Meeting report

NEMLA Bill: deliberations

Mr Ishaam Abader, Deputy Director General, Legal, Authorisation, Compliance and Enforcement, Department of Environmental Affairs (DEA), introduced the Department’s briefing on the proposed changes to the National Environmental Management Laws Amendment (NEMLA) Bill.

In Clause 1(1), there had been confusion around the auditing requirement, but according to DEA, the clause was not intended to be a purely financial audit, so the term required a definition to clarify the current confusion.

“Bank guarantee” would be changed to refer to “financial guarantee,” because “financial provision” meant the amount which was required to be set aside in terms of the Act, guaranteeing the availability of sufficient funds to undertake the:

• rehabilitation of the adverse environmental impacts of the listed or specified activities;
• rehabilitation of the impacts of the prospecting, exploration, mining, or production activities, including the pumping and treatment of polluted or extraneous water;
• decommissioning and closure of the operations;
• remediation of latent or residual environmental impacts which became known in the future;
• removal of building structures and other objects; or
• remediation of any other negative environmental impacts.

There was a proposal that the term “primary processing...” should be abandoned and that instead the current manner of reference be retained, namely: listed or specified activities for, or directly related to, a prospecting right, mining right, mining permit, retention permit, exploration right, production right, reconnaissance permit or technical co-operation permit. The proposal was that the term should not be limited to mining only, but should include all impacts.

The DEA proposed the addition and reference to affiliate, parent company guarantee, and rehabilitation company in terms of the Income Tax Act, and that applicants and holders of environmental authorisations and the Mineral and Petroleum Resources Development Act (MPRDA) rights and permits be referenced.

The DEA agreed with the proposal to insert the definition of a municipality, municipal manager, and municipal council, which was aligned to the Municipal Systems Act, 2000 and the terms, “Minister responsible for water affairs” and “environmental management instruments,” needed to be defined.

In Clause 4; section 24C(2B), the Department was of the view that, notwithstanding the other provisions of this section, and in the event of the Minister not being the competent authority, the Minister must be identified as the competent authority, where a Cabinet decision stipulated that the Minister must be the competent authority for activities related to a matter declared as a national priority or matters related to such national priority, unless otherwise agreed to in terms of subsection (3).

There was a proposal that the use of environmental authorization, as well as licences and permits, should be clarified with reference to the definition of “environmental authorisation”. The Department, however, contended that a person who wished to apply for an environmental authorisation for listed or specified activities for, or directly related to, prospecting or exploration of a mineral or petroleum resource or extraction and primary processing of a mineral or petroleum resource which also involved an activity that required a licence or permit in terms of any of the specific environmental management Acts, must simultaneously apply for an environmental authorisation after the acceptance of the application for a right or permit, in terms of the Mineral and Petroleum Resources Development Act (MPRDA), 2002.

The DEA did not agree with the comment that Section 24G in its current form did not require reasonable public participation, and that it was therefore unconstitutional, unlawful and invalid.

The Department found the proposal to have some mechanism for the return of the financial provision once it became clear that there were no longer any residual impacts (and that pumping of polluted or extraneous water was no longer required), did not require an amendment to the Bill. Similarly, the insertion of a provision authorising the Minister responsible for water to access financial provision in the event that the holder, or holder of a right or permit, failed to rehabilitate or to manage any impact on water resources, or was unable to undertake such rehabilitation or to manage such impact, did not necessitate an amendment.

There was a proposed amendment on the provisions surrounding financial provisioning for mining-related environmental liability, that it should reside with the Minister of Environmental Affairs instead of the Minister responsible for Mineral Resources. The powers given to the Minister of Mineral Resources to decide upon the adequacy of the financial provision by the holder of an environmental authorisation in respect of mining (or mining-related) activities, was incorrect. This power should reside with the Minister of Environmental Affairs. The DEA contended that this had been catered for already.

The Department would engage in further discussions with government partners on Section 24P, which did not suit the oil and gas industry, because the nature of gas and oil exploration and production did not allow annual rehabilitation, did not require an annual review or audit, and it would not be possible for the oil and gas industry to cede funds to the DMR for latent impacts. Therefore, a separate dispensation should be included to accommodate this industry to allow them to comply.  

The DEA agreed to insert the words “remediation and management of residual environmental impacts as identified in an environmental risk assessment report” throughout Clause 8 after the newly inserted words “...post closure...”.

During consultation with stakeholders, it became apparent that there was confusion with terms “assessment” and “review.” A definition for “review” was proposed and the term “assessment” deleted. Also, the reference to “annually comply” seemed unnecessary, as the obligation was to comply at all times.

Either in section 24P or 24R, since the holder remained responsible for environmental liabilities, notwithstanding the issuing of a closure certificate, there needed to be some mechanism in s24P (5) whereby the holder could draw down on the financial provision which had been retained by, and ceded to, the Minister.

With reference to Clause 9; section 24R(1), every holder of an environmental authorisation for listed or specified activities for, or directly related to, prospecting or exploration of a mineral or petroleum resource or extraction and primary processing of a mineral or petroleum resource, holder, holder of an old order right and owner of works, remained responsible for any environmental liability, pollution or ecological degradation, the pumping and treatment of polluted or extraneous water, the management and sustainable closure thereof, notwithstanding the issuing of a closure certificate by the Minister responsible for mineral resources in terms of the Mineral and Petroleum Resources Development Act, 2002, to the holder or owner concerned.

The relevant environmental authorities were empowered to issue a directive to, inter alia, cease any activity, operation or undertaking, to investigate the impact of activities and report on them, and to commence taking specific measures and complete those measures. In terms of the Bill, this power to issue a directive would also be extended to a municipal manager of a municipality. The current position contained in section 28(4) of NEMA provided that such a directive may be issued only against “any person who is causing, has caused or may cause significant pollution or degradation of the environment”.

The proposed changes also provided for joint and several liabilities about the recovery of costs from certain categories of persons, where the relevant authorities undertook the clean-up operations in circumstances where a directive was not acted upon. Accordingly, this proposed amendment also highlighted the importance of conducting a thorough environmental due diligence investigation at the time of the sale or lease of premises or property, to identify any existing historical contamination and pollution and associated risks.

The Department agreed that reference to “well-being” must be replaced with “welfare” and “protection”. Reference to “faunal biological resources” in Clause 38/ section 2, should be amended to include all “wild fauna” and “wild animals” and “wildlife.”

In Clause 52.1(e), “hazardous waste” means any waste that contains organic or inorganic elements or compounds that may, owing to the inherent physical, chemical or toxicological characteristics of that waste, have a detrimental impact on the health of any biological species and the environment.  

Appointments must be made in such a way that the Board is composed of a broad range of appropriate expertise in the field of waste management and an equitable gender representation, as outlined in Clause 56 s34I (5).

As per Clause 78, anything done under the repealed provisions in Part 7A of Chapter 4 of the National Environmental Management: Waste Act, 2008 remained valid until anything done under the provisions that substitute the provisions in Part 7A overrides it.

Discussion

Mr S Makhubele (ANC) commented that the term “black professionals” in the Bill needed to be explicitly defined, to remove ambiguity.  

The Chairperson corrected a spelling error in the Bill from “publically” to “publicly”.

Dr Dee Fischer, Chief Policy Advisor: Integrated Environmental Management, DEA, added that the DEA had made a new proposal in Section 24(p) for financial provisions. In the provision, there was a general section and a section dealing exclusively with mining.

Mr T Hadebe (DA) observed that Section 6(e) needed to include the Department of Mineral Resources (DMR), so that the process was done in consultation with the DEA.

The Chairperson echoed Mr Hadebe’s comment, and queried whether it was assumed or whether it needed to be expressly stated.

Dr Fischer responded that it was probably better for it to be expressly stated, for the sake of completeness. She further clarified that Section 49(a) of NEMA dealt with criminal offences.

Ms H Nyambi (ANC) asked what the current situation was in terms of funds meant for rehabilitation.

Dr Fischer answered that there were instances in which the money was diverted to other uses. The Bill would therefore stipulate that it was a criminal offence to use those funds for any purposes other than rehabilitation.

Mr Hadebe queried why the Minister of Mining Resources and the Minister of Water Affairs were given powers under the Bill, while the Minister of Environmental Affairs was left with “no teeth to bite”.

The delegation responded that the other parts of the Bill had expressly stated that the three ministers must consult and counter-check with each other, and therefore it was unnecessary to also amend that clause, as that would be a repetition.

The Chairperson asked whether the inspectors would require a search warrant for them to conduct their inspections.

The DEA replied that they would require a warrant only when they had a reasonable suspicion and wished to probe further.

Mr Hadebe asked whether the Department had any issue with recommendation (a) on Section 48 and its unintended consequences.

The delegation said that DEA would prefer to view all the proposals in the context of the entire document, and not necessarily deal with or accommodate each proposal on its own.

Mr Alf Wills, Deputy Director General, Environmental Advisory Services, said that the issue of the Society for the Prevention of Cruelty to Animals (SPCA) was not administered by DEA. The parameters for animal captivity needed to focus on the biology of the individual species and be at a general rather than a specific level.

The Chairperson asked about captive breeding for the purpose of hunting. Because the issue was broad, he proposed suspending the discussion on it and the Biodiversity Act under NEMLA, to the following week. He queried why Clause 47 had been omitted from the presentation and briefing, and asked whether other clauses were also missing from the briefing.

Mr Mark Gordon, Deputy Director General, Chemicals and Waste Management, responded that the air quality clauses had been omitted from the briefing because they had already been agreed upon by the Members in previous sessions.  He continued to elaborate further on Section 28 of the Bill.

The Chairperson directed that the Department should include all the omitted clauses, even the non-contentious ones, as well as the proposed Protected Areas Amendment Act, and have it ready by the session on Thursday. He directed that the Amendments list (A-list) should be provided in the next session and once it was approved, the Proposed Bill (PB) would be passed on to the National Council of Provinces (NCOP).

Mr Makhubele said there was a need to cross-section with other Acts so that Government at all levels had consistent definitions to facilitate easy reference when the text also stated its sources and related Acts. He added that there was one matter in Section 24 (g) where the delegation needed to consult with the Minister for Environmental Affairs. This was on the issue of reference to the Minister for Water Affairs and the authority for the stopping of activities.

The delegation said that the Committee had proposed raising the penalty from R5 million to R10 million, and whether it should be punitive or all-inclusive.

The Chairperson said the A-list document should not take more than an hour to go through the following week, because most of the substantive issues had already been discussed. The A-list and PB documents, once approved, should then be taken to the printers on Wednesday of the following week. The Committee would formally adopt the Bill on the following Wednesday by 12 noon.  

The DEA agreed, and added that there would have to be a process of proof-reading the documents to make sure every detail had been captured accurately before it was passed on to the NCOP.

Committee matters

The Chairperson summarised the deliberations and announced that there would be a Members’ colloquium on environmental programmes the following day, starting at 09h00. He requested the whip, Mr Makhubele, to ensure more Committee Members attended the colloquium. He told Ms Nyambi that she could be excused from having to attend, as she had been feeling unwell.

He announced that on Tuesday and Wednesday of the following week, the Bill would be finalised.

The meeting was adjourned.