exploration activities, including the pumping and treatment of extraneous water, to undertake decommissioning and closure of the operation, and to undertake remediation of latent and/or residual environmental impacts which become known in the future;

The Chairperson asked Mr Shabalala what his view was.

Mr Shabalala said that he agreed with the proposal

The Chairperson said that the proposed definition for ‘financial provision’ seemed reasonable. He asked that another way be found to phrase it using, for example, (a) (b) etcetera to make it easier to read.

Mr Shabalala said that the ‘rights permits’ in the above definition should be linked to  ‘mining and exploration areas’.

Ms Britz said that the word ‘production’ had been left out. This would be added.

mining area

The Chairperson said that the next proposed amendment was in ‘mining areas’

“mining area” [has the meaning assigned to it in section 1 of the Mineral and Petroleum Resources Development Act, 2002] in relation to any environmental matter relating to an exploration, prospecting, mining or production means any surface of land that forms part of the area that requires a permit or right in terms of the Mineral and Petroleum Resources Development Act, 2002 and for which an environmental authorisation is required in terms of this Act.


The Chairperson said that this made it clearer, and asked if similar wording was going to be created for ‘exploration’, ‘production’, ‘reconnaissance’ and ‘prospecting’.

The Chairperson said that given the process that still had to be followed before this Bill could be passed, there was no possibility that the Bill could be voted on this year. The Department had to sit down with a lawyer who understood these things properly. There might be a chance to do that before the Bill was passed.


The Chairperson said that ‘regional mining development’ was being removed completely.

Mr Shabalala said that this had been a consequential amendment, so the decision would now be with the Minister of Mineral Resources, as the ‘competent authority’ who would have to consider any objections. This definition was going to be taken out, as it was no longer needed for environmental purposes.

Chairperson said that the definition for ‘residue deposits’ had been added to the portfolio of the Minister of Mineral Resources so this definition was needed in this Bill.

Different sections


Section 24(5)
Mr Shabalala said that these were the regulations that the Minister would be responsible for developing, and would be implemented by the Department of Mineral Resources.

Section 24(2C)

(2C) (a)Whenever the Minister responsible for mineral resources fails to make a decision on an application for an environmental authorisation relating to prospecting, mining, exploration or production activity within the time periods prescribed by this Act, the applicant may apply to the Minister to take the decision.

Mr Shabalala said this basically empowered the Minister to step in and actually make sure the decision was taken.

The Chairperson said that this was the first intervention clause. He asked if the intervention clause had been discussed with Mineral Affairs.

Mr Shabalala said the intervention clause had been submitted to Mineral Affairs, but no response had been received yet.

The Chairperson asked if they had been consulted, or if it had just been submitted to them.

Mr Abader said that some of them had been consulted.

Section 24L
Ms Britz said that they were currently in the middle of litigation because the current wording was potentially a problem. The wording that was causing the problem was the reference to the exercising of the powers jointly. Using those words in the section meant that if one issued an integrated environmental authorisation, one would still need two signatures.

The Chairperson asked to whom were the respective powers being referred to.

Ms Britz said they were the powers for a competent authority to issue the environmental authorisation, and then whoever was the authority to issue an authorisation permit or licence in terms of any of the specific environmental management Acts. In this case, it was the Waste Management License, which followed the exact same process as the environmental authorisation. But it basically required a decision in terms of NEMA and the Waste Act, which had been issued as one integrated authorisation, with one signature on it. As part of the litigation, it had been highlighted that this could be interpreted as a potential problem if it was done in that way. This was why the Department was trying to provide new wording.

The Chairperson said that what had therefore been spelt out was that they had just reworded an original clause because of the court case they had gone through.

24N (4)
Mr Shabalala said that this was a consequential amendment linked to the original Mining and Development Committee, so reference to that Committee was being taken out as well.

‘reconnaissance’ was also taken out of 24N 7(c) (ii)

Section 24N (8)

(8)        Notwithstanding the Companies Act, 2008 (Act No. 71 of 2008), or the Close Corporations Act, 1984 (Act No. 69 of 1984), the directors of a company or members of a close corporation are jointly and severally liable for any unacceptable negative impact on the environment, including damage, degradation or pollution advertently or inadvertently caused by the company or close corporation which they represent.

Mr Shabalala said the shaded area 24N (8) talked to the liability of directors of a company that may be jointly or severally liable for any negative impact on the environment. The DEA agreed that it was the right place to put it in.

The Chairperson said this clause should relate specifically to mining.  At the moment, it was just a general clause.

Mr Abader said that it was deliberately broad, because if an activity had an environmental impact, and that impact only surfaced later, those directors needed to be held liable for the damage or degradation. This was so as not to have the situation that the Department currently had, where it had to deal with legacy issues and there was insufficient recourse.

The Chairperson asked, if something in the Mining Act was being replaced, whether it should be as broad as this.

Mr Abader said that it could be reconsidered, but the idea was that if there were any negative impacts on the environment, whether it was caused intentionally or inadvertently, someone had to be held liable.

The Chairperson said that the word ‘liable’ did not refer to fixing damage, but legal liability. Having taken it out of the Mining Act, the Department would want to retain it somewhere. He asked if all the consequences had been looked at. He urged the Department to look at the implications again.

Mr Abader said that 24G usually applied to where an activity had started without authorisation, and to remedy that situation, those involved either had to become compliant or be shut it down completely. Before this, they had to pay an administration fine, then be assessed whether the operation could actually continue, based on whether they met the requirements of the Department.

The Chairperson said this needed to be reviewed at to see exactly what needed to be covered.   

Section 24O

Mr Shabalala said that 24O (2) was a consequential amendment to make sure the correct competent authorities were referred to. 

Mr Shabalala said that 24O (3) was the consultation that the competent authority must embark on when they assessed an application for an environmental authorisation.

The Chairperson asked the DEA what its comment was on the public comment received from a few people, that the 40 days should not be reduced. He was inclined to keep the 40 days

Mr Abader said that the difficulty there was that it went back to the basic premise of why these amendments were being done, which was to actually align the processes and ensure that the time frame for the granting of these authorisations were aligned. He would ask Ms Britz to explain further because these time frames had been worked out very carefully. The process had almost been stripped to the bare minimum to ensure compliance with all the requirements.  Ms Britz would explain what it would mean in practice if ten days were to be added.

Ms Britz replied that in essence it would add ten days to the basic assessment process, which would then be 207 days.  The reason why it would have to be fitted into a 300-day period for the scoping EIA, and then shortened for the basic assessment, was because before the MPRDA amendments could take effect, there was a maximum period of 180 days to issue their decisions. This had already been extended, so the DEA would not, in principle, have a problem with retaining the 40 days, but it was not certain whether Mineral Resources would be swayed to accept that.  Because these processes were now so interlinked, it would have the ripple effect of extending the MPRDA decision-making process by the same number of days. For the basic assessment it would have the effect of extending it by 10 days, because the MPRDA decision could only be issued once the NEMA decision had been issued and the appeal finalised.

Section 24O (3)
The Chairperson asked when, from a legal standpoint, the 30 days would start running?  One would have to do something, like indicating by ‘registered mail and upon receipt’, to make it more clear.

Section 24O (4)
Mr Shabalala said that (4) was also a consequential amendment. References to the ‘Committee’ would be taken out and replaced with ‘so the actual competent authority must then consider all the objections that have been submitted. The same applied to 24O (5)

 
Section 28(8)

(8)        Subject to subsection (9), the Director-General, the Director-General of the department responsible for mineral resources in a mining area

Mr Shabalala said that the ‘mining area’ would be the area that was defined in terms of NEMA.

The Chairperson said that the ‘duty of care’ that the Director-General (DG) Minerals had to issue, was added.

Section 28(12)
Mr Shabalala said this was also a consequential amendment, which added the duties of DG.

Mandates

31D Mandates

Mr Shabalala said the areas highlighted in red were the suggestions which were made during the public participation process, that the DEA should actually confine the powers or mandates of environmental mineral resources to the area or legislation that they would be responsible for, in terms of powers that had been conferred on them. 

Section 31D (2A)
(2A)      The Minister [of Mineral Resources] may designate a person as an environmental mineral resource inspector for the compliance monitoring and enforcement of only provisions of this Act

Mr Shabalala said that 31D Section (2A) would allow the Minister responsible for Mineral Resources to designate the environmental mineral resources inspectors.

The Chairperson asked who designated, as here it said the DEA Minister was designated.

Mr Shabalala said that it was the Minister responsible for Mineral Resources.

The Chairperson said that the ‘of Mineral Resources’ had to be removed, and the word ‘only’.  It should read ‘provisions of this Act relating to’. If everyone was happy with that, it could be amended accordingly.

The Chairperson said words should rather be added to (2A), and (2B) should be taken out.

The Chairperson asked what 31D (3) was.

Mr Shabalala said it was a consequential amendment as a result of the insertion of (2A).  

Section 31D (4)      

Despite the provisions in subsections (2B) and (3), the Minister may, with the concurrence of the Minister responsible for mineral resources, if the environmental mineral resources inspectors are unable to fulfil the function, designate environmental management inspectors to enforce the provisions of this Act or a specific environmental management Act in respect of which powers conferred on the Minister responsible for mineral resources.

Mr Shabalala said that 31D (4) was the intervention clause specifically for compliance monitoring and enforcement, where the environmental mineral resources inspectors were unable to fulfill the functions with regard to compliance and enforcement related to mining.

The Chairperson said ‘adequately able’ should be substituted for ‘unable’. This should be  tightened up, because if one just said ‘unable,’ it could have other meanings. He asked what happened if they refused  to do work. This should be checked, but it did not necessarily have to be added. 

Appeals

Section 43 (1A)

(1A)      Any person may appeal to the Minister against a decision taken by the Minister [of Minerals and Energy] responsible for mineral resources or any person acting under a power delegated by the Minister for mineral resources in respect of an environmental management programme or environmental authorisation.

The Chairperson said that the section indicated that only a delegated power may be appealed. 

Mr Shabalala said this needed to be checked, because in most of the Acts, that power was located with the Minister and then the Minister delegated to the DG, then the DG to and so on and so on. 

The Chairperson said that the DG was the accounting officer, and although the law said so, this was not a delegated power. This provision looked too narrow. This may not be relevant for this Act now, because the next clause dealt with the mining stuff.

Mr Shabalala said this would be checked and when found in different Acts, it would be indicated where they had been found.

Mr Abader said that there were two issues essentially. The one was in relation to the administration and the financial implications for the Department itself; and other was all the NEMA and Specific Environmental Management Acts (SEMA) provisions which where specific in relation to the appeals. The Accounting Officer function related more to the administration of the Department per se, not to the implementation of the Acts, and the Department should be mindful of this.

The Chairperson said that he agreed that DGs did have powers.

Section 43 (1B)
[Any person may appeal to the Minister of Minerals and Energy against a process related decision taken by a person to whom a function has been delegated by that Minister in terms of section 42B.]

Mr Shabalala said that Section 43(1B) was being taken out because, through engagement with the Department of Mineral Resources, it had been established that they did not deal with in-process appeals. 

The Chairperson asked if this had been checked, or if the Department was just listening to them.

Mr Shabalala said from the 2008 engagement, there was a feeling, specifically on the Environmental Management  Programme (EMP) process in the MPRDA, that some of those issues had not been finalised.

The Chairperson said that Section 43(1A) should be reworded to include all environmental matters where the Minister of Minerals was competent, and then they would all be covered. Section 43(1B) was fine.

Section 43(7)
(7)                    An appeal under this section [does not ]suspends an environmental authorisation[ or], exemption, or any provisions or conditions attached thereto, or any directive, unless the Minister or an MEC directs otherwise.

Mr Shabalala said the shaded areas were the consequential amendments, and sub-section (7) was the submission of appeal against the decision of the Minister of Mineral Resources, and also suspended environmental authorisations and conditions pertaining to that.
 

The Chairperson asked if this was broad enough.

Mr Shabalala said that this was not only limited to mining. It was for all environmental authorisations for any person to appeal against.


The Chairperson asked if this would achieve the objective. The objective was that if there was an appeal, then clearly that appeal had to be finalised first. He asked if there should be a clause that said exactly that. It had to be explained what happened in the case of an appeal against any matter that the Minister of Mineral Resources suspended, and that one could not proceed with any of the procedures unless the appeal had been finalised. This should be spelt out without using technical words. Section 43(7) could be left to apply in general to what was happening, but it seemed that there should be a Section 43 ‘(8)’ that specifically spelt out that if there was an appeal against any aspect of what the Minister of Minerals had done in terms of the environment, then that matter should first be finalised before any of the other processes could be completed.  There was a need to find a way of saying this clearly. The Chairperson expressed concern about whether this would achieve the objective of the DEA.  He wanted to see whether this had already been done in the regulations. He asked the Department to find a clause to “tighten it up.”

The Chairperson proposed the following wording for Section 43(8) : ‘She can not continue with licensing processes until all other issues/appeals in terms of environmental matters of which she is the competent authority, have been finalised.

Section 47C   Extension of time periods - condonation
Mr Shabalala said that the next issue was condonation, where the DEA wanted to limit the extension of time specifically with respect to appeals that had been lodged. The Department had attempted to come up with the factors to be taken into account when considering any application for condonation.

The Chairperson asked if this applied to all time periods.

Mr Shabalala said that it applied to  most of them.

The Chairperson asked if the current Act now allowed for an extension of time periods.

Mr Shabalala said the current wording was being taken out. The one which allowed for a person to apply if she/he had missed a time frame within the appeal process, either in terms of submitting an answering statement or notice of intention to appeal.  Then before she/he could actually appeal, she/he had to submit that document, then apply for an extension of time to submit, or if unable to submit within a specified period, she/he could apply for condonation.

The Chairperson said that he thought that the two issues should be dealt with separately. The time frame in the Act was one thing, but time frames that dealt with this process should have a separate clause, because the whole idea was that the two Ministers must together agree to extend the consultation; and it should be done only in exceptional circumstances when the process had reached a level of maturity.  Those were the appeal processes the Department and the Committee were worried about. This was not done in consultation. The whole idea was that if this was not done in consultation, then the idea of having time frames for the whole procedure was going to fall apart. In cases which dealt with the impact on any applications, or time frames dealing with mining, prospecting, etcetera, those time frames for both Ministers should be in this Act, as well as in the MPRDA. This could only be done in consultation, so the MPRDA should be checked to ensure that it was stated in there that it should be done in consultation.  This should only be in exceptional circumstances as far as the appeals were concerned.

The Chairperson added that maybe something specific should be said about appeals. One of the issues that had to be considered with condonation of the appeal process, was whether other processes had already started kicking in. Therefore the whole process in terms of how far the appeals had proceeded and if they had been finalized, was ground for no condonation. If one wanted to condone the process it would depend on how late in the process the appeal had been. There was a need for much more subtlety in terms of how it was worded. This had to be redone


Commencement
Section 53(15) Commencement for NEMLA 3

15. This Act is called the National Environmental Management Amendment Act, 2013, and comes into effect on 8 December 2014.

Mr Shabalala said that a date had been added -- that the Act came into effect on 8 December 2014.

Chairperson asked why the DEA would want it effective by then.

Mr Shabalala said that the Department wanted to make it an 18-month period.

The Chairperson asked why that bound the Department. He said that he had never understood why the Department of Mineral Resources had put that Act into operation after waiting for so many years. He did not understand why there was now a waiting period until December 2014, because this was a whole new regime that was being created, so why should there be a waiting period for that regime to run out. He urged the Department to go and analyse the matter properly, as it seemed to him that this Act now superseded all the others. Why would one want an Act that says that powers were going to revert back to the Department of Environmental Affairs?  Why would one do that when there was now agreement that the powers would never revert back? What had to be done was that those sections with the two 18 month periods had to be repealed.


Mr Shabalala said that the regulations that had to be ready before the Act came into operation had to be checked, for example, the EIA Regulations.



The Chairperson said that the Department should indicate how much time was needed. It would be completely wrong to link it to those old Acts. All that had to be done now was to repeal whatever was not necessary, and ensure that the Acts of the two Departments started at the same time. This might have to be linked into the commencement date, and might involve a complicated commencement clause to make sure that all those Acts came into operation at the same time. This had to be looked at with the Department of Water Affairs and the Department of Mineral Resources.  

National Environmental Management: Waste Act 59 2008
Mr Shabalala said that the amendments to the Waste Act 59 2008 would be discussed next, because NEMLA 3 amendments had implications for the Waste Act.

The Chairperson asked if  these amendments would be made in NEMLA.

Mr Shabalala said they would be made in NEMLA.

The Chairperson said that the first real amendment was in Chapter 4.
Chapter 4 Applications of the Act.
Chapter 4(1)(b)

Mr Shabalala said that this was a consequential amendment, so it was going to be taken out.

Chapter 4 19A
The Chairperson said that this was the first real amendment.

Mr Shabalala said that areas were indicated where the Minister was empowered to publish the prohibition notices, where it was linked to the second amendment. 

The Chairperson said that this was the same clause as in NEMLA 2. It just had to be made applicable to Waste so that the Minister could actually prohibit environmental authorisations being given in certain areas. This would be a prohibition on mining in that area. The same wording should be used as in NEMA 2.

Section 43(1A)
(1A)      The Minister [of Mineral Resources] responsible for mineral resources is the licensing authority where a waste management activity [involves residue deposits and residue stock piles on a prospecting, mining, exploration or production area,] is incidental to prospecting, mining, exploration, production or reclamation as contemplated in the Mineral and Petroleum Resources Development Act, 2002 and is responsible for the implementation of the provisions that relates to these matters.

Mr Shabalala said that words would be inserted to provide the Minister of Mineral Resources with a mandate to deal with waste management activities, where a waste management activity was incidental to the prospecting, mining, exploration activity as contemplated in the MPRDA.

Chairperson said that he did not like the words, ‘is incidental’. These should be changed and better wording used.

Section 79A Delegation by the Minister of Mineral Resources
Mr Shabalala said that Section 79A was to allow the Minister of Mineral Resources to delegate the function either to the DG Mineral Resources or any official in that Department.

The Chairperson said that ‘a copy of such delegation needs to be sent to the Minister of Environment Affairs’, should be added.

National Environmental Management Amendment Act 62 of 2008
Transitional provisions

Section 12(4A)

 (4A) An environmental management plan or environmental management programme approved in terms of the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002) must be reviewed in terms of the National Environmental Management Act, 1998 (Act No. 107 of 1998) as amended by the National Environmental Management Amendment Act, 2008 (Act No. 62 of 2008) and the National Environmental Management Amendment Act, 2013.

Mr Shabalala said that a transitional provision had been added specifically to deal with those environmental management plans or environmental management programmes (EMPs) that were approved in terms of the MPRDA.  Any  review of those EMPs after the commencement of this Act must be undertaken in terms of NEMA.

The Chairperson asked what the difference was between an appeal and a review in this case.

The Chairperson said that there was a special review procedure and the Department should make sure it was reviewed in terms of Environmental Affairs' law, not in terms of Mineral Resources' law.

Section 12(6)
(6)        Any appeal lodged in terms of section 96 of the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002), against a decision in respect of an environmental management programme, that is pending on commencement of this Act must be dealt with in terms of the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002).

The Chairperson asked what the appeal was about.

Mr Shabalala said that as per the Clause, and it was pending and had to be dealt with in terms of the MPRDA.

The Chairperson asked why.

Mr Shabalala said that it was basically because some of the appeals at the moment had to be considered by the Minister of Mineral Resources as the competent authority to issue EMPs under the MPRDA.

The Chairperson asked what would happen in the case where someone had an appeal, but had not appealed yet, and this Act came into operation. He asked who  would handle it then.

Mr Shabalala said that after the commencement of the Act, it would come to the Minister of Environmental Affairs.

The Chairperson asked if the programmes mentioned were in Environmental Affairs legislation or only in Mineral Resources legislation.

Mr Shabalala said that the one for mining was currently under the MPRD legislation. For those activities listed under NEMA, the environmental programme was done in terms of Environmental Affairs legislation.

The Chairperson said this had been restricted only to “pending.”  Should it not be for all appeals?  The principle was that only from the commencement of this Act, Environmental Affairs would deal with it. The Department should not deal with commencement at all in terms of Section 96. It should say, ‘..will be dealt with in terms of that Act.’   This would finalise all the appeals, therefore  ‘before the commencement’ should not be used. ‘All appeals under that Act’ should be reworded and “commencement” and “pending” references should be removed.

Chapter 12 (7)
(7)        Any appeal lodged against a decision taken by the Minister of Mineral Resources, after the commencement of the National Environmental Management Amendment Act, 2013, in respect of an environmental management programme or environmental authorisation must be dealt with in terms of the National Environmental Management Act, 1998 (Act No. 107 of 1998).

The Chairperson said that Chapter 12(7) should be reworded.

Mr Abader said that the Department would think about it a bit more, but also did not want to open it up too widely. The difficulty was also that if one was not specific in relation to the EMPR and the environmental authorisation process, there was the likelihood that one could also open it up to other decisions.

The Chairperson said that it was not likely. The agreement between the two Ministers was that the Minister of Environmental Affairs would be the final appeal authority on all environmental matters that the Minister of Mining was going to deal with mining. That was the desired wording. 

Mr Abader said that decisions made during the process should not be opened up to appeals. The Department only wanted them to appeal the final decision.

The Chairperson said that he did not understand what Mr Abader had just said.

Mr Abader said he would give a practical example. If a report was submitted to the Department and they then accepted the report – that was a decision, technically speaking, and one did not want people appealing that kind of decision. One could appeal only once there was a decision in relation to the environmental authorisation itself. It was an in-process decision.

The Chairperson had asked if the decision had to do with the environment, where would they appeal it?  The Minister was deciding it, so where would they appeal it?  It would have to be  the Minister of Environmental Affairs; it could not be any other Minister.  Any matter which dealt with the environment, in which the Minister of Mineral Affairs was making a decision, whatever it was, that decision had to be appealed by the Minister of Environmental Affairs. 

The Chairperson said that Section 13 and the schedule should be deleted.  Mr Shabalala agreed and added that now the function would not revert back to the Minister of Environmental Affairs.

The Chairperson said what must be said was: ‘nothing in this Bill can be amended’. The point was that these were all going to become parts of Acts. What had to be said was:  ‘No provision in the NEMLA 3 Bill may be amended without the prior written agreement between the two Ministers’. It was problematic that the Department had stated ‘the approval by Parliament’. This was what should be said instead ‘the written agreement by the two Ministers has to be ratified by Parliament’. There had to be a written agreement that something could be amended and that should be ratified by Parliament. 

The Chairperson said the Section 13 Schedule had to be taken out. The regulations could be looked at now.

Mr Shabalala said that Ms Britz had already spoken about the regulations.

The Chairperson said that the meeting then did not have to do it because Ms Britz had already explained it.

Ms Britz said that whatever was relevant to the NEMLA that had an impact on the regulations, would  also be inserted into the proposed amendments to the regulations.  The comment boxes were really just explanatory notes.

The Chairperson asked what it meant in a regulation if it said ‘prescribed time frame’.

Ms Britz said it should be read as a cross reference to the relevant regulation where the time frame was depicted. She would make a note and check the wording.

The Chairperson asked if the Department could be taken at its word on the regulations and that they did not have to be gone through here. The Committee would therefore deal with the Department of Water tomorrow. The aim was to get all amendments done to a stage where they could be voted on before the end of this term. The amendments that the Committee had asked to be changed should be changed; the others could be accepted now. The yellow and green areas that had been accepted should be kept.  The changes should be in another colour. The green should be changed to a colour that could be easily read. Then only the amendments made today could be looked at.  The Bill could then go through caucuses and be ready in January. The changes made here should also be reflected in the Department of Mineral Resources' documents.  The Minister should be notified on how far the process was with the Bill.

The meeting was adjourned.
 

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