NEMLA Bill [B14-2017]: Department of Environmental Affairs briefing

Meeting report

Introduction by Chairperson

The Chairperson informed the Committee and the Departmental delegates that this was a workshop to introduce the proposed National Environmental Management Laws Amendment (NEMLA) Bill before public hearings could be conducted and the Bill could be processed. Because of the length of the Bill, two days had been scheduled for this workshop.

There had been apologies from Ms Edna Molewa, Minister of Environmental Affairs, and Ms Barbara Thomson, Deputy Minister.

The Chairperson said the Committee Members were nearing the end of the term of the current Parliament. The Committee had a limited amount of time to fulfil its duties and process legislation. If, having been passed in the House, the Committee managed to finalise this Bill, the Committee would have done its work. The Department of Environmental Affairs (DEA) would not be able to brief the Committee on the protocols, as it was not yet ready to do so.  He gave an assurance to the Director-General, Ms Nosipho Ngcaba, that as the matter was urgent, a briefing would be scheduled on the two protocols as soon as the DEA was ready. Since the adjournment of the previous year, there had been a number of developments.

Ms Ngcaba voiced the DEA’s appreciation for this opportunity to discuss the environmental legislation which the DEA was required to amend in order to be more efficient and clearer, and so that the regulated community could understand and comply with environmental legislation. She pointed out that the NEMLA Bill was effecting amendments to existing environmental legislation, referred to as the National Environmental Management Act of 1998 and the Amended Environmental Management Act of 2008. The Bill also dealt with amendments to specific environmental acts, namely, the Bio-Diversity Act, the Protected Areas Act, the Air Quality Act, the Integrated Coastal Management Act, as well as the Waste Act. The presentations dealt with why the amendments were necessary, what the DEA was trying to achieve, what the difficulties to the regulated community were, and what the difficulties were in the DEA achieving its environmental outcomes. Mr Sibusiso Shabalala, Director of Legal Services (DEA), and Ms Linda Garlipp, Chief Director of Law Reform and Appeals, were leading the team on the legal amendments.        

Ms Ngcaba commented that she had just received correspondence from the Minister relating to a specific amendment to the institutional mechanism under the Biodiversity Act in respect of natural resource management, fire management and wetlands management. This had also been necessitated by the DEA wanting to meet compliance obligations in relation to the modified cash standards. The DEA would be clarifying its mandate under environmental programmes and also matters related to the setting up of its own auditing institutional mechanism, so that it did not have to rely on private entities. The Auditor-General became the responsible auditing institution.   

Overview of NEMLA Bill

Mr Shabalala said the NEMLA Bill ‘s overarching purpose was the amend the following Acts:

• National Environmental Management Act, 1998 (Act No. 107 of 1998) (NEMA);
• National Environmental Management: Protected Areas Act, 2003 (Act No. 57 of 2003) (NEMPAA);
• National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004) (NEMBA);
• National Environmental Management: Air Quality Act, 2004 (Act No. 39 of 2004) (NEMAQA);
• National Environmental Management: Integrated Coastal Management Act, 2008  (Act No. 24 of 2008) (NEMICM);
• National Environmental Management: Waste Act, 2008 (Act No. 59 of 2008) (NEMWA);
• National Environmental Management Amendment Act, 2008 (Act No. 62 of 2008) (NEMAA)

The purpose of the NEMLA Bill was to provide for clarity on certain matters and textual amendments by strengthening the following principles, systems and/or measures:

1. The NEMA (National Environmental Management Act) Principles

Mr Shabalala clarified that, currently, there was no NEMA principle that instructed Government to promote diversity in the environment sector. This principle was vital, because it cut across all the specific environmental management Acts in terms of the diversity that must be achieved within the environmental sector.

The Chairperson asked Mr Shabalala what he meant by ‘promoting biodiversity’?

Mr Shabalala explained, by way of example, that the DEA recently wanted to develop regulations that provided for an institution that would oversee how environmental assessment practitioners conducted themselves. This institution, or association, was meant to be transformative by being broadly representative of all the practitioners in the sector, but also to reflect broadly the diversity of the country. This principle would ensure that when the Minister developed such regulations, the Minister must take this principle into consideration. Any association that the DEA attempted to establish must represent the citizens of this country.   

2. The integrated environmental management

Mr Shabalala continued that NEMA was a framework legislation. Therefore, any developments –  or activities that were undertaken – had to undergo an environmental impact assessment process. The activity may also require an atmospheric emission licence, or a waste license. NEMA provided a framework to say that, where possible, the Minister should provide one licence covering all the activities. The clause that the DEA was introducing was to ensure that, where the activity also included other activities -- for example, waste -- all the applications had to be submitted at the same time so that they could be assessed at the same time. At the end of the process, an integrated environmental authorisation could be granted. This approach would allow the DEA to use one process to gather information and to make an informed decision in terms of the proposed development.      

3. The one environmental system

Mr Shabalala next outlined the one environmental system, which was contained in NEMA, and was the consequence of an agreement between the Minister of Environmental Affairs, the Minister of Water and Sanitation, and the Minister of Mineral Resources.  In 2014, when the one environmental system was revised, it was specifically to ensure that mining activities were assessed in terms of environmental impacts, in line with the NEMA. The reasoning was that there should be one process in which, once the mining application had first been accepted, the two other departments also had to receive an application for an environmental impact assessment (EIA) and water-use licences. It prescribed a time period in which that licence should be issued.  The idea was that once the mining licence had been checked and verified, then a water licence should not delay that activity. This was why the applications for environmental impact assessment and water-use licences should proceed after the Department of Mineral Resources (DMR) had accepted the mining application.  However, when the Bills were passed in 2014, the NEMLA Bill and the Water Act were passed first. The Mineral and Petroleum Resources Development Amendment MRPDA (Bill) was still not passed and was still pending. This had created a problem, as there was no trigger that, once a mining application had been submitted, then the other two departments could accept applications.  As such, the one environmental system provided a trigger for the simultaneous submission of all environmental applications under environmental legislation after acceptance of a mining right, if such applications were directly linked to the mining activity.

Ms Ngcaba elaborated that since 1994, with the exception of what was referred to as ‘associated activities’ -- such as the road to a mine -- the DMR had always dealt with environmental activities under the MPRDA.  The government was running a disjointed system. The NEMLA amendment that came into effect in 2014 was trying to assist with the alignment. As such, even mining areas, as prescribed by NEMA, followed through the environmental consultation process. In 2008, certain provisions in the MPRDA had to be repealed and others were subsequently amended. The one environment system, however, helped to clarify aspects that would otherwise have had to wait for the MPRDA to be finally amended. 

Mr Shabalala clarified that the one environmental system also helped to clarify that an applicant and holder of environmental authorisation relating to mining activity must set aside financial resources for progressive rehabilitation, mitigation, remediation, mine closure and management of post-closure environmental impacts. Thirdly, the system clarified that the Minister of Mineral Resources was responsible for the implementation of the licensing system and exemption provisions in so far as a waste activity was directly linked to a mining activity. Fourthly, it clarified that an environmental management programme (EMP) or plan approved under the Mineral and Petroleum Resources Development Act, 2002 (MPRDA) on, before or after 8 December 2014, was deemed to have been approved and an environmental authorisation issued under NEMA (for an application lodged before 8 December 2014). Fifthly, the system clarified that all pending environmental appeals lodged under the MPRDA before 8 December 2014 must be finalised in terms of the MPRDA. Sixthly, it provided for clarity on the continuation of environmental regulations developed under the MPRDA until such time as similar regulations were developed under NEMA. Finally, the one environmental system provided that residue deposits and residue stockpiles would be managed under NEMA, and no longer under NEMWA. 

4. The compliance and enforcement measures

Mr Shabalala underlined that the amendments to NEMA sought to allow a successor-in-title or person in control of land, to lodge a section 24G application for a structure or development; secondly, to strengthen the powers of environmental authorities regarding the scope of persons to whom a section 28(4) directive may be issued;  thirdly, to strengthen the powers of environmental authorities to recover anticipatory costs to be incurred by the State responding to an environmental harm from the responsible person; fourthly, to provide legal clarity pertaining to certain powers (i.e. the routine inspection and compliance monitoring powers, and the issuance of written and compliance notices) of the environmental management inspectors and environmental mineral resources inspectors; and fifthly, to ensure that an environmental management inspector and environmental mineral resources inspector received the same standard of approved training.

5. Biodiversity and conservation measures

In terms of the biodiversity and conservation measures that the Bill sought to clarify and strengthen, the NEMLA Bill provided clarity on the actions, measures or methods to be undertaken to control or eradicate listed invasive species, and fire and wetlands management.  Chief Financial Officers must be ex-officio members of the boards of the South African National Biodiversity Institute (SANBI) and the South Africa National Parks (SANPARKS). 

6. Air quality management

Mr Shabalala drew attention to how, in terms of air quality management, the NEMLA Bill intended to, provide clarity that the Minister had a discretion to establish the National Air Quality Advisory Committee. It also clarified the two scenarios where a person may apply under section 22A of the NEMAQA.

The Chairperson asked, regarding the National Air Quality Advisory Committee which the Minster may establish, whether the functions and role of this Committee were specified in the NEMLA Bill?

Mr Shabalala responded that the objects and the functions of the Committee were contained in the current Air Quality Act. Rather than the establishment of a committee being, as it currently stands, a requirement, the amendment was geared towards providing the Minister with the discretion as to whether the establishment of a committee was necessary.    

Echoing Mr Shabalala, Ms Thuli Khumalo, Chief Director: Air Quality Management. DEA, reiterated that the amendment gave the Minister the discretion on when to establish the National Air Quality Advisory Committee as and when the Minister required the Committee for varied expertise, and for a particular subject that he/she may want to be advised on at that time. This amendment aligned the National Air Quality Advisory Committee with the NEMA committees, which were also discretionary.

Ms Ngcaba reaffirmed that the NEMLA Bill allowed for flexibility and for the Minister to establish a committee when it was a must. When advisory committees were set up, the members were also paid according to Treasury guidelines. This was why it was also advisable not to have a permanent committee, which could accrue costs even though the committee was not needed.

Mr Shabalala continued with the presentation.

He drew attention to how, in terms of air quality management, the NEMLA Bill intended to clarify that the Minister may issue an integrated environmental authorisation, where the Minister was identified as the licensing and competent authority regarding a listed activity that required an environmental authorisation, an atmospheric emission licence and a waste management licence. It provided for a province to be the licensing authority where a listed activity fell within boundaries of more than one metropolitan municipality, or more than one district municipality.

The Chairperson interjected to ask how many licensing authorities there were at the local, provincial and national level.  

Mr Shabalala responded that the licensing authorities operated at the municipal and provincial level. Only in certain circumstances did the national department act as a licensing authority when it related to national projects.

Ms Ngcaba commented that the metropolitan areas were all licensing authorities. 

The Chairperson questioned whether the amendment at issue -- which provides for a province to be the licensing authority where a listed activity falls within boundaries of more than one metropolitan municipality or more than one district municipality -- was constitutional.

Ms Ngcaba confirmed that the amendment was constitutional, and its purpose was not to take power away from district municipalities but to mitigate the conflict of interest.

Mr Shabalala continued with the presentation.

In so far as air quality management was concerned, Mr Shabalala pointed out that the NEMLA Bill ensured that an air quality appeal followed the appeal process implemented in terms of section 43 of the NEMA.

7. Waste management

Mr Shabalala next referred to how the NEMLA Bill affected the system of waste management.  Firstly, the amendments to the definition of “waste” and Schedule 3 to the NEMWA would provide clarity on what was waste and when waste ceased to be waste.

The Chairperson queried what was meant by ‘when waste ceases to be waste’?

Mr Mark Gordon, Deputy-Director General: Chemicals and Waste Management, DEA, said that the NEMBA Bill provided a definition of ‘waste.’ There was a section in the Bill which stipulated under what conditions waste ceased to be waste. Receiving a recycling licence was not a sufficient condition. There were also mechanisms through which the Minister could provide exclusions and/or exemptions from the definition of waste. The NEMLA Bill provided clarity that the Waste Management Bureau was established as a public entity responsible for, amongst others, the implementation of industry waste management plans, and to provide for governance matters. It also ensured that a site assessment report and remediation plan regarding contaminated land were submitted simultaneously to the Minister for approval.

The Chairperson asked whether the functions of the waste management bureau were stipulated in NEMA, and if all that was required was for there to be a provision to establish it as a public entity?

Ms Ngcaba confirmed that all that was still required was a provision to establish the waste management bureau as a public entity.

The Chairperson asked whether the provision would not have to provide for all other things that would make it function, including the establishment of a board, its composition, etc.

Mr Shabalala highlighted that the NEMLA Bill provided for a legal mechanism to deal with exceptional instances where an Member of the Executive Committee (MEC) failed to take a decision to issue a waste management licence within the prescribed timeframes, an applicant may request the Minister to take the decision.

Mr R Purdon (DA) registered his concern that this legal mechanism may be cumbersome. If the MEC failed, it may not really be feasible to pass the buck to the Minister, who already had his/her hands full at the time, causing unnecessary delays. Was there any provision that compelled the MEC?

Ms Ngcaba confirmed that there was such a provision.

Mr Shabalala explained that the provision was aligned with the Promotion of Administrative Justice Act (PAJA) timeframes.

He pointed out that, finally, the NEMLA Bill provided for the payment of a processing fee for the variation of a waste management licence.

8. Integrated coastal management.

Concerning integrated coastal management, Mr Shabalala brought to the attention of the Committee that the NEMLA Bill corrected a legal anomaly, where one sphere of government reviewed a decision on appeal of another sphere – (section 74 amended). At present, section 74 allowed a person to appeal a decision from the provincial to the national level, whereas in terms of the PAJA, the appeal authority would be the Minister or the MEC.

Discussion

The Chairperson interjected and asked for clarity on the current legal arrangement.

Mr Shabalala responded that the Integrated Coastal Management (ICM) Act, Section 74, provided for any person who was aggrieved by a decision issued in terms of the Act, could appeal not to the MEC, if the decision was made the MEC, but to the Minister. If the decision was issued by the municipality, they could appeal to the MEC, not to the Municipal Council. In terms of PAJA, however, the aggrieved person could appeal to the functionary that had the power and who had issued the decision -- the MEC or the municipality.

The Chairperson asked what types of decisions would apply in such cases?

Ms Ngcaba gave an example in which a province decided to build slipway infrastructure for boats. In the instance that there were people who were not happy with the decision, they would appeal to the MEC and to the Minister. The NEMLA Bill regularised the system so that when citizens were not happy with a decision by an official, it should be considered by the power which made the decision. It should go, in this instance, to the MEC. If one was still not happy, the decision should be reviewed in court. 

The Chairperson asked for Section 74 decisions to be explained.

Mr Shabalala read Section 74 of the ICM Act, entitled ‘Appeals.’

The Chairperson asked who would issue the repair notice.

Mr Shabalala responded that it would be issued by the province.

Mr Lindelani Mudau, Director: Department of Environmental Affairs, confirmed Mr Shabalala’s response and clarified the amendment.

Mr Ryan Peter, Coastal Environmental Officer (DEA), gave an example. If, for example, the decision was made or a notice given by the province, the aggrieved person may apply for an appeal to the Minister instead of the MEC. This was inconsistent, because the MEC should be the deciding authority within that sphere of government, which should review the decision that was made. The same applied for a municipality that issued a notice. At present, the person wishing to appeal lodges it with the province, or the MEC, instead of the municipality. This creates an anomaly whereby one sphere of government could overturn the decision of another sphere of government. It was best to make a sphere of government responsible for the review of its own decision. 

The Chairperson maintained, however, that questions remained around who was ultimately responsible for coastal management.

Mr Mudau responded that coastal management was a concurrent function.

Ms Ngcaba explained that the ocean was exclusively the national government’s responsibility. Coastal management, however, was a concurrent function. 

The Chairperson inquired why the Minister was removed, if coastal management was a concurrent function.

Ms Ngcaba replied that access was provided by the municipality. If someone was not happy with the decision, legally that decision had to be appealed back to the same authority. The decision could only be overturned by the court.

The Chairperson reacted by asking what if the authority did not abide by national standards -- should not the Minister come in to ensure that he/she enforced the national standard?

Ms Ngcaba affirmed that while national sets the standard, decisions were made by the authority. To review that decision, it was more consistent that the decision was appealed back to the same authority.

The Chairperson argued, however, that if the Minister’s role was removed, how would she/he intervene? Was it not the intention to avoid costs and litigation, to do things more administratively through the appeal process described above? It had to be borne in mind that, should an appeal fail, there were significant costs involved in going to court. Alternatively, approaching the Minister may promote a particular outcome that was less costly than approaching a court.

Ms Garlipp highlighted that the NEMLA Bill did not intend to remove the powers of the Minister, but to rectify the unconstitutional scenario, based on findings of a previous judgment, where a decision was made by one sphere of government but the appeal was to another sphere of government. The appeal had to remain in the same sphere and the court, if necessary, had to step in.

Ms Ngcaba advised that case law had to be brought in to assess the amendment in question. She raised two points. Firstly, the provision could be spelt out to allow that the initial appeal went to the MEC and, if unsuccessful, to national. However, it should be determined whether case law bore out that such decisions should not be rectified by another sphere.

The Chairperson agreed that case law should be used to assess the amendment. However, if a function had been delegated to an official by the MEC and somebody wanted to appeal the decision made by the official, he/she could still go back to the MEC. However, what if the aggrieved person was still not satisfied with the MEC’s decision? In this situation, the aggrieved person ought to be able to appeal to National. The Minister’s decision became final and then the aggrieved, if unsatisfied, could go to court. The proposed amendment, however, suggested that the MEC’s decision was final and if the aggrieved was unhappy, he/she should go to court. The Chairperson proposed that this matter be discussed further. The proposed amendment removed another sphere which also had a role to play, which was a little problematic. Case law, however, would be used to assess the amendment.  Public inputs would also be helpful before finalizing the amendment.

Mr Shabalala concluded that the NEMLA Bill provided for retrospective application of removal notices for illegal structures, where it was currently only implied, thereby bringing it into line with section 28 of NEMA – (section 60 amended).

Implementation of the One Environmental System 

Ms Dee Fischer, Chief Policy Advisor: Integrated Environmental Management, DEA began by outlining the rationale behind the One Environmental System. Prior to 8 December 2014, environmental aspects of mining activities were regulated in terms of the MPRDA. Notwithstanding, some construction activities related to mining triggered listed activities under the Environmental Impact Assessment (EIA) regulations. This led to an undesirable situation in which both laws had their own process and information requirements. This led to:

• unnecessary duplication of environmental impacts covered under both pieces of legislation;
• challenges for cooperative governance;
• confusion in the mining sector;
• no alignment and no integration; and
• limited efficiency in terms of time, resources and costs.

Implementation of One Environmental System 

Ms Fischer said that in 2010, the “Strategy for Sustainable Growth and Meaningful Transformation of South Africa’s Mining Industry” had been adopted. The strategy had identified fragmented licensing mechanisms as one of the key binding constraints to the global competitiveness of the industry. In 2008, the Minister of Water and the Environment and the Minister of Mineral Resources had come to an agreement to align the environmental function of mining. The agreement resolved that the environmental function of mining should be regulated under NEMA, that processing and approval timeframes would comply with the MRPD, and that the appeal authority would be the Minister of the Environment.

Ms Fischer informed the Committee that the legal process had been completed. Environmental aspects of mining had been legislated under NEMA. The EIAs were undertaken under the NEMA provisions. There was uniformity in the EIAs. Only one EIA was done -- for example, one EIA covered roads and mining activities. The implementation of the environmental function was done through an environmental authorisation. The DMR did both the environment authorization and the compliance monitoring. Regional offices of the DMR were responsible for  the review and making recommendations on the EIAs. The decisions were made at the head office of the DMR. The Minister of Environment was the appeal authority that was in place. Regulations under the National Water Act had been promulgated. It ensured that the alignment of timeframes for the review of the EIA, the Water-Use licence and the MPRDA were aligned.

Status of Implementation 

Ms Fischer moved to unpacking the status of implementation. Applications were being submitted to the regional offices of the DMR and were being assessed by the DMR environmental officers. The three departments meet to discuss implementation issues and have regular implantation workshops. “WG 5 Implementation Meetings” were hosted once a quarter. This was where the technical issues were discussed. WG 5 Meetings were also hosted on a quarterly basis. Decisions were made on certain aspects, including private reporting. Induction training, advanced training on EIAs, and outsourced training provided at the level of national qualifications framework (NQF) 8 were undertaken once per quarter.

The Chairperson asked what the status of the MPRDA was.

Ms Ngcaba responded that it was still in Parliament.

The Chairperson inquired whether the trigger which was being referred to, could work without the MPRDA.

Ms Garlipp answered that, at the moment, the DEA implemented the legislation. There were agreements on how to implement it. The point, however, was that there were misalignments. There were timeframes within the MPRDA currently in existence that were in conflict with the timeframes that were provided for in the NEMA legislation.

Integrated Environmental Management    

Ms Fischer said that in 2007, an EIA conference attended by over 500 delegates had signalled a desire for a more strategic environmental management system to deal explicitly with issues of sustainability. This conference requested a move away from total reliance on site-specific and activity-based EIAs towards a holistic integrated and strategic approach to environmental management. Industry and academics highlighted concerns regarding the number of EIAs being commissioned for small-scale projects, which placed a cost burden on small and medium enterprises.

In 2017, the International Association of Impact Assessment conference was held in Durban in May, marking the 20 years of EIA in SA.

Ms Fischer then proceeded to give an overview of what had changed during the 10 years, how South Africa had been responding to stakeholders, and how the DEA was responding to the 18 strategic integrated projects.

18 Strategic Integrated Projects (SIPs) 

The government was moving towards large-scale infrastructure development to unlock resources and create jobs. The approach moved beyond single interventions to a model of strategic integrated projects. The scale, and the catalytic and interrelated nature of the projects, marked a shift from project-level, municipal infrastructure projects, to regional and national projects. The scale and intensity was unprecedented in South Africa.

A needs analysis was done to identify bulk infrastructure requirements to catalyse development and job creation. The needs analysis considered the population demographics, identified areas of limited services, considered the available resources such as mining and renewable energy, and water availability. In line with the change in development (scale, influence and management), the systems that supported service delivery had had to transform to keep pace and remain ‘enabling.’ Processes had to evolve to satisfy the expectation of a quickened pace and an amplified impact of service delivery to remain relevant. Moreover, the Department regarded the move towards large-scale integrated projects presented by the SIP programme, as an opportunity to improve the services that the sector provided.

Instruments

The DEA’s response involved various legal instruments.  It had amended the EIA regulations in 2014 with a view to reducing the administration burden.  For example, the EAs could run for a specific period through construction, where no operation was relevant. This facilitated reduced costs in auditing and the ease of compliance.  There were various instrument regulations that were being finalised at present which spoke to how instruments were to be adopted in terms of being able to delist activities from the environmental authorisation requirements, and having other means on how they were to be authorised.

There were further amendments in 2016. The DEA made provision for generic EMPRs to reduce the workload and costs and applied to electricity grid infrastructure and electricity sub-stations, for example.   

Ms Fischer pointed out that the DEA had also embarked upon a programme of strategic environmental assessments (SEAs). These were wind and solar (SIP 8); electricity grid infrastructure  (SIP 10); the Square Kilometer Array (SKA);  the phased gas pipeline (Phakisa); the aquaculture zone (Phakisa); and shale gas.

Wind SEA – SIP 8

Ms Fischer took the Committee through the Wind SEA. In terms of the renewable energy programme, a tender was put out to independent power producers (IPPs), which had to submit their proposals to the IPP office. These proposals were then considered and a given IPP would become a preferred bidder or not. The DEA had received more than 900 applications within the first four bid-windows of this renewable energy programme. An EIA had to be done for each of these programmes. While there were only 90 preferred bidders, the DEA had had over 1 200 applications. This had placed a huge burden on the DEA and, as such, it had looked at ways how to simplify and streamline the process. It had proceeded to map the wind and solar applications that had been presented to the IPP office.

The study objectives were to:

• Facilitate sustainable development through a holistic consideration of environmental impacts, social needs and Economics;
• Undertake wide stakeholder consultation with government departments and parastatals, the three spheres of government, the private sector and the public;
• Achieve Integration through the alignment policies and plans at national, provincial; and local levels; and
• Create an enabling environment through streamlined authorisations and infrastructure availability.

Ms Fischer explained that the DEA was looking to identify renewable energy development zones. These were of strategic importance for large-scale wind and solar development. It was to support SIP 8 while making sure that it was in the least environmentally sensitive area, in the highest social need area, and looking at its benefits for the country as a whole. The output was the identification of the renewable energy development zones (nine in number). They were in the process of being gazetted. They had been to Cabinet about 1.5 years ago. What it meant was that in these areas, instead of conducting an Environmental Impact Report (EIR), only a basic assessment had to be done, as pre-assessments had already been conducted. This had implications, firstly, for costs and, secondly, for the time of the bidder and the DEA, since the DEA did not have to review a huge assessment each and every time.

The sensitivities that had been identified through the SEA had been put on to a geographical information system (GIS). As a developer, one was able to see in which areas there were high levels of sensitivity. The idea was to try to develop off the high areas of sensitivity. Various site protocols had been developed. If an assessment had yet to be done, only a compliance statement was conducted, or a full assessment, which would take longer. The idea of the protocols, the screening tool and the identification of the renewable energy development zones, was to try to ensure that the developer stayed away from the sensitivities and developed in areas where there was no real environmental sensitivity, and therefore development could move quickly and the DEA did not have to look at very complicated EIA processes.

Ms Fischer described how the SEA was conducted for wind and solar (SIP 8). What the DEA was trying to do was ensure that developers went to areas of ‘green’ sensitivity, where sensitivity was ‘low’. What the DEA found was that in the areas with high wind and solar resources, there was very limited electricity grid capacity. At that point, it was estimated that a grid would take seven years to build. The timeframe had been moved by allowing Eskom, or any person who was wanting to do a grid, to allow him to produce a pre-negotiated route to the DEA. Before, a grid-alignment was proposed without consultations having taken place with the land owners, like farmers. If these were the renewable energy development zones that had been identified, Eskom could apply for funding to strategically provide a grid into these areas, which would then mean that energy could be evacuated as the solar or wind power came online.

The achievements were that firstly, the SEA for wind and solar had been completed and the Renewable Energy Development Zones (REDZ) and power lines would be gazetted within the week.  The SEA had reduced the EIA to a basic assessment and reduced the decision timeframe.  Secondly, a national web-based environmental screening tool would be available for public testing in the first quarter 2018.  Thirdly, protocols which determined the level of assessment were being finalised for the first round of public comment. This would reduce the level of complexity, where environmental sensitivity was low. Fourthly, the second phase of SEAs was in progress, which was looking particularly at old mining areas where there was an existing grid, which amounted to faster implementation and rehabilitation of old mining land. There was also the possibility of water treatment and long term support for mining management.

Ms Fischer concluded by clarifying slide 16, a summary of the REDZs for wind and solar. With the REDZs, there was no relaxing of the environmental requirements. Where there was sensitivity -- for example, the Overberg -- the current process had to be observed. However, where there was low sensitivity, developers needed to complete a compliance statement which determined that the development zone was of low sensitivity. 

The Chairperson thanked Ms Fischer for the presentation, and asked for a summary of their purpose at the end of all the presentations, in view of the proposed NEMLA Bill.

NEMLA 4 Enforcement-Related Amendments   

Mr Mark Jardine, Director: Environmental Management Inspectorate (EMI) Capacity Development and Support, DEA, took the Committee through the compliance and enforcement-related amendments.

He started by clarifying the regulatory cycle (see Slide 2), and gave a summary of the compliance and enforcement provisions. Their purpose was to improve the compliance and enforcement powers of environmental management inspectors. The provisions aligned the powers, duties and training of EMIs with environmental mineral and petroleum inspectors in terms of the One Environmental System They also widened the scope of persons able to apply for a S24G application

The Chairperson asked what the purpose of Section 24G was.

Mr Jardine responded that an explanation of Section 24G would come later on in the presentation. 

The provisions empowered the MEC to designate EMIs to undertake compliance and enforcement in relation to provincial legislation, and expanded certain enforcement powers to the local authority level – for example, a section 28 directive to a municipal manager. They clarified that an appeal did not automatically suspend a directive/notice, and constituted an amendment to delegation clauses to facilitate the designation and issuance of directives.

Section 24G Successors

In response to the Chairperson’s query regarding Section 24G, Mr Jardine proceeded to explain that the section allowed an applicant to apply for an authorisation after the fact of having commenced illegally, with an EIA or waste management activity. They could then come to the authority after they had commenced and ask for an ex-post facto authorisation. Previously there had been no avenue, if someone had bought a piece of property, to come into compliance. An amendment had been made to Section 24G to allow a greater number of people to be brought into the regulatory framework. They would still be subject to an administrative penalty that Section 24G provided for. Since they could raise the defence that they were not as culpable as the person who had commenced with the activity, they could make a submission and ask for a reduced fine.

Section 28 Duty of Care: Local Authorities

Mr Jardine elaborated on Section 28, which related to the duty of care. Every person had a duty of care to take reasonable measures to prevent pollution or degradation of the environment. If they did not comply with their duty of care, environmental authorities could issue them with directives or notices instructing them to do so. Currently, s28 directives could be issued only by the Directors General of the DEA and DMR, and a provincial head of department (HOD). There was a proposed inclusion of a municipal manager, which created consistency and supported the eventual repeal of ECA section 31A. This was also consistent with the growth of EMIs at local authority level (343 in 56 local authorities).

Mr Jardine moved to the second amendment of Section 28, which aims to clarify administrative justice in terms of the Promotion of Administrative Justice Act (PAJA). Currently, when the DG or a head of department issued a directive, the section states that ‘after having given adequate opportunity to affected persons to inform him or her of their relevant interests…’ However, there was ambiguity as to whom ‘affected person’ referred to -- any affected person (i.e. neighbours) or just the person who would be issued the directive. The amendment was aimed at clarifying s28 in accordance with PAJA (See slides 7 and 8).

The Chairperson requested a further explanation of the Duty of Care directive.

Mr Jardine explained that Section 28 of NEMA contained a Duty of Care for a number of people: a person who owned, controlled or had a right to use land. The Duty of Care, an administrative enforcement mechanism, required that they take reasonable measures to prevent pollution or degradation of the land that they were responsible for. If they did not comply with the Duty of Care, environmental authorities were allowed to issue them with a directive. Administrative heads could delegate this authority to a lower government official.   

Mr Z Makhubele (ANC) said that the Duty of Care imperative was still not clear as to the proper processes to be followed should there be pollution or degradation of the land, as Duty of Care could have multiple meanings.

Ms Ngcaba responded that, in general, everyone who had property had a responsibility to ensure that he/she was conducting themselves in a manner that was not detrimental to the environment. The law made provision for a ‘reasonable measure.’

Ms Garlipp indicated that NEMA provided some guidelines as to what ‘reasonable measures’ could be. She proceeded to read from Section 28 of the Act.

Ms Ngcaba continued that the Duty of Care was a provision for all citizens. It gave the power to the enforcement officials to notify citizens that they were not complying with this directive, who could either respond and rectify it or not, in which case there were further levels of compliance.

Mr Jardine said that once the Environmental Authority had issued a person with a final directive or a notice, if the person failed to comply with the instructions or undertake the remediation or rehabilitation, Section 28 stated that the environmental authority could step up and do the remediation or rehabilitation themselves, but then they needed to recover the costs from the person who was responsible for the pollution or degradation. The new provision provided for joint and several liability, which made it easier for the DEA to find one person who was responsible and hold them liable in order to pay for the costs that the DEA had expended in undertaking the remediation or rehabilitation. It could be claimed from anyone who bore the Duty of Care.

Section 31BB Designation of Environmental Mineral Resource Inspectorate (EMRI)

Mr Jardine clarified the amendments to Section 31BB, which enabled the Minister of mineral resources to designate EMRIs from within the DMR

Provincial Alignment

Mr Jardine highlighted that many provinces were promulgating their provincial conservation legislation at the moment. The DEA wanted to include a clause that would empower the MEC, should they so choose, to designate a person, not only for compliance and enforcement with national environmental legislation, but also with their provincial legislation. This was to ensure that there was consistency between national and provincial.

Environmental Management Inspectorate (EMI) code of conduct

Mr Jardine emphasised that a code of conduct for the DEA’s “Green Scorpions” was very important to have. The problem that the DEA had previously was that there had been no statutory of legislative basis for the DEA to promulgate or prescribe a code of conduct in order for it to become binding. This was why the DEA would like to put an empowering clause in the legislation, saying that the Minister may prescribe a code of conduct applicable to all designated environmental management inspectors and environmental mineral and petroleum inspectors.

Section 31L Compliance Notices and Section 31H(1)(b)

The Committee was referred to the amendments that relate to the template for the Compliance Notices and Section 31H(1)(b) (see slide 15). What the DEA had found was that, although most of the authorities complied with the substance, there were various drafting styles. The DEA wanted to loosen the existing provision so that it was sufficient for the authorities to comply with the template or notice that were in the regulations, instead of to the letter.

Objections to Compliance Notices

Mr Jardine outlined the amendments that related to objections to compliance notices (See Slide 16).

Seized Live Specimens

There was a practical amendment to Section 34E. The problem which the inspectorate was facing at the moment was that it did not have its own safe custody facilities for seized live animals. There was no place that the DEA or the provincial environmental authorities owned where animals like lions could be placed, pending the outcome of criminal proceedings. Those live animals were considered to be evidence. They needed to be preserved, looked after, fed and maintained, which could be quite a costly exercise. While the legislation was quite descriptive, the DEA was, however, trying to make it less mandatory by turning the ‘must’ into a ‘may.’ Until the DEA managed to get its own safe custody facilities, the amendment wanted to provide the EMIs with a level of discretion with the seized live specimens. This was why section 30(a) of the Criminal Procedure Act, 1977, was cross-referenced, as this gave the EMIs a measure of discretion on how to deal with seized live specimens. Through the working group, the DEA had compiled guidelines for EMIs in exercising their discretion. A diseased animal, for example, may have to be put in quarantine first, before it was put in facilities where its disease may spread to other animals. 

The Chairperson asked what the other options were.

Mr Jardine alluded to the fact that the options were not provided for in the legislation itself, but in the Working Group Four guideline document. All the legislation provided for was, as per Section 30(a), ‘If a perishable article was seized, the official (EMI) may dispose of it in a manner as the circumstances may require.’

Ms Ngcaba recommended that the existing guidelines be given to the Committee.

General

Mr Jardine continued that throughout NEMA, the word “request” had been replaced with the word “instruction”. Furthermore, non-compliance with an instruction of an EMI / EMRI was an offence. Finally, the duties and powers of EMIs were made equally applicable to EMRIs. The purpose of these amendments was clarity: “instruction” was mandatory, while “request” was arguably not.

Delegation

Mr Jardine clarified the amendments to Section 42. The power to delegate had been included for the municipal manager and the Minister of Water & Sanitation. This was important for local authorities because the power to issue a section 28 directive may be delegated by the municipal manager, and for the DWS in terms of the designation of EMIs.

Appeals

Previously, what the law had provided for in terms of appeals was that the previous provision was not in accordance with the preventative/precautionary principles, in that the default position was that the directive was to be suspended upon the submission of an appeal. The aim of the directive was to protect the environment, pending the outcome of the appeal. However, the appellant may still apply, on good cause shown, why the directive should be suspended.

Mr Makhubele asked for clarity as to which areas, in terms of Section 31L Compliance Notices and Section 31H(1)(b), were causing people not to comply fully?

Mr Jardine responded that the amendment was primarily for the environmental authorities themselves, so that they were not challenged based merely on a technical argument, in spite of the fact that the compliance notice was substantially correct. Environmental authorities may have different drafting styles, but they were still complying with what the substance of what the compliance notice should contain. If the compliance notice was substantially correct -- it abided by the key clauses in the applicable provision -- it should not be challenged just because, among other things, of a grammatical or a drafting style.

Proposed Text on Establishment of a Natural Resource Management Agency

Mr Guy Preston, Deputy-Director General: Environmental Programmes, said the purpose of the presentation was to request the Portfolio Committee on Environmental Affairs to include a provision on the establishment of a National Resource Management Agency in the NEMA, should the Committee agree with the proposed text.

He delineated the backdrop to the proposed text, outlining how invasive alien species were not only the single biggest threat to the country’s biological diversity, but also posed a direct threat to South Africa’s water security, the ecological functioning of natural systems and the productive use of land.

Bearing in mind that it was clear that conventional control options would not suffice, Mr Preston subsequently introduced the two programmes initiated by the DEA to utilise the biomass, and thus reduce the cost of the control of invasive species. These were:

• The Eco-Furniture Programme, which primarily uses logs to make solid-wood products such as office furniture, school desks, coffins and many others. This programme been temporarily administered through the SANParks, with some challenges; and
• The Value-Added Industries Programme, which seeks to find further ways of using the rest of the biomass of invasive alien plants that were cleared in terms of the Working for Water programme and the Biosecurity mandate of the Department. The programme had a particular focus on using composite (wood-chip) invasive biomass to make products, with a particular focus on building materials, and especially the “Light House”, and wood-plastic composite as a building materials. This programme was temporarily administered through the Working on Fire programme.

Mr Preston played a video clip to the Committee to demonstrate how combustible and dangerous regular shack dwellings are. With its Working on Fire programme, the DEA was in search of a proactive approach to dealing with the dangers posed by shack dwellings. He then described the concept of the ‘Light House’ to the Committee.

The Light House

The Light House was the ‘greenest’ house in the country. It was made up of 75% invasive biomass, mixed with cement, fly ash and binding agents.  It was spectacularly fire-proof.  Its load-bearing, acoustic and thermal properties were excellent.  It could be built over existing shacks.  It would be competitively priced with Reconstruction and Development Programme (RDP) houses, but created many more jobs.

Mr Preston played another video clip in which the DEA carried out a fire test in Mamelodi, Tshwane. There was no damage at all, other than two cracked windows, to the Light House. This revealed that the Light House was really fire-proof.

The material for the Light House had been developed over three years, after more than 100 different permutations and experiments. Furthermore, the cut-out part of the wall used in the Agrément test showed that just 5 cm of the 20 cm thick wall was impacted by the fire – after a record three hours! The material was also bullet-proof and had withstood shotgun fire. Essentially, the DEA was taking material that caused fires and damage -- the invasive species -- and turning them into quality housing using that very material. All that was required to build a Light House was a vibrator; a small cement mixer; a mobile chipper; scaffolding and formwork (see Slide 12).

He referred the Committee to the slide illustrating the Isiqalo unit in Newlands, Cape Town, built for the Agrément trial.  The green wall took 45 minutes to build.  It was estimated that over 40% of the cost of a Light House would be for labour.

Wood-plastic composite

Another product that was derived from the invasive biomass was wood-plastic composite (75% invasive biomass and 25% recycled and virgin plastic). This was an ideal material for many other products, including school desks and weather-proof structures for Marion Island and Antarctica. This material was very strong and if it did get damaged, it could be returned and remoulded. The DEA was looking into using the invasive biomass material, rebuilding the Weather Station on Gough Islands at a considerably lower price compared to the current costs. Jobs would be created in South Africa. A demonstration field hut was being sent to Marion Island. This was leading up to the DEA’s programme to eradicate the mice on Marion Island, which were eradicating possibly two-thirds of the birds on the island.

Sanitary pads and diapers

Mr Preston also explained that the DEA, in partnership with the Medical Research Council, was using invasive alien species to manufacture sanitary pads and diapers (nappies) – with no chemical additives or plastic. The DEA was about to roll-out the production of sanitary pads and diapers. It was taking the invasive biomass to create completely bio-degradable sanitary pads and diapers and, in so doing, creating jobs, and getting the sanitary pads to schools free of charge, for example.

Eco-Furniture Programme

Over 500 000 learners now had quality school desks through the DEA’s Eco-Furniture Programme, and many other products were being developed to take full advantage of the potential utilization of invasive biomass. Through the programme, it had also been using invasive biomass for eco-coffins, eco-desks, multipurpose chess tables, eco-benches, wood-wool erosion blankets, high-quality furniture (desks, chairs etc) and bio-char (soil-carbon fertility).

Mr Preston cautioned, however, that the truth of the matter was that SANParks, to whom the DEA was eternally grateful, had managed the programme for the DEA as an interim solution. It could not be managed within the DEA. Dedicated capacity was needed. Many of the other programmes would also benefit from being run in a special purpose vehicle.

It was against this backdrop that the DEA proposed the establishment of a dedicated Natural Resource Management Agency.

Natural Resource Management Agency

The Department was proposing the establishment of a dedicated Natural Resource Management Agency as a specialised implementing entity responsible for the management of natural resources within the DEA. The entity would be governed by a board appointed by the Minister. The Minister would also have powers to determine a policy within which the Agency must exercise its powers and perform its functions, as well as supervisory powers on the exercise and performance by the Agency of its powers and duties, including the powers to set norms and standards for the exercise and performance by the Agency of its powers and duties.

The proposed text also empowered the Minister to intervene if the Agency was in financial difficulty or was being mismanaged, failed to perform its functions effectively or efficiently, had acted unfairly or in a discriminatory or inequitable way towards a person to whom it owed a duty, or had failed to comply with any law or any policy envisaged in this Act.

Mr Preston referred the Committee to the recommended textual amendments (see Slide 22). The proposed entity would be a Schedule 3A public entity under the Public Finance Management Act (PFMA), and governed by a board.

A draft copy of the proposed text had been forwarded to National Treasury for concurrence, and the Office of the Chief State Law Adviser for constitutional certification.

On behalf of the DEA, he recommended that the Portfolio Committee include the proposed text on the establishment of the National Resource Management Agency in the NEMLA Bill, as introduced in the National Assembly on 24 May 2017, should the Committee agree with the proposed text.

Discussion

Mr Purdon asked where the items highlighted in the presentation were being assembled and built.

Mr Preston clarified that the DEA had seven factories across the country. There were factories in, among others, George, Howick, Kogga, Graskop and Ficksburg. They were not exactly where the DEA would like them all to be. There was enough biomass to build them anywhere. The DEA would like to give poor communities its materials as the basis of a starter-pack for a proper home.

Mr Purdon inquired who was harvesting the invasive species.

Mr Preston responded that the DEA harvested. It was a critical aspect that could not simply be privatised. Access to biomass was key and the nature of the DEA was such that it could acquire that access. Moreover, harvesting had to be conducted properly. South Africa also had what was called bush encroachment -- indigenous species that were spreading out of control owing, in some cases, to a lack fire, climate change and land practices. These were indigenous species that had to be controlled and when bush encroachment occurred, the DEA had to effectively ensure that it left a cohort of ages of the species. In helping land-owners to take control of the problem, this was also where departmental expertise was needed.

NEMLA Bill: Biodiversity & Conservation

Mr Shonisani Munzhedzi, Deputy Director General: Biodiversity and Conservation, DEA, said the purpose of biodiversity and conservation as envisioned by the NEMLA Bill, was to promote the conservation and sustainable use of natural resources to contribute to economic growth and poverty alleviation. The NEMLA amendment would assist the DEA to achieve uniformity in terms of co-operative governance, especially in so far as implementation was concerned.

The amendments looked at certain provisions in the National Environmental Management: Protected Areas Act, 2003 (Act No. 57 of 2003) (NEMPAA) and the National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004) (NEMBA).

Institutional Matters

Regarding institutional matters, the NEMLA Bill amended section 57 of NEMPAA and section 13 of NEMBA. The new provision seeks to provide clarity that a Chief Financial Officer must be a member of the board of the South African National Biodiversity Institute and the board of the South African National Parks. This was in compliance to the cooperative governance principles and approach.

Offences & Penalties

Furthermore, in terms of offences and penalties, the NEMLA Bill amends section 48 of NEMPAA on offences and penalties. S48A regarding restricted activities in marine protected areas was spelt out as follows: “fishing, take or destroy fauna & flora, dredging, discharge, depositing, construct, bio-prospecting etc.” The offence had not been explicit, but now clarity was provided.

Welfare Matters

In so far as welfare matters were concerned, Mr Munzhedzi described the amendments to section 2 of NEMBA. The rationale was the expansion of Section 2 on objectives to extend the objectives to include welfare matters. The current framing gave no regard to the well-being of threatened and protected species, such as the circumstances around lions and elephants. The new provision allowed the DEA to include, among others, minimum standards of well-being. 

The Chairperson asked for an update on the process of the Minister of the Department of Agriculture, Forestry and Fisheries (DAFF) so far.

Mr Munzhedzi responded that the Minister of the DAFF had still not published on elephants and lions.  The DEA had provided some provisions when it came to elephants, and had been following up on the same matters last December. The provisions in terms of welfare were strong enough. But the well-being element allowed for certain minimum standards that should be prescribed and still take action as the DEA, without being perceived as welfare people. The DEA must have an interest, especially when it comes to some of the top species. This provision allows this without taking over the overall welfare responsibility.

The Chairperson queried whether the DEA knew what the reason was for the delay.

Ms Ngcaba recommended that the Committee should invite the DAFF at some point to hear them on matters that were of common interest.

The Chairperson responded that the Committee would interact with the applicable Portfolio Committee to establish what the delay was all about.

Mr Munzhedzi said that the purpose of the amendments was so that the DEA could address well-being matters to a certain extent. If someone was applying to have a captive breeding facility, for instance, there were certain ‘bare minimums’ that were well being-related that the DEA could prescribe up front. Those aspects that extended to the deeper issues of welfare had to be addressed by the DAFF, which had the competence in this regard.

The Chairperson asked for clarity as to what the division of labour was in relation to wildlife for the DAFF and DEA.

Mr Munzhedzi responded that there were areas where there was a clear distinction in the respective functions of the DAFF and DEA, and there were areas where they had to cooperate. By way of explanation, there were animals in the wild and there were animals in captivity who may remain there or may be released back into the wild. For those animals which were in an activity -- in game ranches, zoos, or breeding facilities -- DEA’s interest was in what that activity did for the survival of species in the wild. Moreover, its interest was in what was released back into the wild, and many other considerations that threatened the species. Game ranches would interface with both the DAFF and DEA on different aspects of wildlife (hunting, game-management aspects etc.). The Animals Improvement Act, which the Director General was referring to, had two complementary aspects. Firstly, game management or farming must also be known and registered. Secondly, there must be a listing of certain species that were going to be involved in that game farming, with a view to preventing genetic contamination. At some point of the process, the DEA interfaces with game-management. For the past four years, a lot of consultation work had been done to clarify the division of labor between the DAFF and DEA.

Mr Purdon remarked, concerning a recent controversy at the East London Zoo, that nowhere had he seen the DAFF take responsibility.

Ms J Edwards (DA) asked whether the DEA was not in control of the South Africa’s National Biodiversity Institute’s National Zoo? 

Ms Ngcaba responded that the DEA was at present taking over the SANBI National Zoo for research purposes, but not to manage the affairs of the zoo.

Custodianship

With respect to custodianship, Mr Munzhedzi drew attention to the amendment of section 3 of NEMBA. The rationale of the proposed clause sought to provide clarity that in order for the state to give full effect to section 24 of the Constitution, the state must be in a position to remain the custodian of wild animals that escaped from land under its control.  He referred to a case in the Eastern Cape in which animals were in a provincial protected area, the border of which was a river. The river had dried up and the buffalos and other animals had moved over to the other side of the river. When the water returned, the animals were on the opposite side of the river. The new owner said these were his animals. This had led to a protracted legal battle (Eastern Cape vs Medbury). The judge stated that there needed to be legislative clarity on who owned what. There was a legal principle which described the status of ferae naturae as that of res nullis -- belongs to everybody and nobody in particular. The state provides the custodianship and the trusteeship role, but when they move from the state’s facilities to the other, what were the legal implications with regards to questions of ownership? The provision specified that the Minister may by notice in the Gazette specify the species and circumstances under which the state remains the custodian of a fauna biological resource that escapes from land under its control.

Ms Ngcaba asked if the animal that had moved from state property had caused damage on the other side, who became responsible for the costs that emanated from the liability?

Ms Garlipp highlighted that in the case of parks which did not have certificates that were issued by the province for their fencing, when the animals escaped someone else could take ownership of the animals.  

The Chairperson commented that in the Kruger National Park, most of the fences had been taken down. In contrast to a privately-owned animal park, in a national park no one was allowed to hunt.  What happened in the instance when animals from the park entered another property? Could they be hunted?

Ms Ngcaba said that this was not the case. In national parks, members had to abide by the rules of a contractual agreement not to hunt.

Mr Munzhedzi confirmed that there was always an agreement concerning what was and was not permissible. There were communal areas that had been subjected to being part of the national park. This was to the extent that anything that happened there had to be pronounced on by the national park based on the existing census, which would differ from area to area.

The Chairperson asked for a well-researched, audited response as to whether any of the privately-owned reserves around the national parks did not promote hunting for certain species of animals, or whether they were bound by the rules of the national park in question. Some did promote hunting so as to attract international tourists. 

Consultation and Public Participation

Mr Munzhedzi referred to the amendment of sections 99 and 100 of NEMBA, which seeks to provide clarity that the MEC for environmental affairs in each province must also follow the consultative process set out in sections 99 and 100 of the NEMBA when exercising a power under the Act. 

The Chairperson asked Mr Munzhedzi to update the Committee on how far it had progressed in coming up with national norms and standards for provinces.

The Ministers and Members of Executive Councils Meeting (MINMEC) had deliberated on this thoroughly and instructed that these norms and standards had to be strengthened to be a framework policy that should be above the policies that the provinces had. The DEA had subjected them to this current system. Mr Munzhedzi said that he would give feedback today or tomorrow.

NEMLA – Workshop Waste Presentation 

Mr Gordon said the guiding principles of the Waste Provisions in the NEMLA Bill [included waste beneficiation and consideration of waste as a resource; the Chemicals and Waste Economy Phakisa considerations for a waste recycling economy; sustainable consumption and production; and the “Circular Economy.”

Subsequently, he defined the background on the Waste Provisions in the NEMLA Bill.  The National Environmental Management: Waste Amendment Act, 2014 had been promulgated on 2 June 2014, and had introduced the Waste Bureau, the pricing strategy, yhe Money Bill and the introduction of mine residue deposits under the ambit of the Waste Act.

One Environmental Management System

Mr Gordon emphasized that this time the focus was on the One Environmental Management System and the aspects around moving the residue deposits and stockpiles from the Waste Act to NEMA so that it corresponded with where it was in the MPRDA. The main principles were in the area of eliminating duplication, providing clarity, eliminating ambiguity and providing for efficiency and consistency around the interpretation of waste and how the DEA looked at the aspects around the lists of waste.

Definition

Amendments to the definition of “waste” in Schedule 3 of the NEMWA would provide clarity on what was waste and when waste ceased to be waste. Furthermore, the main definition changes took into account the recent developments and opportunities in the chemicals and waste economy and the circular economy approaches. The DEA ensured that there was alignment in terms of what was in the schedule, compared to what was in the main body of the Act. The two tables or sections of Schedule 3 had been merged into one table. Since the residue deposits and stockpiles had been moved from the ambit of the Waste Act to NEMA, this would require an amendment in the definition. One of the key reasons was the need for enabling beneficiation and a contribution to the recycling economy.

Waste Licensing

Mr Gordon stipulated that waste licensing intended, firstly, to provide for the payment of a processing fee for the variation of a waste management licence; secondly, to ensure that a site assessment report and remediation plan regarding contaminated land were submitted simultaneously to the Minister for approval; and thirdly, to provide for a legal mechanism to deal with exceptional instances where an MEC failed to take a decision to issue a waste management licence within the prescribed timeframes, an applicant may request the Minister to take the decision.

With reference to point three, the Chairperson asked what would constitute ‘exceptional instances’?

By way of example, Mr Gordon replied that an expensive delay would constitute an ‘exceptional instance.’ There had also been instances where there had been overlaps of mandates around, for example, acid waste. On these occasions, the DEA had had to engage with the provinces.

The Chairperson requested further guidance as to what would constitute ‘exceptional instances,’ as well as timeframes.

Mr Gordon responded that he would consult his legal advisers for clarity, and would return with feedback the next day.

Waste Bureau Provisions 

The 2014 Waste Amendment Act had established the Waste Management Bureau. Currently the Bureau did not have a board and the Bill sought to provide for one in order to strengthen its governance and oversight. The Act established the Bureau as a juristic person within the Department, and this was seen as contradictory, so the Bill provides clarity that the Bureau was established as a public entity responsible for, amongst others, the implementation of industry waste management plans, and to provide for governance matters. The functions, the provisions of the operation, and the objective of the Waste Bureau were specified in detail in the 2014 Waste Amendment Act.

National Environmental Management: Integrated Coastal Management Act

Ms Judy Beaumont, Deputy Director General: Oceans and Coast, said the objectives of the Integrated Coastal Management (ICM) Act (Act No. 24 of 2008) included:

• to determine the coastal zone of the Republic;
• to provide, within the framework of the NEMA, for the co-ordinated and integrated management of the coastal zone by all spheres of government in accordance with the principles of co-operative governance;
• to preserve, protect, extend and enhance the status of coastal public property as being held in trust by the state on behalf of all South Africans, including future generations;
• to secure equitable access to the opportunities and benefits of coastal public property;
• to provide for the establishment, use and management of the coastal protection zone; and
• to give effect to the republic’s obligations in terms of international law-regarding coastal management and the marine environment.

A diagram illustrated all the coastal areas referred to in the ICM Act, namely coastal protection zones, the territorial sea, exclusive economic zones, high water mark (HWM), and coastal public property.

There were a set of tools within the ICM Act. These enabled the adjustment of coastal boundaries, the setting of coastal management lines, the establishment of coastal planning schemes -- integration into the Spatial Development Framework SDF’s and the Spatial Planning and Land Use Management Act (SPLUMA) -- special management areas, making provision for coastal access, compliance and enforcement, estuary management plans, coastal management programmes, setting up of coastal committees, and a set of coastal regulations.

Problem Statement

Ms Beaumont summarised the problem statement. At present in the ICM Act, section 60 Compliance and Enforcement notices (Repair/Removal of structures within the coastal zone) were able to be issued only for structures that were currently having an adverse effect on the environment, or were likely to have an adverse effect. There was a need to be able to act retrospectively for structures that had been erected prior to the commencement of the ICM Act, consistent with section 28 (1) of NEMA (General Duty of Care).

Ms Beaumont read the amendment for retrospective effectiveness of Section 60 (see Slide 5).

Discussion

The Chairperson asked whether the amendment in question was allowed.

Ms Beaumont responded that it was.

Ms Nosipho confirmed that some of the degradation happened before the legislation. The new provision would assist in rectifying the situation through the charging of fines / penalties retrospectively for having, for example, built on a coastal road.

The Chairperson asked whether fines could be given retrospectively.

Ms Nosipho confirmed that this was possible, and explained how.

Ms Beaumont pointed out that these fines applied especially to structures that were erected on public property, such as in the Eastern Cape and the West Coast. Private landowners often pushed their private structures beyond the boundaries of their land.

Mr Makhubele asked whether there had been public consultation on the ICM Act.

Ms Beaumont replied that the Act, which started with the National Coastal Policy, had gone through a period of extensive public consultation.

Mr Makhubele asked what challenges had given rise to the amendments in question.

Ms Radia Razack, Director of Legal Services (DEA), said that the amendment was consistent with the section just above it -- section 59 -- which already had retrospective effect. When this amendment was published, there had been support for it. Many had commented that there was inconsistency between sections 60 and 59.   

Ms Beaumont said that at present, section 74 of the ICM Act allowed for a decision on a coastal authorisation made by one sphere of government to be reviewed and potentially overturned by another sphere of government. This was inconsistent with the Constitution, and presented a legal anomaly wherein the sphere of government that issued the authorisation was not able to be the appeal authority. She referred the Committee to a case study. Section 44 of the Land Use Planning Ordinance (LUPO) gave the Western Cape provincial government the power to hear appeals against municipalities’ planning decisions and to replace those decisions with its own. The matter arose from two cases in which the Western Cape’s Minister of Local Government, Environmental Affairs and Development Planning, acting in terms of section 44, overturned planning decisions by the City of Cape Town. The High Court held that the section was manifestly inconsistent with the Constitution. This was because, although the Constitution reserved municipalities’ authority over “municipal planning”, the provision allowed the province to hear appeals against all municipal decisions made under LUPO. The High Court accordingly declared section 44 unconstitutional and invalid. The decision was also upheld by the Constitutional Court.

Ms Beaumont referred to the Chairperson’s contention as to whether there was not a case to be made by another sphere of government at least having a say on the matter if the appeal within the sphere of government was not successful. This was something that the DEA would have to delve into.

Discussion

The Chairperson asked for an explanation of the judgment of April 2014

Ms Kazack proceeded to outline the High Court judgment, which was upheld by the Constitutional Court. The parties to the case were the Western Cape’s Minister of Local Government, Environmental Affairs and Development Planning (Provincial Minister) versus the City of Cape Town. It was Section 44 of the LUPO which gave the power to hear appeals to the MEC -- appeals which came against municipal planning decisions. In that power of appeal, the MEC could then replace his/her decision with the decision of the municipality when it came to land use or town planning, which was actually under the sphere of local government.

Ms Nosipho concurred with the Chairperson that town planning was not a concurrent function. Therefore, this being a concurrent piece of legislation, there was merit in returning to the Constitutionality of this amendment.

The Chairperson reiterated that the ordinance gave the municipality town planning powers. This was the exclusive power of the municipality. Therefore, all appeals got finalised at that level.

Ms Razack continued that the Court was making a pronouncement that municipalities were responsible for planning decisions, and it based its decision on the power that the municipality constitutionally possessed for planning. Based on the narrow scope of this judgment, there was not a clear pronouncement on the applicability of this principle when it came to concurrency. It was a thin line. There had been a lot of sensitivity around this because of the time it took to process the appeals through the Minister, and the difficulties around this. The amendment gave most of the role players a sense of comfort based on, among other things, the administrative burdens. The Court may rule in favour of the proposed approach, as each sphere of government was given autonomy in terms of their concurrency.     

The Chairperson recommended that the state law advisors would be needed to help the Committee and the DEA as it took the matter forward.  

Mr Purdon asked how far an estuary extended into the mouth of a river?

Ms Beaumont responded that the estuaries were managed by estuary management plans, and these plans identified what activities were or were not allowed in the areas within an estuary. The extent of an estuary was the degree to which there was salt water intrusion, up to the point where there was no longer salt water. There was also a temperature gradient that was associated with this boundary between fresh and salt water. The boundary was variable and could range from 40 km to a few hundred meters.

Ms Beaumont stressed that it was important to realize that the bigger estuaries were areas of quite intense and diverse interests, such as boating, fishing, sand harvesting and yachting. This made it important for the DEA to have functional, active and current estuary management plans. South Africa had up to 300 estuaries. What the DEA was attempting was a more strategic approach, where priority, high-use estuaries were focused on.  

The various types of coastal authorisations were off-road vehicle permitting; public launch sites; dumping at sea; coastal discharge permitting; and reclamation of land from coastal water.

The types of coastal enforcement notices were coastal protection notices; coastal access notices; repair of structures within the coastal zone (CZ); and the removal of structures within the CZ.

Discussion

The Chairperson asked for clarity on the compliance and enforcement.

The Department responded that Mr Makhubele had raised a very important question in this regard. In relation to the clause which said that the template which was used for a compliance notice must substantially comply with the form that was in the actual regulations, it was a fine balancing act. There was a fine balance between the need for consistency and high standards, and making compliance notices open to some kind of legal attack by the lawyers who were representing the people who received those compliance notices. The question was: did the DEA want everyone to use the same form, or was it sufficient that it substantially complied with the requirements? Maybe there was a way to build this flexibility into the regulations and the Act themselves.  

Ms Nosipho held that ‘compliance’ referred to the content of the compliance notice, not the format. As the DEA perfected the system, it would become compulsory to abide by the format. This question was whether the DEA had the requisite format at this point.

The Chairperson thought that the amendment required that the essence of the notice should be complied with, irrespective of the format. This matter would be returned to tomorrow when the Committee examined the NEMLA Bill clause by clause.   

The meeting was adjourned