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ENVIRONMENTAL AFFAIRS AND TOURISM PORTFOLIO COMMITTEE
23 September 2003
NATIONAL ENVIRONMENTAL MANAGEMENT AMENDMENT BILL; BIODIVERSITY BILL: INFORMAL DELIBERATION
Chairperson: Ms G Mahlangu
Documents handed out:
National Environmental Management: Biodiversity Bill as amended
National Environmental Management: Biodiversity Bill [B30B-2003]
Point of View of the Directorate
A sign-on Statement for Africa: Our commitment to a Rigorous Biosafety Patrol
The Special Vulnerability of the Developing Countries to Genetically Modified Organisms
A Brief Overview of the Cartagena Protocol on Biosafety
Summary of comments received on the National Environmental Management: First Amendment Bill
The Committee informally discussed the National Environmental Management First Amendment Bill. Much of the discussion surrounded the management of genetically modified organisms (GMOs) and the adequacy of the management system. They expressed concern about lack of public participation and knowledge of the issuing of permits for potentially ecologically sensitive activities.
Ms M G Mahlangu (ANC) said that a submission from an animal welfare organisation had been received but not yet circulated. Ms L Sello of the Department of Environmental Affairs and Tourism (DEAT) agreed that animal welfare was important but felt that the Animal Protection Act should be updated to include domestic, farm and wild animals, but that the issue should not be included in the Amendment Bill under discussion.
Ms Sello explained that the National Environmental Act (NEMA) was the main framework bill for Biodiversity Bill. She took the Committee through the 'Summary of Comments received on the National Environmental Management: First Amendment Bill'. Four comments had been received:
Comment 1: Business South African (BSA) said that classifying environmental offences as a schedule 1 offence of the Criminal Procedure Act (CPA) meant that they had a similar penalty as rape and murder
Response: Ms Sello said that deeming environmental offences as schedule 1 offences would enable Environmental Management Inspectors (EMIs) to make arrests without a warrant and establish road blocks without the authority of the Commissioner of Police. The general approach of the Bill had been to cross-refer to the CPA. Thus the EMIs would have all the powers assigned to a non-commissioned police officer. Mr JD Arendse (ANC), Mr DA Moorcroft (DA) and the Committee expressed support for the classification because the offences were severe.
Comment 2: A general comment/query was received regarding the constitutionality of the EMIs.
Response: Ms Sello listed the safeguards to protect against constitutional challenges. Later in the meeting, the Department's acting egal advisor commented that it was unlikely to leave the Committee open to such allegations. (The usual legal adviser had been involved in a car crash that morning).
Comment 3: Section 31 (5) had been deleted because it was contained in the Promotion of Access to Information Act (PAIA).
Response: The Department responded that the two Acts differed in that the PAIA included mandatory refusal provisions while Section 31 of the NEMA gave the State the ultimate discretion over whether to grant or refuse information. Section 31 should be further amended as further investigation was required into access to environmental information.
Comment 4: SanParks had requested an inclusion that their powers be specifically included in the Act.
Response: Ms Sello advised that SanParks' submission was probably based on a misunderstanding that their powers were not as wide as EMIs'. She said that the Act had been made "broad, to talk to both 'green' and 'brown' issues and SanParks' employees' letters of appointment would state which of these two they were to deal with, and the powers accorded to them.
In addition, the Biowatch NGO had submitted a wider definition of "bioprospecting" to include traditional and indigenous aspects. In response, the title of Chapter 5 had been changed from "Alien and Invasive Species" to "Species and Organisms Posing a Threat to Biological Diversity". Biowatch had also proposed including a new Part 3 to deal with the inclusion of GMOs in S76(1). The Department had included a new Part 3, but it differed from the one proposed by Biowatch in that it excluded public participation in the exemption from the permit provisioning process.
Mr Arendse asked whether, in terms of the new Section 76A, the Minister had to ask for an environmental impact assessment (EIA). Ms Sello said that the sites where activities involving GMOs took place could not be divulged for fear of vandalism, which was why the public was excluded from participating. Ms Mahlangu said that the DEAT staffmember on the Council responsible for issuing these permits, would inform the Committee if any activity permitted had a detrimental effect on the environment. Ms Sello added that many people would know about such activities, but not everybody. She said that it could be linked to EMIs through Chapters 7 or 9. Ms Mahlangu remarked that the "we must be bad if we will vandalise plants". Ms Sello said that such vandalism was not ordinary but often stemmed from pressure from the international community. If anybody conducted such activities without a permit, or disregarded the provisions of the permit, the Minister had the power to intervene in terms of Section 28A of the NEMA. Mr Arendse then asked for confirmation of his understanding that not every applicant would be asked for an EIA. This was given.
Dr R Rabinowitz (IFP) said that because the issuing of these permits had been handled by three different departments, there had been problems and that fear of vandalism should not remove the safeguards of civil society. She asked whether a list of activities requiring an EIA could be included. Ms Sello said that the Council could ask the applicant to conduct a risk or EIA but that it was not possible to list all activities involving GMOs.
She also said that the GMO Act stated that there should be a database of activities but that Biowatch had been denied access to it by the courts. Ms Sello said that HIV research wasn't seen to have a negative impact, therefore no risk or EIA was needed. Ms Rabinowitz said that some countries had a collection of indigenous seeds as a measure in the event of contamination. Ms Sello said that there was a collection of such material in the country and the South African Botanical Institute was responsible for maintaining it.
Mr September (ANC) said that even if there was a representative from the DEAT on the Council, he or she might not attend meetings. He wondered how carefully the representative was monitored and said that he had a "problem with Monsanto's (a multinational grain company) involvement.
Ms S Nzanza (ANC) related an anecdote about chickens that had died after a plane dusting GMO crops had flown over their shed. Dr Rabinowitz said that there was too much room for the Minister not to know when activities were risky, which was dangerous.
A spokesperson from the Department of Agriculture said that all activities involving threatened and alien species, invasive species and bioprospecting required a permit but the prescriptions differed. They all went through the Council. If the Council felt they had insufficient expertise, they could appoint a sub-committee. Mr September asked if the Committee could have a report from the DEAT on its participation in the Council. The spokesperson said that even if representatives did not attend, they would still get reports of applications and were expected to respond in writing.
Mr Moorcroft that the GMO Act was administered by the Minister of Agriculture, but that the Minister of Environmental Affairs and Tourism could override his/her decisions.
Dr Rabinowitz said that before GMO/material was planted, there should be a notice in the newspaper.
Ms Sello said that the Council's registrar could issue permits on the decision of the Council. The DEAT could submit a report to the Department of Agriculture, saying that the Advisory Committee and risk assessment indicated that a permit should not be issued.
Mr September said he had not hitherto known that South Africa was already producing GMO/food and that the Departments of Health, Agriculture and the DEAT had agreed.
Ms Elfrieda Pschorn of Biowatch said that no EIA could have been conducted because that required public participation and they would have been aware of the call for it. She knew that a permit had been issued in June. The law required that notification be given but this had not happened. Biowatch had had to appeal to the court for the information and it had cost the organisation R3000. The safety protocols were a trade agreement, not an environmental one, which prevented the Committee from doing its work.
Dr Rabinowithz concurred, reminding the meeting that the GMO Act stated that a database giving the name and address of the applicant and a description of the organism should be kept and be open to all. She had written to the Department of Agriculture some months ago, requesting details of the permits issued. The DEAT said no EIAs were done in this area. The Department of Agriiculture said that a list of permit applications was on their website but that there was not a general release after GMO releases.
Ms J Chalmers (ANC) asked how he Bill should be changed to meet Biowatch's aim. Ms Elfrieda Pschorn said that field trials on a GMO might be conducted in Pretoria and then the organism might be released in the Western Cape. The Bill governed and regulated agricultural production, not the environment.
Mr Moorcroft said that as long as his Minister had the power to prevent contamination, he was happy with the existing amendments. Dr Rabinowitz disagreed that the Minister's power to override was sufficient safeguard. She asked whether it was true that there had been no EIAs, which the Biowatch spokesperson had alleged. The spokesperson for the Department of Agriculture said that there had been. Dr Rabinowitz said that this contradiction and confusion seemed to imply that the system was flawed. The spokesperson from the Department of Agriculture said that Biowatch had said that assessment was "a desktop thing" but that there was a guideline document for assessments taken from NEMA.
The Chair reminded the Committee of the changed schedule and that formal voting would be on 14 October. Party amendments could be proposed until that time, via the Committee Secretary.
A spokesperson for Traffic, an NGO, said that he was pleased to hear the Department say that there should be an endangered list. The problem was that the drafting was discretionary although buying, selling, harvesting etc related to the list. Another problem was that provincial regulations differed and there were no norms and standards. Compulsory listing was essential and should be synchronised and linked to restricted activities. South Africa had signed an international agreement (CITES) regarding trade in listed, threatened or protected species and needed such a list in order to comply with this agreement.
Mr Piet Botha agreed that the DEAT should provide the means to enforce the international agreement and that listings were needed. He did not agree that time frames were relevant as the Minister and Department could be relied upon to monitor the situation. Prof Glazewski, advisor to the Minister, said that the list should be national, not provincial, because provinces had different categories and what was important at the provincial level might not be important at the national level. Traffic agreed, saying that killing a species in the Western Cape, for example, should be linked to the penalty provision in the Biodiversity Act as long as the national list was not final.
The meeting was adjourned.
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