NEMLA Bill: briefing

Environment, Forestry and Fisheries

31 January 2018
Chairperson: Mr P Mapulane (ANC)
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Meeting Summary

The Department of Environmental Affairs provided the Portfolio Committee with an overview of the National Environmental Management Laws Amendment (NEMLA) Bill [B14 – 2017], pointing out its main purpose and provided clarity on certain matters and textual amendments as found in the Bill.

The Bill amends the National Environment Management Act (NEMA), the Protected Areas Act, the Biodiversity Act, the Air Quality Act, the Integrated Coastal Management Act, the Waste Act, and the NEMA Amendment Act.

78 clauses had been introduced, amending various sections. The objectives of these amendments included amending the definitions, providing additional NEMA principles, facilitating flexibility and providing clarity.

The Department had been working with the provinces to develop an effective system to ensure there were similar administrative enforcement instruments that were used by all the environmental authorities, which would assist with reaching targets and improve their ability to perform the required tasks.

The Department raised a concern regarding the introduction of new text in the Bill. It suggested that once the text had been amended, the Bill should be re-published for comment. However, the Portfolio Committee argued that this would not be possible, as once the Bill had been submitted for comment it became a Parliamentary process, and the Department was no longer involved. Advice would be sought from the legal teams on the best way forward.

Members asked about the safety of environmental inspectors, but it was established that they had adequate support from the police, and were well equipped with skills to execute their tasks effectively and without harm.  They expressed concern regarding clause 33, as this capped the monetary penalty, which could allow perpetrators to be fined less than the damage caused, but were assured that this was offset by the provisions of the Adjustment of Fines Act. 

During discussion, the Committee highlighting the environmental damage emanating from various categories of waste dumps, particularly their impact on the health of surrounding communities. The Department was urged to improve conditions and to address the consequences. The Department pointed out that health was a concurrent competence, and the implications of public health risks emanating from abandoned mines were having an impact from a health budget point of view. The main challenge was air pollution, which was a local government concern, so this was becoming a problem for all spheres of government.

The Chairperson advised that three days had been scheduled for public hearings on the Bill, starting on 27 February. They would take place in Parliament, KwaZulu-Natal and Gauteng.

Meeting report

The Department of Environmental Affairs provided the Portfolio Committee of Environmental Affairs with an overview of the National Environmental Management Laws Amendment (NEMLA) Bill.

Mr Sibusiso Shabalala, Director of Legal Services (DEA), began by pointing out the main purpose of NEMLA 4, which was to 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).

In order to provide for clarity on certain matters and textual amendments, the Department had introduced the new clauses which amended the relevant sections.

Clause 1: Amendment of section 1

The clause amends the definition of “financial provision” to clarify that it was applicable to an applicant and a holder of an environmental authorization, as well as a holder of a right or permit granted in terms of the Mineral and Petroleum Resources Development (MPRDA). Clause 1 also amended the definitions of “Constitution” to correct the citation of the Act, and “environmental mineral resources inspector” to include “petroleum” in the designation

Clause 2: Amendment of section 2

This clause provides an additional NEMA principle -- that the environment sector must advance and promote the full participation of black professionals.

Clause 3: Amendment of section 24

This clause seeks to facilitate flexibility in the use of environmental management instruments and how they cater for the impact management. The clause also adds a new subsection to provide clarity that the Minister or an MEC may develop regulations regarding the procedure to be followed for the preparation, evaluation, adoption and review of environmental management instruments. The clause further seeks to empower the Minister to keep a national register of all environmental management instruments adopted in terms of NEMA.

Clause 4: Amendment of section 24C

The clause seeks to provide clarity that the Minister of Mineral Resources is the competent authority for activities directly related to prospecting or exploration of a mineral or petroleum resource, or primary processing of a mineral or petroleum resource. The clause also provides for the simultaneous submission of an environmental authorisation application and any other related licence or permit required under any of the specific environmental management Acts.

Clause 5: Amendment of section 24G 

The clause clarifies that a successor in title of a person or property may also lodge a section 24G application. The same principle is also applicable to the unlawful commencement of a waste management activity.

Clause 6: Amendment of section 24N

The clause was intended to provide clarity that the information that must be contained in the environmental management programme had to be prescribed through regulations.

Clause 7: Amendment of section 24O

This clause seeks to amend section 24O(2) to also require an environmental assessment practitioner to consult every state department that administers a law relating to a matter affecting the environment;

Clause 8: Amendment of section 24P

This clause provides clarity that an applicant, a holder of an environmental authorisation and a holder of a right issued or a permit granted in terms of the MPRDA, must set aside financial resources for progressive rehabilitation, mitigation, remediation, mine closure and the management of post closure environmental impacts. The clause also provides clarity that the environmental liability must be assessed annually, but the audit report needs to be submitted to the Minister only every three years. The clause further provides clarity that the requirement to maintain and retain the financial provision remains in force until a closure certificate is issued, and that the portion of financial provision as may be required to rehabilitate latent, residual or any other environmental impacts of the closed mine must be ceded to the Minister responsible for mineral resources, and that the Minister responsible for mineral resources must retain such portion in perpetuity.

Clause 9: Amendment of section 24R

The clause repeals section 24R(2) to eliminate duplication. A similar provision was also contained in section 24P(5).

Clause 10: Amendment of section 24S 

The clause repeals section 24S to ensure that residue deposits and residue stockpiles were managed under NEMA, instead of NEMWA;

Clause 11: Amendment of section 28

This clause seeks to provide clarity that environmental authorities may issue a section 28(4) directive to any owner of land or premises, a person in control of land or premises or a person who had a right to use the land or premises on which, or in which, any activity or process was or was performed or undertaken; or any other situation exists, which causes, has caused or was likely to cause significant pollution or degradation of the environment. The clause also empowers a municipal manager to issue a section 28(4) directive, and further empowers the Director-General, Director-General of Mineral Resources or provincial head of department to issue a directive on each category of responsible persons, thus making them independently liable for the undertaking of reasonable measures. This clause further amends sections 28(9) and (11) to provide for joint and several liability in respect of the responsible persons.

Clause 12: Amendment of section 31BB

This clause seeks to empower the empower the Minister responsible for Mineral Resources to designate any staff member of the Department of Mineral Resources or any organ of state, subject to the conclusion of an agreement between the Minister and the relevant organ of state, as an environmental mineral and petroleum inspector;

Clause 13: Amendment of section 31D

This clause seeks to empower environmental management inspectors to monitor compliance and enforce any provincial environmental management legislation, and to ensure that environmental management inspectors and environmental mineral resource inspectors exercise their respective powers in accordance with any applicable duty.

Clause 14: Amendment of section 31E

The clause provides clarity that the environmental mineral and petroleum inspectors would receive the same standard of approved training as was received by the environmental management inspectors before designation. The clause also empowers the Minister responsible for environmental affairs to prescribe through regulations the code of conduct applicable to environmental management inspectors and environmental mineral and petroleum inspectors;

Clause 15: Amendment of section 31F

This clause seeks to provide clarity that environmental management inspectors who exercise powers and perform duties in terms of the NEMA were issued with and, on request, produce identity cards as proof of their designation. The amendment also seeks to include environmental mineral and petroleum inspectors as well as provincial legislation in the exercise of powers and performance of duties.

Clause 16: Amendment of section 31G

The clause seeks to empower environmental management inspectors who receive a complaint alleging non-compliance to gather further information that would turn a mere suspicion into a reasonable suspicion;

Clause 17: Amendment of section 31H

This clause is intended to allow the environmental management inspectors to question persons without the requirement of a reasonable suspicion, in order to gather information on an alleged non-compliance through the asking of relevant questions prior to a reasonable suspicion being formed. The clause also seeks to empower environmental management inspectors to monitor compliance and enforce not only national pieces of environmental legislation, but also any provincial environmental management legislation. The clause further seeks to empower environmental management inspectors to issue lawful instructions;

Clause 18: Amendment of section 31I

This amendment was a consequential amendment to ensure that environmental management inspectors are allowed to issue lawful instructions, rather than mere requests, in accordance with the provisions of the NEMA.

Clause 19: Amendment of section 31J

This amendment is a consequential amendment to ensure that environmental management inspectors are also empowered to monitor compliance and enforce any provincial environmental management legislation;

Clause 20: Amendment of section 31K

This clause seeks to provide clarity that the conducting of a "search" is not the primary purpose of undertaking a routine inspection, but rather the entry on to certain premises for the purposes of ascertaining compliance. The amendment also extends the power to environmental mineral and petroleum inspectors to apply for a warrant to enter residential premises for the purposes of conducting an inspection. The clause further empowers environmental management inspectors to detain an item or items for a temporary period of time in order to conduct further analysis or verification as to whether or not such items comply with the relevant legal requirements, in certain circumstances.

Clause 21: Amendment of section 31L

This clause seeks to provide clarify that an environmental management inspector, as well as an environmental mineral and petroleum inspector, must issue a compliance notice which substantially complies with the prescribed form.

Clause 22: Amendment of section 31M

The amendment is a consequential amendment to clarify that a person who wants to object to a compliance notice may do so, by making representations to the relevant appeal authority, namely, the Minister responsible for Environmental Affairs, the Minister responsible for Mineral Resources, the Minister responsible for Water Affairs, or a municipal council.

Clause 23: Amendment of section 31O

This clause seeks to empower members of the South African Police Services to monitor compliance and enforce any provincial environmental management legislation.

Clause 24: Amendment of section 31P

This clause seeks to provide clarify that a holder of a permit, licence, permission, certificate, authorisation or any other document must produce such documents on the lawful instruction by an environmental management inspector or an environmental mineral and petroleum inspector;

Clause 25: Amendment of section 31Q

This amendment is a consequential amendment to clarify that the confidentiality of information is also applicable to provincial environmental management legislation;

Clause 26: Amendment of section 34E

The clause seeks to provide clarity that any seized live specimens "may", instead of "must", be deposited with a suitable institution, rescue centre or facility; as the circumstances require. The clause also provides clarity that seized live specimens may be disposed of in terms of section 30(a) of the Criminal Procedure Act, 1977.

Clause 27: Amendment of section 34G

This clause seeks to provide clarity that the Minister's regulatory power to specify offences and prescribe the amount for purposes of admission of guilt fines contextualizes section 57(5) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).

Clause 28: Amendment of section 42B

The clause seeks to provide clarify that the Minister of Mineral Resources may also delegate his or her powers under NEMA to an organ of state, subject to an agreement between the Minister responsible for Environmental Affairs and the organ of state;

Clause 29: Inserts new sections 42C and 42D

This clause inserts new sections 42C and 42D, to empower the Minister responsible for water affairs and municipal manager of a municipality to delegate his or her powers under the NEMA to an official in the Department responsible for Water Affairs or a municipality, respectively.

Clause 30: Amendment of section 43

The clause seeks to provide clarity that a person may also appeal a section 28(4) directive issued by a delegated official. The amendment also provides clarity that the submission of an appeal would not automatically suspend a section 28(4) directive, unless there was good cause shown to the satisfaction of the Minister;

Clause 31: Amendment of section 47

This clause repeals section 47(2) and (2A) to avoid duplication of legal requirements, requiring the Minister responsible for Environmental Affairs or Member of the Executive Council (MEC) to table all regulations developed in terms of the NEMA in Parliament or relevant provincial legislature, since all regulations are currently being tabled in Parliament in terms of section 17 of the Interpretation Act, 1957.

Clause 32: Amendment of section 49A

This clause provides a new subsection to provide that where a norm and standard specifically provides for a provision to be an offence, then those specific provisions would be considered to be offences. The clause seeks to provide clarity that it is an offence for any person not to comply with an instruction, rather than a request, of an environmental management inspector.

Clause 33: Amendment of section 49B

This clause seeks to provide the maximum monetary penalty for certain serious offences.

Clause 34: Amendment of Schedule 3

This clause amends Schedule 3 to provide for textual amendments to ensure the citation of appropriate offences listed in certain national and provincial legislation.

Clause 35: Amendment of section 57 of NEMPAA

This clause seeks to provide clarity that the Chief Financial Officer must be a member of the board of the South African National Parks.

Clause 36: Amendment of section 89 of NEMPAA

The clause seeks to provide clarity that it is an offence to undertake any of the restricted activities in a marine protected area;

Clause 37: Amendment of section 1 of NEMBA

This clause amends the definition of "control", and inserts a new definition of "eradicate" in order to provide clarity on the actions, measures or methods to be undertaken when dealing with listed invasive species.

Clause 38: Amendment of section 2 of NEMBA

These clause seeks to extend the scope of the objects of the Act to clarify that the object of the Act is to provide for the use of indigenous biological resources in a manner that is ecologically sustainable, including taking into account the well-being of any faunal biological resource.

Clause 39: Amendment of section 3 of NEMBA

This clause seeks to provide clarity that in order for the state to give full effect to section 24 of the Constitution of the Republic of South Africa, the state must be in a position to remain the custodian of wild animals that escape from land under its control.

Feedback from the Department: In terms of the Game Theft Act, an owner must have an adequate enclosure so that he may claim back a wild animal that possibly jumped the fence.

Clause 40: Amendment of section 13 of NEMBA

The clause seeks to provide clarity that the Chief Financial Officer must be a member of the board of the South African National Biodiversity Institute.

Clauses 41 and 42: Amendment of sections 73 and 75 of NEMBA 

The clauses empower the Minister to develop regulations on the steps to be undertaken to control or eradicate listed invasive species;

Clause 43: Amendment of section 97 of NEMBA

The clause empowers the Minister to make regulations regarding protection of the well-being of a faunal biological resource during the carrying out a restricted activity involving a faunal biological resource;

Clauses 44 and 45: Amendment of sections 99 and 100 of NEMBA

This clause 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 power under the Act;

Clause 46: Amendment of section 13

This clause seeks to provide clarity that the Minister has a discretion to establish the National Air Quality Advisory Committee.

Clause 47: Amendment of section 22A

The clause seeks to provide for the consequences of unlawful conducting of listed air activities. This clause also sets out the process and procedures to be followed in addressing non-compliance with the law.

Clause 48: Amendment of section 36

The clause seeks to provide clarity that a province must be regarded as a licensing authority where a listed air activity falls within the boundaries of more than one metropolitan municipality or more than one district municipality. The amendment also seeks to provide clarity that the Minister is only the licensing authority if the Minister is identified as such in terms of NEMA, NEMWA and NEMAQA, and also extends the scope to allow for co-operative agreement to be reached between the Municipality, MEC and the Minister, on who the licensing authority would be on any application.

Clause 49: Amendment of section 53

This clause deletes paragraph (k) in section 53 to ensure that appeal regulations developed under section 43 of NEMA are also applicable to appeals against air quality decisions.

Clause 50: Amendment of section 60

This clause clarifies the retrospective effect of section 60, namely, the issuing of notices for the removal of structures that were erected prior to the commencement of the Act;

Clause 51: Amendment of section 74

The clause seeks to provide legal clarity that an appeal against a decision issued by delegated officials must be lodged at the appropriate sphere of government and appeal authority.

Clause 52: Amendment of section 1

The clause provides for textual amendments to the definition of "waste" so as to provide legal clarity on the interpretations and to prevent unintended consequences. The clause also inserts new definitions.

Clause 53: Amendment of section 4

This clause provides clarity that residue stockpiles and residue deposits are no longer regulated under NEMWA, but under NEMA.

Clause 54: Amendments of section 34A

The clause seeks to provide clarity that the Waste Management Bureau is established as a juristic person with a Board, and that in absence of a functional board, the powers and duties of the Board revert to the Minister.

Clause 55: Amendment of section 34C

The clause sets out the Minister’s supervisory powers over the Waste Management Bureau;

Clause 56: Amendment of sections 34F, 34G, 34H, 34I, 34J, 34K, 34L

The clause sets out the general powers of the Bureau, the governing Board of the Bureau, composition and membership, qualifications for members of the governing Board, appointment procedure for members of the governing Board, term of office of members of the Board and conditions of appointment of members of the governing Board;

Clause 57: Inserts new sections 34M, 34N, 34O, 34P, 34Q, 34R, 34S, 34T, 34U, 34V, 34W, 34X, 34Y, 34Z

This clause sets out the governance matters of the Board.

Clauses 58 and 59: Amendments of sections 37 and 38 

The clause provides clarity that a site assessment report must be submitted together with a remediation plan.

Clause 60: Amendment of section 41

This clause provides clarity that the Minister must keep a national register only of all contaminated land.

Clause 61: Amendment of section 43

This clause seeks to provide clarity that the Minister responsible for Mineral Resources, as the identified licensing authority, is responsible for the implementation of the waste management licensing system in so far as the waste management activities are directly related to prospecting or exploration of a mineral or petroleum resource; extraction and primary processing of a mineral or petroleum resource. The amendment also proposes that in instances where the MEC responsible for environmental affairs fails to take a decision to issue a waste management licence within prescribed timeframes, an applicant may request the Minister to take the decision.

Clause 62: Repeal of section 43A

This clause repeals section 43A to provide clarity that residue stockpiles and residue deposits are no longer regulated under NEMWA, but under NEMA;

Clause 63: Amendment of section 52

This clause provides for the consequential textual amendment to refer to licensing authorities collectively, including the Minister, the Minister of Mineral Resources and MECs.

Clause 64: Amendment of section 54

This clause provides for the payment of a processing fee for the variation of a waste management licence.

Clause 65: Amendment of section 67

This clause is a consequential amendment deleting the offence regarding residue stockpiles and residue deposits, and also creates an offence if a person contravenes a provision of a norm or standard.

Clause 66: Repeal of section 69

This clause is also a consequential amendment deleting the Minister’s power to develop regulations regarding residue stockpiles and residue deposits, since the stockpiles and deposits are no longer regulated under NEMWA, but under NEMA.

Clause 67: Amendment of section 69A

The clause is a consequential amendment deleting the Minister’s power to make regulations pertaining to the Waste Management Bureau, since it is no longer necessary for the Minister to make such regulations as it would now be a fully-fledged public entity;

Clause 68: Amendment of section 71

This clause seeks to provide clarity that the fines that could be imposed in terms of regulations under the NEMWA have been amended to be in line with fines that could be imposed in terms of the National Environmental Management Act, 1998 and the other specific environmental management Acts.

Clauses 69, 70, 71 and 72: Amendments of sections 74, 75, 76 and 77

This clause is a consequential amendment empowering the Minister of Mineral Resources to issue an exemption in so far such an exemption relates to a provision administered by the Minister of Mineral Resources.

Clause 73: Substitution of certain expressions

The clause replaces the expression of the "Minister of Water Affairs and Forestry" with the Minister responsible for Water Affairs throughout the NEMWA;

Clause 74: Substitution of Schedule 3

This clause replaces Schedule 3 with a new Schedule on sources of waste. This Schedule is read with the revised definition of "waste" contained in section 1 of the Act;

Clause 75: Amendment of section 12

The clause seeks to provide legal clarity that an environmental management plan or programme applied for and approved in terms of the MPRDA, on or before 8 December 2014, is deemed to have been approved and issued in terms of NEMA. The clause also provides clarity that the environmental management plan or programme approved under the MPRDA after 8 December 2014 -- if the application for the exploration, prospecting, or mining right, permits or licence was received before that date -- is deemed to have been approved and an environmental authorisation issued under the NEMA. The clause also provides clarity that an environmental appeal lodged in terms of a decision made under the MPRDA, must be finalised in terms of the MPRDA, regardless of whether the decision was made before or after 8 December 2014. The transitional arrangement is not applicable to ancillary activities not authorised in terms of the NEMA or NEMWA;

Clause 76: Transitional provision for environmental management programmes

This clause inserts a new section to provide clarity that an environmental management plan or programme issued and approved in terms of the MPRDA on, before or after 8 December 2014, is deemed to have been approved, and an environmental authorisation issued in terms of NEMA, excluding ancillary activities, not authorised in terms of the NEMA or NEMWA. The clause empowers the Minister of Mineral Resources to instruct a holder of a right or permit to take action to upgrade any deficiencies in the environmental management plan or programme. The clause also provides clarity that all pending applications and appeals lodged in terms of the MPRDA before 8 December 2014 must be processed in terms of the relevant provisions of the MPRDA, and any ancillary activities must be processed in terms of NEMA or NEMWA. It further provides for the continuation of the environmental regulations (financial provision regulations and the management and control of residue stockpiles and residue deposits regulations) developed under the MPRDA, until such time that similar regulations are developed under NEMA or NEMWA.

Clause 77: Transitional provision for residue stockpiles and deposits

This clause provides for clarity that the residue stockpiles and residue deposits approvals or waste management licences issued in terms of the NEMWA, remain valid until they lapse or are replaced under NEMA. It also clarifies that the regulations pertaining to the management and control of residue stockpiles and residue deposits from a prospecting, mining, exploration or production operation developed under the NEMWA, remain valid and regarded as being developed under NEMA;

Clause 78: Transitional provision for Waste Management Bureau

The clause provides clarity that anything done by the Waste Management Bureau under the repealed Part 7A of the NEMWA remains valid until any subsequent new provisions override it.

Natural Resource Management Agency

The NEMLA Bill proposes the establishment of a dedicated Natural Resource Management Agency as a specialised implementing entity responsible for the management of natural resources. 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 empowers Minister to intervene if the Agency is in financial difficulty or is being mismanaged; fails to perform its functions effectively or efficiently; has acted unfairly or in a discriminatory or inequitable way towards a person to whom it owes a duty; or has failed to comply with any law or any policy envisaged in this Act.

The objects of the Agency are, amongst others, as follows:

  • Promoting the management of natural resources to ensure that environmental assets are conserved, valued, sustainably used and enhanced;
  • Promoting the management of natural resources to enhance socio-economic benefits and employment opportunities, particularly for the poor and marginalised groups, including full support for the Expanded Public Works Programme (EPWP);
  • Monitoring the implementation of natural resource management research, advocacy, incentives, disincentives and controls;
  • Progressively building capacity within the Agency to provide specialist support for the development and implementation of management plans and capacity building programmes relating to natural resource/ecosystems management.

The functions and general powers are aligned to the objects of the Agency. The proposed entity would be a Schedule 3A public entity under the Public Finance Management Act (PFMA), governed by a Board. The Board would be appointed by the Minister, and must perform its general duties in terms of good governance and corporate responsibility in terms of the laws of the Republic, to be set out in the terms of reference by the Minister, or perform its special duties as determined by the Minister. The Agency would be led by a Chief Executive Officer appointed by the Board, with the approval of the Minister.

The funds of the Agency would be consist, amongst others, of money appropriated by Parliament, including through the EPWP and any other public employment programmes; income derived by the Agency for services rendered; income derived by the Agency from the sale of products; oluntary contributions, donations or bequests received in accordance with the law; contributions in cash or in kind by land owners or partners, for the implementation of programmes; and money from any other source, subject to the PFMA.  

Discussion

The Department was represented by Ms Dee Fischer, Chief Policy Advisor of Integrated Environmental Management; Mr Mark Jardine, Director of EMI Capacity Development and Support; Mr Guy Preston, Deputy-Director General of Environmental Programmes; and Mr Mark Gordon, Deputy-Director General of Chemicals and Waste Management

Mr R Purdon (DA) referred to clause 2, and asked if there were targets in the past and if those targets had been met. With regard to clause 11, municipalities had been weak in the past regarding their capacity -- how had this been addressed?

Mr Shabalala replied that because this was a new sub-section, no previous targets had been created or met. The Department had been trying to assist municipalities with regard to their capacity. Previously, municipalities had had to rely on their by-laws, but over the last 10 years the Department had been working with the provinces to develop an effective system. There were about 343 local authorities, and previously the municipalities could use an outdated directive in terms of the Environment Conservation Act, but in order to ensure there was a similar administrative enforcement instrument that was used by all the environmental authorities, the Department would like to empower the municipal managers and give them additional enforcement mechanisms, to prevent them from using outdated directives.

The Department said it needed to empower the Minister of Mineral Resources and the Minister of Water and Sanitation to access the trust fund. In terms of the Tax Act that involved National Treasury, if money was taken out of the trust fund, a penalty must be paid. This provision, however, did not restrict what the money could be used for. A provision must be made to restrict the use of the trust fund to rehabilitation purposes only.

The Department raised a concern over the introduction of new text. As the Bill had already been published for comment, the new text that would be introduced would not be commented on, as the public would not have seen it. This was something the Department would have to consider in terms of process. It suggested that once the text had been amended, the Bill should be re-published for comment.

The Chairperson replied that this comment was worrying. He reminded the Department that once the Bill had been submitted for comment, it became a Parliamentary process and the Department was no longer involved. The Department had to follow its own internal process, and the Bill could not be re-published. He referred the Department to the state law advisor, and suggested they enquire how to deal with the new submission.

Mr S Makhubele (ANC) enquired whether clause 15 could be amended to, “the inspectors should always produce their identity card upon arrival”, instead of the current suggested amendment which was, “the inspector, on request, should produce his or her identity card”.

The Department responded that it would look into Mr Makhublele’s suggestion.

Mr Purdon referred to clause 20, and asked if the inspectors were given support by the police, or if the inspectors asked for support.

The Department replied that the inspectors did have support from the police, and in order to become an environmental inspector, they had to undergo a three week training programme during which they were equipped with the necessary information to execute their duties sufficiently and safely.

Mr Purdon indicated that the words, “to the satisfaction to the Minister,” in clause 30 was a bit loose and required more specific direction.

The Department, however, commented that it just meant that the Minister had been granted discretion in these matters.

The Chairperson advised that Clause 31 should be removed, because if a provision had been duplicated it served as an emphasis instead of a mere duplication.

Mr Makhubele raised a concern regarding clause 33. He said that if legislation capped the monetary penalty, criminals could be fined less than the worth of the stolen item.

Mr Shabalala replied that if the monetary value was not prescribed in the Bill, automatic legislation -- called the Adjustment of Fines Act -- applied regarding the value of the monetary penalty. The amount prescribed in this act was usually low. This meant that the Magistrate would be able to order the guilty party to pay an amount prescribed in terms of this act.

With regard to clause 78, the Chairperson asked how the Department would deal with excessive waste stockpiles. It had been pointed out that some of these stockpiles could be used for resources, but in the meantime they were a sight for sore eyes.

The Department said it had identified three different types of dumps -- legacy dumps, existing dumps and new sand dump. All these wastes had an impact on the environment and public health. How did one manage the impact on the environment and public health with all these wastes? One of the issues was the mine dust that was going into the surrounding communities. The stabilisation of the dumps was vital for public health, even if they were not having a huge impact on ground water, for example. So the measures that needed to put in place would be based on a risk assessment approach, and this would determine the requirements of the standards. It would also provide for the re-mining or the utilization of those residues or stockpiles for other uses, like recycling -- for example, the making of bricks. The financial provision was important, and should an unforeseen impact emerge, there should be finances to deal with it. For example, the acid mine draining issue was never foreseen.

 

The Department explained that clause 310 allowed that when an inspector found non compliance, the report had to be given to the relevant authority, such as the Minister of Water, whereas in the past it could be referred only to the Minister of Environmental Affairs or the MEC.

The Chairperson said that the Portfolio Committee had conducted an oversight last year in Mpumalanga, and were pointed to the abandoned mines, and how they impacted the local communities. The Committee had also gone to the local hospitals and seen how people got admitted to hospital as a result of inhaling residue from the mines. This was affecting the community and left the Committee almost paralysed as to how to deal with it. He asked how this issue could be treated, which law could be applied to deal with this matter, and how long would it take to deal with it, as it was a matter of urgency.

The Department said that there was a programme to rehabilitate thse abandoned mines. The dump sites were a problem and something had to be done from a legislative viewpoint, and this was a problem where something could be done. Something had to be done either by the Portfolio Committee, or by the Department.

The Department also pointed out that health was a concurrent competence, and the implications of these public health risks emanating from abandoned mines were having an impact from a health budget point of view. The vast majority of those impacts were from air pollution, like dust, which was a local government problem, so this was becoming a problem for all spheres of government. The Department suggested that all 6 000 should be looked at, and those that had economic potential in terms of re-mining should be identified and be dealt with accordingly. Those which did not have such potential must also be identified, and the Department of Mineral Resources (DMR) should focus on those which did not have mining potential and were not economically viable so that they could reduce the size of the problem.

It had to be established who gained access to the funds. The Department had to ensure that any regulations going forward must be inconjuction with what was the best for the environment and the people.

The Chairperson said the Portfolio Committee had been receiving a lot of complaints regarding waste management, and requested that these complains to send to the Department so that they could be dealt with. The Committee would have to schedule an oversight visit to check if everything was under control.

The Chairperson asked if the Department had received a response on the role of the provinces.

The Chairperson a matter that had to be looked at was whether sufficient resources were made available for rehabilitation to take place, who should look at who got access to the funds, and  who must give the go ahead. The problem had been identified, and all parties involved must raise the level of consciousness, so that at the next oversight visit, the Portfolio Committee would be able to provide the community with answers.

Conclusion

The Chairperson concluded the meeting, and said the amendments would be put on hold until a written submission had made to the relevant legal departments for their recommendations regarding going forward on the proposed amendments to the Bill.

The first date of the public hearing was scheduled for 27 February 2018, and about three days would be set aside for them. The call for submission would have to be advertised, to give people sufficient time and opportunity to submit them. The public hearings would take place in Parliament, Gauteng and KwaZulu-Natal, as those were the places and areas most affected by the changes. The Chairperson also suggested a presentation on the regulations regarding the recipients before this matter was concluded.

The meeting was adjourned.

 

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