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ENVIRONMENTAL AFFAIRS AND TOURISM PORTFOLIO COMMITTEE
16 September, 2003
INPUTS BY CHIEF DIRECTOR: MINERALS AND ENERGY AND DEPUTY DIRECTOR-GENERAL: LAND AFFAIRS ON PROTECTED AREAS BILL [B39-2003], FORMAL DELIBERATION ON PROTECTED AREAS BILL, CONSIDERATION OF REPORT ON ENVIRONMENT CONSERVATION AMENDMENT BILL [B45-2003] AND ADOPTION OF MINUTES
Chairperson: Ms G Mahlangu (ANC)
Documents handed out:
DEAT presentation on the Environment Conservation Amendment Bill by Mr J Matjila
DME presentation on Protected Areas Bill by Jacinto Rocha
DLA presentation on National Environmental Management: Protected Areas Bill, Wording of Proposed Amendments to Bill, version 4.2 by Adv. Bosch
Amendments Proposed to the Protected Areas Bill by Dr G Cowan
The Portfolio Committee met with representatives from the Departments of Environmental Affairs and Tourism (DEAT), Minerals and Energy (DME), Water Affairs and Forestry (DWAF), Land Affairs (DLA) and the State Law Advisers to deliberate on the Environment Conservation Amendment Bill [B45-2003] and the National Environmental Management: Protected Areas Bill [B39-2003]. The Committee listened to four different presentations from the departments on various amendments. The most controversial areas of debate were over the mining sector and waste management. Some argued that all mining operations in the protected areas should be prohibited because of massive degradation of the environment, others were more concerned with employees and their families and prospective loss of jobs. The position of the Committee on waste management was that it should be entirely managed by the DEAT. The DWAF opposed this.
The formal deliberation was postponed to Thursday 18 September 2003. Discussion of the former Bill was suspended until it had been further investigated. Amendments to the Protected Areas Bill were deliberated and would be voted on Wednesday 17 September at 14:00 p.m.
Department of Environmental Affairs and Tourism presentation on the Environment Conservation Amendment Bill
Prof J Matjila (Chief Director for Environmental Quality and Protection) gave a presentation on the Environment Conservation Amendment Bill. The Department of Environmental Affairs and Tourism (DEAT) proposed that their Minister had more power to regulate such areas as the waste stream, landfill sites, and products which might pose a negative impact on the environment or human health.
Mr J Arendse (ANC) questioned the amendment to Section 20 that subdivided the responsibility for the administration of waste management between the Departments of Environmental Affairs and Tourism and Water Affairs and Forestry. His position was that waste sites could not be divided into general and hazardous categories and that the DEAT should control that whole sector.
Mr E Moorcroft (DA) agreed and added that the DWAF should be responsible specifically for water affairs and the DEAT ought to have the authority over the environment, which included waste sites.
Prof Matjila (DEAT) said he understood this position and assured that his department would take part in the waste management process.
The Chairperson said that the two departments should meet to discuss the issue in detail and ended debate on this Bill.
Department of Minerals and Energy (DME) presentation on the Protected Areas Bill
Jacinto Rocha's presentation raised questions regarding who should be regulated, the reason for putting mining specifically into the draft, to what extent the Bill complied with sections 9 and 40 of the Constitution, and whether Parliament could amend an Act which was not yet in force. Mr Rocha argued that the current Clause 48 created conflict between two pieces of legislation. It should promote co-operative governance and the mining matter should be dealt with in mining legislation.
Mr Arendse (ANC) argued that mining operations affected the environment so the Committee had to be concerned with the mining sector. Mining in protected areas should be stopped; the goal was not to regulate the mining sector but to preserve and restore the natural environment. Regarding the DME's argument about conflicting legislation, Mr Arendse said that Clause 48(b) made provision for co-operative governance, where the written permission of both the Minister and the Cabinetmember responsible for minerals and energy was required to conduct commercial prospecting or mining activities.
Ms P Yako (DEAT) felt that the legislation did not create conflicts but rather allowed for an extension of the law. The matter could be easily resolved by conferring with state law advisers. National parks were certainly a major concern but there were also other problems. The core of the debate was on ways of dealing with transformation of rights. The question remained whether the Committee should be allowed to interfere in the mining sector and to justify this by their right to protect the environment.
State Law Advisers observed that Section 48 could cause people to lose their rights as that clause prohibited commercial prospecting or mining activities, despite decisions made by other legislation. The regulations should balance the following concerns: why allow mining operations without restrictions, why not give the opportunity in Section 104 to own land and mineral rights? Most importantly, the interest and rights of people should be protected when they already had existing mining rights.
Ms J Chalmers (ANC) asked if there was a way for indigenous people to share in profits from mining operations.
Mr Rocha (DME) argued that the Bill should prohibit new mining operations in protected areas but those already operational should be allowed to continue. Mining operations would be phased out over time. In case the operations were stopped by the proposed legislation, the Committee would have to consider granting some sort of compensation to people employed in the mining sector.
A representative from the Department of Land Affairs said that the issues of land had not been taken into consideration and they did not appear in the current Bill. The ministerial consultation was also not adequate. She requested that a proper briefing be done and the initial amendments, which were deleted, be deliberated. Conflicts would arise if the legislation was passed in the present form. An example would be the possible eviction of people without compensation.
The Chairperson said that if some amendments were deleted, the Committee would revisit them at the earliest opportunity.
Department of Land Affairs presentation on National Environmental Management: Protected Areas Bill: Wording of Proposed Amendments to Bill, version 4.1
Adv. Bosch clarified proposals that he had made on behalf of GTZ Transform, regarding which he had earlier consulted with the Department of Land Affairs. He concentrated on what he considered the most relevant sections: Section 21: Withdrawal of declaration or exclusion of part of national park;Section 31: Consultation by Minister; Section 34: Affected organs of state, communities and beneficiaries, and Section 86: Regulations by Minister.
Mr Arendse asked for clarification on the DLA's position on whether the Bill would help or restrict the rights of people.
The representative from the DLA said that there would be problems if the legislation was passed without community consultation. There would be massive evictions, rights of people would be abused and restitution claims would have to come into effect. The duty of the Committee was to formulate alternative legislation and find ways to preserve people's rights and compensate for loss of security.
Adv. Bosch added that the evictions could take many different shapes, such as the restriction of the access to family members, building of fences, bringing in dangerous animals, etc. All these forms of eviction could have unintended consequences.
Department of Water Affairs and Forestry presentation
Ms Barbara Schreiner, Deputy Director-General, discussed the transfer of responsibility for landfill sites. There was a misgiving that the implementation capacity of the DEAT was inadequate. Even so, the relevant expertise held by the DWAF could not simply be transferred from one department to another. The proposal was for the transfer of permits for general waste sites, but not hazardous waste landfill sites.
Mr Arendse thought both landfill sites should be managed by the DEAT although they did not have the current capacity. Relevant expertise could be transferred. He envisioned a 'one-stop-shop' for permits for all types of waste.
Mr Moorcroft wanted clarity on the rumour that the departments had already made agreements that the DWAF would maintain responsibility for the issuing of permits for hazardous waste landfill sites. At a meeting two weeks ago, a draft amendment was drawn up to be submitted to the Committee.
Mrs Schreiner said that the meeting took place two weeks ago and that the Minister of DEAT was present.
The Chair felt if this was the case, it was best to stop discussion of the matter until clarity was obtained.
Mr Arendse said that if these amendments went to Cabinet level, it was within the Committee's power to decide.
Mrs Schreiner apologised to the Committee on behalf of the DWAF for the misunderstanding and said it was decided at the meeting that DEAT would not have power over hazardous waste.
Ms Pam Yako (DEAT) apologised on behalf of the DEAT, saying that it put the Committee in a difficult position. She was unable to confirm the position without consulting with the Minister or Director-General.
The Chair then suspended discussion on the amendment until further notice.
Protected Areas Bill (B39 - 2003)
The Chair led the Committee through deliberation of amendments to the Bill.
Mr Smuts, a State Law Advisor, proposed the wording "includes" instead of "shall mean" to follow the phrase "lawful occupier" in Section 1. Mr Moorcroft objected to the change as being too obscure.
The Chair said the Committee had agreed in principle that the legal team would tidy up the language. The amendment was rejected and the original form retained. He also wanted the words "where appropriate" inserted at the end of Section 2 (E).
Mrs Mampe Ramotsamai (ANC) said it could also be used as a reason not to act because it was not appropriate. Mr Arendse (ANC) disagreed.
Mr Herman Smuts (State Legal Advisor) agreed on the need to add the words "where appropriate" to the clause.
Ms Judy Chalmers (ANC) agreed that it could be viewed as a cop-out.
Mr Moorcroft said, it this was the case, then "where appropriate" should also be removed from clause (f).
Mr Le Roux (NNP) asked what would happen if something was not 'appropriate'?
The Chair pointed out there was a difference between the two clauses and decided to return to this amendment later.
Mr Arendse wanted to know the difference between "environment" and "ecology".
The DEAT replied that this issue was largely semantic, where biodiversity usually referred to ecology and matters of pollution to the environment, which was all-encompassing.
Mr Moorcroft suggested that ecology was the relationship between living things, and the environment was everything. The Committee agreed with this explanation.
Ms Chalmers wanted to know about the management regime for protected areas.
Ms Ramotsmai asked what the DEAT had done about this request of the Committee.
Mr Cowan (DEAT) said that it was still under discussion.
Ms Chalmers said it was necessary to maximise the capacity of the Committee. She did not want to pass a Bill with loopholes so it needed to be tightened with regard to the management of protected areas.
Ms Yako (DEAT) said the Department would provide for an enabling clause, but that it was not possible to institute a management authority in instances where the land was in use by owners.
The Committee wanted provision to be made for the "occupier" in Section 28 (C).
Mr September (ANC) expressed his concern for workers in the instance of Clause 31 that dealt with the declaration of Protected Areas.
The Chair explained that all landowners and rights holders would be heard in these cases.
Mr Henk Smith (DEAT) requested that Clause 35 also be consistent with other changes regarding owners and users of land.
Ms Yako said that users of land had no rights of declaration.
Mr Moorcroft said the same regarding leasers of land.
Mr Arendse agreed with Ms Yako, saying this could even create constitutional problems. Mr Smuts agreed.
Mr Smith felt it would be appropriate to include Protected Areas in Sections 36 - 38 and wanted to know which areas would be managed under this.
Ms Chalmers wanted to know why Protected Areas were being dealt with separately. Mr Cowan (DEAT) said the Department would have to work on this matter.
Mr Moorcroft thought the clause concerning access to special nature reserves was particularly important and supported the limitation of 1500m rather than 1500 ft. Mr Jan Glazewski (Special Advisor to the Minister, DEAT) said the distinction should be rather the highest point in that area.
Mr September, with reference to the legislation on mining in protected areas, wanted to know how the department proposed dealing with previously disadvantaged individuals/committees who had never mined.
Ms Maphanga (DEAT) said this matter would not be dealt with by the DEAT, but by the Minerals and Energy Department. The DEAT was concerned only with conservation of the environment.
Mr Arendse reminded the Committee that it had to decide what to do about mining. It had been discussed at the last meeting, particularly with regard to previously disadvantaged individuals who were having lawful land returned to them. How could one reconcile mining with Protected Areas? He never expected a perfect solution. The Chair put this query to the Committee.
Mr Moorcroft urged the need for reason over emotion in preserving protected areas.
Mr September was concerned about the rights of mineworkers in situations where mines were to be closed. He said previously disadvantaged communities might object to allowing existing mines to continue and prohibiting new mining areas.
Ms Chalmers informed the Committee about Namibian legislation that permitted previously disadvantaged communities to join existing mining areas.
Mr Moorcroft said previously disadvantaged communities should benefit from mining, but not new mining areas within a protected environment.
Mr September said previously disadvantaged communities should not only have the right to work on, but also profit from, mines.
Ms Ramotsamai said that as this was another department's jurisdiction. The DEAT could not enforce, but only recommend, suggestions relating to mining.
Mr Moorcroft said it was appropriate that where people owned land, they shared in its profits.
Ms Yako wanted to change the word "indigenous" to "local" in Section 48 (2), stating that in land issues it was hard to define "indigenous".
Mr Moorcroft suggested that in Section 48 (2) - "either" to phase them out, "or" to determine...be inserted.
Mr Peter Askin (Chamber of Mines) proposed a number of changes to Section 48 (2), but following discussion, these were all rejected by the Committee.
Mr Smuts felt that it related to the difference between "in consultation" (as suggested by the Chamber of Mines) and "after consultation" (preferred text). "In" implied concurrence, while "after" suggested consultation, not necessarily agreement.
Ms Ramotsamai agreed that it implied that the Minister was compelled to consult. He agree with the proposed phrasing of the clause.
Mr Moorcroft felt the phrase "after consulting" gave the Minister the last and word and thus more power. Mr Kalako (ANC) supported this. The Committee accepted the motion.
Mr Moorcroft suggested in Section 84 to replace the word "sterilise" with "negate". Ms Yako responded that the DEAT wanted to maintain the Bill as it was first put to Parliament. The Committee agreed.
Mr Smith urged the Committee to include provision for women and previously disadvantaged individuals in section 41 (2) (e), as these parties were routinely excluded from new legislation.
The Committee welcomed the new Parliamentary Official, Ms Zarina Adhikar.
Formal deliberation of this Bill was arranged for Wednesday 17 September at 14:00 pm.
The meeting was adjourned.
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