Integrated Coastal Management Am. Bill [B8-2013], Air Quality Am. Bill [B27-2013], Protected Areas Amendment Bill [B28-2013], Weather Services Am. Bill [B23-2013], Benguela Current Convention&Annex VI to the Antarctica Treaty: Adoption&Committee Reports

Water and Sanitation

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

The Committee firstly considered the Environmental Management: Integrated Coastal Management Amendment Bill.  The Bill had been tagged under section 75, but Members felt that this would be unconstitutional as there were provincial competencies involved, and resolved to recommend that it should instead be processed as a section 76 bill.  The references in the Report would be changed from  'Bill' to 'Amendment Bill'. It was noted that the jurisdiction to territorial waters had been extended to the Economic Exclusion Zone, and this should be further extended to the continental shelf in section 33. Clause 89 was rewritten to clarify who the authority was, while the Committee was busy with deliberations. It was noted that there had been court judgements on the exemption clause in clause 44. Certain specific resolutions were contained in the Committee report, including the recommendation for policy on the mining of the seabed and related exploration activities. A review was needed on the pollution-combating function of Department of Environmental Affairs (DEA) together with the Department of Transport. The Committee voted unanimously to adopt the Environmental Management: Integrated Coastal Management Amendment Bill, with amendments. 

The Committee also voted unanimously to adopt the South African Weather Service Bill, with some amendments.  The section relating to the appointment of the Chief Executive Officer would come into effect immediately on the Bill being enacted, and the remaining sections two months later.  Members agreed that it was appropriately tagged as section 75. The report explained the amendments made by the Committee.  The Minister would be empowered to intervene in the operational matters of SAWS only in the event of non-compliance with a directive. 
Some amendments had been made to the National Environmental Management: Air Quality Amendment Bill, after consultation between the DEA and the Centre for Environmental Rights.  Industries operating under previous legislation would now be subject to the National Environmental Management Act’s section 24G.  In the previous version of the Bill, local municipalities had been given thirty days to process an Atmospheric Emission Licence application, but this had been changed to a 'reasonable period', which was understood to be about three months.  Applicants could advance their enquiries to the provincial or national Minister. The Chairperson asked specifically that the DEA should monitor the implementation, once the Bill was enacted. The Committee unanimously adopted the Bill, as amended.

The Committee voted unanimously to adopt the National Environmental Management: Protected Areas Amendment Bill, with some minor amendments.  It recommended that this Bill also be dealt with under section 76 rather than section 75.

Members voted unanimously to recommend the ratification of the Benguela Current Convention and Annex VI to the Antarctica Treaty.  The Antarctic Treaties Act would have to be amended to accommodate the provisions of the Annex, but this would be done in the following year.

The Department was instructed to bring about the amendments needed, and to ensure that the Bills were ready for the forthcoming debate.  The Department was also tasked to prepare the National Environmental Management Laws Amendment 3 for discussion within the following week. It was noted that a press statement on Waste had been sent out and that public hearings would be held in 2014.
 

Meeting report

Committee programme
The Chairperson outlined the programme for the day.  The Rhino Workshop had been approved. 

Mr F Rodgers (DA) asked when the final version of the Budgetary Review and Recommendations Report (BRRR) would be received.  The information provided had helped during the caucus deliberations. 

The Chairperson responded that it was in the ATC.  He shared some banter with Members on the sports results from the weekend.

National Environmental Management: Integrated Coastal Management Amendment Bill: Clause by clause adoption
The Chairperson called on Members to consider the National Environmental Management: Integrated Coastal Management Amendment (ICM) Bill. 

Ms Radia Razack, Director: Law Reform (CPT), Department of Environmental Affairs, said that there had been a slight amendment to the Long Title.

The Chairperson took Members through the Bill.  He highlighted some of the important definitions that would be inserted or substituted.

The Chairperson then read the Committee report recommending the adoption of the Bill.  He was concerned that the section on coastal protected areas was classified by the Joint Tagging Mechanism (JTM) as section 75.  Protected areas were clearly a concurrent power.

Ms Bongiwe Lufundo, State Law Adviser, Office of the Chief State Law Adviser, said that there was an opinion that the clause fell within nature conservation.  Marine species were excluded.  There were two different powers applicable. 

The Chairperson said that Fisheries was the only national competency involved.  He asked the State Law Advisers (SLA) to check on this.

Mr Ishaam Abader, Deputy Director-General, Department of Environmental Affairs, said that all marine protected areas fell under national parks.

The Chairperson found this hard to believe and said it was not an issue of competency.

Ms Razack said that in the National Environmental Management Act (NEMA), marine protected areas (MPA) were classified as parks.

The Chairperson said that if the tagging was wrong, then the Bill would be declared unconstitutional.  There would be no damage done if it was tagged as section 76, even if it was actually a section 75 Bill.  Unless the SLA could clearly show that all protected areas were automatically national parks, the Bill could not proceed in this form.

Ms Razack said that only some MPAs were national parks.

The Chairperson stressed that if anything affected provincial competency, even if only in part, it must be tagged as a section 76 Bill.

The Chairperson then read out the Committee Report, which included a phrase correcting the tagging provision to read that it should be a section 76 bill.  There was a motivation for the acceptance of the Bill, and an explanation of the amendments made during the Committee deliberations. 

Ms Nicolette de Kock, Deputy Director, Law Reform, Department of Environmental Affairs, said that certain sections would be suspended pending negotiations with Transnet on infrastructure erected on coastal public property. 

The Chairperson continued to read the report.  It explained the motivation behind the insertion of a new section on land reclamation.  He noted that there was a difference between 'placing' and 'publishing' a regulation.

Ms Razack explained that the original word use had been 'prescribed' and this had been changed to 'published'.

The Chairperson instructed that the Department of Environmental Affairs (DEA) should change all references, except the very first one, from 'Bill' to 'Amendment Bill'.  Where the jurisdiction to territorial waters had been extended to the Economic Exclusion Zone, this should be further extended to the continental shelf in section 33.  In relation to section 35 he asked for clarity on whether the target group should be South African citizens or courts.  He did not like the provision in clause 89, as authority could be delegated to someone outside the DEA.  The public needed to know who the authority was.  He did not think that sub-section (a) should be deleted.

Ms Razack was trying to think back to the reason for this.  The only proof of the delegation would be the written letter held by DEA.

The Chairperson instructed that the clause must be rewritten.

Ms Razack said that there had been court judgements on the exemption clause in clause 44.

The Chairperson read the resolutions in the report.  The first was on the mining of the seabed and related exploration activities.  The report called for a policy on this issue.  A review was needed on the pollution-combating function of DEA together with the Department of Transport (DoT).  There was a clause relating to the control by municipalities of strips of land giving access to the sea.

The Chairperson noted that there was now a quorum.  There were no proposed amendments from Members or discussion points.  The only change was the deletion of clause 52 (a).

Ms de Kock said that there had been an error in the clause numbers, which had been corrected.

Ms B Ferguson (COPE) moved that the Bill be adopted, seconded by Mr J Skosana (ANC). 

The Chairperson noted nine votes in favour of each clause, and of the Bill overall.

Ms Razack read a proposed amendment to the report.  This clarified the powers which the Minister may not delegate.

Mr Rodgers asked for clarity on the tagging.

The Chairperson said that it would be tagged as section 76.  He noted nine votes in favour of adopting the Committee Report on the ICM Amendment Bill, as amended.

The Chairperson said that a number of MPAs were run by the province.

Dr Razeenah Omar, Chief Director: Oceans Conservation, DEA, said that there were Memorandums of Understanding with the provinces regarding the management of MPAs..

The Chairperson said that the DEA was wrong in this.  The provinces were responsible, and therefore the Bill would only be constitutionally correct if tagged as section 76.  After the SLA had been given some time to consult, he could now confirm that the original Act had been passed under section 76.  However, only the House could decide on how a Bill was passed.  All the Committee could do was provide a recommendation on how it should be processed.  He asked if the index had been updated.

Ms de Kock said that this was done automatically when the Bill was enacted.

Ms Noluthando Mpikashe, Senior SLA, Office of the Chief State Law Adviser, said that this should be amended.

The Chairperson instructed the DEA legal team to draft an amendment while the Committee proceeded with other business.

The Chairperson put forward amendments brought to the table of contents.  No further amendments were put forward, and Members voted unanimously to adopt the Bill.

South African Weather Service Amendment Bill: Clause-by-Clause adoption
The Chairperson asked Members to consider the South African Weather Service (SAWS) Amendment Bill.  This had been tagged as section 75, but as this only dealt with an agency, this was an appropriate tagging.  The index must also be updated.

Members agreed unanimously (nine votes to nil) to adopt the Long Title of the Bill, clause 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 

The Chairperson had amended the date on which the Act would come into effect to be two months after the date of publication in the Gazette.  Members voted unanimously (nine votes to nil) to adopt the Bill.

The Chairperson read the Committee report on the Bill.  The report explained the amendments made by the Committee.  The Minister would be empowered to intervene in the operational matters of SAWS only in the event of non-compliance with a directive.  The sections related to the appointment and the removal of the Chief Executive Officer would become applicable immediately on enactment.  The remainder would become effective two months after publication or at an earlier date.

Mr Abader pointed out some grammatical errors.

The Chairperson asked Members to vote on the report, as amended.  Members adopted the report by nine votes to nil.

Mr Sibusiso Shabalala, Director: Law Reform, DEA, said he had drafted a clause to update the index.

The Chairperson instructed him to have the draft typed out and distributed to Members.

The Chairperson presented four amendments to the table of contents.  Members voted unanimously to adopt the Bill, as amended.

 National Environmental Management: Air Quality Amendment (AQA) Bill: Clause-by-Clause Adoption
The Chairperson asked Members to consider National Environmental Management: Air Quality Amendment (AQA) Bill. At the last deliberations, he had requested the DEA to consult with the Centre for Environmental Rights (CER).  There were some amendments resulting from this consultation.  In some cases, section 24G of NEMA would be applied.  There would be a provision for retrospective application of the law to companies that had been under previous legislation.  In some cases, industries might expand their activities without an update of the environmental impact assessment (EIA).  Where no EIA was conducted, section 24G of NEMA would be applicable.  Where a municipality failed to provide a licence within the required time-frame, the new clause would allow for the Member of the Executive Committee (MEC) or Minister to intervene.  The wording was similar to NEMA.  This was contained in clause 5.  All efforts would first be made to give the municipality the power to process the application.  The specified thirty day period was now replaced by 'a reasonable period'.

Mr Rodgers said that Members had raised concerns over the capacity of local government.  He asked how the Act would be applied where a local government failed.

The Chairperson said that the only provision on that was linked to the time-frames.  If the municipality could not comply within the given time-frame, then the applicant could advance the application to the Minister or MEC.  In applications regarding mining the applications would go straight to the national sphere.

The Chairperson said that the English version was normally the version passed by Parliament.  Sometimes the President was given the Afrikaans version, although Parliament had never seen the translation.

Members voted by nine votes to nil to adopt the long title, with some grammatical amendments.  Members voted unanimously to adopt, without amendment, clauses 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17.

Mr Abader pointed out a grammatical error in clause 3.  Members then voted unanimously to adopt clause 3 as amended.

Mr Rodgers referred to clause 5 of the Memorandum.  This referred to an MEC not dealing with a matter in the prescribed time, in which case the Minister might be requested to take a decision.  He thought that the Minister had to take action if the application was not dealt with at lower level.

The Chairperson said that the removal of the fixed time period would now make it necessary for the applicant to have to make an application to the Minister.  It would be good if the DEA could monitor the implementation of the Act.

Mr Abader said that case law determined that a three month period was reasonable.  The index would be amended by clause 16.

The Chairperson noted the unanimous approval of the members present to adopt the Bill.

The Chairperson read through the Committee Report on the Bill, motivating the amendments being made.  Members adopted the report unanimously.

National Environmental Management: Protected Areas Amendment Bill: Clause-by-clause deliberation
Ms Lufundo said that he had spoken to the Chief SLA. She was not opposed to reclassifying the Bill as section 76.  The JTM could change the tagging.

The Chairperson said that an amendment brought in by the Committee might change the nature of the Bill from section 75 to 76.  The SLA must stress to the JTM that the Committee had recommended that the tagging be changed to section 76.

The Chairperson put the National Environmental Management: Protected Areas Amendment Bill.  Members voted unanimously to accept, without amendment, the long title, Clauses 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17. 

The Chairperson proposed that section 18 be amended to make the date of enactment immediate, and Members accepted this clause, with amendments, unanimously.

The Chairperson read the Committee report on the Bill.  An insertion was made that the Committee took note of the JTM's decision, but had resolved to change the tagging classification to section 76.

Mr Rodgers asked if the wording in clause 8 should not be joined by a comma or 'and'.

The Chairperson accepted the need for a correction, and this was done.

Members confirmed their adoption of the Bill as amended, and also resolved to adopt the report, as amended, unanimously.

Consideration of Report of the Committee on the Benguela Current Convention
The Chairperson read the Committee report on the Benguela Current Convention.  The Committee approved the signing of the convention by South Africa and recommended its ratification to Parliament.  Members voted unanimously to adopt the report.

Consideration of Report of the Committee on Annex VI to the Antarctic Treaty
The Chairperson read the Committee Report of the Committee on Annex VI to the Antarctic Treaty.  The Antarctic Treaties Act would have to be amended to accommodate the Annex, but the Committee expressed the need to restructure the Act.  An amendment would be drafted after the Annex was adopted.  The DEA would deal with this by January 2014.

Members adopted the report unanimously.

Conclusion
The Chairperson thanked the DEA for the hard work done.  He expected that the Bills would be read again carefully so that any problems detected could be raised at the deliberations in the National Council of Provinces.  Grammatical issues were still being identified.  Members had been hard at work as well.  He asked if all the work had been done on the National Environmental Management Laws Amendment (NEMLA) 3.

Mr Shabalala said that DEA needed to consult with the Department of Mineral Resources (DMR).  This would not happen within the following two days, and DEA was not ready to proceed at this stage.

The Chairperson said that if Parliament was to sit for another week, then the NEMLA issue would be considered the following Wednesday.  Constituency issues would be heard the following week.  If the extra week did not transpire, the NEMLA issue would have to be consolidated.

Ms M Wenger (DA) asked if the four debates would be consolidated.

The Chairperson said he had spoken to the Minister.  This would probably be the case but had still to be confirmed. 

He would brief Members on the rhino workshop at the next meeting. There were some unsatisfactory issues with the agenda.  He had sent out a press statement on Waste, and the hearings would be held in 2014.  The Bill on research would be held over to 2014 as well as the voting on NEMLA 3. 

The meeting was adjourned.
 

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