NEMLA Bill: Department response to public submissions

Environment, Forestry and Fisheries

15 May 2018
Chairperson: Mr M Mapulane (ANC)
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Meeting Summary

The meeting to consider the written responses by the Department of Environmental Affairs (DEA) to proposals submitted by stakeholders affected by the National Environmental Management Laws Amendment (NEMLA) Bill, was divided into two parts.

In part one, the Portfolio Committee and the DEA were briefed by state law advisors as to whether the Bill’s legislative process could proceed or not. There was the issue of latent defects, and concerns over whether they should or should not remain. While some stakeholders were saying that they should not remain, the DEA was saying that they actually should. The Portfolio Committee was not precluded from amending the Bill in terms of the rules of Parliament. There should be a substantiated argument as to why the DEA wanted to change its mind. The DEA responded that it would be able to provide a motivation for why it recommended that the Committee must consider including that provision. It would still consult, if that was what was required, and have a meeting. A meeting was scheduled for 24 May, and it asked the Committee to await the outcome of that meeting.

In part two, the Committee received three written responses from the DEA. Air Quality Management. supported the Centre for Environmental Rights’ (CER’s) proposal for the inclusion of a public participation process in the review of an Atmospheric Emission Licence (AEL) There was serious debate around the AELs, with assertions that the big polluters were violating their licence conditions and nothing was being done about it or, if something was done, it was not done to the satisfaction of the stakeholders. The requirement should be that stakeholders could participate, and it must be specified so that everybody understood that when reviews and renewals took place, there would be public participation where stakeholders could voice their concerns. The proposal should be accepted if there was no problem from the DEA.

The Committee was also briefed on the written responses of the Biodiversity and Conservation department. Among the key outcomes was that education must be embedded in the environmental legislation, so that communities would understand government’s environmental activities. In fact, consultation was an essential part of how government should conduct its business, and it should not be a major issue. It would also not have financial implications. There was also discussion on the definitions of ‘well-being’ and ‘welfare,’ and what the original intention had been when looking at the definition of ‘well-being’. The DEA needed to be able to influence the extent that it could protect the survival of species in the wild, and therefore needed to work very closely with those who were responsible for the welfare aspects of those animals in captivity who could be the subject of research. Welfare issues were outside the mandate of the DEA, but the well-being aspects would give the DEA some space to intervene when that intervention was necessary.

Finally, the Committee was briefed on the written responses of the Legal Authorisations and Compliance Inspectorate. It was told that section 31D of the Bill would not achieve its intended result, which was to provide for a procedure by which the Ministers of Environmental Affairs and Mineral Resources could agree that environmental management inspectors (EMIs) could undertake the compliance and enforcement work in circumstances where the environmental mineral and petroleum inspectors (EMPIs) were unable to adequately fulfil the compliance and enforcement functions. There was concern that the economic impact of mining interests would trump environmental issues. DEA asked the Committee to provide guidance on how to resolve this potential conflict.

The Committee decided it would factor in the amendments which had been discussed and agreed. The DEA should also meet with the stakeholders to which the Committee had referred it for further consultations. A date would be scheduled where the DEA could give feedback on those issues, and then there would be a clause by clause discussion of the NEMLA Bill.

Meeting report

Chairperson’s Opening Remarks

The Chairperson said that last week there had been some issues raised which had led to the Committee agreeing upon to getting legal certainty as to whether the National Environmental Management Laws Amendment (NEMLA) Bill process could proceed or not. For example, there was an issue about latent defects. Legal certainty was needed as to whether what the Committee was doing was in order. Had the DEA looked into this matter themselves?

Mr Mongameli Kweta, Senior State Law Adviser, Office of the Chief State Law Advisor, started by giving some background as to what the burning issues were. At the meeting, there had been the issue of latent defects, concerning whether it should or should not remain. Whereas other stakeholders were saying that it should not, the DEA was saying that it should actually remain. On that issue, it was not really procedural. The Portfolio Committee was not precluded from amending the Bill in terms of the rules of Parliament. There should be a substantiated argument as to why the DEA wanted to change its mind. There were no Constitutional issues around that particular natter.

The Chairperson asked for feedback from the DEA.

Ms Linda Garlipp, Chief Director: Law Reform and Appeals, DEA, provided a motivation on why the DEA recommended that the Committee must consider including that provision. The basis of it was informed by long-term liabilities for the state, if mining companies -- even if they had done some rehabilitation -- discovered later on that there was something oozing underneath, which would not have been picked up. The question, therefore, became who would carry the cost, say, five or ten years down the line? These discussions had been previously held with the industry. The DEA was not quite in agreement with the industry that the provision should be removed. The DEA would still consult if that was what was required, and have a meeting. A meeting was scheduled for 24 May, if the Committee could await the deliberations of that meeting.

The Chairperson said that this was not the only issue which required legal certainty as to whether the process was on the right track. There were other proposed amendments by the departments, based on the regulations of the financial provision. Those issues also needed to be consulted upon so that when they were finalised, there was feedback from the affected stakeholders. Was that the understanding? The meeting on 24 May would be awaited. It was not only concerning the financial provisions, but there were also issues around waste. The DEA was urged to speak to the State Law Advisors so that they were also taken on board as the DEA finalised with the stakeholders, specifically on the amendments that the DEA would like to propose.

Air Quality Management: Written responses

City of Ekurhuleni

Dr Thuli Khumalo, National Air Quality Officer: DEA, explained why the City of Ekurhuleni’s proposal to insert the power to suspend or revoke a provisional atmospheric licence or an atmospheric emission licence in the Air Quality Act was not supported (see slides 2-3).

The Chairperson asked for confirmation whether the provision already existed.

Dr Khumalo confirmed this, reiterating that the mentioned provision was applicable to the Air Quality Act.

The Chairperson asked whether this meant that the City of Ekurhuleni was not aware of it.

Dr Khumalo responded that this was perhaps the case.

The Chairperson continued that maybe it had not been used, and that was why they were not aware of it. The challenge was that there had been many polluters whose licences had not been revoked as a result of not complying. That was the City of Ekurhuleni’s argument.

Ms Garlipp explained that in terms of 31n of the National Environmental Management Act (NEMA), if a person failed to comply with a compliance notice, the environmental management inspector must report the non-compliance to the Minister or the Member of the Executive Committee (MEC), as the case may be. The Minister or the MEC may revoke or vary the relevant permit authorisation or other instrument which was the subject of the compliance notice. The Minister or the MEC may take any necessary steps to recover the costs of doing so from the person who failed to comply. There was already a power at least for the Minister or the MEC to revoke such a licence, and that was across the NEMA and Specific Environmental Management Acts (SEMAs).

The Chairperson commented that maybe the City was not aware of this, or it had never been used.

Centre for Environmental Rights (CER)

Clause 46/ Section 13(1)

Dr Khumalo clarified why the CER’s proposal that section 13 remained as is, and that the “must” remained in place, was not supported (see slide 4).

Ms Ngcaba explained that when the Minister establishes the Advisory Committees, they had cost implications. When it was a ‘must’ and the DEA did not have any matter that was of priority for such an Advisory Committee to process, the DEA, through an audit, would be found wanting. This was why, even in NEMA, it was a ‘may’.  

Clause 47 Sec 22A

Dr Khumalo set out why the CER’s proposal that, in the event that section 22A was to remain in place, the said amendments needed to take place, was not supported (see slide 5).

She also explained the CER’s recommendation that the provision must be made for public consultation on the quantum of a fine. However, the DEA did not support this proposal.

She responded to the CER’s proposal seeking clarity as to the licensing authority for independent power producer coal-fired power stations (see slide 6), after which she responded to the CER’s suggestion that the maximum amount of the fine should be R10 million, instead of R5 million, for the same reasons set out in the comments on section 24G of NEMA (see slide 6).

She clarified the CER’s proposal for the expansion of section 47(5) on the participation process for the review and renewal of an Atmospheric Emission licence. However, this proposal was not supported (see slide 7).

She explained the CER’s proposal for the inclusion of a public participation process in the review of an Atmospheric Emission licence. However, this proposal was not accepted (see slide 7).

The CER’s proposal for the deletion of section 46(3)(c) was also not supported (see slide 7).

Discussion

The Chairperson asked how the proposal that there must be public participation on the renewal of an Atmospheric Emission licence was included here.

Dr Khumalo explained that Section 38 was the procedure for licence applications. The Air Quality Act referred to the NEMA public participation. It referred to the public participation that was already prescribed in NEMA in all the DEA’s public participation processes.

The Chairperson asked if there was a problem in including this one for emphasis.

Mr Ishaam Abader, Deputy Director-General: Legal Authorisations and Compliance Inspectorate, DEA, responded that there were certain things which were contained in NEMA that were applicable across all the SEMAs. The rationale was why the DEA would want to put all those relevant provisions in each of the SEMAs again. It was almost duplicating the legislation. If it was contained in NEMA and the provision was clear in the NEMA, that could be done and there was public participation. The section 46(3)c referred specifically to a variation that had not gone through a public participation process. That aspect of it must be brought to the attention of the interested persons. In that instance, if there was anything new, it would have to be part of the public participation process.

The Chairperson asked why the CER would insist. Were they not aware, considering they were quite conversant with the DEA’s legislation and the practices in the DEA. Why would they insist that there should be public participation when it was already covered?

Ms Garlipp, reading from S56, explained that there was also a catch-all in terms of S56 which prescribed the consultation processes. Even if there was no consultation process prescribed in terms of any of the DEA’s legislation, then the Promotion of Administrative Justice Act (PAJA) would still apply.

The Chairperson reiterated, however, that if the DEA did not take issue with the public participation process, why would the DEA not agree with this requirement? It was possible that the CER was not aware, or there might be issues there.

Mr T Hadebe (DA) commented that they wanted public participation processes on the review of Atmospheric Emission Licences (AELs) as well, so that all the stakeholders that lived around a plant must give their input. When the DEA did its review, they must also be consulted.

The Chairperson said that if the DEA did not have a problem, it was not clear why there should be a problem in supporting this proposal. There was a serious contest around the Atmospheric Emission Licences. There was a big outcry that the big polluters were violating their licence conditions and nothing was being done about it, or if something was being done, it was not done to the satisfaction of the stakeholders. That requirement should be in order so that stakeholders could participate. It must be specific so that everybody could understand that when reviews and renewals took place, and there would be public participation where stakeholders could voice their concerns. The proposal should be accepted if there was no problem from the side of the DEA.

Dr Khumalo added, concerning the issues around public participation, that sometimes there were unintended consequences where the DEA experienced more problems. For example, Eskom had a big boiler and was operating the air pollution control technologies. At some point, there had been a leak. The correct way to deal with that would have been to shut down the Sulphur Trioxide (SO3) plant and apply for a variation, fix the SO3 plant and then continue. Because the process required that they apply for variation, they needed to go out for public comment, and by the time this drawn-out process was completed, the problem was much bigger. In actual fact, if they had just shut down the plant, they could have fixed it in one week. Sometimes, making overly-necessary requirements for public consultation could create even more problems. It could take more time for public consultation than it would have taken to resolve the problem on the ground.

Chamber of Mines  

Clause 47 Section 22A

Dr Khumalo indicated that the Chamber of Mines’ suggestion, that reference in the proposed s22A(1)(a) to “operated,” should also include the words “…or was operating…,” to align with ss 22A(1)(b), was not supported.

The Chamber’s proposal that a definition be inserted in section 1 of the NEMA was not supported (see slide 8).

Clause 48 Section 36(2A)

Dr Khumalo explained the DEA’s response to the Chamber’s proposal that s36(2A) should expressly indicate that the respective municipalities delegate their functions to the provincial organ of state and agree thereto in writing, since “air pollution” was a functional area of municipalities (see slide 9).

The Chamber’s proposal that the inclusion of the rectification of the unlawful undertaking of scheduled processes and listed air emission activities into section 24G of the NEMA, was not supported (see slide 9).

Western Cape Government

Clause 48 Section 36(8)

The Western Cape Government’s proposal for the deletion of s36(5)(c) of the National Environmental Management Air Quality Act (NEMAQA) was not supported (see slide 10).

Discussion

The Chairperson asked the DEA to talk to the CER’s proposal regarding Clause 47, Section 22A.

Dr Khumalo explained that the way it was at present, if a person would like to continue to operate, they had to apply for an AEL.

The Chairperson asked for an example of the scenario.

Dr Khumalo explained the way the DEA dealt with a facility that operated without a scheduled permit. There was a fine of up to R18 million. The way the legislation was now, the facility could decide they no longer wanted to operate and pay the fine. The proposed amendment stated that they must then apply for an AEL. However, if they did not want to proceed with operations, why was there a requirement that they must apply for an AEL? As it was now, through the application process, the operator could decide they would pay the fine, and then apply for an AEL. The process never ended with a fine for operating in non-compliance, and it ended there. After that whole process, if an operator would like to stay in business, they had to apply for an AEL with the relevant licensing authority. But the facility had the discretion to shut down and go if it did not want to operate legally.

The Chairperson asked whether, if the facility was operating currently, it was required to make an application for an AEL if it wanted to continue operating, according to the new amendment. It had an option to submit an application for an AEL, and if they wanted to shut down they could pay a fine. What was the CER’s contention?

Dr Khumalo said that what the Chairperson had explained was what was available now. What the CER was saying was that they ‘must’ apply for an AEL, even if they did not want to continue operating. The way the legislative process was now, concerning the whole fining process, one was fined and if one wanted to continue operating, one had to apply for an AEL.

The Chairperson asked what the DEA was proposing now.

Dr Khumalo said that the DEA had not raised it because it agreed with the provision as it was now. The CER was raising it to say that if a person was fined, they must apply for an AEL, which removed the discretion of the operator, regardless of whether they would like to continue operating or not.

Mr Z Makhubele (ANC) asked for clarity where the response said “[t]he licensing authority would only issue a section 22A fine on the applications that have been received.” Did this mean that if the DEA did not receive anything, the operator was not fined?

Dr Khumalo said purpose of fining was that an operator had been found to be operating in non-compliance, whether they were fined or not. If one wanted to continue, there was a licensing processing fee that had to be paid. The point that was being made was that just because one had been fined in terms of 22A did not exonerate one from having to pay for the actual processing of the AEL. This was when the operator would have to decide whether to proceed and apply, or do he want to pay, shut down and walk away.     

Biuodiversity and Conservation: Written responses

Mr Shonisani Munzhedzi, Deputy Director-General:Biodiversity and Conservation, DEA, explained that there were a number of elements on biodiversity, including aspects that were dealing with Alien Invasive Species (AIS). The DEA had indicated when it responded for the first time verbally that there was a National Environmental Management: Biodiversity Act (NEMBA) bill process that would come through at some point. The drafting was at an advanced stage, running through the normal processes before it went through the Parliamentary processes.

The majority of the issues that had been raised by a number of organisations were issues that were going to be dealt with in the NEMBA bill -- issues around NEMA and NEMBA’s orientation, those associated with the aspects of emphasis in terms of the balance between conservation and sustainable use, and many other aspects. Those things had gone through the NEMLA process, and subjected to the Cabinet process -- like areas of reference to well-being instead of welfare, and issues of custodianship that had been raised concerning how public institutions needed to adjust their systems to incorporate other members into the boards. The reference document that was referred to last week had provided responses to every aspect, irrespective of whether those issues were going to be in the NEMBA bill or not. The emphasis of the presentation was on issues that had already been covered in the NEMLA process and were subjected to the processes of the Portfolio Committee. 

Ms Magdel Boshoff, Deputy Director: Threatened or Protected Species (TOPS) Policy Development, DEA, pointed out that the presentation focused on the comments that were substantial that the DEA needed to respond to. Furthermore, those organisations who had made similar comments and who followed later in the presentation, would have similar responses.

The Chairperson asked how the Committee would know if the DEA had agreed on or changed a proposal.

Ms Boshoff explained that if there was a specific proposal, whether the DEA agreed or not would be indicated. Where stakeholders supported the Bill, it would not be repeated. Where the DEA supported the proposals, these would be highlighted.

Mr Munzhedzi also clarified the DEA’s approach in terms of its responses to the amendments.

AfriForum

Clause 38 (section 2 of NEMBA), read with clause 43 (section 97 of NEMBA)

Ms Boshoff highlighted the DEA’s response to AfriForum’s concern that, while the section now aligned better with Section 24 of the Constitution, it was not certain what was meant by ‘faunal wellbeing’ (see slide 2).

Clause 37 – 45 (all the sections of NEMBA proposed to be amended)

AgriForum’s concern, among others, that the Bill, as well as other proposed amendments to NEMBA concentrated far-reaching, unforeseeable and unnecessary decision-making powers in the Department, was not supported (see slide 3).

Business Unity South Africa

Clause 37 (section 1 of NEMBA): Definitions for ‘control’ and ‘eradicate’

Mr Boshoff gave the DEA’s response to Business Unity South Africa’s concerns regarding certain categories of fish and wildlife had have recently been listed as ‘invasive species’ in terms of the NEMBA. In aquaculture, for example, economically important species such as trout had been declared as invasive (see slide 4).

Mr R Purdon (DA) asked for clarity on the demarcated areas. How did one know what the demarcated areas were, and was it easy to find out?

Advocate Radia Razack, Director: Legal Services, DEA, responded that there had been many years of discussion on how to deal with the areas, whether it was through maps and whether there was agreement on it or not. For the demarcated areas, maps were used but there had been difficulties in making the maps part of the gazette process, because there were so many different layers to it and it became almost impossible for them to drill down with technology to get to the specific areas especially if it went through the middle of a park, for example. Those maps were being used as a tool when the permitting process happened. The permit conditions actually talked to the details around what could and could not happen with trout. There was a lot of debate in this regard that had been happening since 2006. The DEA had been trying for many years to accommodate and get an agreement with industry.

Adv Nicolette de Kock, Legal Adviser: DEA, explained that the mapping process had been done over a two-year period, when the DEA had sat with provinces and stakeholders. They did have maps, but they were very complicated. They were being used by the DEA as a decision support tool. An applicant applied for a permit, whether it was to breed with trout or to fish on a farm with a dam. They then consulted the maps to determine whether this was in one of the areas where trout occurred and decided whether to issue a permit or not, based on the sensitivity of the area. The maps existed. They were available. They had been consulted over a period of time. They were used by the DEA to make decisions about permits.

Mr Khathutshelo Nelukalo, Control Biodiversity Officer: DEA, confirmed that the maps guided the DEA to making a decision. For example, there could be areas that were coded ‘yellow’ that required more investigation and risk assessment. In the ‘green’ areas, a person would be able to apply and was not required to do a risk assessment.  

Ms Ngcaba added that this was an area where the DEA had a bit of a tussle with the industry. The task of the DEA was to protect the biodiversity and the species, and therefore it wanted to limit the new introduction of species, even if they were already existing. The DEA differentiated between new introductions as well as the existing areas where those introductions existed, and how they were to be controlled. For example, the DEA had been in a tussle with the trout industry. Where trout had already been introduced in fresh water systems, there was not much the DEA could do. Even trout farming could continue in those areas. The key, in terms of the regulations, was to avoid their introduction in other fresh water systems, subject to a proper assessment. The industry had had a long argument with the DEA about the maps that the DEA currently had. They were arguing that in some other areas where, in the DEA’s view, the industry wanted new introductions, there were already trout in some of those areas. The DEA had a few areas where, even with the maps, it had a squabble with industry, especially in Mpumalanga and some areas of KwaZulu-Natal. There were maps, therefore, but there was also contestation with respect to some of the areas.

Commission for Gender Equality 

Clause 42 (section 75 of NEMBA)

The Commission for Gender Equalityproposed the inclusion of a new subsection to section 75 of NEMBA, which allowed for the education and support of local or affected communities. However, Ms Boshoff said the DEA submitted that this did not need to be written into legislation as it was a day to day function (see slide 5).

Discussion

Dr Z Luyenge (ANC)  asked to whom the ‘communities’ referred. Did it refer to organised community-based structures or organisations that were in the sector, or did it refer to general members of the community?

Ms Boshoff responded that the Commission for Gender Equality did not give that level of clarification in the comment that they had made. That was a question that the DEA could not answer. It could be assumed that where eradication or controlled measures were taking place and organised, it would include the community in that particular area to participate. It would not apply to every community, but those who were affected and where the controlled measures were taking place. That also was already happening and to legislate it was not necessary. The involvement of communities was already part of the projects of environmental programmes.

Mr Hadebe asked whose responsibility it was, local or national government, to provide the education and support to the local communities. This had to be clarified because at times, local municipalities did not even have the budgets for this, and it would be a mammoth task, for example, for them to eradicate the wattle. They would not have any budget to carry out such a function.

The Chairperson asked whether it was not referring to the licensing authority?

Mr Makhubele wanted to emphasise the matter of ensuring that there was education and support. It was said that it was happening now, but it was happening by chance. It was not something that was mandated. So if it was not in one’s genes to want to do it, one could arrive at a situation where the community had not been taken on board, and would not be able to understand why a species was alien. Not everybody knew what an ‘invasive’ species was. Even if it was in the interests of the community, if the community did not understand, it was problematic. If it was mandatory, whoever had to clear land anywhere, they would first have to inform people to say that the DEA was there to clear the species, and that why it was doing so was for the good of the community. It was part of the package. In a democratic sense, the community needed to be taken on board. However, in agreement with the Commission for Gender Equality, it should mandatory to educate and support communities.

Mr Munzhedzi explained that when the DEA looked at this proposal, it had analysed it in the context of what was already contained in the Act as it was at the moment, specifically the section dealing with AIS. There were different categories, from the listing of invasive species, to where and what the role of the Minister and Members of the Executive Committee (MECs) was, what was allowed or not, and what was restricted or not. The section did not refer to education and support. but because this was a framework regulation, it allowed for regulations, norms and standards and many other things that could still come as a subsidiary to the framework . The framework, in S75(4), said that the Minister must ensure the coordination and implementation of programmes for the prevention, control, or eradication of alien invasive species. The Act would not go into the details of the ‘how,’ but the spirit of the law was that it should be community-focused. The proposed clause may be going too far beyond what the framework could provide. It could be provided for, but the implementation, regulations and many other things could be proscribed either by the MEC or the Minister. There were also obligations for different spheres to provide reports, for example. The proposal was essential and was noted, but not to the extent of being legislated, because it may create a number of other unwarranted consequences, where someone may say they did not report because they were not properly educated or informed. The reason for regular reporting and status reports for where alien invasive species were and their impact was also educational in nature, but went beyond what the Act could provide.

The Chairperson responded that it did not look like this was a proposal that the DEA was fundamentally opposed to. The concern was about when the DEA started implementing. However, education must be embedded in whatever was done, to explain to the community why the DEA was doing it. It did not cost anything. In fact, consultation was an essential part of how government should conduct its business. It should not be a major issue. It would also not have financial implications. If the DEA did not have a problem with it, it was something that could be supported. The implications of what the unintended consequences were, had not really been explained. There were no unintended consequences, except to say that the intention when the DEA moved in should be to consult, explain and, if necessary, support in instances where there were community initiatives to clear alien ‘invasive’ species. The Committee supported this proposal.

Clause 44 (section 99 of NEMBA)

Ms Boshoff continued that the Commission for Gender Equality’s proposed amendment to section 99(1), with the insertion of “an appropriate and meaningful consultative process in the circumstances,’’ was not supported (see slide 6).

Clause 45 (section 100 of NEMBA)

She explained why the Commission’s proposal to delete text from section 100(4) was not supported.

Clause 45 (section 100 of NEMBA)

She also explained why the proposal to insert a new subsection (5) to section 100 of NEMBA was not supported.

Centre for Environmental Rights

Clause 38 (section 2 of NEMBA), read with clause 43 (section 97 of NEMBA)

Mr Boshoff elaborated on why the CER’s proposal that the reference to “faunal biological resources” should be amended to include all “wild fauna,” was not supported (see slide 8).

She also dealt with the CER’s proposal that clarity should be provided on whether ‘all wild fauna’ would include non-indigenous wild animals. However, this proposal was not supported (see slide 9).

The CER’s proposal that the term “well-being” should be defined, was also not supported (see slide 9).

The CER’s suggestion that clarity should be provided on the intended meaning of “taking into account,” was not supported (see slide 10).

Discussion

Mr Makhubele commented that the Committee did not know why the CER had made the proposals regarding clarity, but they were more than likely based on particular experiences. It was not possible for the Committee to argue on their behalf. Probably, if the DEA had interacted with them, they would have clarified why they had made these proposals. There must have been causal factors which made the CER propose these amendments. It was not quite clear what the CER was pursuing, and what was being dealt with here. What was the DEA opposing by not supporting these proposals?

The Chairperson responded that ‘welfare’ was dealt with in terms of the Animals Protection Act, which was the responsibility of the Department of Agriculture, Forestry and Fisheries (DAFF). The intention could have been that it should not be ‘welfare,’ because if it was ‘welfare’ it would have to be handled elsewhere. It had to be ‘well-being.’ The CER had said  the DEA should define what ‘well-being’ meant. The DEA was saying that ‘well-being’ should be understood in terms of the ordinary meaning of ‘well-being.’ The reason why ‘well-being’ had been introduced was so as to move away from having to rely on the DAFF to deal with issues that affected wild animals.

Ms Boshoff confirmed this. The general concern from organisation like the CER about using ‘well-being’ was that it was too broad and was open to interpretation that may lead to the misuse of the term and the ability to regulate in NEMBA. The DEA did not want the limited mandate that was intended in terms of NEMBA to be confused with the broader specific mandate in terms of the Animals Protection Act. This was why the DEA preferred the term ‘well-being’. The DEA was also concerned because there was a proposal that the DEA should refer to conservation and welfare. The DEA’s concern was that if it did refer to welfare, that this would have the unintended consequence of putting pressure on the Minister to regulate to the extent that the Animals Protection Act required the Minister of Agriculture to regulate. For example, the intention here was to be able to regulate the manner in which a permit holder dealt with the resource, the manner in which it was kept in captivity or bred. The more far-reaching consequence, which the DEA also had in mind if it started referring to a broader term was, for example, if there was an impala in a protected area that broke a leg, the intention was not to interfere in those cases, where nature would normally deal with itself. The DEA would like to avoid the possible pressure to deal in nature where there may be cruelty, because the animal was injured or because it was sick. This was why the DEA intended to make the distinction between ‘welfare’ and the Animals Protection Act, and cruelty and welfare to a limited extent in NEMBA.

EMS Foundation

Clause 38 (section 2 of NEMBA), read with clause 43 (section 97 of NEMBA)

Ms Boshoff said the EMS Foundation’s proposal, that the language in section 2(a)(ii) and section 97 needed to be changed to reflect a more caring position, was not supported (see slide 11).

Furthermore, the proposal that reference to “well-being” must be replaced with “welfare” and “protection” was similarly not supported (see slide 11).

Its proposal that “Faunal biological resources” must be replaced with “fauna”, “wild animals” and “wildlife,” was also not supported.

Consortium of interested and affected parties

Clauses 37 – 42

Ms Boshoff said the Consortium of interested and affected parties proposed, among others, that the NEMLA Bill had not been subjected to a completed policy development process, and should be subjected to a new and compliant public consultation process. However, the DEA did not support these proposals (see slides 13-15).

Discussion

The Chairperson asked whether the Consortium was right in what they were saying.

Ms Boshoff responded that the Consortium was partly correct. It was correct to the extent that the Biodiversity White Paper had been put on ice at that particular stage.

The Chairperson asked what year this White Paper was dated from.

Ms Boshoff responded that it was in 1997.

Ms Ngcaba added that a decision had been made at the time to focus on the broader umbrella national environmental policy, so the specific sectoral areas had not been pursued. That was why the Biodiversity White Paper had not been proceeded with and had never been concluded.

The Chairperson asked whether it had been consulted on, or just abandoned.

Ms Ngcaba responded that MINMEC had decided that it was not a priority at the time, because South Africa was coming from a period where environmental management was highly fragmented. The thinking was to consolidate and have a uniform approach to environmental management which, to a greater extent, the Department had succeeded in doing. Provinces did not publish their own biodiversity acts. They just had broader legislation, but everything was aligned with the national legislation.

The Chairperson asked whether the DEA had reviewed this White Paper.

Ms Ngcaba responded that, based on a discussion, the Minister had said that in the context of the work of Parliament, a Committee had been established to assess all legislation that had been passed by Parliament, and the implication of duplications across government. Government was currently running a process of rationalising functions and legislation. The Minister had said that the DEA should await that process to be finalised at the Cabinet level. At the MINMEC level, what was being discussed was what was currently working well, where were the areas of duplication, inefficiencies, and the gaps that needed to be closed, both within the environment family (between national, provincial, and local), but also across the various sectors (DAFF, the Department of Health, and the Department of Transport). This process was geared towards rationalising and improving regulatory frameworks. However, at this stage, it was not possible to give of view on what the process was, going forward. There was a school of thought which said that in the environment sector, one piece of legislation was needed and the various sectoral pieces of legislation had been questioned -- for example, for over-regulating. However, the DEA felt that it had an adequate basis for why it feels it needed the sectoral pieces of legislation.

The Chairperson asked whether this review was going to effect the Biodiversity Amendment Bill that was said to be in the pipeline. The White Paper, one would imagine, would have informed the approach on matters around biodiversity. Even the current discussion about changing the Biodiversity Act should be something that should informed by the White Paper. What was the extent to which the draft that had been abandoned had been factored into what the DEA was proposing needed to be done?

Ms Ngcaba explains that the DEA understood that policy to have informed the current Biodiversity Act. However, the DEA could give the Committee feedback on how it saw those linkages between the Biodiversity White Paper and the Biodiversity Act and regulations. At the same time, in Cabinet right now there had been a decision not to process more legislation. However, the Biodiversity Act had been submitted to the leader of Government Business already, indicating what the DEA would process. What the Presidency and the Cabinet Secretariat had been tasked to do was to analyse what all the departments for the past five years had been putting forward as amendment bills, whether they had been concluded and, if not, why they had not been concluded. Possibly, out of about 300 bills, there had been under-performance and fewer than a quarter of that number had been passed.

The Chairperson commented that this was because of the Parliamentary processes.

Ms Ngcaba continued that it was said that anything that passed through Cabinet had to be really justified before tabling in Parliament. There had to be some guarantee that it would be legislation that would be processed before the end of the term. The NEMBA Bill, the Climate Change Bill and the NEMLA Bill were likely to come through. The Chemicals Policy was not likely to make it, because the Presidency had the Strategic Environment Assessment (SEA) process, in which other pieces of legislation were being looked at and how these pieces of legislation related to each other. Where other departments functions were trumped, the DEA was sent back, which could be a tedious process. Because the DEA had not introduced a policy for biodiversity, it would not be able to process it currently. The DEA would try, if it had to be done.

 

The Chairperson said that the Committee needed to process the Climate Change Bill.

Ms Ngcaba said that it had already gone through the cluster processes in Cabinet. Tomorrow it would be discussed.

The Chairperson said that maybe the Committee should be in the process of processing it. Parliament would have a long recess, and it would be coming back in August. However, in between the finalisation of Cabinet processes, the tabling in Parliament, once it came to Parliament, ipublic comments would be requested, and then when Parliament was back in session in August, it would hit the ground running with this Bill. Although the Consortium was right to say that the Biodiversity White Paper had not been concluded, the DEA had a fall-back -- the White Paper on Environmental Management Policy.

Mr Munzhedzi explained that the principles embedded in that draft were very influential. The DEA had checked, in view of these discussions, since the first day of the hearings, when this issue had come up, and had found that when looking at S2 of the objectives covering all the areas of conservation protection, use, and beneficiation, the spirit and orientation were along the same lines. Moreover, taking into consideration the spirit of the Convention on Biological Diversity (CBD), the whole NEMBA was also encapsulated in that context. 

Ms Boshoff clarified why the DEA did not agree with the comment made by the Consortium that the DEA was creating a separate regulatory regime for government protected areas. The Game Theft Act made provision for the protection of ownership for private land owners and private owners of game. It was very specifically linked to the keeping of game for hunting or commercial purposes. The primary purpose of government protected areas was not that. There was a gap in where the Game Theft Act provided for the retention of ownership that was not applicable to government protected areas. This was why the DEA proposed a provision to be included in NEMBA for the Minister to prescribe circumstances in which the state could retain custodianship so that if animals escaped, they did not become the property of the person next door. That would happen if one considered the common law status of game, that is, res nullius -- it belongs to everybody but it belongs to nobody, it was yours while it was on your property, but the moment it escaped it belonged to the next person. The DEA wanted to provide enough protection for the state’s custodianship that was currently not provided for in the written law. The DEA was not providing a separate set of legislation.

Mr Ian Cox

Clause 37 (section 1 of NEMBA) read with clause 41 (section 73 of NEMBA)

Ms Boshoff said Mr Cox’s proposal, among others, was to halt further changes to NEMBA until processes were put in place. However, this proposal was not supported (see slide 16).

Mr Purdon asked whether Mr Cox was focusing on trout as well.

Ms Boshoff responded that he was, among others, aiming at trout.

Western Cape Government

Clause 37(a) (section 1 of NEMBA)

Ms Boshoff gave a breakdown of the Western Cape Government’s suggestion that that the reference to ‘systematic removal’ was too vague. However, this proposal was not supported by the DEA (see slide 17).

Its proposal regarding the word ‘or’ between paragraphs (a) and (b) was not supported (see slide 17).

She clarified why the WCG’s comment that the definition seemed to be in conflict with the definition for ‘biological control’ in the AIS Regulations, 2014, was not supported (see slide 18).

Clause 44 (section 99 of NEMBA)

She presented the WCG’s proposal that the MEC should also consult other members of the Executive Council whose areas of responsibility may be affected. However, this proposal was not supported (see slide 18).

Discussion

The Chairperson referred to the definitions of ‘well-being’ and ‘welfare,’ and asked whether the intention was to deal with some of the issues that were welfare issues. It was applicable to wild animals that were kept in private captivity. What was the original intention in looking at this definition?

Mr Munzhedzi explained that before the amendment, S2 had a subsection which referred to the use of indigenous biological resources in a sustainable manner. What then had been removed as part of the amendment was the use of indigenous biological resources in a manner that was ecologically sustainable, which was consistent with what was there. However, it then continued to say ‘including taking into account the well-being of any fauna biological resources involved.’ Mr Makhubele had been right in referring to the fact that there may have been circumstances and situations in the past. The DEA had had a lot of issues in respect of welfare and well-being. A case in point was what the DEA had referred to the Committee in 2010, when it had proposed that captive bred lions should not be released directly into spaces where they would be hunted immediately. The DEA had indicated at the time that there should be a minimum of 24 months prior to consideration of any other activities involving those animals. This had turned into a protracted process of court cases on related issues.

The DEA wanted to prescribe and deal with situations where it was necessary to intervene to an extent without interfering. The role of the DAFF was very clearly specified, namely, how the animal was kept, how much water it needed to take, the size of the enclosure, and how it needed to be injected and by what. While the DEA was not in this space, it was concerned with the well-being aspect to the extent that it may or may not have implications for conservation. The DEA needed some space to influence, though limited to the extent that it would protect the survival of species in the wild. As much as such activities may be happening in captivity, there were instances where captivity may happen for research and scientific purposes that may have been permitted. There were certain elements which the DEA could proscribe, but it also had to work very closely together with those who were responsible for the welfare aspects. The DEA felt that it should not be responsible for welfare issues. They were outside the mandate of the DEA. However, the well-being aspects would give the DEA some space to intervene where that intervention was necessary.

Mr Makhubele added that some stakeholders were not necessarily arguing for ‘welfare.’ Others agreed that ‘well-being’ should be used. What they wanted was for ‘well-being’ to be defined, meaning that in the objectives, in that part that dealt with ‘welfare,’ the definition of ‘well-being’ should be stated in terms of the DEA so that it did not confuse whoever may be operating in this space and who may be breeding these animals in captivity to avoid abuse. People agreed with ‘well-being,’ and there was no issue generally. However, what was the meaning of this ‘well-being’? If there was a need to go back to look at whether the influence that the DEA would like included ensuring the comfort of animals, even if the DEA released the animals and the DEA were to set a period and that period ended, was the DEA saying that the animals would be comfortable to be hunted?

The Chairperson said that there were some underlying, fundamental issues in relation to the matter. The reasoning for excluding the ‘welfare’ and including the ‘well-being’ was understood, as the DEA would not have to depend on the DAFF to deal with those issues. The DEA would like to deal with these issues itself.

There were some issues that needed to be returned to, however, that required discussion, especially on the animals that were bred in captivity. The whole insertion of this definition dealt with that. There were very strong and fundamental views that were emerging, which may or may not have to be a part of this process of amending the legislation, or whether they should be dealt with when the NEMBA Bill was considered, or whether they could be dealt with through the regulations. This process should not be bogged down by these very fundamental issues, namely, whether lions should be allowed to be bred in a captive environment and then released for hunting purposes, which was canned hunting. The DEA could just expand on what it meant by ‘well-being’ for clarity. These issues would be put on the table going forward, but not as part of this process.

Ms Boshoff said that it would be fine to put it on the table as a separate process for discussion.

The Chairperson asked whether it could be discussed today.

Mr Abader suggested that in order to ventilate the matter properly, there would need to be a comprehensive discussion, because it was a very emotional issue. To sneak it in would not do justice to it. A longer-term process was needed.

The Chairperson agreed that it was a contentious issue. It was a sticking point because there was economics involved. There were people making a killing out of this thing.  

NEMLA Bill compliance and enforcement: Responses

Mr Mark Jardine, Director: Environmental Management Inspectorate (EMI), Capacity Development and Support, DEA, introduced the feedback from the compliance and enforcement provisions. There were a few focus areas around the definitions in S24G and Section28, around the powers and mandates of the Environmental Management Inspectors, and also some issues in relation to delegations.

NEMA Section 1: Definitions

Mr Jardine referred the Committee to the proposals made by the CER and the Chamber of Mines concerning the definitions, two of which were supported by the DEA. These were that the term “environmental mineral and petroleum inspector” (EMPI) must be used consistently throughout the entire Bill; and to insert the definition of a municipality, municipal manager and municipal council that was aligned to the Municipal Systems Act, 2000. The recommendation to define the term, ‘Minister responsible for Water Affairs,’ was not supported (see Slide 2). 

The Chairperson asked why the Chamber of Mines wanted the DEA to define ‘Minister responsible for Water Affairs.’

Mr Jardine said that the DEA’s understanding was that the Chamber wanted the DEA to put in a definition of what it meant by ‘the Minister responsible for Water Affairs’. 

NEMA Section 24G: Consequences of unlawful commencement of activity

By way of context to the comments, Mr Jardine explained that Section 24G was a provision in the law that allowed a person who commenced with a specified activity -- an environmental authorisation or a waste activity -- and commenced with it unlawfully, to get an ex post facto authorisation from the competent authorities. It was a voluntary application process and not something that the environmental authorities could direct or tell somebody. They had to undergo an assessment process and also needed to pay an administrative fine. The fine was determined in terms of regulations that had been passed. The quantum of the fine depended on the significance of the environmental impact, as well as the applicant’s compliance history. There was no guarantee that the person who was applying for the 24G application would actually get an authorisation or not.

The Centre for Environmental rights had requested that S24G should be abolished (see slide 3). However, the DEA had not supported the recommendation because, among others, the S24G fining regulations had been promulgated to deter repeat contraveners with a maximum fine of R5 million.

Discussion

The Chairperson asked what the usual environmental authorisations route was.

Mr Jardine explained that before someone started with an activity -- for example, building a wedding venue or construction before the site was cleared -- the person would need to apply for a prospective environmental authorisation in terms of Ch 5 of the environmental impact assessment (EIA) regulations. This was more an ex post facto authorisation, where the legal activity had already commenced.

The Chairperson asked whether the person in question just regularised the activity. If so, what was the incentive?

Mr Jardine responded that, in terms of an incentive, what made S24G unique was because it was a little bit of a carrot and a stick at the same time. The only way the person who commenced illegally with the building of their wedding venue could get that authorised was for them to apply for a S24G application from an environmental authority. The incentive was to get the authorisation to make it legal and lawful. The ‘stick’ part of this measure was that they had to pay an administrative fine because the Minister or the MEC could not consider the application until the S24G fine had been paid.

The Chairperson asked what the fine was?

Mr Jardine explained that the maximum at the moment was R5 million. This was one of the mechanisms that had been put in place to try and curb the abuse of S24G. In the regulations, it stated that where the DEA, as the environmental authority, had evidence that somebody had previously put in a S24G application, and who had previously contravened the law, that the fine committee recommended the maximum penalty of R5 million. The DEA was hoping that this would serve as a deterrent for people who kept on putting in S24G applications intentionally, rather than going the prospective environmental authorisation route.

The Chairperson asked whether, in terms of current practice, that with any activity that was taking place which had not obtained authorisation, irrespective of how big that activity was, people could just come and make a S24G application. If the Green Scorpions wanted to shut down a particular activity, could they just come and ask to get an approval retrospectively?

Mr Jardine responded that in the interpretation of the legislation, it was important to note that the environmental authorisation that someone got at the end of an application process only applied prospectively. The person in theory could still be held criminally liable for the offence from the time they illegally commenced -- for example, with the construction of the wedding venue up to the time when they got their authorization.

The Chairperson commented that the example of the wedding venue oversimplified what was really at stake. The Bill was concerned with regulating much bigger activities. The people who were at fault were very big industrial manufacturers, who just went on with an activity, did not apply, and when the DEA checked whether or not they had the approvals, they simply reverted back to this section. The same applied concerning the atmospheric emissions licence. The Committee strongly felt there must be public participation when they wanted to revert back to that. Legislation shoud not be crafted in a way that the DEA would basically be left powerless. People who were transgressing would always find loopholes to that they could continue, paying whatever fee was calculated.

Mr Purdon asked for clarity about the scenario whereby, for arguments sake, he wanted to build a hotel on a primary dune. He could just factor the R5 million into his costs, which was not much when one looked at the overall development.

Mr Abader responded that there were other mechanisms used by the DEA to ensure that the scenario which the Committee was painting did not occur. The DEA also prosecuted directors personally. If the DEA took on an organisation, a criminal conviction against a company did not mean a lot in practice. However, once the DEA started going after directors in their personal capacity, and there was a likelihood that they could actually be held personally criminally liable. Then they sit up and actually take notice, because it was a lot closer to home. This was one measure that should allay the fears of the Committee in this regard. Moreover, directors were required to indicate in their financial statements any of these infractions as well. Since they were reporting to their shareholders, for them to state the infractions in them also had a significant deterrent impact.

Regarding the R5 million, essentially the fine had to be paid, but then the person who infringed had to still go through a process. In other words, the fining process was one part of it. The DEA expected the company to do a full EIA. That meant that the company started virtually as if it was starting a greenfields project. Every requirement that would have applied had you not started, then applied. The company in question would have to do all the environmental studies, and then submit them to the DEA. The DEA would then have to assess them. The risk was also that if the DEA found that the environmental impact of the development was such that it could not approve it, the company would have to take it down and rehabilitate the land. The fine was only one aspect of the risk. If the company had invested R100 million, there was the likelihood that the DEA could say that, because of its environmental impact, the company would need to take it down. As a result, the company would lose the entire R100 million.

The Chairperson asked what happened to the activity during the period of the EIA.

Mr Abader answered that it depended on the nature of the activity and the immediate impact of the activity, which had to be assessed.

The Chairperson asked what the law said in this regard.

Mr Abader answered that since the company did not have an authorisation, essentially the DEA could stop the activity.

Mr Sibusiso Shabalala, Director: Law Reform, DEA, added that in terms of the current law, from the perspective of criminal investigation, despite the fact that one had submitted an application, the DEA could still investigate criminally whether that activity complied with the law or not. 24G subsection 7 provided for the situation that had been asked for, that at any stage where an application was submitted and it appeared that there was a criminal investigation, then the decision that referred to that application must be deferred until a criminal investigation had been finalised and the National Prosecuting Authority (NPA) had taken a decision whether to institute a prosecution or not. There was an additional layer which said that if that activity was still under investigation, a decision would not be made until the criminal aspect of it was finalised and decision to prosecute or not had been taken.

The Chairperson reiterated his question as to what happened to the activity, not the investigation. When there was a criminal investigation, the DEA suspended looking at the application process. However, this was not what was being asked. Somebody commenced with an illegal activity without any approvals, and later on, the person gets caught -- what happens in that instance? The person pays a fine and submits the application and then it gets considered. In the meantime, the person still continues with the illegal activity. Later on, it gets approved and the person continues as if it was business as usual. If someone was engaged in something that was illegal and got caught, what happened? Did the person pay the administrative fee and be allowed to proceed with the activity? Or was the activity suspended until the process was finalised and then, after finalisation, the activity could proceed?

Ms Garlipp explained that the Act had a number of powers. The DEA could issue a compliance notice and, in terms of the compliance, one of the powers which it had was that it could stop some activity if the impacts on the environment were negative, or a directive could be issued in terms of S28 of NEMA. There were enough powers where there was harm to the environment to actually stop the activity or direct the owner to do certain things in terms of either the compliance notice, or the S28 directive. The fact that the person had applied for a licence did not mean that it would be automatically issued. In terms of S24G, the authority could either refuse it, issue it or it could direct the person to provide further information to consider whether to issue or not, or direct him/her to do other things. There were, in terms of section S24G, also certain powers that the competent authority had. It does not mean that the person would automatically get an environmental authorisation.

Dr Luyenge remarked that the DEA did not understand fully what the Committee’s question was. When someone was engaged in an illegal activity, and they were caught in that process, what happened to the activity itself? Was the operation suspended, or was the person allowed to continue up until the investigation was concluded? And if the activity was stopped, what happened if after that investigation, a licence was or was not issued? What happenned now during the progress and the process of the illegal activity?

Mr Jardine explained that in terms of S24G, there were provisions that allowed the authorities to tell the applicant to cease the activities. As soon as the application came in and the DEA was notified about the 24G application, the DEA could direct the applicant to cease what the applicant was doing, pending the outcome of the decision of their authorisation. There was a provision in 24G itself which would allow the DEA to do that.

The Chairperson asked whether this power was discretionary.

Mr Abader responded that this was normally a delegated power, delegated to the Grade One Environmental Management Inspectorate (EMI) organization. There were different gradings. A park ranger would be a Grade Five EMI. It was important to contextualise where a development was and at what stage. In some instances, the DEA gets notified that of an illegal development. In other instances, developers realise that they are doing the wrong thing and attempt to regularise the activity. It was important to address each activity on a case by case basis, because no two cases were going to be exactly the same.

Mr Makhubele pointed out that when a policy or regulation was enacted, one was not really dealing with the people who were on the lower rung or status in society. One was dealing mostly with the powerful. The powerful were the ones who most violated the law, and nothing was done. The CER argued that this must be taken out, because to them S24G was like an incentive. People used S24G rather than following the appropriate processes. If S24G was to be enshrined in the legislation, the DEA must argue that it would be able to serve as a deterrent. The R5 million fine was intended to deter repeat offenders and contraveners. It meant that people could do this thing over and over again, and all they would be issued with was a R5 million fine. Where they knew that the DEA was likely to refuse, they would do it anyway and apply later, and now the DEA would be stuck with the activity. A mining activity, for example, was different from building a school, which was a public good. The compliance of a school could only be checked once it was built. However, if an illegal mining activity took place before a mining application was made, the DEA was bound. The DEA was starting with much more powerful people, and consideration of whether the section was still needed or not should not be taken lightly. In terms of the fines, R5 million was nothing these days. The R5 million fine would not apply to the example of a wedding.

The Chairperson added that the R5 million fine was a maximum, not a minimum, fine. It was possible that it could be less. In most instances, when it was calculated, it became less. If a developer, or somebody who was in manufacturing or mining, knew that it took a long time to obtain an environmental authorisation, and decided against taking the formal route and started with construction and waited until he/she got caught, when the DEA took action he/she could use S24G to apply and wait for the approval without stopping the activity. When it got approved, that person would have saved on the six months it would have taken to get the authorisation before they could commence with the activity.

That was why the CER had said it was a perverse incentive. A person had already been busy with an illegal activity. The DEA incentivised the developer by allowing him/her to regularise the activity in question. Yet there were other law-abiding citizens who first applied and waited for the application to be approved and commenced with the activity. There needs to be a middle road where, as soon as the DEA discovered an unapproved activity, that person had to stop until all the approvals were obtained. This would be the deterrent that the DEA needed. The DEA would consider the application but the developer must know that the activity would be suspended or stopped, irrespective of the amount of investment that had already been made. The normal process would be first to apply, then wait for approval, and after all the approvals were obtained, the activity could start. How long did it take to get an EIA approval?

Mr Abader responded that the approval process was currently 90 days. Once the impact reports were finalised, the DEA had a three-month period to assess those reports.

The Chairperson asked how long it took to do the reports.

Mr Abader answered that it depended on the nature of the report as well.

The Chairperson asked whether it could take three years.

Mr Abader answered that it would not necessarily take three years, and a formal report could take up to a year, but not longer.

The Chairperson asked if the process could take one year and six months in total?

Mr Abader responded that it could take one year and three months.

The Chairperson said that some may argue that the person who was in the process of applying may already have a loan and would therefore like to start building, because he/she would be paying interest. By the time the owner started paying interest, the business should be running.

Mr Purdon asked who evaluated whether a developer needed a basic assessment and all the reports -- for example, the flora and fauna reports.

Mr Abader said the DEA had an environmental impact assessment section, and that was their primary function. They looked at the environmental impacts of developments. They would then read the reports that had been supplied by the environmental assessment practitioner and then decide whether the impact was significant or could be mitigated, and whether or not the development should proceed.

The Chairperson said that the best thing to do was to suspend the activity while considering the activity. Usually these were learned people who have studied and understood the law, and were able to put various scenarios to the board. Instead of agreeing with the CER in abolishing it completely, once the application came, then stop the activity until the approval was obtained.

Mr Jardine repeated that S24G was a very controversial provision. There were supporters for and detractors against it. The DEA was going into a NEMA-SEMA alignment process, and it would have a look at S24G. Part of the complexity of it was that it was both a carrot and a stick -- a hybrid provision which was not completely punitive, but it was not an incentive in itself. In the NEMA-SEMA process, the DEA would see if t was advisable to split it.

Mr Makhubele was concerned about repeat contraveners. If the R5 million fine applied only to repeat offenders, what happened when a person was a first time offender?

Mr Jardine reminded the Committee that the offender was still criminally liable from the time that he/she commenced with the activity until the authorisation was received. It was not as if the DEA was providing the offender with some kind of criminal amnesty. The developer was only legal from the time the 24G authorisation was given. The DEA’s Green Scorpions and its EMIs could still investigate the individual. In handing down a sentence, the magistrate would have taken into consideration if the person had paid a 24G fine, but this did not stop the individual from actually being prosecuted and being held criminally liable. It was a misnomer to call it a rectification, because it did not apply retrospectively. It applied only prospectively from the time the developer got an authorisation.

Regarding the first-time contravener, the maximum penalty was up to R5 million. If the DEA had found that the offender had repeated the offence and had knowledge that he/she was meant to have an authorisation but had intentionally gone ahead and commenced with the activity and a 24G application had been made, the maximum fine of R5 million must be recommended.

The Chairperson responded that the way it worked in practice was that if the offender gets caught, the person goes through the process with the DEA and that becomes the offender’s defense -- that the 24G application process was under way.

Mr Abader commented that that defence could be used by a first time offender in the criminal courts. However, as a second time offender, the magistrate would take a much stronger line and the DEA would be the complainant in those instances where the offender was aware of the non-comliance. In aggravation, the DEA would say that the offender had done it before, was aware of what had to be done, and yet was a repeat offender. There was a likelihood that the criminal sanction would be much harsher, whereas a first time offender may get away with it because of being ignorant of the Bill. It was not an excuse, but it could probably be used in mitigation of sentence.

The Chairperson asked whether there was no penalty for first time offenders.

Mr Abader responded that there was a penalty which would have to be determined based on the severity of the infringement.

The Chairperson asked how the penalty would be determined.

Mr Abader responded that there was a process and a calculator that was used that took into account various criteria, such as what the impact on the environment was, who the person was and the size of the facility.

Mr Jardine added that when there was a first-time offender, in terms of the 24G fining application process, the maximum was R5 million per each activity. If the DEA picked up that the offender had the knowledge that they were meant to apply for an environmental authorisation, indicated that the offender knew what the EIA rules were. In that instance, the DEA assumed that the offender had infringed intentionally because he/she had, for example, put in a 24G application or had been issued with a directive or a notice that the offender had contravened S24N, then the fines committee which determined and recommended what the fine should be to the Minister, the MEC or delegate ,must recommend R5 million in the instance of a second-time offender.

Ms Garlipp highlighted that a person convicted of an offence of that nature was liable to a fine not exceeding R10 million, or imprisonment of a period not exceeding 10 years. That could be on top of a S24G penalty.

The Chairperson asked whether this was the same provision which applied to the atmospheric emission licence?

Ms Khumalo explained that there were aggravating factors. If the offender was operating in a national priority area, there was an additional R1 million penalty, over and above the other aspects. The S24G provision was mirrored, but there were oher factors that could be additional to this.

The Chairperson asked whether what had been said concerning S24G was also applicable to the atmospheric emission licence?

Dr Khumalo responded that in the Air Quality Act, there were those aggravating factors that were additional to the requirements. For example, when the offender was operating in the national priority areas, there was an additional R1.5 million fine for being there without authorisation. There were a other factors which added to how the fine was determined.

The Chairperson reiterated that what was applicable in terms of S24G must also be applicable in terms of the Air Quality Act. It must be amended accordingly.

NEMA Section 24G: Consequences of unlawful commencement of activity

Mr Jardine referred to the proposal made by the CER, that the S24G process should make explicit provision for public participation in the S24G process. However, this proposal was not supported by the DEA because legislation already made provision for public participation (see slide 3).

The Chairperson asked whether this meant that there already was this requirement, and whether there would be anything wrong with restating the requirement.

Mr Jardine confirmed that the DEA felt that the provisions already covered that requirement for public participation adequately.

The Chairperson asked if it could be repeated.

Mr Jardine confirmed that could be.

The Chairperson responded that these were very contentious environmental issues. It did not take anything away if the DEA was explicit about them.

Mr Jardine continued that the Chamber of Mines’ submission that, with respect to S24G, there was “no legal justification for requiring ‘a successors-in-title or persons in control of’ to submit an application,” was not supported by the DEA. This was because, among other reasons, a S24G application was a voluntary process and environmental authorities could not direct a person to apply (see slide 4).

Transnet’s submission on S24G reflected concern that the expansion to successors in title and to persons in control of land, would expand their risk. However, the DEA did not support the submission because, among other reasons, the expansion of the category of persons allowed to apply would, in fact, lessen the risk of Transnet as a landowner (see slide 5).

The Chairperson asked whether this was the only comment from Transnet.

Mr Jardine confirmed this.

The Chairperson said what he understood Transnet to be saying was that sometimes illegal activities happened on their properties which they were not aware of. There was possibly a requirement for the landowner to be aware.

Mr Jardine responded that if he recalled correctly, Transnet was not talking about amendments to S24G. Rather, they were talking about their potential liability under S28 of NEMA, which was the Duty of Care provision, where there was a wide category of people who could potentially be held liable under S28. This included the owner of the land, the person who was in control of the land, or who had the right to use it.

Similarly, the Association of Cementitious Material Products had submitted that S24G applicants should be confined to those who had committed an offence. However, the DEA did not support this recommendation because, among other things, without this mechanism a purchaser of property on which an activity was unlawfully commenced would never be able to ‘regularise’ the infrastructure (see slide 5).               

NEMA S28: Duty of Care and remediation of environmental damage

Mr Jardine said the CER and the Commission for Gender Equality (CGE) had submitted that the NEMA S28 provision should, among others, require the DG, HOD or municipal manager to give advance notice of a directive to the recipient, as well and other impacted or affected persons, and allow such persons a reasonable opportunity to make representations. However, this submission was not supported because, inter alia, the purpose of S28 was to provide environmental authorities with an effective, streamlined enforcement mechanism to tackle significant environmental harm, while still complying with the principle of administrative justice (see slide 6).

Furthermore, the CER and the CGE had submitted that in the event that the recipient of a S28 directive failed to comply with the directive, an interested and affected party should be allowed to undertake the remedial action and recover the costs incurred. However, this submission was not supported, as only the environmental authorities empowered to issue the S28 directive should be provided with the follow-on powers to undertake the necessary remedial action and recover the costs from those responsible for the pollution/degradation.

Mr Jardine responded to the Chamber of Mines and the Banking Association of South Africa recommendation that, in relation to the category of persons upon whom a section 28(4) directive may be served, this referred specifically to the category of responsible persons in 28(2), rather than the ambiguous term of any other person to whom the duty of care existed. The DEA supported this recommendation (see slide 7).

The Chamber of Mines had recommended that joint and several liability would constitute expropriation of money within the Constitution, for which the state would have to pay compensation. This principle was not in accordance with the adoption of causality, on which the statutory duty of care was premised. The DEA supported this proposal as it, among others, was too radical a measure to implement (see slide 8).

The Chairperson, however, suggested that this measure gave the DEA discretion. The DEA could still attribute the cause to each of the offenders, but if the DEA was unable to recover from four out of five offenders, it could recover from one. What was the problem with that?

Mr Jardine responded that the initial thinking of the DEA was that this principle would allow the person who was responsible to be found liable for 100% of the remedial costs, irrespective of what their actual contribution or their fault was. This might be a bit unfair insofar as proportionality was concerned. The way it was written now was that the offender would be liable for only the 10% or 20% they were responsible for.

Transnet and Business Unity South Africa had suggested that the expansion of the environmental authority to local authorities was of concern, and may lead to the duty of care provisions being enforced by more than one regulator. However, this proposal was not supported because the implementation of national environmental legislation, namely NEMA and the SEMAs, was a shared competence between national, provincial and local authorities.

The Chairperson asked whether the DEA had received comments from local authorities on the delegation of powers.

Mr Jardine responded that the DEA had not received any specific comments from the South African Local Government Association (SALGA). It had received comments from individual municipalities in relation to requesting this power. The DEA had about 350 local authority environmental management inspectors. The concurrence of the compliance and enforcement between national, provincial and local was already quite matured. They had been requesting the power themselves.

NEMA S31BB: Designation of EMPIs by Minister of Mineral Resources

Mr Jardine said the Chamber of Mines did not agree with empowering the Minister of Mineral Resources to appoint as an Environmental Mineral and Petroleum Inspector (EMPI), a staff member from any organ of state. The definition of ‘organ of state’ was very wide and may include institutions that were not regulatory authorities. This proposal was partially supported by the DEA, suggesting that S31B, BA, BB and C could be amended to refer to “any relevant organ of state” to cater for the comment made. This would require the designating authorities to apply their minds in relation to which organs of state should be included (See slide 10).

AgriSA, was of the view that only the Minster of Environmental Affairs, and not the Minister of Mineral Resources, should have the power to designate and appoint environmental management inspectors. However, this comment was not supported by the DEA, since the empowering of the Minister of Mineral Resources to designate EMPIs was a necessary component of the One Environmental System (see slide 10).

NEMA S31D: Mandates

Mr Jardine explained that for the Centre for Environmental Rights, the intention of section 31D (4)(5)(6)(7)(8) and (9) did not achieve its intended result, which was to provide a procedure in which the Ministers of Environmental Affairs and Mineral Resources could agree that EMIs could undertake the compliance and enforcement work in circumstances where the EMPIs were unable to adequately fulfil the compliance and enforcement functions. The DEA was of the view that there were three different options that could be followed (see slide 11). Option a) was preferable at this stage, namely, to leave the provisions as they stand and improve inter-governmental relations between the DEA and the DMR to try and improve the responsiveness to these types of referrals. However, the DEA would appreciate the guidance of the Committee.

Discussion

The Chairperson pointed out that option a) was intended to improve inter-governmental relations, so if they did not improve, was there nothing to be done? There were people who were criticising the ‘One Environmental System,’ saying that environmental functions were being channelled into Mineral Resources, yet the orientation of Mineral Resources was not around environmental issues. Rather, it was about exploring the mines and sometimes there was a conflict between where resources could be found and environmental concerns. In that conflict, the Minister of Mineral Resources would facilitate the extraction of mineral resources. They would side with the latter. In the instance where someone approached the DEA after having not been successful with the DMR, there must be a mechanism in the legislation which would enable consultation and, if no feedback was obtained, the Minister of Environmental Affairs would then have to deal with the issue. Option a) was not viable.

Mr Hadebe commented that option c) was more acceptable, because it also gave a time frame. It gave some teeth to the DEA as well. If there was no response after possibly 60 or 30 days, then the DEA could take over and do what was supposed to have been done. Where there was a good spirit of cooperation, it would not be encroaching on any department.

Mr Makhubele thought that this was more in terms of the One Environmental System. First and foremost, the rationale had been arrived at based on the challenges that were there before. Instead of immediately wanting to move it back to the DEA, it could still be given to the Minister of Mineral Resources, supposing there were no challenges. However, one had a sense that there was a problem only once a particular reasonable time frame had elapsed. The only issue was that it did not clarify the Chairperson’s concern regarding the bias. A Minister could still be biased towards the Mineral Resources mandate and not necessarily the environment, and people may be concerned about that. However, if the complainant had come back the Minister and had done what he/she was supposed to do, they could not be blamed. They had complied and responded within 60 days. Option b) would give the Minister of Environmental Affairs some more powers to communicate with his/her counterpart and, if there was not movement, he or she would be able to move. However, the concern was that already people were saying that the DEA had abdicated its responsibility of ensuring that environmental issues were taken care of . Already, the one environmental system was biased towards the needs of the economy and the Mineral Resources’ mandate.

The Chairperson commented that this aspect was also consistent with the principles of the One Environmental System, to allow the Minister of the DMR to perform this function. However, it was uncertain whether to go with option c) or b). Option b) was, however, more appealing. With Option b), there was more responsibility on the part of the DEA. When there were unlawful activities, or those risks that were there involved the environment, it could proceed and then, after consultation with the DMR, rectify the problem.

Mr Jardine confirmed that in terms of Option b), if the words ‘in consultation with’ or ‘after consultation with,’ rather than ‘in concurrence with,’ spoke more to a type of notification process than an actual explicit agreement.

The Chairperson confirmed that an agreement may not have been obtained by “there was consultation.”

Mr Jardine confirmed this.

The Chairperson continued that this matter talked to an exception, unlike in the ordinary course of things, when there was a very clear case that there was an unlawful activity here, or where there was imminent danger, and one could proceed through this to S31D. But in the ordinary course of things, the One Environment System was applicable. Option b) was fine.

Mr Hadebe responded that he needs to be convinced that Option b) was the best, whereas Option c) gave a time frame. They could consult for one or two years, but there was a time frame.

The Chairperson explained that there could be an imminent environmental degradation that was identified by DEA. In that instance, the Minister would consult and after consultation, that would then follow S31D-- unlike with Option c), where a time frame of three months was given and during the three-month period the situation became worse. Essentially, with Option b), the relevant department, the DEA, must continue to look after environmental issues. The context here was the critique of the One Environmental System, which was what the CER was raising. The argument here was that the function had been transferred to the Minister responsible for Mineral Resources which, in the course of exercising those functions, would give rise to a conflict between environmental issues and developmental issues in the form of the extraction of mineral resources. The relevant person, the person to whom this function had been delegated, would be the Minister of Mineral Resources, for whom the preoccupation would be on development, unlike looking after the environmental issues. Even this One Environmental System was almost like a compromise at some point between the DMR, the DEA and Department of Water and Sanitation (DWS). The reason why Option b) would be chosen was because it could then be utilised where there was going to be an exception, other than the rule. The rule would be that these matters would be dealt with under the One Environmental System.          

Mr Jardine continued that the Chamber of Mines’ recommendation that the Bill should provide a clear, distinct and separate mandate for national EMIs, provincial EMIs, local authority EMIs and national EMPIs was not, for various reasons, supported by the DEA (see slide 12).

NEMA S31E: Prescribed Standards

The Centre for Environmental Rights’ proposal that there needed to be a code of conduct for all EMIs and EMPIs was necessary, to raise the standards of compliance monitoring and enforcement of environmental legislation, especially by EMPIs, was partially supported (see slide 3).

The Chairperson asked whether this requirement would be included for the development of the Code of Conduct.

Mr Jardine confirmed this, highlighting that the empowering provision would be included in the amendment bill.  

The Commission for Gender Equality’s proposal to amend the wording of S31E (3) was not supported (see slide 13).

Mr Jardine explained why the Chamber of Mines’ proposal to empower the Minister of Mineral Resources, rather than the Minister of Environmental Affairs, to prescribe qualification criteria and training, and a code of conduct for EMPIs, was not supported (see slide 14).

NEMA S31G: Functions of Inspectors/S31H: General Powers

The Chamber of Mines had recommended that the reference to a reasonable suspicion needed to be retained. The DEA had supported this proposal, with the addition of a new sub-section to empower the EMI to follow up on an anonymous tip-off in order to confirm the information provided (see slide 15). 

NEMA S31H: General Powers

The Commission for Gender Equality’s proposal for the additional wording under NEMA S31H was not supported (see slide 16).  

NEMA S31K Routine Inspections/S31J Stop, Enter and Search Vehicles, Vessels Aircraft

Mr Cox’s concerns on the constitutionality of sections 31K and 31J of NEMA were not supported (see slide 17).

The Chairperson asked if officials picked up that something was wrong, did they not seize, and then go and look for a warrant.

Mr Jardine responded that, in that instance, if somebody was busy with a routine inspection and came across something that could be an offence, they would need to stop the inspection and warn the person of their right to remain silent and have access to a lawyer, because then they were in criminal investigation mode.

NEMA S31M: Objections to Compliance Notices

The Chamber of Mines’ suggestion regarding compliance notices was not supported, particularly, since an appeal in terms of s43 would lie against a compliance notice in terms of s31L. It was not clear how s31M, regarding objections, and s43, regarding appeals, interrelated (see slide 18).

NEMA S42C&D: Delegation by the Minister of Water &Sanitation/Municipal Managers

AgriSA’s submission, that delegation of a Ministerial/municipal manager’s power should not be permitted to an organ of state, was supported (see slide 19).

NEMA S42B: Delegation by the Minister of Mineral Resources

AgriSA had suggested that Clause 28 -- the proposed amendment of 42B of NEMA -- created a situation that was untoward and highly biased in favour of the mining sector, as it allowed for certain delegations of powers in terms of NEMA by the Minister of Mineral Resources. The DEA did not support this suggestion (see slide 20).

NEMA S43: Appeals

Business Unity South Africa’s recommendation, that the inclusion of the phrase ‘other administrative enforcement notice issued in terms of this Act’ was poor drafting and undermined the rule of law principle, was partially supported by the DEA (see slide 21).

The Chairperson concluded that Option b) was fine. There were no serious issues on the other comments. What was remaining was to factor in the amendment as discussed and agreed. The DEA should also consult the stakeholders to whom the Committee had referred the DEA for further consultation. A date would be scheduled where the DEA would give feedback on those issues, and then there would be a discussion clause by clause.

The meeting was adjourned.

 

 

 

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