National Environmental Management Laws Amendment Bill [B 26B -2013]: Joint Meeting on Regulations amended consequentially

Water and Sanitation

28 January 2014
Chairperson: Mr J De Lange (ANC)
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Meeting Summary

The Portfolio Committee of Water and Environmental Affairs held a joint meeting with the Portfolio Committee on Mineral Resources to discuss regulations amended in the National Environmental Management Laws Amendment Bill. The objective was to ensure that all environmental matters concerning legislation needed to be finalised.

The presentation from the Department of Environmental Affairs sought to brief the Committee on the amendments made to the National Environmental Management Laws Amendment Bill [B 26B -2013] and to explain the reasons for the amendments. The Bill amended provisions under the; National Environmental Management Act 1998, the National Environmental Management: Waste Act 2008 and the National Environmental Management Amendment Act 2008.

The National Environmental Amendment Act 2008 was brought into effect on 1 May 2009. The provisions as far as they related to mining would only enter into force 18 months after the Mineral and Petroleum Resources Development Amendment Act of 2008. This amendment Act entered into force on 7 June 2013. The two Acts would therefore be fully effective on 8 December 2014. An important impact of the amendments was that mining rights, permits, environmental authorisations and water use licences would follow the same timeframes which were identified in amendments currently being made to the Environmental Impact Assessment Regulations. Another major impact was that all the Acts now provided for an internal appeal procedure and the appeal timeframes between the acts were aligned and ran parallel.

Most of the concerns raised by Members centered on the fact that the Department had not agreed on and implemented the Committee’s proposed amendments. As a result, Members were disappointed by the Department’s attempts to exclude Parliament from the legislative process, as a result, delaying the whole process. There were also disagreements on definitions such as “community” and Members noted that the definition cited by the Department was very narrow and a suggestion was given that the Department change the definition to “mining community”. Members also argued that there was very little communication between mines, the surrounding communities and the Department, through local government. Mechanisms to include local communities in the legislative and public consultation processes needed to be devised as local community members where mostly affected by environmental issues around local mines.
 

Meeting report

Opening Remarks by Chairperson
The Chairperson said the main purpose of the joint meeting was to decide on environmental matters with regard to a piece of legislation which was tabled in Parliament by the Department of Mineral Resources (DMR). In order to avoid a stalemate between the Department of Mineral Resources and the Department of Environmental Affairs (DEA), the Department of Environmental Affairs was asked to conduct public hearings on the matter. An agreement was reached that environmental laws still needed to be applicable in all matters concerning the Department of Mineral Resources. The competent authority to make such decisions rested with the Minister of Mineral Resources. The appeal however rested with the Minister of Environmental Affairs. Therefore decisions made around mining which affected the environment would be dealt with according to environmental laws.

The Portfolio Committee on Water and Environmental Affairs had received a number of inputs through public submissions. The Committee was reaching the end of the amendment process. There was, however, one or two matters concerning wording which the Departments still needed to agree on. Timeframes were very tight because the matter still needed to go to the National Council of Provinces. An appeal mechanism still had to be established in order to deal with legislative matters concerning the Department of Water and Forestry. Regulations would not be dealt with in the meeting.

The Chairperson of the Portfolio Committee on Mineral Resources, Ms F Bikani (ANC) said the Committees needed to finalise all matters concerning legislation, so that an agreement could be reached.

Presentation: National Environmental Management Laws Amendment Bill
Ms Linda Garlipp, DEA Chief Director: Law Reform and Appeals told the Committee that the purpose of the presentation was to brief the Committee on the amendments made to the National Environmental Management Laws Amendment Bill [B 26B -2013] and to explain the reasons for the amendments. The Bill amended provisions under the; National Environmental Management Act (NEMA) 1998, the National Environmental Management: Waste Act 2008 and the National Environmental Management Amendment Act 2008.

The main purpose of these amendments was to further align the provisions of the environmental, water and mining legislation in order to give effect to the agreements reached between the Minister of Water, the Minister of Environmental Affairs and the Minister of Mineral Resources. Three of the agreements reached by the Ministers were as follows:

- That all environment-related aspects would be regulated through one system which is the National Environmental Management Act, 1998 and that all environmental provisions would be repealed from the Mineral and Petroleum Resources Development Act, 2002.

- That the Minister of Environmental Affairs sets the regulatory framework and norms and standards, and that the Minister responsible for Mineral Resources will implement the provisions of NEMA and the subordinate legislation as far as it relates to prospecting, exploration, mining or operations

- The Minister responsible for Mineral Resources and the Minsters responsible for Water and Environmental Affairs agree on fixed time frames for the consideration and issuing of the authorisations, rights, permits or licences in terms of the legislation administered by them. It was also agreed that the time frames should be synchronised.

The Chairperson explained that reference to “Minister” meant the Minister of Environmental Affairs.

Ms Garlipp explained that the same legislation which gave effect to the 2008 agreement had already been enacted. The National Environmental Amendment Act 2008 was brought into effect on 1 May 2009. The provisions as far as they related to mining would only enter into force 18 months after the Mineral and Petroleum Resources Development Amendment Act of 2008. This amendment Act entered into force on 7 June 2013. The two Acts would therefore be fully effective on 8 December 2014.

The Chairperson said the DMR could not have two pieces of legislation which contradicted each other, therefore some of the clauses in the Mineral and Petroleum Resources Development Amendment Act, 2008 would have to be repealed.

Ms Garlipp continued and explained that some of the impacts of the amendments would be that;

•Mining Rights/Permits, Environmental Authorisations and Water Use licences would follow the same timeframes which were identified in amendments currently being made to the Environmental Impact Assessment Regulations.

•All the Acts now provide for an internal appeal procedure and the appeal timeframes between the acts were aligned and ran in parallel.

The Chairperson said it was the first time in the history of South Africa that timeframes would be allocated between acts which were aligned and which ran parallel to each other.

Ms Garlipp said the appeal timeframes applied strict timeframes to appellants submitting appeals and the authority would consider appeals and limit condonation applications. The appeal process therefore needed to be finalised prior to the mining rights being made effective and prior to the commencing of construction.

The impacts of the amendments were that within 300 days of submitting an application for a mining right a decision can be issued. Should that decision be appealed, the period before decision making would be 390 days. The new regulations would make provision for the automatic closure of projects where the applicant did not meet time frames.

The following amendments were made by the Portfolio Committee after the Bill was tabled:

- The long title was updated to reflect the content of the Bill;

- The definition for “applicant” was simplified and clarified;

- The definition for “community” was also amended; and

- The tabled Bill removed the management if residue stockpile and deposits from NEMA to the Waste Bill at the request of the mining industry.

The Chairperson asked whether the removed management of residue stockpile had been moved to another more relevant Bill.

Ms Garlipp replied that the definition had been moved to the National Environmental Management Act in terms of the 2008. The Department of Mineral Resources did not want to deal with residue stockpile as waste.

Ms Bikani, Chairperson of the Portfolio Committee on Mineral Resources, said what was presently in front of the Committee was a document which stated that the residue stockpile and deposits had been removed from NEMA to the Waste Bill. So how could these be moved from NEMA and back to NEMA?

The Chairperson said the Committee had no recollection of dealing with these amendments, so he asked where exactly the amendments were. Were these amendments in the tabled Bill or were they in the Bill that was currently being discussed?

Ms Garlipp said the amendments were in the original National Environmental Management Act (NEMA).

Dr Thibedi Ramontja, Director General, Department of Mineral Resources, explained that residue stockpile and deposits were originally in NEMA, the Act which the Committee was currently dealing with. The amendment was then moved to the Waste Bill but it had been brought back to NEMA.

Ms J Manganye (ANC) proposed that the Department of Mineral Resources should change the wording so that it could be better understood.

The Chairperson agreed.

Ms Garlipp continued to explain the amendments to the Bill. The Minister of Environmental Affairs was given the authority to take decisions on the application for an environmental authorisation, if the Minister of Mineral Resources was unable to do so. This however would only happen in exceptional circumstances after the process set out in the Bill had been followed.

The Chairperson said where the Minister of Environmental Affairs could not meet timelines, mechanisms needed to be in place to ensure that time frames were adhered to. The applicant would therefore redirect the process to the Minister of Mineral Resources. “Minimum information requirements” had also been inserted to provide certainty to applicants. These requirements were inserted as additional environmental management instruments to provide guidance to applicants on information requirements. These would also ensure consistency of information requests between competent authorities.

The Minister of Mineral Resources had also been given authority to appoint a Mineral Resources Inspector, with the same powers as the Environmental Management Inspectors (EMI’s) to be able to enforce the provisions of the National Environmental Management Act 1998. However, the Minister responsible for mineral resources could designate EMI’s should the mineral resource inspectors be unable to fulfil the function.

The Chairperson said where there were problems with capacity; the two Ministers in concurrence could agree to assist each other. With the timeframes, similar interventions would also be taken up to ensure that monitoring still took place. He argued that the wording in the amendment was not completely correct and therefore needed to be changed. The Director General of the Department for Mineral Resources had been given powers to issue directives and to generally implement section 28 in relation to environmental matters in so far as it related to prospecting, exploration, mining and production activities.

The Chairperson asked whether there were currently any directives being issued.

Ms Garlipp replied that there were directives currently being issued by the Director General and by the Provincial Heads of Department. These were directed through members of the public on a case by case basis.

The Chairperson raised a concern about which directives would apply when the Committee passed the Act.

Mr F Rodger (DA) said the wording, read in conjunction with section 28, needed to be changed as it was confusing.

The Chairperson agreed and directed the Department to change the wording of the amendment.

The Chairperson asked whether the Department had environmental specialists within the Department.

Mr Ramontja replied by agreeing that there were directives issued by the Department to ensure compliance.

Ms Garlipp said the following amendments were to the Waste Act; the Minister of Mineral Resources was given authority, as the competent authority, to issue waste management licences in so far as it related to prospecting, exploration, mining or production activities were concerned.

The co-Chairperson asked where the issue on residue and stockpile came in.

Ms Garlipp replied that it would be dealt with under environmental authorisation in NEMA, not under the Waste Act.

The co-Chairperson asked why waste matter which did not concern mining would be covered by mineral resources. She argued that the conditions under mineral resources were different from those under environmental matters, therefore confusion with regard to responsibility needed to be avoided.

Ms Garlipp said in both the Waste Management Act and NEMA, the activities whose responsibility fell either under mineral resources or environmental matters were listed clearly in both pieces of legislation.

The Chairperson said the Waste Management Act was one which the Committee had not yet looked at and various concerns had been raised concerning the Act. The wording in the Act has been cited as being too broad.

Ms F Wegner (DA) asked whether “sludge” should not be considered to be part of residue.

An official from the DEA said sludge could be part of anything, and would be regulated by the Department of Mineral Resources.

Ms Garlipp said the definition of “community” had been amended to include trespassing and any mining activity. However, a different definition of community was still needed for section 2 of NEMA, which dealt with environmental agreement issues.

The Chairperson asked where in the Act was the word “community” used.

Ms Garlipp replied that the word “community” was used in section 2 of the Act, under “Principles”.

Ms Manganye said the rights of the people who lived close to the mines needed to be taken into consideration. Decisions taken on mining waste should therefore be favourable to the communities of people who lived close to these mining areas.

The Chairperson said a definition for a “mining community” needed to be given because the current definition of “community” was narrow.

Ms Garlipp said the definition of “community” was also mentioned in the National Environmental Management: Waste Act under section 35, subsection 1.

The Chairperson said the definition given under section 35 was very narrow. The term “community” needed to be adequately defined. 

Mr Ramontja explained that in terms of community and environmental issues, the challenge was that “community” had already been defined in the Mining Charter. For environmental matters the Department therefore opted to include “interested and affected parties”.

Ms Bikani also raised a concern about the term “community”. She argued that the Department of Social Development, which used the term frequently, could also have a problem with the current definition. Mr Ramonjta’s inclusion of “interested and affected parties” therefore made more sense.

The Chairperson said the Committee would not accept the narrow definition until the Department came up with a more acceptable definition.

Mr J Skhosana (ANC) said it was very worrying that the presentation was so one-sided.

Ms Manganye said the wording was very confusing.

The Chairperson said the confusion was unacceptable. What the Department put on paper should not need so much explanation. He suggested to the Department that whenever the Department added something new to legislation, such as the definition of “community”, that should be discussed with the Committee first.

Ms Garlipp said all regulations needed to be tabled in Parliament prior to them being adopted. She continued that the amendment to section 24C (3) which enabled the Minister of Mineral Resources to enter into agreements with the MEC’s has been omitted from the Bill on request of the Department of Mineral Resources, as the Department indicated that the Minister did not require such an authority.

Ms Manganye said regional offices could not operate in a vacuum and provincial offices needed to interact with them. The Department therefore needed to ensure coordination. At the end of the day, local residents around the mining areas where feeling the effects of environmental damages caused by the mining activities taking place in these areas.

The Chairperson said it would be a great move if the Committee created a mechanism in the Bill which allowed the Department of Mineral Resources to be able to liaise with the provinces where the mines were present. Environmental issues needed to be taken into serious consideration. Most complaints which the Committee received were from communities around mining areas. Local residents therefore needed to be consulted in each and every environmental process.

The Chairperson said that in most cases the local municipalities were not liaising with the mines in the area and as a result, there was no channel through which challenges faced by communities could be addressed through. Therefore, there had to be synergy between municipalities and local mines and mining communities. There was currently no particular law which guided this.

Ms Garlipp explained that the Committee had previously requested that State departments must submit their comments by registered mail. The Department requested that the amendment be removed because that was not the manner in which State departments communicated. The Department would then be sending submissions via fax.

The Chairperson argued that sending submissions via fax was not going to work because the Committee needed to have proof that the submission was sent. This was why the Committee requested that submissions be sent via registered mail. The Department’s decision to remove this amendment was therefore not acceptable. The argument was made that the Department was making the whole process longer by continuing to overturn decisions of Parliament. There needed to be a consultation process with Parliament before any changes were made to Parliament’s proposed amendments. Any proposed amendments must be first tabled in Parliament and no substance of the agreement could be changed without Parliament’s approval.

Mr Ramontja said the tabling of any legislation in Parliament followed a strict process and this would mean a further extension of the Department’s work.

The Chairperson said the Department could not exclude Parliament from any of its processes. This agreement was reached with both Ministers’ present.

Ms Bikani said the process could not be brought to a halt now. If the Department had any other issues, it could go back and conclude their processes but it had to be understood that Parliament needed to conclude its process.

Ms Manganye was concerned about why the Department’s was continuing to delay Parliament’s process.

Mr Skhosana said the amendment Bill was debated in consultation with the Department so the Department should have raised their concerns earlier in the process. It was the first time that the Committee was in such disagreements with the administration of any department. He suggested that the process either be concluded or the Committee withdraw from the entire process.

Ms Bikani said Members could not withdraw from the process.

The Chairperson said the amendments would also be reflected in the regulations. The Department therefore needed to forward this information to the Committee in writing.

Ms Garlipp concluded and said the National Environmental Management: Waste Act (NEMWA) had been aligned with the National Environmental Management Second Amendment Act of 2013. This was done to include the provisions relating to “Prohibited or restricted activities in specific geographic areas”. Also, the Minister of Mineral Resources had been given the authority to delegate his or her functions under NEMWA.

The Chairperson said having gone through the amendments made to the regulations, the Committee Members were all in agreement that both Departments had to go back and make sure that all amendments were harmonised.

The meeting was adjourned. 

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