National Environmental Management(NEM) Amendment Bill & NEM: Biodiversity Bill: Final Negotiating Mandates

Meeting report

LAND AND ENVIRONMENTAL AFFAIRS SELECT COMMITTEE
26 August 2003
ENVIRONMENTAL MANAGEMENT AMENDMENT BILL AND NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY BILL: FINAL NEGOTIATING MANDATES

Chairperson: Rev P Moatshe (ANC)

Documents handed out:
National Environmental Management Bill Amendment Bill [B29-2003]
National Environmental Management: Biodiversity Bill [B30-2003]
Final Provincial Mandates on National Environmental Management Amendment Bill (B29-2003)
Gauteng Final Negotiating Mandate on National Environmental Management Amendment Bill (Appendix 3)
Final Provincial Mandates on National Environmental Management: Biodiversity Bill (B30-2003)
National Environmental Management Act (NEMA) Amendments (Appendix 1)
Proposed amendments to the Biodiversity Bill (26 August 2003) (Appendix 2)

SUMMARY
The Committee considered the final mandates of the nine Provinces on the National Environmental Management Amendment Bill and the National Environmental Management: Biodiversity Bill for the purpose of adopting it by vote. The nine provincial mandates were in support of adopting the Bills. But, before the Biodiversity Bill was finally adopted, the members were engaged in an exchange of opinions that ensued after Mpumalanga province member raised a concern. There was apparent miscommunication and it became evident that all the stakeholders were not informed of the responses of the Committee about, what was agreed upon, in particular, the proposed amendments by the Kwazulu-Natal Standing Committee. Consequently, Deputy Director General; Legal Advisor from Land and Environmental Affairs, Director: Environmental Law Reform-Environmental Affairs and Tourism;and Deputy Director-Trade and Regulations were in agreement with the meeting that during a short break, they would draft the proposed amendments. The Committee discussed the Bill clause by clause and then finally adopted it by unanimous vote.

MINUTES
Final Provincial Mandate on the National Environmental Management Amendment Bill
The Chairperson proposed that the Committee vote to adopt the Bill

Ms N Dlulane (ANC, Eastern Cape) supported the Bill.

The Chairperson confirmed that the Free State supported the Bill.

Dr E Conroy (NNP, Gauteng) supported the Bill. See Appendix 3 for issues raised during Public Hearing.

The Chairperson read the conditional support for the Bill by the Kwazulu-Natal Standing Committee.

Mr R Nyakane (UDP, Northern Province) supported the Bill.

Mr V Windvoel (ANC, Mpumalanga) supported the Bill.

Mr M Sulliman (ANC, Northern Cape) supported the Bill.

The Chairperson confirmed support for the Bill by the Western Cape in the absence of their delegate.

Rev P Moatshe (ANC, North-West) supported the Bill.

The Committee unanimously adopted the Bill.

Final Provincial Mandate on the National Environmental Management: Biodiversity Bill
The Chairperson proposed that the Committee vote to adopt the Bill.

Ms Dlulane and A Versfeld (DA, Western Cape) and Messrs Nyakane, Windvoel, Sulliman, Dr Conroy and Rev Moatshe adopted the Bill on behalf of their respective provinces. The Chairperson read the support for the Bill on behalf of the provinces that did not attend the meeting, including the conditional support of the Kwazulu-Natal.

Discussion
During the Biodiversity vote, Mr Windvoel (ANC) raised a concern. He and other stakeholders did not receive the consensus of the Committee regarding amendments to the Bill. Some could not attend the meeting. He was of the opinion that copies of the responses should have been made available to empower the stakeholders. He asked if the same information was shared with Kwazulu-Natal.

Mr K Williams (Committee Clerk) indicated that the responses were circulated.

Ms Yako said that they did not have a major issue with the proposed amendments. All the issues that were raised were noted.

The Chairperson stressed that if amendments were agreed upon, the Department should capture and formulate these immediately.

Mr Windvoel suggested that it would be helpful if the agreed upon document could be circulated and form the basis for the discussion.

Mr Van Niekerk (NNP, Northern Cape) questioned the procedures that were followed because he too, did not receive the amendments that were agreed upon.

Mr Williams reiterated that the responses were circulated.

Ms Yako said that they drafted both the agreements and non-agreements and posted it on Thursday. But, they were under the impression that the provinces would come with comments and that after the meeting they would be able to redraft the document.

The Chairperson expressed an understanding that, when a Bill comes before the Committee and the Committee is in agreement, it becomes an agreement for the provinces too. He asked if the Department waited on the final mandate to capture. He went on to suggest that the meeting tabulated conditionally what amendments are to be made and vote on that.

Ms Dlulane was guided by the final mandate that was drafted and assured that the Committee was dealing with this matter correctly.

The Chairperson said that the provinces understood what was placed before them. This is important legislation and called for petty misunderstandings to be dealt with swiftly.

Mr Windvoel proposed that the meeting move forward on the basis that the provinces understand because there were no objections. The obligation was on the Committee to accept the proposal of the Department and the decision of the Committee could not be left hanging.

Mr Van Niekerk was adamant that the Committee looked at the procedures that were followed.

The Chairperson said that this was a first time experience for him and that he would like to avoid this kind of "bottleneck" in the future.

Mr Windvoel suggested that the last negotiated mandates be sent to the Department.

The Chairperson said that it could also be arranged that the Department get the mandates prior to the meeting.

Dr Botha said that a vote could only be taken if the official version was before the Committee.

The Chairperson invited the Department to help draft and official version.

Ms Yako reminded that there should be an official record of meetings. The Committee clerk can assist. They tried to assist the provinces with this kind of miscommunication. She agreed that there was a need to go through the Bill and seek agreement to make changes to the Bill.

Mr Windvoel said that he was not objecting to the substance. Rather, he was concerned about the final product because he wanted to be empowered through understanding what had been pursued, especially when things need to be explained in the National Assembly. The Committee takes the lead of Kwazulu-Natal and went through the Bill, clause by clause.

Mr Van Niekerk suggested that the procedure for tabling/accepting amendments must be in writing. The Committee could not use minutes because minutes were not adopted. He was of the opinion that correspondence from the Department should come to the permanent members.

Ms Dlulane was in favour of amendments agreed to in the future by the Committee, be sent to the provinces to form part of their final mandates.

The Chairperson agreed that a clear document should be aimed for in the future. He then brought the Bill before the meeting for better understanding.

Mr Sulliman suggested that amendments can not be drafted after the meeting.

Mr Van Niekerk asked for a list of amendments to be given to the Department. This, he said, should have been done in the first instance.

The Chairperson called for a recess to allow the Department to make the proposed amendments.

After the recess, the Chairperson proposed that the meeting vote to adopt the final mandates of the provinces and the proposed amendments (26 August 2003) effected by the Department.

The Committee unanimously adopted the Bill.

The Chairperson thanked the Department for bringing the process to this point.

The meeting was adjourned.

Appendix 1
RESPONSE ON ISSUE RAISED AT THE SELECT COMMITTEE'S MEETING ON THE
BIODIVERSITY AND NEMA 1^st AMENDMENT BILL -20/08/03

NEMA AMENDMENTS

Eastern Cape

Issues raised: Reservation expressed concerning concurrency, possible duplication and impingement on the mandate of other functionaries i.e Section 31 D and 47 B/

DEAT response: The bill is about administration and enforcement and the powers are derived from other legislation as outlined in Section 1(d) as well as this Act. The said legislation clearly delineates the role of the Minister and the MEC's with regard to specific functions in terms of those pieces of legislation. It is not conceivable that a Minister would appoint Environmental Management Inspectors to render a law enforcement function in areas where the specific environment legislation does not empower him/her to do so.

The way we read the submission is that it assumes that the Minister's role is restricted to the setting of norms and standards what the submission fails to recognise there are functions that are exclusive national competence e.g National Parks and Marine resources where the Minister may appoint Inspectors directly.

With regard to 4713: Firstly this clause does not deal with only the Minister, it also deals with the MEC, it is rather difficult to see that the submission only obliges the Minister to invoke the provision of the Constitution but there does not seem to be a corresponding obligation on the MEC.

The consultation process referred also applies to other stakeholders and it is rather too limiting to expect the Minister and the MEC to wait for everybody to comment before action is undertaken, where he/or she has followed a consultative process as stipulated in the said clause.

This Act cannot be read outside of Act 108 of 1996 where provisions of co-operative governance are clearly spelt out.

GAUTENG
Supported the bill and proposed a review of the following issues:

Compliance and Enforcements

Response:

These amendments strengthen provision under NEMA.

Implications of bill

It is noted that all inspectors currently appointed will continue with their work. There could be implications for additional staff and financial resources. Initial costing has
been done by the Department however, there is further work that is being undertaken by the Department and Provinces with regard to the financial and human resource implication of the bill and the outcome of this will have to form the basis for MTEF submission of both the National Department and Provincial departments.

It is noted that the other 7 provinces had supported the bill without any proposed amendments.

BIODIVERSITY BILL

Eastern Cape

Section 40 (2) - the submission was that the determination of a bioregion should be the exclusive competence of the MEC and this should be done in consultation with municipalities.

Response:

The concept of a bioregion refers to "a geographic region for the purposes of this Act if that region contains whole or several nested ecosystems and is characterised by its landforms, vegetation cover, human culture and history" Whilst these regions might occur in a Province which is why the MEC is legally empowered to declare, they can also occur in a number of Provinces and in such cases the Minister should declare such regions.

Section 51-56 - listing of threatened and protected eco-systems -

Response:

the thrust of the response in Section 40 (2) would apply in this regard.

Free State

Section 4 (1) - Qualification of Board members and recognise experience'

Response:

no objection to this and would support a redrafting.

Section 1 Inclusion of municipal councillors

Response:
The DEAT did not have problem with this - it however raised an issue about narrowing the base from which members of the Board can be appointed from.

There was agreement in the Committee that Municipal Councillors should not be eligible for appointment.

Section 26: Non inclusion of non-board members in Committee of the Board.
Response:

Establishment of Committees usually requires short term expertise outside of the Board and this is sometimes drawn from outside the board.

Section 86 - expert advise solicited by the issuing authority

Response:

The concern raised on objectivity is catered for in the second part of the section which allows for an issuing authority to require expect evidence relating to the risk assessment.
Repeal of Section 100 and 101



Response:

When the Forest Act was repealed provision relating National Botanical Institute were maintained, Section 100 therefore repeals the remaining provisions of that Act as they relate to the NBL Therefore, the provisions should remain.



GAUTENG

Section 59 - 'Composition of a Scientific Authority

Response:

A scientific authority is required by the Convention on International Trade in Endangered Species to advise on the scientific implications of a permit application. The Authority needs to be set up however, it will be too limiting to legislate on composition - the route taken here is to prescribe this in terms of regulations as indicated in Section 94.

Omission of key elements of wildlife management from the Bill

Non - threatened indigenous species will be addressed under regulation as indicated in Section 94 (1)(b)(viii), however, Provincial specific issues such as hunting seasons and closure specifications will be still need to be regulated in terms of provincial legislation within a national framework.


Appeals against permitting decisions

Response:

The Appeals will be directed to the Minister as this permit to be issued in terms of National Legislation Appeals for permits that are issued under Provincial ordinances will be directed to MEC's.

Functions of Municipalities - unfunded mandate

Response:

Section 75(2)(a) …All organs of state in all spheres of government must prepare an invasive species monitoring, control and eradication plan for land under their control as part of their environmental plans in accordance with Section 11 of NEMA. Section 75(2)(b) ... the invasive species monitoring, control and eradication plans of municipalities must be part of their IL)Ps. These provisions are clarifying existing responsibilities of municipalities as stipulated in the National
Environment Management Act and the Municipal Systems Act.

MPUMALANGA

MEC powers to list in Section 69 as per Section 51.

Response:

there is no objection to this inclusion on the understanding the MEC can add to the national list but cannot take away from the Minister's list.

It was noted that all the other Provinces supported the bill without amendments.

Appendix 2
PROPOSED AMENDMENTS TO THE BIODIVERSITY BILL

Clause 69 (1)

To amend the paragraph commencing at line 9 on page 27 of the bill, thus -

69 (1) The Minister, and the MEC for Environmental Affairs may by notice in the gazette, publish a national list and a provincial list of invasive species, respectively; to which this Chapter applies.

Clause 69 (2)

To amend the paragraph commencing at line 11 on page 26 of the bill, thus -69 (2) The Minister or the MEC for Environmental Affairs in any relevant province, respectively; must review the national and provincial lists published in terms of subsection (1) periodically.

Clause 69 (3)

69 (3) An MEC for Environmental Affairs may publish or amend a Provincial list only with the concurrence of the Minister.

Appendix 3
Gauteng Legislature - Final Voting Mandate on National Environmental Management Amendment Bill