National Environmental Management Laws Amendment Bill [B14-2017]: public hearings

Meeting report

The Chairperson, who has to attend to other pressing commitments, would be joining the meeting a bit later. Mr Z Makhubele (ANC) was elected Acting Chairperson and he welcomed everyone to the public hearings, especially all the stakeholders who are to make submissions.

Briefing by the Department of Environmental Affairs on the NEMLA Bill [B14-2017]

After presenting the background to the NEMLA Bill (see slide 2), Mr Sibusiso Shabalala, Director: Law Reform, DEA, referred to the various Acts which the NEMLA Bill intends to amend (see slide 3). The proposed amendments are intended to provide clarity by strengthening the following:     

Integrated environmental management

Mr Shabalala broke down the recommended amendments to the Act in so far as integrated environmental management is concerned. Among others, the proposed amendments intend to compel the simultaneous submission of an application for an environmental authorisation and other applications for any licences and/or permits required under any of the specific environmental management Acts (SEMAs) for the same development. This approach will ensure the full utilisation of one process for information gathering to inform all decision-making related to the proposed development and to allow for the issue of integrated licences and authorisations. In addition, the amendments will provide for the streamlining and strengthening of licensing processes and requirements towards the efficient implementation of integrated environmental management.   

One environmental system

The proposed amendments intend to provide a trigger for the simultaneous submission of all environmental applications under environmental legislation after acceptance of a mining right, if such applications are directly linked to the mining activity; 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; and to clarify that the Minister of Mineral Resources is responsible for implementation of the licensing system and exemption provisions in so far as a waste activity is directly linked to a mining activity.

The amendments, Mr Shabalala continued, also intend to clarify that an environmental management programme or plan approved for mining activities under the Mineral and Petroleum Resources Development Act, 2002 (MPRDA) on, before or after 8 December 2014 is deemed to have been approved and an environmental authorisation issued under NEMA (for an application lodged before 8 December 2014); to clarify that all pending environmental appeals lodged under the MPRDA before 8 December 2014 must be finalised in terms of the MPRDA; to provide for clarity on the continuation of environmental regulations developed under the MPRDA until such time that similar regulations are developed under NEMA; and to provide that residue deposits and residue stockpiles will be managed under NEMA, and no longer under the National Environmental Management Waste Act (NEMWA).

These amendments will ensure the full utilisation of one process for information gathering to inform integrated decision-making and to allow for the issuing of integrated licences and authorisations related to the implementation of the one environmental system. In addition, the amendments will provide for the streamlining and strengthening of licensing processes and requirements towards the efficient implementation of the one environmental system. 

Compliance and enforcement measures

Mr Shabalala elaborated on the recommended amendments to the Act in terms of the compliance and enforcement measures. The proposed amendments intend to allow a successor-in-title or person in control of land to lodge a section 24G application for a structure or development, in order to close an existing legal loophole; to strengthen the powers of environmental authorities regarding the scope of persons to whom a section 28(4) directive may be issued; and to empower local authorities (municipalities) to issue section 28 directives.

The proposed amendments are also aimed at clarifying that the issuing of a section 28(4) directive must provide the recipient with an opportunity to make prior representations through pre-directive process, unless there is an urgent need for the protection of the environment; and 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.

The recommended amendments also intend to provide legal clarity pertaining to certain powers of the environmental management inspectors and environmental mineral resources inspectors; and to ensure that an environmental management inspector (EMI) and environmental mineral resources inspector receive the same standard of approved training. Furthermore, the purpose of the amendments is to empower the MEC to designate officials as EMIs to undertake compliance and enforcement with provincial environmental legislation; to empower the Minister to establish an EMI code of conduct through regulations; and allowed for flexibility in the drafting or formatting of templates prescribed for certain enforcement notices, but maintains a minimum standard in terms of content.

Biodiversity and conservation measures

The proposed amendments aimed to provide clarity on the actions, measures or methods to be undertaken to control or eradicate listed invasive species; that CFOs must be ex-officio members of the boards of the South African National Biodiversity Institute (SANBI) and the South Africa National Parks (SANPARKS), respectively; and in order to ensure compliance with King III Report on Good Governance. 

Air quality management

Proposed amendments will clarify that the Minister has discretion to establish the National Air Quality Advisory Committee; clarify the two scenarios where a person may apply under section 22A of the National Environmental Air Quality Act (NEMAQA); provide clarity that the Minister may issue an integrated environmental authorisation where the Minister is identified as the licensing and Competent Authority on a listed activity that requires an environmental authorisation, atmospheric emission licence and a waste management licence; provide 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; and will ensure that an air quality appeal follows the appeal process implemented in terms of section 43 of the NEMA.

Waste management

The amendments intend to provide a definition of “waste”; provide clarity that the Waste Management Bureau is established as a public entity with a board of directors responsible for, amongst others, the implementation of industry waste management plans; provide for governance matters; clarify that the national contaminated land register will only reflect contaminated land; ensure that a site assessment report and remediation plan regarding contaminated land are submitted simultaneously to the Minister for approval; provide for a legal mechanism to deal with exceptional instances where an MEC fails to take a decision to issue a waste management licence within the prescribed timeframes; and to provide for the payment of a processing fee for the variation of a waste management licence.

Integrated coastal management

Mr Shabalala concluded by looking at the recommended amendments on coastal management. The amendment intends to expressly provide for retrospective application of removal notices for illegal structures, because it is currently only implied and thereby bringing it in line with section 28 of NEMA.  

Input by the Consortium of Interested and Affected Parties in the bio resources sector

After introducing the Consortium (see slide 2), Mr Nigel Dorward, representative of the Abalone Farmers Association of South Africa,  clarified that, in terms of the legislative needs of the Consortium, the Consortium is not ‘anti-legislation’ or ‘anti- regulation’. South Africa needs enabling, practical, fit for purpose and cost effective legislation (see slide 3).

Mr Dorward continued that NEMBA is being implemented unlawfully in ways that harm and impede rather than enable justifiable sustainable development in the bio resources sector. This harmful and unlawful action is being legitimised, after the fact, by incremental changes to the National Environmental Management Biodiversity Act (NEMBA) that moves the law away from its constitutional imperatives. The proposed changes to NEMBA in the 2017 NEMLA Bill are such a change.

Mr Ian Cox, Legal Representative, Cox Attorneys, explained that the Consortium has adopted a constitutional approach to environmental conservation informed by NEMA, whose overarching principle is that human beings must be placed uppermost in all environmental law-making and implementation.

South Africa, Mr Cox pointed out, faces enormous challenges. It faces the challenges of transformation, unequal allocation of resources, a large portion of the population oppressed for centuries and, therefore, dispossessed. On top of this are the economic challenges of trying to, among others, run businesses. Process-driven, participatory change is inclusive and it confronts issues, rather than change being dictated from above or from the angry masses below.

He said that while the Constitution and NEMA, on the one hand, are anthropocentric and conservationist in nature (people are ‘first’ and are seen as part of nature, but also justifiable sustainable development is promoted), South Africa’s environmental authorities have adopted, on the other hand, a bio-centric and preservationist approach (nature is first; species are to be preserved inside their ‘natural distribution ranges’; people are alien to nature). This creates an essential conflict of values between those of the Constitution and NEMA on the one hand, and those of the DEA. This conflict of values is a major a part of the problem which will be spoken to in the presentation.

There have been numerous attempts to understand the root causes of this problem. Bearing in mind that problems are always more complex than the simple answers that provided, a big root from a process and legal point of view is that fact that South Africa does not have a bio-diversity policy at this point in time. The NEMBA White paper, which was prepared in 1997, was never finalised. This is in stark contrast to the NEMA White Paper. The White Paper on NEMA was an enormously inclusive process that engaged a massive diversity of different viewpoints. It produced an outstanding law. The NEMBA White Paper was declared in-house by likeminded experts. This is a problem from a problem solving point of view and leads to intellectual isolationism. There is a tendency only to speak with people who agree with one. This leads to ‘group think’ which makes it very difficult to solve complex problems in a rapidly changing world. NEMBA conflicted with the NEMA principles and that conflict was never resolved and no final policy was declared. Effectively, NEMBA reappeared in 2004 without a White Paper Policy process having been followed. While some argue that it is bio-centric, it is more likely that it is an attempt to combine the anthropocentric and bio-centric approaches.

NEMBA is a compromise law that attempts to combine the conservationist people first approach to sustainable development. It might have worked had there been any will to find a synthesis between these two competing value systems. The reality is that there is not. What is readily appreciable is that, over time, there has been an attempt by the DEA to drive home its bio-centric values regardless of what NEMA principles say to the contrary. The result, Mr Cox punctuated, is a failing law. This first failure was the lack of a participatory process. In so far as the advertising of the draft regulations, proclamations and public consultations, not a single law passed under NEMBA strictly complied with the advertising process. The Department also has to provide sufficient information to enable people to consult. In most cases, the only information that it provided is the law or proclamation itself and there is an absence of backdrop. In terms of the TOPS legislation, the DEA has been unable to amend the Threatened or Protected Species (TOPS) Regulations dealing with terrestrial protected species since 2007. One of the problems is the subsistence of a backward-looking idea of what natural distribution ranges were 400 years ago, as opposed to dealing with the real situation today. In the alien and invasive species space, there is a complete failure of Chapter 5. This is brought about largely as a result of the misapplication of the definition of ‘invasive’. The amount of species that have been listed as invasive is way beyond the capacity of any country in the world, bearing in mind that the current NEMBA says that landowners must notify the authorities of alien and invasive species on their properties and must take steps to eradicate or control. Local authorities have to prepare monitoring and implementation plans for each of these species. The City of Durban, which is among the most capacitated to deal with alien and invasive species, is struggling to battle 23 or 27 plant species.

In terms of the 2008 draft Alien and Invasive Species (AIS) Regulations, which were recently published for comment, despite the problems regarding consultation being confirmed by the Constitutional Court, refusing leave to appeal the rhino horn moratorium cases, the DEA has yet again failed to implement a public consultation process. The notice was not published in the national newspaper. It was published late, and no reasons were given in the notice as is required. Yet, the process continues without public notices to that effect and no engagement. The public are left to enforce its rights in the face of what is an egregious failure of proper process. This demonstrates a basic contempt for the public, human rights and the rule of law. What is being asked for is respect for a proper policy process.

The 2017 NEMLA Bill    

Mr Cox continued that the Explanatory Memorandum was misleading and misrepresented the effect of the proposed change to the meaning of ‘control’. Furthermore, there was no compliance with the Social and Economic Impact Assessment System (SEIAS) guidelines with no prior engagement or consultation with stakeholders (see slide 13). What was notable about DEA’s representation, Mr Cox highlighted, is that it was all about enabling their power to do things. There was no consideration of the impact that this would have on the public. 

There are enormous powers, Mr Cox explained, which DEA seems to arrogate to itself in terms of the proposed amendments. The proposed amendments to section 31 J and K of NEMA result in de facto warrantless powers. This is not cured by calling them “routine inspections”. This is confirmed by the Constitutional Court in the recent Kunjana decision. The DEA’s response to this has been to address it in court. This is not really acceptable. There should not be a need to take the DEA to court about matters of simple law. One should be able to engage with the jurisprudences that exist, the decisions of the court and act accordingly. Independent legal advice that lives outside the departmental ‘bubble’ needs to be sought. Real problems are on the horizon in terms of the impact these laws will have on human rights, including the rights to privacy, not to be unlawfully searched etc.

Proposed Amendments to Chapter 5 of NEMBA

The present legislative scheme, Mr Cox elaborated, is very simple: you manage alien species and invasive species are controlled or eradicated. A species is listed as invasive because it ultimately harms the economy, human health or the ecosystem services that contribute to human health and wellbeing.  If this is the case, it follows logically that one must eradicate or control in accordance with the United Nations Convention of Biological Diversity. The proposed amendments, however, result in a situation where species are not listed for purposes of control, but for indeterminate purposes. It is left to the Minister to determine what happens when a species is listed. South Africa do not have the resources to control or eradicate the nub of the species that are being listed. This creates an inherently contradictory and unworkable situation. One can only permit the use or possession of invasive species if the impact on biodiversity is negligible, which begs the question: if the impact on biodiversity is negligible, why introduce the law? The reasons for these changes are that the current NEMBA law is being ignored. No one is informing the relevant authorities of the presence of alien and invasive species on their properties. No local authority has complied with its obligation in terms of the invasive species modelling control plans, i.e. the South African National Biodiversity Institute (SANBI) AIS Status Report. It is simply beyond their power to do so. While we do not know the final outcome of this report as yet, what the SANBI report has recommended is that South Africa substantially reduces the number of species that are listed as invasive to those which really cause harm.

The Biodiversity Bill

Mr Cox elaborated that the Biodiversity Bill is draconian, non-compliance of which can lead to 20-year jail sentences. It increases the discretionary powers of the DEA (“must” replaced with “may”). There is an increase in unaccountability in that there are no peremptory rules, thus compromising parliamentary oversight or reporting as well as the public’s ability to participate. All biological resources become subject to permit driven access. This affects all South Africans equally. The Bill puts officials before people as custodians of nature and biological resources. Significantly, it does not address reasons for the failure of the present law. What exists is a fundamental failure of law, process and legality because of a clash of values between bio-centric values and constitutional values, which is a binding value system.

An effective and practical solution, Mr Cox argued, can be sought by following constitutionally aligned and legally compliant public participation and engagement processes to consider and synthesise a diversity of thinking and interests that will effectively guide policy implementation rather than defend the ‘group thinking’ of officials. Good policy making and the regular review of policy makes for effective laws. In contrast to the NEMBA and the proposed Biodiversity Bill, good policy underpins human rights enjoys public support and promotes rule of law and justifiable sustainable development.

The Consortium submits that the amendments to NEMBA need to be postponed pending a thorough independent review of the current legal framework; a proper policy development process that involves the wider public and all stakeholders; and, thereafter, a new legal framework, SEIA and compliant public consultation.

Input by the Wildlife Consortium

Dr Gert Dry, President, Wildlife Ranching South Africa, gave a brief balance sheet of the game ranching sector (see slide 2). In Africa, West Africa particularly, there is a 20% decline in game in national parks. It is not known how many exist outside the parks. In East Africa, there is a 48% decline in game in national parks with a 20-30% decline in game outside of national parks. In Southern Africa, the parks are running at full capacity (100%). Outside the parks, there are about a 500% increase in game in the private industry.

Tying it to what the previous speakers mentioned, Dr Dry explained that there is policy uncertainty with regards to Biodiversity Acts and the regulations in relation to game ranching. The Biodiversity Bill is underscored by a bio-centric ideology. It was developed for national parks and conservation within national parks. The problem is that if the Constitution and NEMA are not followed, in terms of putting people first, all legal instruments and jurisprudence formed by the body of regulations, norms and standards, guidelines and permits, are causing a problem. Game ranching and the supply of produce to the markets cannot continue effectively. From the perspective of policy incoherence, the DEA gazetted 33 draft legal instruments (2005 – 2018) which have not been promulgated into law. There are a range of insurmountable differences concerning, for example, the historic distribution ranges, which are based on a 400 year baseline, and the declaration of some species as extra-limital. The DEA’s position is unscientific and does not take into consideration the changing international and national landscapes. Furthermore, in terms of the definition of indigenous species, every time a new draft comes out there is a revised scientific definition of what is an ‘indigenous species,’ which do not comply with the Constitution and environmental definitions in NEMA. The law and the pseudo-scientific definition are not congruent. Furthermore, there is only a single AIS definition for mammals, plants and vegetation. This artificial definition is unfeasible. Finally, in terms of sub-speciation ecological approach vs the Biological Species Concept (BSC), the game ranching sector is compelled to follow the BSC, which is a medical concept compared to the sub-speciation ecological approach which is supported by a group of ecologists.

Dr Dry continued that the effects of the bio-centric ideology on the institutional mindset have given rise to purist arguments around hybridisation, bottlenecks, etc. In game ranching, however, the focus is how to optimise the outcome of my ranch or farm to make a profit and create produce.  In this regard, the successes of farmed game are totally ignored.

DEA jurisprudence, Dr Dry stressed, is not “enabling” for farmed game. This cannot be the case. Given that the value system of dominantly preservation, the environment is conducive in spite of the growth in private game ranching. The listings now extremely off-track and they ignores various socio-economic benefits; humanity is not seen as a part of the environment; there is insufficient information; and ignores SANBI Draft AIS Report; furthermore, CITES CoP17, the International Union for Conservation of Nature (IUCN) and NEMBA do not count farmed game, given their definition of “wild animals” in the “wild”.

Dr Dry took the gathering through the red listing process (see slides 8 and 9).

Speaking to the DEA Biodiversity Economy Lab, Dr Dry drew attention to the Spatial Planning and Land Use Management Act (SPUMLA) vs. the Preservation and Development of Agricultural Land Bill (PDALB) which are in conflict and highlighted, among others, that NEMBA has no “enabling” provisions for farmed game and the misalignment between DEA and provinces. There is consensus with DEA at some of the wildlife forums. However, because of the misalignment between DEA and provinces, a consensus outcome is not possible and nothing ultimately happens.

Furthermore, Dr Dry elucidated, in terms of the game meat value chain, the sector can produce 2 million heads of cattle with will the benefits (financial, food security etc.). The sector, however, is hampered by regulation. Unsupportive regulation needs to be reviewed, especially where the conflicting of SPUMLA and PDALB are concerned, the misalignment between DEA, DAFF and DRLD legislation. The potential of the game meat value chain is a low hanging fruit which, once tapped into, can reduce the need to import head of cattle every month. There s insufficient weight in respect of biodiversity economy and sustainable Use.

Input of Aquaculture

The Chairperson, who joined the meeting, invited the speaker to present.

Mr Dorward started by highlighting that he was in support of the position of aquaculture around some of the challenges that are seen around the development of the legislation. The key insight is that aquaculture is a farming activity which is no different from any other farming activity.

NEMLA impacts on aquaculture in that DEA is trying to use NEMBA to restrict the growth of aquaculture through regulation either because:

-The aquaculture species is alien and which means that according to DEA it must be regulated as ‘invasive.’-The aquaculture species is indigenous and thus must be regulated as if it is wild and in ways which confine that species to what DEA believe to be its historic natural distribution range.

Both initiatives are unrealistic because in the case of “invasive species” DEA’s approach ignores current realities and the benefits that flow from utilising these species. In the case of indigenous species DEA‘s backward looking NDR’s are incompatible with the present day situation and a rapidly changing environment.

Mr Dorward highlighted that the aquaculture sector rallies behind the philosophy of Phakisa. One of the key things which Phakisa discussed was self-regulation. From a market perspective, the aquaculture sector is comprised of producers which rely on markets to succeed. The world is increasingly a global village which is enabling the consumers to ask a few more questions and to demand compliance that fits into their worldviews. In the Marine space, the Marine Stewardship Council and the Aquaculture Stewardship Council give accreditation to many aquaculture producers. They then find the market a much easier place and that is what Phakisa had tried to enable.

Mr Dorward referred to a graph indicating the forecast growth over the next 10 years if Phakisa is effective (See slide 6). In agriculture, that is dominantly practised in rural areas where there are very little alternative economic and job opportunities, the graph indicates that Phakisa is something that needs to be pursued in South Africa given the significant growth in the value and tons of aquaculture products. The biocentric values underlining NEMLA’s changes to NEMBA are not congruent with a successful Phakisa outcome.

The Chairperson asked Mr Dorward to explain what is meant by ‘biocentric values’.

Mr Dorward explained that the Constitution is essentially an anthropocentric piece of legislation, i.e. it puts people first. It develops a legislative framework that enables people. This does not mean that it is putting the environment on the backburner. Rather, this means that the Constitution views the environment in terms of people. The bio-centric approach puts animals first and people second. This is a critical point in the sector’s opposition.

In terms of work opportunities, Mr Dorward highlighted, about 13 000 are people employed in the trout value chain. While trout production potential in various provinces is under-utilised (see slide 10), economic growth and employment potential in these rural areas are constrained by overregulation. While there is an understandable need for DEA to empower and train local inspectors to be able to operate, if there are local inspectors that have an opinion of their own skills and abilities and are misguided, quite a lot of havoc can be created.

On abalone production is, Mr Dorward explained, its direct production is way above anyone else in aquaculture. Roughly 80% of all directly aquaculture comes out of the abalone space. This abalone is farmed in tanks on private farm land, not in the sea. This takes place in coastal communities where there are very scarce job opportunities. In terms of oysters and mussels, not only is there much production, the sector employs many people (500 coastal community members), and there is a lot of growth (See slide 12).

Tilapia differs from abalone and trout in that it is more of a commodity product. For example, local tilapia farmers can make money at R40-R50 per kg. Imports into the country can sometimes arrive at R20 per kg. There is only one species of tilapia, namely Nile tilapia that is viable from an agricultural perspective. It is an invasive species. This species arrives in South Africa through the river systems that arrive in South Africa from neighbouring countries, who farm heavily in Nile tilapia. The farming of tilapia is capital-intensive because of the environmental concerns.  Farming Mossambicus tilapia is not economically feasible.    

The sector calls for clear policy that reconciles the conflict between DAFF’s desire to grow tilapia production with DEA’s desire to control Nile Tilapia as an invasive species. As a priority, there is need for the introduction of a zonal system where fish sanctuaries are created to protect indigenous species, e.g. Mossambicus Tilapia; and the identification of areas where Nile Tilapia and hybrids already occur and where Nile tilapia should not therefore be listed as invasive.      

In closing, Mr Dorward summarised the needs of aquaculture as follows: a biodiversity policy developed in terms of a lawful, and inclusive, process that engages aquaculture and other stakeholders; a people-first outcome that conserves biodiversity whilst promoting sustainable development; and reasonable and enabling laws that are congruent with policy.

He asked that the proposed NEMA sections 31 J and K amendments be abandoned or referred back to DEA to be redrafted; the proposed amendments to NEMBA be postponed pending the completion of a proper policy development process; the 2015 NEMLA Bill be postponed pending proper compliance with the SEIAS guidelines; and thereafter, the NEMLA Bill be subjected to a new and compliant public consultation process.

The Chairperson asked, in light of the request for a new and compliant public consultation process, is the contention that there was never a compliant public consultation process.

Mr Cox responded that a central complaint is that there is substantial non-legal compliance with the lawmaking process in terms of proclamations and regulations under NEMBA. What the amendments are seeking to do is actually to retrospectively rectify these errors and also move the entire law away from its constitutional people-first approach to a ‘nature-first, people are the problem’ approach which is embedded in DEA’s value system. Ultimately, there is a conflict of value systems between the Constitution on the one hand and environmental authorities on the other. The suggestion is that this should be addressed through the implementation of proper policy which is lacking. NEMBA was passed without a proper policymaking process. There has been no review of policy in this space for 21 years. This is creating a great deal of uncertainty. It has lent itself to the kind of unlawful behavior which happens when there is a clash of values. Ultimately, South Africa uses constitutional processes to solve intractable problems in the environmental, development, and transformation spaces. South Africa gets through these things by the honest, participatory application of constitutional processes. This is absent in NEMLA.

The Chairperson asked confirmed whether the issue is also with NEMBA.

This was confirmed by Mr Cox, who highlighted that NEMLA is an attempt to compromise bio-centric with anthropocentric constitutional values. The nub of the problem is that the DEA is bio-centric, nature-first. This is creating constitutional misalignment between actions and law.

Input by the Association of Cementitious Material Producers (ACMP)

Dr Dhiraj Rama, Executive Director, ACMP, talked about the Association’s engagement with the Department and DEA was thanked on engaging, at the very outset, with various aspects of the Bill prior to publication to ensure many comments/ challenges are addressed. Appreciation was also extended that the Bill includes amendments to eight different laws to address some of the Association’s challenges, both in terms of implementation as well as the unnecessarily high cost to do business with regards to administrative processes.

In terms of waste management, ACMP is of the view that the intention of providing clarity on interpretation and implementation has not been achieved. For example, the need for the inclusion of Schedule 3 in the Bill adds no value as the definition of waste is adequate to inform when a material is considered a waste or not. The challenge is to ensure appropriate interpretation thereof to support best environmental practice in the context of beneficiation and the circular economy. Furthermore, in terms of mine residues and stockpiles, the Bill has addressed the challenges regarding the undesirable consequences of regulating mine residues and stockpiles in terms of the Waste Act by ensuring its management by NEMA. It is noted that is Schedule 3, there is Exploration, Mining, Quarrying and Physical and Chemical Treatment of Minerals. It is recommended that this section is deleted should Schedule 3 be retained in the final Bill.  

 

Some of the key cement challenges are the use of alternate fuels and resources. This is recognised internationally as the best environmental option in terms of sounds environmental management principles to give effect to sustainable development, climate change mitigation, water demand management and a circular economy, etc. It is important to note that when Europe experienced Mad Cow Disease, it was the cement sector that was well placed to support the disaster management programme in Europe. The reason is that all the animals went to the cement kilns, which was in terms of public health the best option.  

The Chairperson asked Dr Rama to repeat his explanation.   

Dr Rama stressed that by having a good waste management system in place, or cement kilns positioned carefully, should mad cow disease break out in South Africa, it would have a cement kiln option to destroy the contaminated food stuffs. It can play a role in supporting public health initiatives.

The Chairperson asked why the Association has an issue with Schedule 3.

Dr Rama responded that the need for the inclusion of Schedule 3 in the Bill adds no value as the definition of waste is adequate to inform when a material is considered a waste or not. Moreover, while a list of waste has been proposed in terms of Schedule 3, from the perspective of cement production, it is debatable whether these materials (e.g. slag, fly ash etc.) are indeed ‘waste.’  

Dr Rama highlighted that it is important to look at these resources carefully. It has been included in the draft of the exclusions regulations. However, when one looks at the draft exclusion regulations, it contains a whole range of waste streams that have to be excluded. It is not clear why such materials are considered as waste in South Africa. This departs from what is the case internationally. The recovery of such materials from industrial processes for utilisation in cement production in the view of the Association confirms that the materials must be considered as raw materials for different uses. It is thus recommended that Section 4 of NEMWA be amended by the insertion in subsection (1) after paragraph (d) of the following paragraph: (e) “alternate resources for the production of SABS compliant cement”.

Dr Rama said whichever waste stream the cement sector decides to use, if one identifies some producer at some particular process that has got a waste stream that meets the criteria of the sector, it will recover that. It is important for the circular economy. In the case of the cement sector, it is abundantly evident that materials considered to be waste by some are in fact recovered materials and when used as raw materials are managed through environmental best practice and has a positive impact as it:

-Reduces mining of non renewal resources as well as energy consumption and consequently utilisation of landfill space;

-has positive mitigating outcomes to GHG emissions

- gives effect to sustainable development principles;

-creates employment across the value chain; and

-contributes to greening the environment.

Examples of such materials, Dr Rama continued, include fly ash, synthetic gypsum and granulated blast furnace slag from different industrial processes. Many countries in the world have adopted such an approach to ensure that there is a sound understanding of when a substance ceases to be a waste. The beneficial use of materials must not be constrained by the requirement to obtain a waste license, particularly in cases where the industrial process possesses an EIA record of decision for their activities. Internationally, the World Business Council, in 2014, set a 74% target of the use of natural material. Thus, 26% should be using alternate materials, e.g. fly ash and slag. In 2016, the sector had already reached 72%. This is part of the global cement rollback. By using these materials, in terms of the positive environmental effects, it has positive mitigating outcomes to GHG emissions. It is not only cement, because if one looks at DEA’s published mitigation potential analysis, they have got alternative fuels and resources as a mitigation option.

Dr Rama referred the gathering to a graph on GHG emissions reduction. In terms of landfill space, if one looks at the 2016 cement production figures for the country, South Africa produced 13.5 million tons of cement. If one takes 28% of the alternate materials in a cement bag, this translates to about 3.5 million tons of material used in cement which would otherwise be in landfills. These are some of the positive effects in terms of the alternative materials that are used in cement production.  

The definition of ‘domestic waste’ [30(c)] only refers to waste that is generated from premises that are used wholly or mainly for residential, educational, health care, sports or recreation purposes. This definition excludes domestic waste generated at factory sites, offices, etc. It is recommended that such waste streams at commercial and industrial sites also be considered as domestic waste rather than business waste unless there is a clear rationale for the distinction.

In terms of ‘inert waste’ [30(f)], Dr Rama indicated that the words ‘significant’ and ‘insignificant’ is used and is a deciding factor in determining whether a waste is inert or not. It is recommended that:

-The definition of significant and insignificant should be included.

-Clarification to inform whether all three criteria or some needs to be met in order for a waste to be considered inert (i.e. a, b and c) Amendment of s43 of the Act 59 of 2008.

On the consultation process assigned to an environmental assessment practitioner, he recommended that section 24(2) be deleted as it is inappropriate to place the burden on the environmental assessment practitioner to consult with other government departments. The Competent Authority should include mechanisms and procedures in place to ensure comments are received from relevant government departments within set timeframes. This would ensure a more efficient process to finalise applications.

From the perspective of decision making time frames, Dr Rama highlighted, to ensure administrative justice the following should be considered. It is recommended that a decision making timeframe should be specified such as furnishing a decision in 30 days or 60 days etc. He also recommended that the inclusion of ‘specified activities’ under section 24P be deleted to avoid subjective interpretation. Furthermore there is no definition of specified activities included in the Bill. In terms of compliance and enforcement, Dr Rama suggested that clause 5 (b) under Applications in respect of unlawful commencement be deleted as it requires an section 24G application by those who have not committed an offence.

The work towards amendment, Dr Rama concluded, is commendable. Some of the tool regulations should be finalised. It is hoped that the comments that were made will be considered favourably.

Input by the Centre for Environmental Rights (CER)

Ms Christine Reddell, Attorney, CER, brought into focus a few of the issues which CER has identified in relation to the NEMLA Bill and aspects that should be given consideration in the law reform process. 

Section 24G deals with the rectification of unlawful activities. CER has made numerous submissions on section 24G because it continues to see the continued abuse of this section because it seems a cheaper, easier alternative to proper licensing. NEMLAB seeks to amend section 24G to allow for a person who has subsequently taken ownership of land on which unlawful commencement occurred to legalise the development, and also extends application to a waste management license. CER recommends that section 24G and GNR 698 be amended to expressly provide for the submission of a report as contemplated in section 24G(1)(vii) of NEMA, and that public participation be included as a mandatory requirement in all section 24G applications (as required by the Constitution and the Promotion of Administrative Justice Act (PAJA)). Furthermore, express provision needs to be made for the publication and dissemination of the section 24G application form, and all assessments conducted as part of the application process, as effective public participation cannot occur without access to all relevant documentation.

There is no provision in NEMA or EIA Regulations anymore allowing for suspension or withdrawal of EA where there is non-compliance with the conditions. The EIA regulations do allow for withdrawal if there has been fraud in obtaining an environmental authorisation. There is no provision allowing for withdrawal when the conditions have not been complied with. The motivation to omit such a provision is not clear when the MPRDA has such a provision, NEMWA and NEMBA have similar provisions. There is a need to restate this important clause.

Ms Thobeka Gumede, Attorney, CER, commenced by highlighting the amendment that was made by the Bill the seeks to clarify that environmental liability must be assessed annually but that audit reports must be submitted to the Minister every three years. Although the motivation behind annual assessments is appreciated, and the outcome that it desires to achieve, CER is concerned that this may be impractical and ineffective. It may compromise the thoroughness of the process if it has to be done every year. The recommendation is for assessments to be aligned with the timing of the submission of audit reports every three years. This will allow for more substantive assessments. Secondly, CER supports the provision in NEMA which provides that the Minister of Mineral Resources, if not satisfied with the assessment or review of a financial provision that he/she can appoint an independent assessor. Interested and affected parties should also be allowed to inquire into the accuracy of the assessment or review. This will be inclusive. Thirdly, currently the Minister of Mineral Resources is the only Competent Authority that is allowed access to the financial provision. It is recommended that the Minister of Water and Sanitation be allowed access to the financial provision for the rehabilitation of impacts on water resources. 

Nicole Loser, Attorney, CER, said while the Waste Act sets out quite useful provisions to deal with the remediation of contaminated land, in practise, these provisions are not being implemented very well or at all. Moreover, wording of some of the provisions of Part 8 of NEMWA do not lend themselves to effective implementation. The amendment of this section will serve as a good opportunity to address CER’s concerns. Firstly, there are no timeframes for conducting a site assessment report or within which the Minister/MEC must make a decision on whether land is contaminated or requires remediation. Land that is significantly contaminated requires early remediation. It does not make sense that the person causing the contamination can take as much time as they want to conduct a site assessment.  A site assessment to be conducted in respect of the relevant investigation area, and that a site assessment report and a remediation plan, if applicable, be submitted to the Minister or the MEC, as the case may be within a stipulated time period, which cannot be more than 90 days. Section 38 should be amended to say the Minster of MEC ‘must’ (as opposed to ‘may decide’) make a decision within 90 days. Concerning the identification of investigation areas, the Act says that the Minister and MEC may identify investigation areas by notice in the gazette or by giving notice to the landowner. However, landowners or people who believe land to be contaminated are giving notice and the DEA seems to be regarding this as adequate for the land to become an investigation area. This is not what the Waste Act says. If the landowner gives notice, the Minister or MEC still has to identify the land as an investigation area. This has been significantly undermined in the remediation processes that have taken place in terms of part 8 of NEMWA. CER is also concerned about the definition of ‘contaminated’ and the processes in terms of the Act and the norms and standards for determining when land is contaminated. It is very complicated. The National Contaminated Land Register must be publicly available and must remain a register of investigation areas. CER objects to NEMLAB’s proposed amendment for the register to only reflect contaminated land.

Ms Loser concluded that, currently, the Air Quality Act does not include express provision to revoke or suspend an atmospheric emission license (AEL). The Act should make express provision for the licensing authority to suspend and revoke an AEL in circumstances where he/she is of the opinion that the license holder has contravened a provision of AQA or a condition of the AEL; such contravention may have, or is having, a significant effect on health or the environment. Similar powers are under the Waste Act.

Input by the Chamber of Mines

Mr Matome Makwela, Assistant Environmental Adviser, Chamber of Mines, said the Chamber supports the amendments to the various pieces of legislation as reflected in the NEMLA bill. The Chamber views this as an important milestone towards full realisation of the One Environmental Management System that came into effect on 8 December 2014. The amendments made in the NEMLA bill signify progress made during the years up until 2017 on some of the key environmental issues that the Chamber has been engaging the DEA and the DMR on. These amendments also represent a critical step towards full alignment of NEMA, SEMAs and other regulatory legislation that has been developed since 2014. The Chamber also welcomes the exclusion of, among others, residue stockpiles and residue deposits from the ambit of the Waste Act. The environmental matters that emanate from these residue stockpiles and deposits will now be regulated under NEMA. The Chamber supports the notion that residue deposits and stockpiles are no longer viewed as waste but, instead, as a resource. The Chambers admit that regulations in terms of NEMA will enable the full realisation of the economic potential of these facilities, namely, the stockpiles use as deposits.  

Mr James Cross, Law Advisor, Chamber of Mines, referred to section 24G (1A) (a) and (b), where it is proposed that a person in control of or a successor in title to land on which “a person” (i.e. someone else) has unlawfully commenced a listed activity or listed waste management activity may apply for rectification, and then in terms of section 24G (4) it is proposed that such person in control or such successors-in-title must pay an administrative fine which may not exceed R 5 million. 

Mr Cross submitted that conceptually the proposed provisions are incorrect. Section 24G is a “truth and reconciliation” provision. A person is involved in the remediation or the rectification process on the presumption that the person has acted unlawfully. This is a concern to the Chamber.

Furthermore, regarding clauses 7(a) and (b) (ss24 O (2) and (2A), the amendment provides for an environmental assessment practitioner to be involved in the consultation process between State Departments. This is a concern, because the decision taken on the application will be an administrative decision that could be taken on review by a disgruntled person, which opens up the possibility that there is a gap in the consultation between State Departments if someone outside government is tasked with dealing with that process.  The responsibility for inter-departmental consultation should be on the Competent Authority and the fact that the EAP may assist with such consultation should not derogate from the fact that it is and remains the responsibility of the Competent Authority.

On Clause 8 (section 24P), the purpose of the financial provision should be to address the final closure measures and for the management of residual post closure impacts and not for “progressive rehabilitation”. The word “progressive” should be deleted throughout as the funding for progressive rehabilitation is accounted for in the operational budget. The use of the term “progressive rehabilitation” is also not in line with the terminology used in the 2015 and 2017 Draft Regulations.

Mr Cross, furthermore, maintained that since in terms of section 24R(1) the holder remains responsible for environmental liabilities notwithstanding the issuing of a closure certificate, there needs to be some mechanism in section 24P(5) whereby the holder can draw down on the financial provision which has been retained by and ceded to the Minister in terms of section 24P(5)(b) and (c); alternatively section 24R(1) would need to be amended to provide that the holder’s responsibility ceases on the issuing of a closure certificate, leaving it to the Minister to use the portion of financial provision which has been retained by or ceded to the Minister.

In section 28(9) and (11), the Chamber disagrees with the deletion of proportional liability and with the replacement thereof with joint and several liability. The Chamber submits that the imposition of joint and several liability presumes liability in absolute terms as opposed to the principle of a degree of responsibility attributed to such a person which supports the apportionment of liability.

The Chamber is concerned, that it is not clear how sections 31 (objections) and 43 (appeals), interrelate and would like some clarity on these two mechanisms following the issuing of a compliance notice. It seems that both processes are available to a person. However, it might just be good to clarify exactly when what process can be used. While the Act provides for an automatic suspension where an appeal is lodged, this runs contrary to the position in the MPRDA, where this is not the case. From a mining perspective, this creates certain problems. The automatic suspension of an environmental authorisation by way of an appeal (potentially without any merit) can be utilised as a delaying tactic by interested and affected parties opposed to the undertaking of prospecting or mining or petroleum operations. The potential for delay is exacerbated in circumstances where an appellant appeals on the basis of a single condition in an environmental authorisation which has the effect of suspending the environmental authorisation in toto. This creates a problem from a mining perspective. Moving from a One Environmental System to a listed activity based approach to environmental regulations; an appeal to an amended environmental authorisation will result in the suspension of that amended environmental authorisation with potentially dire consequences for sustainable and ongoing undertaking of mining.

The Chamber foresees that it will have a lot more applications from mines for the amendment of environmental authorisations, those authorisations being activity-based. The Chamber submits that section 43(7) of NEMA should be amended to exclude environmental authorisations which concern prospecting, exploration or mining operations. In the alternative, and should an exclusion as proposed above not be accepted, the Chamber submits that if a suspension were to operate automatically when an appeal is lodged, there would need to be very specific timeframes for the processing of applications made on good cause shown for the upliftment of a suspended environmental authorisation or parts thereof, pending resolution of an appeal. At the moment it is open-ended.

Mr Cross pointed out that the proposed section 22A will operate only when a person applies for an AEL. This is rather odd in a situation where one tries to rectify a process of unlawfulness. The Chamber prefers to section 22A as it currently stands in the Air Quality Act but also raises why it could not have been dealt with in terms of section 24G of the NEMA which serves as a general tool to rectify the commencement and undertaking of unlawful listed activities in NEMA. Currently it extends to NEMA and NEMWA, but it could also extend potentially to NEMAQA.

Residue stockpiles and residue deposits have been regarded as a resource and not a waste within the mining sector and the MPRDA and approved EMP and EMPRs often recognise this approach insofar as the reclamation of stockpiles and deposits are regulated. Currently, residue stockpiles and residue deposits as defined in section 1 of the MPRDA do not include historic residues which were produced prior to 1 May 2004 when the MPRDA took effect. It is proposed that these be extended and historical stockpiles also be excluded from the Waste Act.

Mr Cross recommended that Paragraph 1 of Schedule 3 should be deleted since all of the sources relates to residue stockpiles, residue deposits or historic residue stockpiles, all of which will henceforth be governed by NEMA and no longer by the Waste Act; alternatively if paragraph 1 is retained, it needs to be qualified by a proviso indicating that paragraph 1 does not apply to residue stockpiles, residue deposits and historic residue stockpiles.

It is suggested, that the Bill provide for the repeal of section 12 of NEMAA, 2008 and the insertion into NEMA and into the Waste Act, respectively, of a consolidated version of the transitional provisions which currently appear in section 12 and in clauses 75 to 78 of the Bill, since this will make for clarity, certainty, and accessibility, for all the applicable transitional provisions.

Input by Transnet

Ms Mapaseka Lukhele, General Manager: Corporate Sustainability, Transnet, said clause 5(b) provides that a section 24G application may be submitted by a person in control of, or successor in title to, land on which a person has commenced with a listed or specified activity without an environmental authorisation.  This is a concern for Transnet that it would like to put forward. She referred to a slide that illustrates Transnet’s footprint in terms of the property Transnet owns. In some instances, Transnet cannot use vacant land because it could be land that has been designated for future strategic projects in the country. In this context, there are instances whereby there are listed activities to occur in some of these areas, most of which are in remote areas. In some of these areas, there is not necessarily security to control access to those areas. There are a number of areas where Transnet has been issued with compliance notices in respect of listed activities that have occurred that have been commenced by third parties on Transnet properties or land. Transnet is a strong supporter of the NEMA principle that the polluter must pay for any significant impact to the environment. Having regard to this potential legal and financial risk,  Transnet is of the view that the current section 24G(1) of NEMA is sufficient in that the responsibility to apply section 24G should be with the person who commenced with listed activities and not the person in control or successor in title to land. There are a number of areas where there are informal settlements that exist. If one looks at the activities which take place in those informal settlements, some of those activities are listed activities.

Ms Lukhele highlighted that Transnet supports section 24G as it is, disagreeing that the responsibility should be shifted in any way to the landowner. There are concerns that this might be misused or interpreted wrongly. The landowner would, in such instances, be requested to implement section 28 of NEMA in terms of ‘duty of care’ if the person who has commenced with the listed activity is nowhere to be found. Therefore, Transnet is strongly in favour of the ‘polluter must pay’ principle and would suggest that the proposed amendment is not included.  

Discussion

The Chairperson said that the preliminary responses could be given, but written responses to the extensive submissions will also need to be given.

Mr Shonisani Munzhedzi, Deputy Director-General: Biodiversity and Conservation, DEA, said a number of issues were raised and some of the concerns did not speak to particular provisions, but rather to issues of process, the status of legislation now, the approach and the philosophical orientation of NEMLA in particular. There are a number of things which need to be clarified. In response to the Consortium of Interested and Affected Parties in the bio resources and wildlife sectors, he said in as much as there is this NEMLA process, the DEA has started a process of looking at NEMBA in particular. There are substantive issues associated with the whole NEMBA space. DEA started an internal process to that effect to determine where things are and where they are going. This is important because there are issues which may not be related to specific provisions in the NEMLA bill at present, but which can be dealt with better in the NEMBA process. While there was the contention that the DEA is much more ‘bio-centric’ than ‘anthropocentric’, there are some who would accuse the DEA to be more anthropocentric than bio-centric. It is not surprising if one looks at section 54 of the Constitution. It is very clear as to what needs to be done to prevent biological degradation and to promote conservation but, at the same time, ensuring ecologically sustainable development. In the South African context, DEA finds itself, depending of the context, being both bio-centric and anthropocentric. The reason for the existence of NEMBA and NEMPAA as SEMAs under NEMA was a strategic decision with a view to having a legislative tool, an Act, which deals with the preservation and conservation aspects of programmes, which NEMPA does. Then there also has to be a biodiversity and sustainable use package which is taken care of through NEMBA. Both NEMBA and NEMPA address conservation and sustainable utilization and beneficiation.

Mr Munzhedzi proceeded to read the objects of NEMBA. In terms of the fair and equitable distribution of resources, the legislation appreciates the context more than is being portrayed in the presentation. The spirit of NEMBA is in line with the Constitution. There is an awareness of the transformation that is required and the history and inequality of South Africa. International dynamics of biodiversity conservation management are also taken into consideration. There is also a consciousness of the conservation approaches in South Africa. There is no intention at all to use a permitting system to block any benefits arising from the use of environmental resources. The contrary is actually the case in the manner in which the DEA approaches issues. There are the TOPS regulations and the amended TOPS that are still going through the parliamentary system. The new TOPS regulations that are being introduced will also recognise the role of different associations, but will also introduce a number of exemptions on certain aspects. Dr Dry is correct to say that the DEA has spoken to issues of self-regulation versus self-administration for a very long time. This debate has informed the drafting of the new TOPS regulations. There is the acknowledgement that regulations and regulatory aspects are discharged better by state institutions. Together with industry, the DEA would like to ensure compliance and enforcement. While the Department does have a strong anthropocentric dimension, depending on the context, there has to be a balance between anthropocentrism and biocentrism. The DEA has to conserve and protect for people to be able to derive from whatever benefits may arise. There was also reference made to distribution range. DEA has had countless engagements in this regard. There is no intension to keep reserved species within their historical distribution range. In this space, the intent is to manage the risks that are associated with movements from one place to another. The risks may be genetically-related, for example, hybridisation. The risks may also have to do with some natural aspects associated with adaptation. Concerning the movements in the existing provisions, there is still no finalisation on the distribution, especially when it comes to some of the species. The risks that arise from movement from A to B need to be managed without stifling or stopping the movements. Over the years, in light of climate change and other complications, distributional changes have taken place which may not necessarily be in accordance with historical distribution ranges. These need to be accommodated. The DEA will look into this issue.

On game ranching, Mr Munzhedzi said DEA has been interacting with gam -ranchers through a number of fora. The roles that DEA and DAFF have to play is understood, as well as the need to address what Dr Dry has referred to as misalignment with a view to making it easier for game ranchers to achieve what they would like to achieve. DEA is mindful of the fact that game ranchers are not homogenous. Some forms are more (or less) intensive than others. The systems will require a contextual approach in this regard. DEA is working together with DAFF in relation to what is referred to as the game value chain. DEA is in agreement with the presentation that, in the game meat value chain, there is a need for all government institutions to work together, even in the legislative space, to ensure that there is no failure in terms of what is intended to be achieved and to maximise the benefits that need to be maximised on. At the same time, there is a need to conserve. DEA does regard game ranching as also a critical contributor to conservation in one way or another, while at the same time achieving economic goals. Provisions that are, among others, against the spirit of the Constitution and NEMBA, need to be considered. If there are any legal gaps, for example, in relation to the listing of species, to effect, these can be looked into. There are others which can be dealt with administratively and be addressed within the framework of the current provisions which the DEA has and there are others which will require certain legal amendments. Concerning the issue of orientation, it is sometimes simplistic to put things in any particular category. South Africa has a diverse system. It protects sustainable use with consumptive and non-consumptive elements to it. In that regard, it is a question of which way the scale tilts in managing these aspects. There has to be a balance between sustainable use and the protection of the ecological activity. The laws try to appreciate the human rights and preservationist approaches.

Ms Magdel Boshoff, Deputy Director: TOPS Policy Development, DEA, commented that there is an acknowledgement that the current system does tend to over regulate. Measures are being put in place with the revised regulations and also the NEMBA amendments to abbreviate the permitting system, to regulate when it is necessary and not to create a system where everything is regulated. It is DEA’s commitment to make sustainable use easier, more conducive and to create a legislative system which is more flexible to operate within. In terms of biodiversity economy, there are a number of projects. There was a reference to the need to transform. There is a need for the biodiversity economy to be inclusive and not only accessible to a select few. Lastly, it is not the intension of the DEA to create a system where every biological resource will be regulated through a permitting system. This is a matter of interpretation. When the new NEMBA bill is published for public participation, the DEA will engage in public awareness to explain the intention of the Act, which is quite opposite to the impression at the moment.

Dr Guy Preston, Deputy Director-General: Environmental Programmes, DEA, reiterated, that DEA will respond in writing to all the concerns raised and recommendations that have been made. The DEA has been dealing with the concerns raised, particularly the trout issue, since 2006. It is noticeable that there are many areas of people utilising species that are invasive. The focus of DEA is on the species that are in the country and entirely on those that are invasive. The concern of DEA is not whether it is alien or not. In response to the reaction of particularly the trout and aquaculture industry, what the DEA has developed it has developed as the various government departments, namely,  DEA, DAFF, DWS and, very importantly, the provinces. The differentiation between the bio-centric and the anthropocentric approaches is an artificial one.  Without supporting the life support systems and ecological functioning, this is in and of itself anti-anthropocentric. If the DEA has to move away from the so-called bio-centric view, why not just have a ‘free for all’? In the forestry industry, the species that are primarily used (gum, pine etc.) are invasive. They are permitted and are allowed in demarcated areas. They must be managed in those areas. In the context of Cape Town, the City would probably have hit day zero were it not for the work that was done to control invasives. Regardless of what was presented, South Africa has a huge problem with invasives. Generally, one has to consider what the situation would have been had there not been proper policies in place. Regulations are also vital to ensure that the problems that are already being addressed are not exacerbated. It is best that the DEA give a coherent response to what has been recommended. It is true that the DEA does not address the extra liminal species, the species outside the so-called natural distribution range. It is terribly difficult to draw the line in the sand and pin down the natural distribution range. One of the things which were brought about in the development of these Acts and regulations was an agreement with the provinces that one integrated approach would be used for the management of invasives. In the broader scheme of the challenges which confront the DEA in terms of invasives, the extra liminal species, like bontebok, nyala etc., pose a very small problem. Nevertheless, this missing component of DEA’s regulations will be addressed.

The Chairperson requested that all written submissions be forwarded to the DEA.

Mr Mark Gordon, Deputy Director-General: Chemicals and Waste Management, DEA, responded that DEA aligns itself with the recommendations made by ACMP with whom the DEA has been engaging. While DEA will give detailed responses, a few preliminary responses are in order. Since the 2014 amendment, the entire approach to waste management has been in the context of promoting waste recycling economy, a circular economy, promoting beneficiation, and looking at both aspects of regulatory and economic instruments that support a waste recycling economy. Within this context, the DEA has defined waste in a way that provides certainty compared to past experiences to how waste was managed to a more finite way of saying what is and is not waste. Hence, the DEA tries to balance the views of different stakeholders. Some request a finite list of sources of waste while, for others, the DEA is looking into implementing regulatory instruments, like a license. Concerning Schedule 3 sources of waste, the DEA has to find a balance, especially for new entrants, SMMES and emerging companies that want to get involved in waste recycling and who need certainty around the waste issue. Waste has been defined in a way that promotes secondary uses of alternative materials. The way that the waste recycling economy has been conceptualised is indeed in the context of materials that would be used as secondary sources and waste becoming a resource for input materials in a secondary production manufacturing use. South Africa’s recycling economy is gaining momentum and DEA is promoting the use of materials. In this context, the DEA would like to give some certainty around where it is using the mechanism for excluding waste from being waste in terms of its definition. The exclusion regulations have now concluded their commenting period and they will be finalised. It does cover the examples, which Dr Rama referred to, for the use of gypsum, slag, fly ash, sludge, and fine dust etc. It will soon be gazetted for these five waste streams to be excluded as waste.  This will give the industry some relief in terms of the administrative burdens of recording waste license etc. In terms of materials, DEA needs more clarity from industries with regards to how then, if regulations and licenses are not supported from the industry, the use of product specifications, standards, guidelines etc. how then will industries organize themselves? What kind of legal arrangements would government then start regulating on? DEA would like to engage the industry further for clarity as to what extent do the use of EIA processes exclude products and materials. There are industry associations that require controls how alternative materials can be regulated and standardised.  

Concerning CER’s submission, DEA supports some of the suggestions being made concerning, e.g. timeframes, the definition of ‘contamination’, the aspects around the register being made public and the instruments that can be used, e.g. the Deeds Register or the Department itself, and the legal aspects on how this could happen. For the Chamber, where there is support for the removal of the stockpiles residue, and historical stockpiles, from the Waste Act to NEMA, the DEA will, among others, see how it can facilitate the suggested alignment.

The Chairperson asked if Mr Gordon spoke to the definitions in Schedule 3.

Mr Gordon confirmed that he has. It was said that apart from industry’s views which believes that Schedules 3 is not required in so far as they are concerned, there are other views of other stakeholders who hold the view that more certainty is required around what waste is. It is not feasible to completely remove Schedule 3 as there are other views that would need to be considered.

Ms Linda Garlipp, Chief-Directorate: Law Reform and Appeals, DEA, commented that it is very difficult to comment on the White Paper since it took place many years ago long before anyone here present was in the DEA. A White Paper on biodiversity and conservation was published. The document that was published was for public consultation. That document, however, formed the basis on which the Biodiversity Act was drafted. It informed it. What DEA could not find was a published version of it in the gazette, only the one which was published for public comment. That policy did form the basis as well as all the international agreements that South Africa is bound to. The DEA will look into it as it is looking into the Biodiversity bill. Most of the comments made today have more a bearing on that Bill than on NEMLA.

The Chairperson asked whether the White Paper was somehow lost.

Ms Garlipp confirmed this.

The Chairperson asked whether the DEA could not find it or whether it was never gazetted.

Ms Garlipp responded that the answer to the question is not known. As part of DEA’s consultation processes after Cabinet, the bill is usually published for public comment. One of the comments raised by Mr Cox is that it includes some amendments that were not in the bill. The challenge is that some of the amendments that are included in the bill are due to the consultation processes and, after that, Parliament has another round of consultation processes both in the NA and the NCOP. Bearing this in mind, this does not make the bill that is currently in Parliament unlawful. The public has another opportunity in both Houses to comment on the bill. Just because some of the amendments that were included after the consultation process were concluded, it is normally forwarded to Cabinet to approve it and the table the bill. Just because it was not published in the version for public comment, does not make this bill that is currently before Parliament unlawful.

The Chairperson wondered about the whereabouts of the White Paper.

Ms Garlipp stressed that the DEA has a White Paper on Environment Policy that addressed biodiversity that was gazetted in 1998.

The Chairperson asked whether a White Paper of Biodiversity is available.

Ms Garlipp answered that a detailed draft is missing. DEA has done a cursory search but not a complete search.

The Chairperson asked DEA to search for this White Paper in question. It might also help the DEA to consider the policy options that were proposed by that White Paper on Biodiversity before the NEMBA bill is finalised. It should be available at government printers. The Committee is also interested to get to know what the issues are that are raised in the White Paper.

Mr Ishaam Abader, Deputy Director-General: Legal, Authorisation, Compliance and Enforcement, DEA, said that while some of the presentations have said there was not adequate consultation, there has been extensive engagement with all stakeholders in terms of this process. Echoing Dr Preston, the DEA has been engaging stakeholders since 2006. DEA is bound to consider the precautionary approach, but to also take a balanced approach. DEA does need to conserve, but this is not the DEA’s only prerogative. The Department also has to ensure that it uses its resources sustainably. The DEA’s approach is two-pronged. On issues of transformation, the DEA has an inclusive approach which has guided the process of creating a biodiversity economy and the lab processes. From this perspective, there is certainly an initiative from DEA to look at expanding South Africa’s biodiversity economy, contrary to what was being said in the presentations. On the comments around searches and inspections, DEA is a regulatory department that has to ensure that there is compliance and enforcement. Because of the awareness that South Africa is a developing economy, the DEA’s approach recently has been more facilitative. Concerning sectors like aquaculture, the DEA is looking into facilitating development in these sectors. To say that the DEA is over-regulating is not necessarily true. The DEA is also looking into rationalisation of South Africa’s current legislation and also at alternative ways, besides legislation, the DEA can promote development and, at the same time, also ensure sustainable use of South Africa’s resources. The Department’s regulatory measures are usually informed by science as well and DEA and the Minister’s mandate are to ensure this two-pronged approach. There was mention that the Minister has been given too much discretion by Parliament. This discretion is necessary because that is the mandate of the DEA for practical implementation of the legislation. The DEA is bound by law to be too prescriptive in certain instances. The Department is also aware of the environmental perspective. The fact that the DEA called together stakeholders in the lab and Phakisa processes is indicative of the fact the DEA is aware of a direction it is going in and that the DEA is not necessarily only conserving. The DEA will be looking at ways to reduce the red tape.

The Chairperson asked if Mr Abader could speak to the financial provisions and environmental evaluations. Furthermore, could the Air Quality expert speak to the air quality issues?

Mr Abader confirmed that there has been extensive engagement around the financial provisions. It has been over a year that the DEA has been consulting on the proposed amendments. The DEA has recently published an agreement with the oil and gas sector to allow them additional time.

Ms Dee Fischer, Director: Waste Stream Management, DEA, highlighted that there were regulations on financial provisions which came under the One Environmental System. The financial provisions that were regulated under the MPRDA needed to be brought under the NEMA fold. Those regulations were gazetted in November 2003. They are currently enacted, but, since then, there were further discussions with the industry around mechanisms (e.g. trust funds) that really impact upon the industry’s ability to comply. There have been many proposals in various areas for amendments. Many of the amendments concern, for example, the financial vehicles, the procedures that need to be followed in terms of audit, and the applicable timeframes. These have been considered in the NEMLA bill. However, as the DEA moves forward with the proposed amendments to the financial provision regulations, more and more the NEMLA bill will inform the financial regulations. However, some of the things which the DEA is doing in the regulations need to be provided for under NEMA. That is why there is some uncertainty in the comments. That is really just a factor of where the DEA is in the process. The environmental practitioner negotiating with the state-owned entities and departments directive is to ensure that the DEA’s approach is holistic. As the documents are coming out and assessments are undertaken, it is important that stakeholders as well as government comment on those documents at the same time. If government is to carry out its own consultation, it would increase the burden of time because then it would need to consolidate after the comments were made. It is not normally the case that government would negotiate with governing departments on commercial activity.  It is developers’ activity that they would want to propose and give authorisation on. Currently, this is the process that is followed. The law has just not made provision for the environmental practitioners to talk to departments. It is the process that is followed and in order to allow certain timeframes, it would be unrealistic to require an additional process that then must be run by government. The comments are varied and the DEA will respond to them in writing. There are no critical issues that have not already been discussed within the financial regulation discussions. Since the 2015 regulations, the DEA has been engaging with various stakeholders, including National Treasury, Water and Sanitation, and Mineral Resources.

Mr Abader, in terms of environmental authorisations, highlighted that there were a few suggestions specifically on section 24G. These suggestions will be considered, specifically those concerning public participation and withdrawal of the environmental authorisation in relation to fraud.

The Chairperson asked whether there will be a written response on the issues raised in relation to air quality since there appears to be no expert to comment on this area.

Mr Abader confirmed this.

The Chairperson asked whether there is a reason why an air quality representative is not present.

Mr Abader responded that he is not sure. There was an instruction from the Director-General that all the DDG’s be present. There is an acting DDG occupying the portfolio in question.

The Chairperson said that the absence of the DEA’s representative on air quality is not acceptable. In light of the recommendations and proposals raised at the public hearings, this representative would have been able to advise the gathering on the matters raised in relation to air quality. This needs to be followed-up on. The Committee will engage with the process as soon as it has received all the responses in writing. The process can then be taken forward.

The meeting was adjourned.