Department of Environmental Affairs briefings: SA Weather Service Amendment Bill, Air Quality Amendment Bill, Annex VI to Protocol on Environmental Protection, Antarctic Treaty

Meeting report

South African Weather Service Amendment Bill [B 23B-2013]: Department of Environmental Affairs briefing
Mr Sibusiso Shabalala, Director: Law Reform, Department of Environmental Affairs, said that the South African Weather Service (SAWS) Amendment Bill sought to amend certain sections of the principal SAWS Act, No 8 of 2001. That Act had established the South African Weather Service as a juristic person, determined its objectives, functions and methods of work, and prescribed its management and governance matters. Over the years, key areas of the SAWS Act were identified that required improvement to ensure that the purpose and objectives of the SAWS Act were met in a more sustainable, effective and efficient manner.

Mr Shabalala said that the objectives of the Bill were to substitute and insert certain definitions, to provide the Minister with policy determination and supervisory powers, to extend the powers, objectives and functions of the SAWS to allow it to have a legal mandate to provide ambient air quality services, and to act as custodian of the South African Air Quality Information Service. Other provisions would provide for the appointment and removal of the Chief Executive Officer, would align the Act with the Public Finance Management Act (PFMA), delete certain obsolete provisions, provide the limitation of liability of SAWS and provide for offences and penalties.

Clause 1 of the Bill sought to revise and correct the definitions of the Department and Minister necessitated by name changes in government. The term “ambient air” was included in various amendments due to the extension of the powers, objectives and functions of the Weather Service to include ambient air quality information. This meant that new definitions were needed, as now set out in clause 1, for “advisory alert”, “air quality”, “ambient air quality forecast”, “ambient air quality information”, and “ambient air quality warning”. Furthermore, there were definitions inserted for the various functionaries, as also for “severe weather”, “severe weather warning”, “warning alert” and “watch alert”. The definitions of “advisory services”, and “Chief Executive Officer” were revised.

Mr Shabalala said that clause 2 of the Bill sought to insert new sections 2A and 2B into the SAWS Act, which were done to provide the Minister with legal power to determine the policy framework within which the SAWS must exercise its power and perform its functions. The clause also provided the Minister with supervisory powers over the SAWS.

Mr Shabalala said that as far as policy determination and Ministerial  supervisory powers were concerned, the amendments effected by clause 2 would allow the Minister to monitor the exercising of powers, and performance of functions, by the SAWS, against the policy determined by the Minister. The Minister would, however, only be able to intervene into operational matters by means of a directive, and then only also in the case of non-compliance with the policy.

Clauses 3 and 4 amended the objectives and functions of the SAWS, to extend its powers and functions so as to provide ambient air quality services and to act as custodian of the South African Air Quality Information Service. Clause 4 would also allow the SAWS to issue ambient air quality warnings after consultation with the Minister.

Clause 5 was amended to ensure that the needs of air quality management stakeholders were taken into account by the Minister when appointing the Board of the SA Weather Service.

Clause 6 amended the SAWS Act to ensure that the Board would performs its functions within the policy parameters determined by the Minister.

Clause 7 dealt with the appointment of the Chief Executive Officer, and the main aim here was to ensure that the recruitment, selection and appointment of the Chief Executive Officer followed a transparent ad competitive process. The amendment also provided for the tenure, the terms and conditions of employment, remuneration and allowances, and performance agreement, and the powers and duties of the Chief Executive Officer.

Clause 8 was inserting a new section 13A in the SAWS Act, setting out the grounds for removal and the removal process applicable to the Chief Executive Officer of the SAWS.

Governance matters were being dealt with under clause 9, which was amending section 14 of the SAWS Act to allow the Chief Executive Officer to appoint other employees to the Weather Service in order to enable that body to perform its functions.

Clause 10 amended section 17 of the SAWS Act to align it with the Public Finance Management Act of 1999 (PFMA), by providing for the Board to be the accounting authority for the SAWS. Clause 11 was aiming to repeal section 18 of the SAWS Act, because this section 18 was no longer relevant; it had been a transitional provision providing for the transfer of staff from the former Chief Directorate of the Weather Bureau of the former Department.

General provisions were also being inserted. Clause 12 was amending section 26 of the SAWS Act, with the insertion of new subsections (4) and (5), to provide that the ambient air quality data not collected by the Weather Service remained the property of the collector. Clause 13 inserted a new subsection (2) into section 27 of the SAWS Act, to provide for limitation of liability of the SAWS against any damage caused, by any act done in good faith. Clause 14 was inserting new paragraphs (aA) and (aB) into section 28 of the SAWS Act, to provide the Minster with the legal power to develop regulations on the recruitment and selection process, and the removal and disciplinary procedures for the Chief Executive Officer.

Mr Shabalala said that offences and penalties were dealt with under clause 15. It was creating a new offence for any person to publish, disseminate or distribute any severe weather warning which he or she believed or ought to have reasonably known or suspected to be false or misleading, or that might incite public alarm or evacuations, or economic loss arising from such actions. It was also an offence for any person to impersonate or falsely misrepresent himself as an employee of the Weather Service, or purport to act on behalf of the Weather Service, or to unlawfully use the official or corporate branding of the Weather Service. The penalty for any person found guilty of an offence was a fine not exceeding R5 million, or imprisonment for a period not exceeding five years for first time offenders, and for second or repeat offenders, a maximum fine of R10 million or imprisonment for a period not exceeding ten years.

Mr Shabalala noted that Schedules 1 and 2 of the SAWS Act were also being amended, by clauses 16 and 17. These would, respectively, provide for additional public good services and commercial services, which related to ambient air quality information. The Table of Contents and commencement date were covered in clauses 18 and 19. It was intended that the SAWS Bill would enter into force two months from the date of publication in the Gazette, or at such earlier date that the President might determine by proclamation.

National Environmental Management: Air Quality Amendment Bill [B27B-2013]
Ms Linda Garlipp, Chief Director: Law Reform and Appeals, Department of Environmental Affairs, said that the National Environmental Management: Air Quality Act of 2004 (NEMAQA) regulated air quality in the country in order to protect the environment, by providing reasonable measures for the prevention for pollution and ecological degradation, while promoting justifiable economic and social development. Since 2005, there had been challenges identified with the atmospheric emission licensing system, which were negatively impacting upon the effective and efficient implementation of that Act.

The NEMAQA Bill [B27-2013] therefore aimed to effect amendments to the principal NEMAQA Act that would align it with the provisions of the National Environmental Management Act, No 107 of 1998, would close regulatory gaps within the atmospheric emission licensing system, and would delete certain obsolete provisions.

Clause 1 of the Bill aimed to revise and correct the definitions of the “Department” and “Minister” necessitated by name changes in government. The definition for “environment conservation act” was deleted because the amendments meant that this term would no longer be used in the Act. The definition of “licensing authority” was revised as a result of certain amendments in the Bill. The definition of “commissioning” was inserted as a result of amendments by clause 9.

Clause 2 was amending section 13 of the NEMAQA Act, and the power of the Minister to establish the National Air Quality Advisory Committee was amended. The Committee would advise the Minister on any air quality related issue, as the Minister might determine from time to time. The Minister might prescribe, through regulations, any other matters relating to the Committee.

Clause 3 dealt with consequences of unlawful conduct of listed activities, and inserted a new section 22A into the NEMAQA Act to allow the licensing authority to deal with three scenarios. Firstly, it would provide for the rectification of those activities related to air quality emission, where atmospheric emissions took place without an environmental impact assessment (EIA) being conducted. This should be addressed through section 24G of the 1988 National Environmental Management Act (NEMA). Where the activities were ongoing without the necessary registration certificate under the Atmospheric Pollution Prevention Act of 1965, the consequences would be addressed through section 22A. Where the activities conducted had an Environmental Impact Assessment (EIA) environmental authorisation granted, but no atmospheric emission licence was issued, this must be addressed through section 22A.

Ms Garlipp said that the consequences of unlawful conduct of listed activities would include the fact that the licensing authority might direct an applicant to immediately stop the activity, pending a decision on the submitted application, or pending investigation, evaluation and assessment of the impact of the activity on the environment, including ambient air, or direct the applicant to stop, modify or control any act, activity, process or omission causing atmospheric emission, and compile specialist studies. The licensing authorities had discretion to issue or refuse an environmental authorisation. The amendment further provided for the payment of an administrative fine not exceeding R5 million, before the processing of the application. The amendment also made it clear that a criminal prosecution might still be instituted, despite the fact that a person had applied for an atmospheric emission licence. The amendment further allowed the licensing authority to defer a decision until such time as the criminal investigation had been concluded.

Mr Garlipp said that in relation to the pollution prevention plan, the current provisions of section 29 did not provide for any monitoring, evaluation and reporting requirements. Under clause 4, section 29 was now being amended to provide for monitoring, evaluation and reporting requirements on the implementation of the approved pollution prevention plan.

Clause 5 dealt with the licensing authority, and new subsections were being inserted into section 36 of the Act, to provide that the MEC or Minister could take a decision, in the place of the licensing authority, where the licensing authority had failed to take such decision on an application for atmospheric emission licence, within the time period set out in the Act. The amendment also empowered the MEC to request the Minister to take a decision on an application for an atmospheric emission licence, where the MEC did not have the capacity to process the application. The amendment recognised the Executive authority of provinces, and the powers and functions of municipalities, as set out, respectively, in sections 125(2)(b) and section 156(1)(b) of the Constitution.

Ms Garlipp noted that clause 5 also was amending the provisions of section 36 of the Act in relation to the licensing authority, as it provided for the situations in which the Minister would be the licensing authority. These would included situations where:
- the applicant for a licence was a provincial organ of state who had been delegated by the municipality with the power to issue the atmospheric emission licences
- the atmospheric emission activity fell within the jurisdiction of two provinces
- the atmospheric emission activity formed part of a national priority project approved by Cabinet
- the atmospheric emission activity was related to the EIA-listed National Environmental Management: Waste Act, 2008, and the Minister was the licensing or competent authority,
- the atmospheric emission activity was related to a mining activity.

The amendments also provided for the issuing of an integrated environmental authorisation for those related activities where possible. The amendments further provided for the Minister and relevant licensing authorities to enter into an agreement regarding certain activities that might be authorised either by the Minister or the relevant licensing authority.

Clauses 6, 7 and 8 dealt with applications for the atmospheric emission licence. They were amending sections 38, 39, and 40 of the NEMAQA Act to provide for further alignment with the environmental impact assessment provisions under the NEMA. They were removing references to the repealed section 22 of the Environment Conservation Act, 1989.

Clause 8 further provided that where the atmospheric activity related to mining activity, the Minister, after consultation with the relevant licensing authority, should decide the application within the timeframes set out in the NEMA.

Clause 9 was amending section 41 to provide for a period of validity of one year for provisional atmospheric emission licences, from the date of commissioning, with an option of extension for another year, based on good cause shown to the licensing authority.

Ms Garlipp said that criteria for fit and proper persons were covered in clause 10, which aimed to clarify the intention of section 49 that the licensing authority should take into consideration certain listed criteria when deciding on an application for an atmospheric emission licence.

Clause 11 was amending section 51 of the NEMAQA Act to ensure that non-compliance with the controlled fuels standards established in terms of section 28 of the Act would be a criminal offence. Clause 12 was amending section 53 of the Act to provide the Minister with a legal mandate to develop regulations on the procedure and criteria to be followed when determining the administrative fine contemplated in section 22A, and on climate change matters.

The transitional provisions were set out in clause 13, 14 and 14, which were, respectively, providing for transitional matters around listed activities, as set out in section 62, transitional provisions regarding ambient air quality standards as set out in section 63 and amending the Schedule 2 dealing with transitional ambient air quality standards, in order to repeal certain obsolete transitional arrangements. The national listed activities and emission standards and ambient air quality standards had been published and were currently being implemented.

In conclusion, Ms Garlipp said that the Bill would enter into force on the date of publication.

Annex VI to the Protocol on Environmental Protection, Antarctic Treaty: Liability Arising from Environmental Emergencies
Mr Henry Valentine, Earth System Strategist, Department of Environmental Affairs, said that the purpose of his presentation would outline what was contained in Annex VI to the Protocol on Environmental Protection to the Antarctic Treaty, which dealt with liability arising from environmental emergencies. This Annex to the Protocol required ratification by Parliament.

He noted that South Africa had originally signed the Antarctic Treaty in December 1959. The Treaty was a multilateral agreement to ensure that the continent of Antarctica was used exclusively for peaceful and scientific purposes. The Protocol on Environmental Protection placed specific emphasis on the protection of the environment, and was signed in 1991. It was reported that the major environmental problem was that Antarctica was a continent of extremes (being the coldest, driest, highest, and most pristine continent) which, together with the Southern Ocean, had the largest contained ecosystem on the planet. Antarctica also played an integral role in regulating global environmental processes. Antarctica was reflecting to the world the impacts that mankind had elsewhere on the globe. The Antarctic environment was slow in recovering from disruptions. The increase in tourism and the number of bases/stations, especially their cumulative impact, would increase the risk to the environment.

Mr Valentine said that the Annex aimed to address the problem in a number of ways. It firstly would create a framework for parties to insist that organisations who planned activities in the Antarctic treaty area must develop and implement contingency plans to reduce the risk of environmental emergencies, or to respond to environmental incidents when they occurred. Parties could take action against non-response of an entity to a particular environmental emergency, and create a mechanism to recover the costs of response action either from the operator, or from a Fund to be established. The Annex required that operators must have sufficient insurance for their operations. An international fund would be established for reimbursement, in respect of response actions taken by parties who had not caused the emergency.  It was reported that the Department of international Relations, Department of Justice and Constitutional Development, Department of Transport, the South African Maritime Safety Authority, and the Department of Minerals and Energy would be consulted.

Mr Valentine urged that South Africa should ratify the Annex, because it had an interest in preserving the pristine and sensitive Antarctica environment and its resources and in also limiting the impact of man-made environmental emergencies for future generations, and for the betterment of mankind. Ratification would reduce the risk and exposure for South Africa to environmental emergencies caused by activities launched from the country. South Africa might be put in the position of having to respond to environmental emergencies caused by activities under the nominal jurisdiction of other countries. A system of compensation would allow reimbursement of expenses for response action.

Mr Valentine said that no liability would take effect under the Annex until all of the 28 consultative parties to the Antarctic Treaty had ratified it. Ratification by South Africa would reduce the risk and exposure to the environment. Once the approval of Parliament had been obtained, the Antarctic Treaties Act, 1996 (Act No. 60 of 1996) would have to be amended, and regulations promulgated. There would be no specific additional allocations (personnel and finance) that would be required, as that would be implemented gradually, using existing and projected funding allocations.

In concluding, Mr Valentine asked that the Select Committee therefore recommend to Parliament that the Annex VI to the Protocol be ratified.

Discussion
Ms B Mabe (ANC, Gauteng) noted that the presentation was informative, but she wanted clarity on clause 1 of the South African Weather Service Amendment Bill.

Mr G Mokgoro (ANC, Northern Cape) noted that there had been concerns about bad weather in townships lately. He asked what the Department had done to protect the communities.

Ms L Mabija (ANC, Limpopo) wanted clarity on the role of municipalities.

Mr D Worth (DA, Free State) wanted some clarity on penalties outlined in the South African Weather Service Amendment Bill.

Mr M Makhubela (COPE, Limpopo) felt that the South African Weather Service Amendment Bill gave too much power to Minister. He too wanted clarity on penalties, and commented how the weather service often failed to warn people about bad weather.

Mr Makhubele asked if the Department of Environmental Affairs was succeeding in implementing air quality measures.

Mr Shabalala replied that the objectives of the SAWS Bill were mainly to insert and substitute certain definitions, to provide the Minister with policy determination and supervisory powers, to extend the powers, objectives and functions of the SAWS so as to provide the it with a legal mandate to provide ambient air quality services. It was the role of the weather services to issue alerts about bad weather, as it was empowered by the law to do so. The maximum period for first offenders who, without authorisation, impersonated SAWS in doing so was not more than five years.

Ms Garlipp added that the Bill made it an offence to issue an unauthorised severe weather warning, and said it also provided the South African Weather Service with legal mandate to implement the ambient air quality information management function. SAWS would act as a custodian of the South African air quality information system, which was seen as necessary to achieve the objective of the Air Quality Act 2004.

The Chairperson welcomed the presentations, and asked if Members were in agreement with the Bills as presented.

Mr M Makhubela moved for adoption of the Bills, seconded by Mr G Mokgoro, and Members resolved to recommend their adoption.

Committee minutes 12 November 2013
The Chairperson read the minutes of the 12 November 2013, and noted that there were no corrections.

The minutes were adopted.

The meeting was adjourned.