Marine Living Resources Amendment Bill & National Environmental Management: Integrated Coastal Management Bill: final mandates; National Water Amendment Bill: briefing & adoption

Meeting report

Marine Living Resources Amendment Bill [B30B-2013]
The Committee considered final mandates from the provinces on the Marine Living Resources Amendment Bill.

Eastern Cape Province
The Chairperson stated that the Province had voted in favour of the Bill.
The Committee accepted the final mandate.

Gauteng Province
Ms B Mabe (ANC, Gauteng) said that the Province had voted in favour of the Bill.
The Committee accepted the final mandate.

Limpopo Province
Mr T Makunyane(ANC, Limpopo) said that the Limpopo Province voted in favour of the Bill.
The Committee accepted the final mandate

Mpumalanga Province
In the absence of a permanent delegate, the Chairperson presented the Mpumalanga Province’s final mandate to the Committee and said that the Province had voted in favour of the Bill.
The Committee accepted the final mandate.

Northern Cape Province
Mr G Mokgoro (ANC, Northern Cape) stated that the Northern Cape Province voted in favour of the Bill.
The Committee accepted the final mandate.

North West Province
Mr S Plaatjie (COPE, North West) said that the North West Province voted in favour of the Bill. The Committee accepted the final mandate.

Western Cape Province
Mr O de Beer (COPE, Western Cape) stated that the Western Cape Province had voted in favour of the Bill.
The Committee accepted the final mandate.

The Chairperson read out the motion of desirability on the Bill, and the Committee adopted it unamended.

National Environmental Management: Integrated Coastal Management Bill [B8D-2013]
The Committee considered final mandates from the provinces on the National Environmental Management: Integrated Coastal Management Bill.

Eastern Cape Province
The Chairperson stated that the Province had voted in favour of the Bill.
The Committee accepted the final mandate.

Free State Province
In the absence of a permanent delegate from the Province, the Chairperson stated that the Province had voted in favour of the Bill.
The Committee accepted the final mandate.

Gauteng Province
Ms Mabe said that the Province had voted in favour of the Bill.
The Committee accepted the final mandate.

Kwazulu-Natal Province
In the absence of a permanent delegate from the Province, the Chairperson stated that the Province had abstained from voting on the Bill.

Limpopo Province
Mr M Makhubela (COPE, Limpopo) said that the Limpopo Province voted in favour of the Bill.
The Committee accepted the final mandate

Mpumalanga Province
In the absence of a permanent delegate, the Chairperson presented the Mpumalanga Province’s final mandate to the Committee and said that the Province had voted in favour of the Bill.
The Committee accepted the final mandate.

Northern Cape Province
Mr Mokgoro stated that the Northern Cape Province voted in favour of the Bill.
The Committee accepted the final mandate.

North West Province
Mr Plaatjie said that the North West Province voted in favour of the Bill. The Committee accepted the final mandate.

Western Cape Province
Mr De Beer stated that the Western Cape Province had voted in favour of the Bill.
The Committee accepted the final mandate.

The Chairperson read out the motion of desirability on the Bill and the Committee adopted it unamended.

National Water Amendment Bill [B3-2014]
The Chairperson stated that that the Bill was a section 75 bill and that the Committee had to finalise it.

The Department of Water Affairs (DWA) briefed the Committee on the National Water Amendment Bill. The briefing was undertaken by Mr Trevor Balzer, Acting Director-General, and Mr Anil Singh, Deputy Director-General: Regulation.

Mr Balzer commenced the briefing by touching on the strategic importance of the Bill. The Bill sought to cut the red tape hampering the mining sector by creating an integrated process for water use licences to be dealt with within 300 days, and appeals to the Minister of Water Affairs to be dealt with in 90 days. The Department of Water Affairs, the Department of Environmental Affairs and the Department of Mineral Resources had entered into an agreement while working with the Portfolio Committee on Water and Environmental Affairs and the Portfolio Committee on Mineral Resources, to align all legislative instruments, including existing legislation and subordinate legislation in the form of regulations and amendments thereto. The legislative amendments agreed upon by the three Departments was the Bill, together with the Mineral and Petroleum Resources Development Amendment Bill, 2013 and its accompanying regulations, as well as the National Environmental Management Laws Amendment Bill, 2013 and its accompanying regulations.
 
Mr Singh continued the briefing by stating that the Bill was a committee bill, as it had been introduced by the Portfolio Committee on Water and Environmental Affairs. The Bill would effect certain amendments to the National Water Act.  The Bill was a section 75 bill, and hence did not affect the provinces. The DWA was, however, working on a substantive bill which would be introduced to Parliament after the May 2014 elections. The substantive bill being worked on was complex in comparison to the Bill before the Committee.

He elaborated further on the purpose of technical amendments to the relevant sections of the National Water Act. The amendments aimed to achieve the alignment and synchronisation of timeframes and processes for the processing of water use licences, environmental authorisations, licences under the specific environmental management Acts, and other licenses, permits, and rights in terms of the Mineral and Petroleum Resources Development Act, Act No 49 of 2002.  Provision was also made for a synchronised internal appeal process to the Minister of Water and Environmental Affairs, rather than the current appeal process via the Water Tribunal.  Direct appeals to the Minister would be finalised within 90 days.

The Bill intended to make specific amendments to section 41 of the National Water Act, which dealt with water use licence applications to enable an integrated licensing system which aligned the timeframes for internal appeals to the Minister of Water and Environmental Affairs, and to enable the Minister to be the appeal authority in certain circumstances for internal appeals for water use licenses emanating from applications for rights, licenses or permits for prospecting, mining, exploration or operations in terms of the Mineral and Petroleum Resources Development Act,2002. These amendments were necessary for the synchronisation and alignment of processes and time frames for the respective regulatory frameworks between the DMR, DEA and the DWA.

Discussion
Mr Mokgoro felt that 300 days was too long to wait for the processing of an application for water use rights.

Mr Balzer explained that licence applications were at present being done sequentially and could take up to 900 days to process. The Bill was now suggesting that they be done in parallel and would thus take 300 days. He noted that each Department would run its own authorisation process. Should there be a need to appeal, an additional 90 days was provided for, in addition to the 300 days.  There were no regulated timeframes for water licence applications at present. Now a 300 day period was being set. The process at present was open ended. Water use licence timeframes were not presently regulated.  

On the issue of 300 days to process applications, Mr Singh said that the three Departments had considered the time period. If a sequential process was used, licence applications could take 3-4 years. It was thus felt that 300 days was not too long.

Ms Mabe agreed that the Bill was a Committee Bill, but it seemed that there had not been consultation on it.   The issue of fracking was attached to mining, so she was concerned that there had not been consultation on the Bill. What happened when the time frames were exceeded?   The text of the Bill spoke about the Minister of Mineral Resources. What about consensus between the Departments of Water and Environmental Affairs?  She was also concerned about Clause 5 of the Bill.

Mr Singh stated that the Department of Water Affairs had ensured that there was public participation. There had been consensus between the three Departments on how the process should unfold. He explained that the Departments had agreed that authorisations would vest with the Minister of Mineral Resources and later revert back to the Minister of Water and Environmental Affairs. The point was that the Ministries had worked jointly together. The agreement between the Ministries had been encapsulated into the Bill. The reason why the Bill focussed on mining was because mining created jobs and eradicated unemployment.  The internal appeal process in the Bill would roll out to other sectors, besides mining. The Department of Environmental Affairs and the Department of Mineral Resources already had internal appeal processes in place.

Mr Balzer, speaking to the issue of fracking, said that the Minister had in a government gazette stated that she would issue regulations around prospecting for unconventional gas extraction. This implied shale gas extraction. The Department was considering comments coming in and would present them to the Minister in due course.

Mr De Beer asked for clarity on the three different Departments -- the Department of Mineral Resources, Department of Environmental Affairs and the Department of Water Affairs -- in three different applications. He asked whether the three Ministries would be responsible for internal appeals.  The Bill sought to let the process run concurrently with applications. He said that an environmental impact assessment might in certain instances exceed the time it took for an application.

Mr Singh said that water licences and environmental impact assessments were done at the same time.

Mr Makhubela asked why there was only an Acting Director-General from the Department attending the meeting.  Why was a 90 day period chosen for appeals, when the application process took 300 days?
The Bill spoke about the financial implications having been budgeted for. What were the budgeted amounts?

Mr Balzer did not wish to comment on why only an Acting Director-General was attending the meeting.

Regarding the financial implications, he said that the Department budgeted annually for the processing of licensing applications. The Department had a unit which handled licence applications. There was also technical staff that provided input.

Mr Singh said that the 90 day appeal period allowed the Minister to apply her mind. It was not an unreasonable period of time. He pointed out that administrative justice provided for 180 days to take a court decision on review.
 
Mr Plaatjie remarked that what he was about to ask could be construed as controversial. He asked what the compelling reason was to tag the Bill a section 75 Bill. He felt that the Bill could have an impact on the provinces.

The Chairperson asked members if they would prefer responses by the Department to their questions first, or if they wished to vote on the Bill.

Ms Mabe suggested that Members be allowed to ask a second round of questions before voting on the Bill.

Mr Makgoro felt that access to water was a controversial issue.

Mr Makunyane pointed out that the Bill before the Committee was not a substantive Bill.   It dealt only with processes to be synchronised.  The Bill did not deal with the issue of access to water. It should remain a section 75 bill.

Mr Balzer responded that the Bill dealt only with processes, and not per se with the Water Act. The Bill dealt only with water use licences to specific mining rights.

 Mr Makhubela asked why the Department of Water Affairs had become part of the process only in the latter stages. What was the reasoning?

The Chairperson asked the Parliamentary Legal Adviser, Ms Charmaine van der Merwe to comment on the Bill.

Ms Van der Merwe explained that the prescripts of the Constitution were taken into account when the tagging of bills took place. Section 76 bills fell within the functional areas of Schedule 4 of the Constitution. The Bill before the Committee dealt with water licensing. Nothing in the Bill was of provincial legislative concurrence, as contained in Schedule 4. The provisions of the Bill fell with the area of section 75 bills. However it did not necessarily mean that the Bill was not relevant to provinces. The Committee could decide on the content of the Bill and make a decision whether consultation over the Bill should take place. On actual legislative processes, none of the provisions of the Bill fell within the prescripts of a section 76 bill.

Mr Singh agreed with Ms Van der Merwe that the Bill was a section 75 Bill. It was not a section 76 bill as it did not affect the provinces.

The Department would forward written responses to the questions that Members had asked. Mr Balzer confirmed that written responses would be forwarded to the Committee.

The Chairperson presented the Bill to the Committee for voting.

Northern Cape Province
Mr Mokgoro said that the Province supported the Bill.

Gauteng Province
Ms Mabe stated that the Province supported the Bill.

Western Cape Province
Mr De Beer said that the Province supported the Bill.

Limpopo Province
Mr Makunyane stated that the Province supported the Bill.

Free State Province
Mr D Worth (DA, Free State) apologised for arriving late for the meeting and said that the Free State Province supported the Bill.

North West Province
Mr Plaaitjie noted that the Province was in support of the Bill.

Eastern Cape Province
The Chairperson stated that the Eastern Cape Province supported the Bill.

The Chairperson read out the motion of desirability on the Bill, and it was adopted unamended.

Committee Minutes
Committee Minutes dated the 25 and 28 February 2014 were adopted as amended.

The meeting was adjourned.