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PORTFOLIO COMMITTEE ON ENVIRONMENTAL AFFAIRS AND TOURISM
18 August 2003
PUBLIC HEARINGS ON THE NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY BILL, THE NATIONAL ENVIRONMENTAL MANAGEMENT: PROTECTED AREAS BILL AND THE NATIONAL ENVIRONMENTAL MANAGEMENT AMENDMENT BILL
Chair: Ms G Mahlangu (ANC)
The Department of Environmental Affairs and Tourism (DEAT) presented a broad overview of its work on the three Bills. Director-General Dr Olver commented on the processes leading to the public hearings. The Minister of Environmental Affairs and Tourism, Mr Valli Moosa, extended his gratitude to the Department and the Committee for its sterling work and elaborated on its significant effect on international relations. Civil society organisations and individuals also presented to the Committee.
Documents Handed Out:
Biodiversity Bill: Comment by the Department
Botanical Society of SA Submission
Forestry SA Submission
Protected Areas Bill: Comment by Chamber of Mines
Department's Presentation: Legislation 2003
Department's Presentation: NEMA Amendment Bill
The Chairperson apologised for the short notice of public hearings.
Presentation by Department of Environmental Affairs and Tourism
Dr Olver, the Director-General (DG), reported back on the Department's progress, summarised the Biodiversity, Protected Areas and NEMA 1st Amendment Bills, and commented on the processes leading to the public hearings.
The National Parks Act (1976) is outdated and there is no overall framework for biodiversity management and conservation. The policy framework is derived from the (a) Constitution (1996), (b) NEMA, (c) White Paper on the conservation and sustainable use of SA's biodiversity (1997), (d) Bioregional approach to conservation (2002) and (e) International conventions: CBD, CITES, CMS, Ramsar, WHC, UNESCO - MaB. There is a NEMA framework of principles and cross cutting provisions. These are Protected Areas, Biodiversity Bill, Air Quality Bill, Coastal Management Bill and Waste Management Bill.
The process followed was the intergovernmental consultation (CEC, MINMEC, Cabinet) in 2001 and 2002. Following publication of the Bills, public comments were received from November 2002 - March 2003. There were also workshops with civil society and government. The process was also taken to NEDLAC from February - July 2003. There were also special interest groups consulted. Again, there was a publication of the Bills for input into the parliamentary process from May 2003. Further detail are contained in the attached document.
Presentation by Minister Valli Moosa
The Minister said modernising the entire sweep of legislations took South Africa into modern management of environmental regulation and enforcement. This has direct economic benefits. South Africa is a member of Like-Minded group (Mega Bite) that seeks to secure interests in international conventions and protocols.
With regard to the parks system, the legislation would make it possible to separate parks and national parks as an institution. Sections 75 and 76 of the Protected Areas needed to be dealt with separately in the parliamentary processes and he recommended that they be considered together in this hearing. He informed the gathering that World Parks Congress is an important global event and that he was going to announce proposed ways to empower local communities.
Chamber of Mines submission
Mr Lesufi told the gathering that the Protected Areas Bill was incomplete as it referred to an Act that was not yet finalised. They had serious concerns with regard to the Protected Areas and the Amendment Bills. They were also concerned with the decision making processes, extension of the categories of protected areas in which mining and prospecting is forbidden; and inadequate use of mining and mineral related terms vis-a-vis the Mineral Petroleum Resources Development Act (2002). They were also concerned about the powers given to the Environmental Management Inspectors.
Prof Glazewski (DEAT) said that since the Chamber of Mines (COM) was lobbying for mining, he asked if they needed stricter environmental and legal tightening. He asked what additional requirements were necessary.
Mr Lesufi responded that any measures needed to be site-specific and a blanket rule approach was unwise.
Mr Arendse (ANC) wanted clarity on how the Protected Areas Bill could override other legislation. He also asked about the right to cancel. Any right can be cancelled provided that it is done within the parameters of court.
Ms Karel (COM) argued that mineral rights can be expropriated, not cancelled.
The DG told the gathering that the Chamber of Mines had made arguments about mining and prospecting in protected areas. He had reservations and asked if they wanted provisions for deproclamation in protected areas. He emphasised that no private land could be declared a protected area without the owner's consent or a formal expropriation mechanism would be required.
Dr Parsons (COM) said the issue with existing PA is that if it is deproclaimed they need to know the reasons for the deproclamation and the area.
Ms Yako (DDG: DEAT) clarified that, on the issue of consent, the Bill refers to written consent in line with other legislation. Section 33 (1) referred to consultation and this did not just mean publication in the Government Gazette. She wanted to know what communication they proposed.
Mr Lesufi responded that the Government is required to consult with communities and affected people should go to hearings. It should be made known if anyone refused to co-operate on issues of protected areas. He suggested that local newspapers be used for additional communication.
The DG said the COM seemed to be objecting to section 48(1) with regard to mining and prospecting and he wanted to know if they were also concerned about other industrial activities. This would need legal clarity.
Dr P Canner (COM) responded that their technology has improved and the COM and affected communities could agree on a reasonable degree of environmental degradation.
The DG asked if they wanted to exclude indigenous forests.
Dr Canner (COM) said that in terms of National Forest Act, this did not only include indigenous forest.
Prof Glazewski wanted to know the attitude of the Chamber if Environmental Impact Assessments (EIAs) were taken back from them in protected areas.
Mr Lesufi responded that this was a broad-based mechanism and full EIA would need to be the responsibility of the department.
Mr Moss (ANC) asked if the mining industry wanted to be independent in terms of intrusive inspection.
Mr Lesufi replied that the mining industry is willing to follow the guidelines set by the government.
Ms Chalmers (ANC) commented that, in her experience, she would be happy if the Bill remained as is.
Mr Botha (Botanical Society) asked if they could work in co-operation with other parties.
Mr Lesufi replied that the mining industry internationally stated that there is a dialogue with IUCN and they would make the outcomes public. With regard to the World Parks Congress, he suggested that there should be faith in the public consultation process.
Forestry Industry submission
Mr Mike Edwards submitted on the Biodiversity Bill. The Forestry Industry represented private sector timber growers and had 20 000 members. He was also not sure if the current Bill would override other legislation like the Water Act.
Commercial forestry should be granted an exemption. Application for permits would be complicated. Section 64 did not apply to three species. With regard to an integrated permit, he said that Water Affairs issued integrated permits. They were finding it difficult to get forestry licences and co-operative governance did not exist. On the issue of public participation, he was concerned about the time allocated. Drafters of the Biodiversity Bill did not seem to be aware of other relevant legislations.
The DG wanted to know if the presenter considered the industry to be over-regulated. If the industry rejected the clauses on alien and invasive species, this could lead to biodiversity loss.
Mr Edwards said he had made strong comments on invasive species. Individual landowners should take responsibility and stop finger-pointing.
The DG asked about oversight mechanisms and how they were proposing to deal with destructive effects of forestry.
Mr Edwards responded that forestry supports uncomplicated regulation. They were audited annually and did not want to go through several processes. He asked if it was possible that the Department examine legislation in other departments.
The DG responded that they could cross-reference.
Mr Mark Botha (Botanical Society) wanted to know about the industry's use of sterile cultivars and whether they had an objection to these.
Mr Edwards responded that industry had sterile cultivars but they were prohibited by the Forestry Council. The problem was related to the genetification process and they were looking into it.
Dr Botha (DEAT) was looking at the problem of duplication of activities and authority. He asked whether Mr Edwards thought the Bill dealt with the issue of integrated permit. On scrutiny of agricultural crops, he asked whether this could be exempted.
Mr Edwards replied that he had no problem with integrated permits but it was a vigorous procedure. This Bill should nominate the Minister of Water Affairs and Forestry as an authority. He said he had not focused on the issue of agricultural crops being treated as alien species. He wondered whether Section 72 was practically manageable. Stream flow reduction required vigorous public participation and it relate to 72 (2) of the Biodiversity Bill.
The DG commented that landowners were not being subjected to checks and balances. There are grounds to restrict the clause because it has wider implications.
Botanical Society of South Africa submission
Mr Mark Botha outlined the positive and negative aspects of the Biodiversity and Protected Areas Bills and made suggestions on what should be included. A copy of the presentation is attached.
In response to the Society's suggestion to develop a set of principles to encourage compliance with the Biodiversity Bill at municipal and provincial level, the Director-General explained that their approach was to avoid creating sectoral principles that could potentially conflict with NEMA principles. They would consider amendments and Mr Botha commented that the Society would be happy to do this.
The Director-General responded negatively to the Society's suggestion that MECs also (not just the Minister) be given the power to enter into Biodiversity Management Plans. This was likely to lead to confusion.
Mr Botha noted that this will create a burden on the Ministry and the national department as there were likely to be many small plans required for local ecosystems. The society's suggestion could lighten the national department's load if it established closer links with the MEC's Department.
The DG also said that the Department is open to amending the section dealing with management plans.
In response to issues raised about the definition of "suitable persons", Ms Yako said that this did not include individuals.
Prof Glazewski asked why they thought the EMCA principles contained in NEMA are not broad enough to accommodate the Biodiversity Management Plans.
Mr Botha said that since biodiversity management cut across various departments, it demanded specific considerations. The EMCA principles were more suited to industry than local landowners.
Dr Botha sought clarity from the Botanical Society regarding conflict management.
The Society pointed out that the Protected Areas Bill made provision for a process to deal with conflict situations and that the Biodiversity Bill should do the same.
Ms Yako stressed that the sections dealing with landowners must be understood within the context of property rights. The Society's view was that landowners should not be allowed to withdraw from agreements and that they effectively sacrificed their individual property rights when entering into agreements with the state.
Presentation by the Wilderness Foundation
Mr Andrew Muir began with a plea to the Portfolio Committee to consider extending the Public Hearings to give more organisations a chance to participate.
He acknowledged that the Protected Areas Bill was a vast improvement on all previous legislation. However, the Foundation was concerned with the use of aircraft in "special nature reserves or world heritage sites". The Foundation recommended that this clause be applicable to all protected areas as was stated in previous drafts of the Bill.
The Wilderness Foundation also recommended that S47(1) be amended to read 3 000 feet, in keeping with international standards. The site should not be measured from ground level but from the highest point in the protected area.
Finally, the Foundation stated that co-operative management with local communities and private landowners should be seen as a key tool in growing and expanding protected areas. Therefore it was important for the state to provide incentives, including tax incentives.
Mr van Schalkwyk (DEAT) indicated that S47 had been taken from the Civil Aviation Act and that the Department was willing to incorporate all areas.
Chamber of Mines submission
Mr Andrew Parsons noted that the Chamber's submission on the National Environmental Management Amendment Bill was supported by Business South Africa. He reiterated that the Bill is linked to forthcoming legislation, making it difficult to comment on it at this stage.
The Chamber took issue with the classification of environmental offences as Schedule 1 offences in terms of the Criminal Procedures Act. This was an extreme reaction to offences that were generally not as serious as murder, rape or any other Schedule 1 crime.
Mr Parsons further recommended that the word "may" in S31(e) be changed to "must" as the setting of criteria for inspectors was critical. The Chamber was concerned with the wide-ranging powers afforded to inspectors as this was likely to cause confusion with other similar authorities such as CAPCO or CMAs.
The DG responded that the classification of offences were not out of proportion given that businesses often based their models for success on harming people and the environment.
Mr Parsons replied that while the Chamber was aware that certain environmental offences were serious but the proposed powers given to inspectors were out of proportion.
Ms Yako explained that the issue relating to criteria for inspectors referred to qualifications criteria.
The DG said the general thrust of NEMA is toward co-operative governance and the alignment of roles but the Department had to be clear about its oversight role. While DME has a role in protecting the mineral resources, it was also charged with promoting mining. Generally the effects of mining activity did not manifest immediately but had a harmful impact in the long-term. The DEAT thus had to be the lead agent in protecting the environment.
A representative from the Chamber questioned the constitutionality of the powers given to inspectors.
The DG replied that the state law advisor cleared the Bill and that any concerns would have to be specifically referenced.
Mr Lukey (DEAT) pointed out that the provisions of this Bill had bearing on other legislation such as the Air Quality Bill and the Waste Management Bill. The powers proposed for inspectors were fundamental to investigating offences and enforcing the legislation effectively. Recent experience had shown that while the inspector applied for a search warrant, the delay has given the business the opportunity to destroy evidence. The Department intended to build up a team of investigators with the highest qualifications.
The Chairperson raised the possibility of extending the hearings by another week. After some discussion it was agreed that it was important to give civil society a fair opportunity to make their views known. Written submissions would still be accepted and the hearings will continue until Tuesday 26 August. The Chairperson appealed to those present to assist in informing the public of this extension.
Richtersveld Community submission
Mr Floors Strauss presented a submission on the impacts of the Protected Areas Bill on community landowners and on contract parks. The Richtersveld National Park is a contract park between the community and South African National Parks. The community miners had been disadvantaged by apartheid legislation.
He argued that the Bill effectively denied the impact of the Mineral and Petroleum Resources Development Act (MPRDA) which gives preferential rights to community landowners in an effort to redress discrimination. The Richtersveld community proposed that this section be amended so that all mining activity is stopped and that the rights to prospect or mine are given exclusively to the community landowners.
The Richtersveld community also submitted that S34 allows the Minister to declare a protected area that is held in trust subject to the concurrence of the trustee. Mr Strauss highlighted that in the case of the Richtersveld, the land was still held in trust as it was in the process of being transferred to the community. He suggested, therefore, that S34(b) be amended to include the community in the decision-making process.
The DG recognised that the issue is difficult because, as a principle, mining in protected areas cannot be allowed. While understanding their perspective, it would be difficult to make an exception without rendering the Bill permissive. He suggested that the community and the Department explore ways of meeting the needs of the new landowners through other means.
Regarding the proposal on S34, Ms Yako said that the clause could be reformulated to distinguish between communal land and land that was subject to restitution.
Mr Moss (ANC) commented that the Richtersveld community had struggled for a long time to gain access to their land. As unemployment was particularly high in the area, he said they should be allowed to mine under strict conditions.
Ms Yako advised that the legislation makes no allowance for mining in national parks. She recommended that the community consider a deproclamation of the national park or a portion thereof to be used for mining.
Mr Strauss emphasised that mining was presently taking place inside the national park and that the Bill protected these mining companies through S48 and the community was being discriminated against. The Richtersveld National Park was unique because grazing was also allowed in terms of the contract.
Mr Strauss said that there was more than one mining company active in the Park and the local people did not benefit except through the jobs it generated.
Another representative from the Richtersveld community added that it was difficult to consider a portion of land to be excised since mining activity took place all over the protected area.
The DG stated that the issue of discrimination against community landowners in the Bill must be addressed.
The Chairperson commented that the dialogue must continue beyond the hearings. The Portfolio Committee had previously discussed visiting the area and they should do so in the future.
Mr Smith (Legal Resources Centre) pointed out that while no mining was allowed in Schedule 1 Parks, it was possible in other parks unless restricted by title conditions. The Bill prohibited any new mining activities while it allowed existing mining, including unused prospecting rights. He noted that the preferential rights afforded to communities in terms of the MPRDA would fall away under the Bill and therefore he proposed that existing mining be restricted. There were only a few cases where communities would require restricted mining rights within protected areas and it might be better to consider this option than have a conservation law that is seen as discriminatory.
Ms Chalmers noted that the restriction of current mining activities would probably impact on jobs. She supported the proposal that mining be stopped but felt that the impact needed to be considered.
The Chairperson agreed that the matter required further research and discussion. She added that the drafters should have considered the implications of existing mining within protected areas. It was agreed that the issue would be dealt with again on the second day of the hearings.
The meeting was adjourned.
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