National Forests Amendment Bill: Key issues to consider from extended public hearings

Meeting report

Ms Phumelele Ngerma, Parliamentary Legal Adviser, RSA Parliament, informed the Committee that the National Forest Amendment Bill seeks to provide certain definitions so as to bring clarity to natural forests and woodlands; provide for public trusteeship on the nation’s forestry resources; increase sustainable forest management and its promotion, and remedy deforestation and provide mechanisms.  Lastly, to provide for appeals and reinforce the penalties of offences committed in terms of this Act.

According to Section 21 and 41 of the principal Act, the Minister is the sole trustee and may take steps to promote voluntary grant of access to forests, both state owned and privately owned. The Minister is legislatively granted negotiating powers or may engage panel members according to Section 45 on behalf of the people to move issues forward.

Ms Ngema stated the Amendment Bill which the Committee is currently processing does not amend most of the provisions except for minor amendments to Section 23. However, current provisions in the Act address the issues raised at community hearings. The Minister has the power to grant exemptions where the activity is to benefit the community for domestic, cultural, health, or spiritual purposes.

Pertaining to agreement types and provisions, Section 23 lists activities permissible under a license issued by the Minister within a state forest. Amongst others, it includes permitting the grazing or herding of animals, cultivating land, management of plantation, felling or cutting of trees, etc. whilst ensuring sustainable management of forests. She, however, pointed out that communities had concerns because they have been prohibited from these activities which have given them lives, but the problem is who is prohibiting them. There are types of agreements in place that deal with these matters found in Sections 26, 27, 27A, 28, and 29-32.

Section 32 provides assistance for community forestry. Community forestry includes small scale plantation forestry by disadvantage persons due to unfair discrimination; establishment and maintenance of nurseries and other facilities; and provision of training, information, advice and material, including financial assistance. Section 7 prohibits tree destructions. The proposed amendment adds protection through a prohibition of destruction of vegetation/products.

With regards to constitutional and legislative obligations, section 85 (2) of the Constitution (a) enjoins the executive as members of the Cabinet to implement national legislation except where Constitution or legislation provides otherwise. Section 85(2)(e) states the Executive authority must perform any executive function provided either in the Constitution or national legislation. Some responses from the Department were worrying in light of the above directives and constitutional obligations and the provisions of the National Forestry Act (NFA) (principal Act).  The problem may arise where the Minister uses the relevant provisions of the Act to lease or release state forests privately without any monitoring mechanisms for the benefit of the people or enforcement.  Section 24 of the NFA provides licencing provisions which enable the setting up of a period or timeframes that could be linked to either a servitude, lease or community agreement that this chapter of the Act permits. Rule of law requires Minister to act accordingly.

Section 24(1) (b) sets a limit of 10 years in case of any other activities. Section 27 in case of a lease agreement entered into by Minister: 27(2) is relevant and sets out the ambit of such agreements. Without setting the cap or expressed timeframe, is where the challenge arises, therefore, leaving assumption that such in terms of section 27(2) (i) is left for the consideration and agreement between the parties. Contract terms should express as such and be explicit. So the Act is not silent but the issue may lie with proper implementation.

Concerning trusts agreements, Section 27A states the Minister is empowered to establish a trust in respect of state forests or land held in trust by the KZN Ingonyama Trust, where there is a claim for land restitution, and right of restitution has not been finally determined. The Minister then is empowered to direct how the trust monies are used. The response by DAFF to indicate in other instances that a letter has been directed to some other Minister or department is problematic in light of certain other legislative obligations expressed within the NFA upon DAFF. 

Section 41 establishes the National Forest Recreation and Access Trust. DAFF mentioned Kabelo Trust & others (S27A & 28) like KZN Ingonyama Trust. (S28) & S29 of NFA, S44 read with 43, DAFF responses ignored directives from these provisions as if they are non-existent. The official of DAFF must be administering such trusts or any other person so agreed to by two ministers (DAFF & Finance). Detailed information from DAFF in this regard is required.

New definitions may be necessary once DAFF indicates the differences and need for distinction. The Bill is not clear on which definitions to amend but the principal Act and judgements considered indicate the Act definitions are in order.

Communities indicated frustration about how they are deprived and refused access to certain forests. Where these are state property, it may be against current legislation, custom and traditional law of that specified area. The Act permits reasonable access and certain licenced activities, but that is not the case. Customary law grants extensive beneficial rights and use of the communal land. Flaunting of the Act on the part of relevant departments and failure to comply and ensure enforcement seems to be the challenge. There is no legal vacuum and legal protection is legislated, endorsed and very clear, but failure is on enforcement and state failing the right in section 24, 21(1) and 7(2) together with section 27 permits on activities together with the Ingonyama Trust Acts. 

Vegetation conservation is also covered under the Conservation of Agricultural Resources Act 43 of 1983, section 3 and this may well cover the water licencing issue and how DAFF may dovetail its work with other departments, instead of reference to ministerial letters as and when communities complain. Combined ministerial efforts must be brought to the attention of Parliament with explanation how current laws are stifling or helpful to the executive. Should this be shown, only then can a need to overhaul and review these laws would become necessary.

Ms Ngema pointed out that from DAFF’s side there is a lack of proper interpretation of the NFA provisions which is leading to stifled or impeded progress. There is also a lack of cooperation and communication amongst departments and this makes it seem as though there is a vacuum in legislation. Effective co-operative government seems to be lacking. She recommended that enforcement mechanisms need be put in place. Structures like the Charter Council and established Trusts must perform allocated tasks properly. The Minister and Parliament must evaluate, monitor actions to increase oversight and whip where necessary for the benefit of citizens.

Political engagement is necessary on how the state resources are genuinely benefiting the citizens and if the information presents a different view or aligned with what communities said. What must be done is a dialogue, and action plans are required to move the nation forward. Lastly, she indicated the statute seems to be sufficiently covering the problem areas but implementation of available legislation and enforcement measures may be where challenges ensue.

Discussion
Mr L Ntshayisa (AIC) remarked that the presentation has left him confused because the legal advisor says there is nothing wrong with the legislation and there is no need for the amendments, but there are amendments made already to the Principal Act. The legal adviser only states the problem with the Act is around implementation that has not taken place.

Ms Ngema clarified that there is a need for the Amendment Bill because the Department would not have committed to the exercise if there was no need for amendments. The Department has also provided a report on the socio-economic impact though it is not helpful. There is a need for technical amendments to the Bill which deal with prohibiting prospecting and mining activities on the forest land. It needs to be appreciated the response was around issues raised by the community and that is why the Principal Act had to be revisited to see if there have been vacuums. This is not a stand-alone Bill. It addresses an existing Act.  It can not be taken out of the principal Act and be made a stand-alone. The content points out the benefits the Bill seeks to achieve. That’s why she said she could not make a judgment to say whether the Bill must go ahead or not. The provisions of the Act provide a framework that would enable certain things to happen and which would benefit the community.

Mr A Madella (ANC) indicated he is not sure whether the amendments are necessary. What comes out clear is that the implementation and administration of the current Act by the Department leaves much to be desired. There are definitions which have not been in the original Act.  Definitions of woodlands leave him confused. The main issue during the public hearings was the condition under which people live under in forest farms, and the amendments have not touched on those areas.

Mr S Mncwabe (NFP) asked for clarity on the powers of the Minister in relation to those of the Ingonyama Trust. He wanted to establish if the power of the Minister applies to forests under the Ingonyama Trust.

Ms Ngema stated the answer lies in the Ingonyama Trust Act.  It is Section 3 (3) of the Act that says all land in real rights be referred to subsection 1 and shall be transferred to the Ingonyama Trust on behalf of the community or tribe. The trust land is held in custody though it still remains a state land. Even if it is held in custody by the Ingonyama Trust and the Board, the Ingonyama Trust has the power to administer it as it sees fit. Even the courts indicated it was recorded as a state land.

Mr P Maloyi (ANC) remarked that most issues have been attended to, but the Department officials could not explain to Parliament and people what the Principal Act entails. When there are public hearings the Department must send officials who know their story about the work of the units of the Department in order to make things very easy for the public. He asked why the Regulations do not deal with enforcement and issues raised. The major thing appears to be the definitions and preservation of forest land.

Ms Ngema informed the Committee she did not get time to go through the Regulations and would not like to give the Committee an uninformative answer. She indicated it is important to look deeper and deal with practical issues rather than dealing with bureaucratic matters.

The Chairperson remarked the government has not done its work to ensure people benefit from the land. The Ingonyama Trust is so controversial that no one wants to speak about it. The laws that they pass as members of Parliament must address the concerns of the community. There is also a continuation of contrary messages from relevant departments where you discover that the Department of Water and Sanitation says SA is a water-scarce country while Agriculture on the other hand plants trees that consume a lot of water.

Ms Ngema said it is important for concerned departments to have foresight on policies they develop and look at sustainable issues of forestry.

Mr Maloyi commented that most of the issues raised by communities were around accommodation, human rights, and conditions of employment. He hoped the Department would come to report to the Committee on these matters.

Mr N Capa (ANC) suggested the Department should lift up all the elements raised by the communities and see if they could be addressed in another piece of legislation related to forestry and environment.

The Chairperson stated that issues raised by the communities should be addressed by the Department. There is no law that stops it from making interventions. The Department is not doing its work.

The meeting was adjourned.