In a unique virtual meeting, the Select Committee and nine provincial legislatures were briefed on the D version of the National Environmental Management Laws Amendment (NEMLA) Bill which was passed by the National Assembly in November 2018. It had been sent to the NCOP but lapsed due to the May 2019 elections before the NCOP could process it. It was revived to the NCOP in October 2019. The NEMLA Bill amends the National Environmental Management Act (NEMA) which is the umbrella legislation for environment. Under this umbrella Act there are several specific environmental management acts (SEMAs), which deal in more detail with specific aspects of the environment such as air, biodiversity, coasts, protected areas and waste. NEMA is implemented by 11 competent authorities: Department of Environment, Forestry and Fisheries (DEFF), nine provinces and Department of Mineral Resources and Energy (DMRE).
The Department gave an overview of the amendments with a document which presented the specific amendments in table form and went into detail on the amendments to: NEMA 1998; NEM: Air Quality Act 2004; NEM: Biodiversity Act 2004; NEM: Integrated Coastal Management Act 2008; NEM: Protected Areas Act 2003; NEM: Waste Act 2008.
Members asked about land owned by traditional leadership; on the public consultation process; job creation; promotion and support of small enterprises; IT waste as a potential for job creation; recycling businesses (especially metal) in townships; fines; invasive species guidelines; licensing and decision-making conflicts between different spheres of government and multiple authorities; and financial provisioning in clause 9.
The Department responded that the NEMLA Bill intended to ensure there is proper consultation and public participation when a decision or a development is likely to impact on landowners. On the question of job creation and the recognition of small enterprises, DEFF replied that a lot of the amendments deal specifically with the potential for ease of doing business in NEMA and the Waste Act. Decision-making and processes are streamlined and even do away with environmental authorisations by using alternative environmental management instruments. DEFF is engaging with DMRE to ensure the NEMLA Bill, the Mineral and Petroleum Resources Development Amendment (MPRDA) Bill, as well the Upstream Petroleum Resources Development Bill, are correctly aligned. DEFF responded that where there is conflict with multiple competent authorities that have the authority to make decisions, they can agree that either one or the other party issue decisions. It is also very important there is always discussion and consultation especially amongst decision-makers to ensure there is alignment.
The nine provincial legislatures and the Select Committee members were encouraged to submit written questions by 19 June and DEFF would respond in writing to the Select Committee which would distribute the responses.
The question arose about public participation in the nine provinces on the NEMLA Bill as there were lockdown restrictions on movement which inhibited consultation with communities. The Chairperson replied that the provinces must decide on their own process for this as it was understood that there was a lockdown. The provincial portfolio committees should decide how they would do their public hearings. The Select Committee would not dictate to the provinces on this.
The representatives from the provincial legislatures indicated their presence.
The Chairperson said that since the committees were dealing with legislation, they would from time to time request the legal advisors' help. She asked if the legal advisers from the provinces were present. A legal advisor from Free State indicated that she was present, as did three legal advisers from the Eastern Cape. The Mpumalanga Chairperson indicated that there were legal advisers with him. (All the provincial legal advisers received an invitation to the meeting.)
Chairperson’s Opening Remarks
The National Council of Provinces (NCOP) mandate is to ensure that provincial interests are considered in the national spheres of government. That was why the Select Committee had called the provinces to hear the briefing from the Minister. The main reason for the NCOP participating in the national legislation process is it provides a national forum for considering issues affecting provinces, by virtue of section 44 and section 76 of the Constitution.
The existing environmental laws, such as the National Environmental Management Act (NEMA), entrench and guarantee the rights in the Constitution, in particular, section 24 which speaks about an environment that is not harmful to health – to have the environment protected countrywide for the benefit of present and future generations. That is why the Committee and the provinces would be discussing this Bill.
The Chairperson stated that the NCOP and the provincial legislatures were meeting under unusual circumstances. Previously, the Select Committee and the provinces used to meet in the provinces themselves. She hoped that the provinces would participate in the meeting because NEMLA affects the provinces. The provinces must have an input in the Bill, so that when it is passed, they have contributed to ensure that the provinces will not “fight” with the Department of Environment, Forestry and Fisheries (DEFF) and say it did not listen to the provinces. Each and every input from the provinces is welcome. If there is not enough time to finish, the provinces and Select Committee will be given a chance to put their questions to the Department in writing. This briefing on the Bill was not just an ordinary meeting.
Minister’s Opening Remarks
Minister Barbara Creecy remarked that this meeting was “a very important occasion for the Department”. The NEMA is an overarching piece of legislation that governs all of the environmental issues in South Africa. Under the main Act, there are specific environmental management Acts. The Department deals with specific assets of the environment, such as air quality, biodiversity, oceans and coasts, protected areas, and waste in much more detail. The NEMLA Bill before the Select Committee and provinces was passed by the NA in November 2018, and is now with the provinces and Select Committee for due consideration.
There are extensive amendments, and the document submitted to Members was 145 pages long. The Department apologised for the complexity of the document, but it understood that, as lawmakers, it was very important for Members to understand the current provisions, the proposed amendments, and the motivation for those amendments. “There is no short and easy way to do this”. All of these amendments are necessary because the Department found limitations in the existing law in its own practice of implementing these laws. The Department was asking the Members to assist it, because without Members’ assistance, the Department would not be able to reform the regulatory environment, which it has discovered through its practice, has limitations. The presentation would cover the process. The Department had staff present who represent enforcement, biodiversity, air quality environmental management, waste, and other areas. These individuals were present to answer questions that Members might have on the motivation for the amendment. The legal representatives would be dealing with the actual amendment, but if Members wanted detail or the policy behind the amendment, the Department had assembled a large team that was available to advise. She noted that Deputy Minister Maggie Sotyu would be joining the meeting later.
The Chairperson said the reason for the legal advisors was because the Bill is complicated. She checked if the provinces had received the document beforehand. Provincial representatives confirmed this.
Ms C Labuschagne (DA, Western Cape) asked if there could be a follow up meeting where questions can be clarified. The Department might not be able to give answers to each and every question in this meeting.
The Minister replied that the Department would answer any question that is submitted to it. Her suggestion was to spend today making the presentation, and the Committee to coordinate all the questions that Members had. The Department would then submit written responses to all questions. If the Committee then has supplementary questions, the Department would reply to those as well. The Department expected that Members might ask a question and then later require clarification.
The provinces and Select Committee agreed to the suggested process.
National Environmental Management Laws Amendment Bill [B14D-2017]: briefing
Ms Amanda van Reenen, Director, Legal Support NEMA: DEFF presented. She was accompanied by Ms Linda Garlipp, Chief Director, Law Reform and Policy Coordination: DEFF. She noted that the Minister had explained what NEMA is, and that the NEMLA Bill introduces a variety of amendments to specific Acts.
The National Environmental Management Act (NEMA) of 1998 is the overarching umbrella legislation for environment in the country. Under this umbrella Act there are the specific environmental management Acts (SEMAs), which deal with specific aspects of the environment, namely air, biodiversity, coasts, protected areas and waste in more detail. NEMA is implemented by 11 competent authorities, DEFF, nine provinces and the Department of Mineral Resources and Energy. The National Environmental Laws Amendment Bill (NEMLA) was introduced to Parliament in May 2017. The D version of the Bill was passed by the National Assembly in November 2018. It had been sent to the NCOP but lapsed due to the May 2019 elections before the NCOP could process it. It was revived to the NCOP in October 2019. The presentation summarises the D Version of the Bill.
The presentation referred to a Word document which presented the specifics of the amendments in table form for these Acts:
- National Environmental Management Act
- National Environmental Management: Air Quality, 2004 (Act No. 39 of 2004)
- National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004)
- National Environmental Management: Integrated coastal Management Act, 2008 (Act No. 24 of 2008)
- National Environmental Management: Protected Areas Act, (Act No. 57 of 2003)
- National Environmental Management: Waste Act 2008, (Act No. 59 of 2008)
Amendments to the National Environmental Management Act, 1998 (NEMA)
Ms van Reenen stated that the amendments to certain definitions are important.
Certain definitions are amended such as ‘‘financial provision’’ while other definitions are inserted to support substantive provisions such as ‘‘latent environmental impacts’’, ‘‘mitigate’’, rehabilitate’’, ‘‘remediate’’ and ‘‘residual environmental impacts’’. Other definitions are added as consequential amendments to support substantive provisions introduced in the Bill: ‘‘municipal council’’, ‘‘municipality” and “municipal manager”.
NEMA section 2 contains principles, which apply to all actions of organs of state that may significantly affect the environment. A principle is added namely that the environment sector must advance and promote the full participation of black professionals.
Section 24 of NEMA deals with environmental authorisations and the instances where environmental authorisations are required. The section sets out who the competent authority is under certain circumstances and it makes provision for environmental management instruments, which either can replace the need for an environmental authorization or make it easier for an applicant to obtain one. The section makes provision for prohibitions and restrictions for the issuing of environmental authorizations for certain areas and empowers the Minister to make regulations.
Clause 3 amends section 24, and provides more flexibility in the use of environmental instruments; provides for conditions and requirements to be included in the instruments; it ensures that there is a publicly available register of all adopted environmental instruments; and it makes certain textual amendments to the prohibitions and restrictions to provide clarity. Clause 3 also clarifies the competency of the Minister responsible for mineral resources, which is one of the implementing authorities, and it provides for simultaneous submission of environmental authorisation applications and other related licences or permits required under any of the SEMAs, as well as integrated processes and decisions, where possible. It also provides for a requirement that an integrated licence can be issued after such an integrated process was followed, where the competent authority is dealing with all of these aspects together.
Section 24G deals with the rectification and consequences with the commencement of illegal activity (without an environmental authorization), i.e., when one commenced, one needed an authorisation, but one did not have that by the time one commenced.
Section 24G (Clause 5) of the NEMA is amended to:
- enable a person who has taken ownership or control of property (e.g. a bona fide purchaser) on which an unlawful structure or development has been built to have such structure, development or activity authorised;
- allow a successor in title or person in control of such land to lodge a section 24G application for such structure or development;
- make it mandatory for the Minister or MEC to direct an applicant to undertake certain actions; and
- increase the administrative fine from R5 million to a maximum of R10 million.
Section 24N (Clause 6), which deals with environmental management programmes, currently contains the content requirement for these instruments in the Act. The amendment allows that environmental management programme content to be prescribed through Regulations.
Section 24O deals with the consideration of environmental authorisations and consultation requirements. Section 24O makes it mandatory for the Minister, the Minister of Mineral Resources and Energy and MECs to consult affected State Departments. The amendment in clause 7 enables an environmental assessment practitioner to consult with State department during the environmental authorisation application process.
The Minister interrupted to say that she was having difficulty with the police, and some fishermen, because Level 3 of the lockdown allows people who are fishing.
Mr A Arnolds (EFF, Western Cape) said that the Minister was out of order.
Section 24P deals with the financial provisioning required to undertake progressive rehabilitation, decommissioning, closure and post closure activities to ensure mitigation, remediation and rehabilitation of adverse environmental impacts, and the amendment enables the Minister or the MEC to prescribe instances when financial provision is required for activities requiring environmental authorisation.
The financial provision must be determined before the Minister issues an environmental authorisation and an applicant, a holder of an environmental authorisation, a holder, holder of an old order right must provide financial provision for progressive rehabilitation, decommissioning, closure and post closure activities. The clause stipulates that the rehabilitation, remediation and mitigation measures must be undertaken annually as prescribed. The clause also sets out the financial provisioning vehicles to be used.
An independent party can be appointed if the Ministers or MEC are not satisfied with the determination or review of financial provision.
Respective Ministers or MECs may use any part of the financial provision to fund rehabilitation actions, if the holder of an environmental authorisation, holder, holder of an old or right fails to do so.
The Bill inserts a new section 24PA providing for financial provision for mining. This clause requires a holder of an environmental authorisation relating to listed or specified activities for or directly related to mining activities, a holder or holder of an old order right –
- to maintain and retain financial provision until a closure certificate is issued; - to review their environmental liability and adjust their financial provision every three years;
- to independently audit the financial provision and the basis on which it is determined every three years;
- to submit to the Minister responsible for mineral resources the audit report every five years (or three years in the case a mining permit);
- to publish the decision of the Minister responsible for mineral resources on the review of the financial provision publicly within five days of being notified of such review decision; and
- to annually undertake measures to mitigate, rehabilitate and remediate.
This clause also empowers the Minister responsible for mineral resources, in consultation with the Minister responsible for water affairs, to approve an annual drawdown of the financial provision to support final decommissioning and closure for a period not exceeding 10 years before final decommissioning and closure.
The clause further requires that financial provision for latent or residual environmental impacts must be transferred to the Minister responsible for mineral resources upon issuing of a closure certificate.
The clause allows the Minister responsible for mineral resources to access the financial provision on issuing of a closure certificate if the financial provisioning vehicle used is an insurance.
The Minister responsible for mineral resources or Minister responsible for water affairs is also empowered to use the financial provision to rehabilitate or manage the environmental impacts, if a holder of an environmental authorisation for mining activities fails to remediate and rehabilitate environmental impacts.
Section 28 deals with the duty of care and the remediation of environmental damage. Clause 12 empowers the Director-General of DEFF and DMRE and the HODs of the provinces to issue directives under certain circumstances. This power is now also given to municipal managers.
In line with the Promotion of Administrative Justice Act the section is amended to allow for a notification and an opportunity to make representations prior to the issuing of a directive.
Where remedial measures have to be undertaken by the authorities due to a failure to comply with a directive, the amendment now empowers them to claim both anticipatory, as well as costs already incurred.
Sections 31A-31Q (Clauses 13-19) deal with the appointment of environmental management inspectors across all three spheres of government, and environmental mineral resources inspectors in the DMRE to do compliance and enforcement for the NEMA and the SEMAS.
Sections 31B, BA, BB and C are amended to clarify that the Ministers responsible for environmental affairs, water affairs and MECs may only designate environmental management inspectors from organs of state that execute a regulatory function. This is to ensure that only authorities that have a legal mandate to monitor compliance and enforce NEMA and the SEMAs have designated inspectors within their ranks.
The designation by the Minister responsible for mineral resources of persons as environmental mineral and petroleum inspectors is enabled as well as the designation of officials from the Petroleum Agency of South Africa to undertake compliance and enforcement activities for petroleum resources.
The Bill provides for national consistency in the powers and duties accorded to the designated environmental management inspectors, whether undertaking compliance and enforcement with national or provincial legislation.
It empowers the Minister responsible for Environmental Affairs, after consultation with the Minister responsible for mineral resources, to support or undertake compliance monitoring and enforcement measures if necessary to address significant harm to the environment caused by prospecting and mining.
The same standard of approved training for environmental management inspectors and environmental mineral and petroleum inspectors is provided for as well as the power to prescribe through regulations a Code of Conduct.
The powers of these inspectors are also clarified in the Bill. A member of the SA Police Service has the same powers as these inspectors, excluding the power to conduct routine inspections in terms of section 31K and the power to issue and enforce compliance notices in terms of sections 31L to 31O.
Section 34E of NEMA deals with the treatment of seized live specimens and is amended to provide that live specimens ‘‘may’’, instead of ‘‘must’’, be deposited with a suitable institution, rescue centre or facility; as the circumstances require or may be disposed of in terms of section 30(a) of the Criminal Procedure Act (mechanisms regulating the disposal of a seized perishable item).
The regulatory power of the Minister responsible for environmental affairs to specify offences and prescribe the amount for purposes of admission of guilt fines is amended to ensure that Minister’s regulatory power contextualizes section 57(5) of the Criminal Procedure Act.
The Bill clarifies that the Minister of mineral resources may delegate his or her powers under NEMA to an organ of state, may subdelegate these powers or withdraw such delegation and empowers the Minister responsible for water affairs and municipal manager of a municipality to delegate these powers under NEMA to an official in the Department responsible for water affairs or municipality, respectively.
Clause 34 amends clause 43, which deals with appeals against decisions taken under delegated authority in terms of NEMA and the SEMAs.
The Bill allows appeals against a decision taken by a NEM: Air Quality Act licensing authority and where the licensing authority is a municipality, the appeal is to the municipal council
The Bill clarifies that an appeal will not automatically suspend a section 28(4) directive or other administrative enforcement notice that is aimed at addressing significant harm to the environment, unless there is good cause shown to the satisfaction of the Minister and a person may also appeal a section 28(4) directive issued by a delegated official.
The Bill clarifies offences and penalties, substitutes the criminal offence of failing to comply with a “request” with an “instruction” from an environmental management inspector or environmental mineral and petroleum inspector and introduces new offences and associated penalties.
Amendments to the National Environmental Management: Protected Areas Act, 2003 (NEMPAA)
Section 48(1)(a) and (c) prohibit commercial prospecting, mining, exploration, production or related activities in national park, special nature reserve or nature reserve. However, section 48(1)(b) allows commercial mining in a protected environment provided the Minister issues a written permission. The clause further amends subsection (4) to provide for the criteria under which the written permission contemplated in section 48(1)(b) may be issued by the Minister. The Minister may require any further information that he or she may deem necessary before making a decision.
Currently, section 57 of the NEMPAA only allows for the South African National Parks CEO to be on its Board. However, in line with the recommendations of the King III Report, the CFO should also be on the Board. The amendment to section 57 provides clarity that the CFO must be a member of the Board.
Section 48A of the NEMPAA restricts certain activities in a marine protected area. However, section 89 of the NEMPAA, which provides for offences and penalties, does not make it an offence where a person undertakes a restricted activity in contravention of NEMPAA. The clause amends section 89 to insert section 89(1)(e) and (2A), and thus creating an offence for any person that undertakes a restricted activity in contravention of NEMPAA. The clause also rectifies incorrect references to offences within NEMPAA.
Amendments to the National Environmental Management: Biodiversity Act, 2004 (NEMBA)
The Bill extends the scope of the objects of the NEMBA to clarify that the object is to provide that the use of indigenous biological resources is ecologically sustainable, including taking into account the well-being of any faunal biological resource. The Bill empowers the Minister to prohibit, by notice in the Gazette, any activity that may negatively impact on the well-being of a faunal biological resource. Such a prohibition will be subject to such conditions as the Minister may specify in the notice. A public consultation process must be undertaken before the Minister publishes the final notice. The power to make regulations is extended to provide that the Minister may make regulations on the well-being of a faunal biological resource.
The Bill amends NEMBA section 3 which provides for the State’s trusteeship of biological diversity. In terms of common law, all wild animals are regarded as res nullius, meaning it belongs to everybody, but belongs to nobody in particular. The implication of this common law principle is that once a wild animal escapes from the land on which it occurred, the owner of such land loses ownership of the wild animal that has escaped. The Game Theft Act, 1991 changed the common law status of wild animals, in that it makes provision for a person to retain ownership of a wild animal that escapes from land that was adequately fenced, and for which a certificate of adequate enclosure has been issued by the Premier of that province. The implication is that where wild animals escape from state-owned land, the state may lose the custodianship of those wild animals. The amendment provides that the Minister may specify species and circumstances under which the State remains the custodian in such cases.
The proposed amendment gives effect to the judgement in Eastern Cape Parks and Tourism Agency v Medbury (Pty) t/a Crown River Safari and Another (1466/2012)  ZAECGHC 26. The High Court held that this must be legislated and not be relied on by developing the common law by way of jurisprudence.
Currently all invasive species are treated the same in NEMBA. This amendment allows the Minister to determine measures suitable for the different species. The Bill remedies an impractical provision which requires every land owner or controller to know whether they have invasive species on their land. Potentially most people may have some or other invasive plant in their gardens and not know it. However, the more dangerous invasive species (from a health or environmental perspective) should be addressed and the Minister is given the power to prescribe the circumstances in which written notification of invasive species on land must be given to the competent authority.
The Bill empowers the Minister to prescribe measures to control or eradicate listed invasive species. Categorisation of species in the regulations is not taken into account.
The Bill clarifies that the South African National Biodiversity Institute CFO must be a board member.
The Bill provides clarity that the MEC for environmental affairs in each province must also follow the consultative process set out in sections 99 and 100 of the NEMBA when exercising a power under the Act
Amendments to the National Environmental Management: Air Quality Act, 2004 (NEMAQA)
Section 13 of the NEMAQA deals with the establishment of the National Air Quality Advisory Committee. The Bill provides the Minister with a discretion to establish a National Air Quality Advisory Committee.
Section 22A of NEMAQA is amended to provide for the consequences of unlawful conducting of listed activities. The clause will address two scenarios: provide for those activities that were operated without a registration certificate under the Atmospheric Pollution Prevention Act, 1965 and those activities where there is no atmospheric emission licence obtained under NEMAQA.
The Bill provides for the process and procedures to be followed in addressing non-compliance with the law and further empowers the Minister to direct an applicant to undertake certain action, including undertaking public participation as prescribed under the environmental impact assessment regulations. It sets the administrative fine to a maximum of R10 million.
The Bill clarifies that a province must be regarded as a licensing authority where a listed activity falls within the boundaries of more than one metropolitan municipality or more than one district municipality and indicates the instances when the Minister is the licensing authority to issue atmospheric emission licences for air quality activities.
The Bills intends to facilitate the issuing of an integrated environmental authorisation where the Minister is also a competent authority for the environmental impact assessment activities, and licensing authority for the waste management activities. The current provision appears to suggest that the Minister will always be the licensing authority, whereas the intention is to provide that the Minister is only the licensing authority if the Minister is also identified as such in terms of NEMA and the NEM: Waste Act.
The Bill enables a co-operative agreement to be reached between the municipality, MEC and the Minister as to who the licensing authority will be for an application.
The Bill inserts a new section 47A to provide the licensing authority with the legal power to revoke or suspend an atmospheric emission licence, subject to the legal requirements set out in the section and also sets out the procedure to be followed before a licensing authority may revoke or suspend the licence.
The Bill clarifies and ensures that appeal regulations developed under section 43 of NEMA are also applicable to appeals against air quality decisions.
Amendments to National Environmental Management: Integrated Coastal Management Act, 2008
Section 60 of NEM: ICMA has been amended to allow for the issuing of notices for the removal of structures erected prior to the commencement of the Act. This amendment clarifies the retrospective effect of section 60. Currently retrospectivity is implied, and its application may leave some doubt. This is also in line with section 59 of the Act and section 28 of NEMA, which expressly enables retrospective application.
Chapter 9 of the NEM:ICMA deals with appeals under this Act. It is the only Specific Environmental Management Act (SEMA) under the umbrella NEMA that has its own appeal provisions, despite the fact that the NEMA appeal provisions, specifically apply to all SEMAs. To streamline and avoid duplication, the Appeal chapter in the NEM:ICMA is being repealed.
Amendments to the National Environmental Management: Waste Act, 2008 (NEMWA)
The Bill inserts certain definitions such as ‘‘building and demolition waste’ ’business waste’’, ‘‘domestic waste’’, ‘‘general waste’’, ‘‘hazardous waste’’ and ‘‘inert waste’’ that were contained in Schedule 3 to the NEM: Waste Act and removes these from Schedule 3 and inserts in section 1 of the Act.
The Bill inserts certain new definitions of ‘‘residue deposit’’ and ‘‘residue stockpile’’ in alignment with NEMA and the MPRDA (MPRDA).
The Bill provides for textual amendments to the definition of ‘‘waste’’ to provide legal clarity on the interpretation and to prevent unintended consequences.
The Bill provides clarity that residue stockpiles and residue deposits are no longer regulated under NEMWA, but under NEMA.
The Bill amends NEMWA to establish the Waste Management Bureau as a fully-fledged entity. It is established as a juristic person with a board, and in the absence of a functional board, the powers and duties of the board revert to the Minister responsible for environmental affairs. It also sets out the Minister’s supervisory powers.
The Bill amends sections 34F, 34G, 34H, 34I, 34J, 34K and 34L of the NEMWA and sets out the general powers of the Waste Management Bureau, the governing board of the Waste Management Bureau, composition and membership, qualifications for board members, their appointment procedure, term of office and conditions of appointment of board members.
The Bill inserts new sections 34M-34Z which set out the governance matters of the Board.
The Bill provides clarity that an owner of the land that is likely to be contaminated has a legal obligation to notify the Minister of the contamination as soon as that owner becomes aware of that. It clarifies that a site assessment report must be submitted together with a remediation plan.
The Bill indicates that the Minister must keep a national register of all contaminated land.
Section 43 of the NEMWA identifies the licensing authorities for different waste management licences. The Minister responsible for mineral resources is identified as one of the licensing authorities to issue waste management licences for waste management activities directly related to prospecting or exploration of a mineral or petroleum resource or extraction and primary processing of a mineral or petroleum resource.
The Bill ensures that the Minister responsible for mineral resources as the identified licensing authority is responsible for the implementation of the waste management licensing system directly related to prospecting or exploration of a mineral or petroleum resource; or extraction and primary processing.
The Bill facilitates an agreement between the licensing authorities on the licensing system implementation.
In exceptional circumstance where the MEC unreasonably fails to take a decision about issuing a waste management licence within the prescribed timeframes, the Bill provides that an applicant may request the Minister to take the decision. The Department was mindful of section 125(2)(b) of the Constitution which provides that the Premier, together with members of the Executive Council, has the power to implement all national legislation within the functional areas listed in Schedule 4 or 5 of the Constitution.
Currently, the variation of a waste management licence is not subject to the payment of a prescribed processing fee. Practically, it has been established that the variation of a waste management licence involves a lot of work. Clause 71 provides for the payment of a prescribed processing fee for the variation.
Clause 72 is a consequential amendment deleting the offence on residue stockpiles and residue deposits. These stockpiles and deposits are no longer regulated under NEMWA, but under NEMA. The clause also creates an offence if a person contravenes a provision of a norm or standard.
Clause 73 is a consequential amendment deleting the Minister’s power to develop regulations. Residue stockpiles and residue deposits are no longer regulated under NEMWA, but under NEMA.
The provisions of section 74 do not provide the Minister responsible for mineral resources with legal power to issue exemptions. The scope for exemption applications appears to be too wide.
Clauses 76, 77, 78 and 79 amend sections 74, 75, 76 and 77 to provide for the consequential textual amendment empowering the Minister responsible for mineral resources to issue an exemption. The Bill provides clarity that there will be no exemptions provided from the requirement to obtain a waste management licence.
The Bill replaces the expression of the ‘‘Minister of Water Affairs and Forestry’’ with the Minister responsible for water affairs.
Schedule 3 provides for sources of waste and is read with the definition of ‘‘waste’’ in section 1 of the Act. Clause 81 repeals Schedule 3 to provide clarity as to what constitutes a waste. The revised definition of ‘‘waste’’ provides clarity on what is regarded as waste.
Amendments to the National Environmental Management Amendment Act, 2008 (NEMA)
It appears that there is legal uncertainty whether an environmental management plan or environmental management programme approved and issued in terms of the MPRDA, prior to the implementation of the One Environmental System on 8 December 2014, is deemed an environmental authorisation under NEMA. The Bill amends clause 12 of the NEMA Amendment Act, 2008 to provide legal clarity that an environmental management plan or programme applied for and approved in terms of the MPRDA, on or before 8 December 2014, is deemed to have been approved and issued in terms of NEMA.
The Bill provides clarity that if an EA (environmental authorisation) or WML (waste management licence) was required for activities related to mining activities before 8/12/2014 and obtained prior to commencement of such mining activities, or if an MPRDA right or permit was required prior to 8/12/2014 and was obtained prior to commencement thereof, such EA, WML or mining right/permit is deemed as fulfilment of the requirements of NEMA and NEMWA. However, if an EA or WML was required, but not obtained or refused, this will not be regarded as having fulfilled the necessary requirements. The Bill further provides that the Minister responsible for mineral resources may direct an MPRDA right/permit holder to upgrade the environmental management plan or programme if operations are likely to result in unacceptable pollution, ecological degradation or environmental damage. The Bill also enables the Minister to issue an environmental authorisation once the deficiencies have been rectified.
The Bill provides for transitional provisions regarding residue stockpiles and residue deposit approvals issued in terms of the NEMWA.
It provides for clarity that the residue stockpiles and residue deposit approvals or waste management licences issued in terms of the NEMWA, remain valid until they lapse or are replaced under the NEMA.
It further provides clarity that the regulations pertaining to the management and control of residue stockpiles and residue deposits developed under the NEMWA remain valid and are regarded as being developed under the NEMA.
The Bill provides for transitional provisions for the Waste Management Bureau and clarifies that anything done by the Waste Management Bureau under the repealed Part 7A of the NEMWA remains valid until any subsequent new provisions override it.
The Bill indicates that the Waste Management Bureau in place at the commencement of NEMLA remains in place until Board members are appointed in terms of the new section 34G of NEMWA.
The Bill clarifies that the Minister may direct that Waste Management Bureau employees or the CEO at the time of the coming into effect of NEMLA, be absorbed into the new structure in their existing positions.
Comments and questions from the provincial legislatures
The Chairperson thanked the Department for the presentation. She called on the provincial representatives to ask questions in this order: Free State, Gauteng, Western Cape, Northern Cape, North West, Mpumalanga, Limpopo, KwaZulu-Natal, Eastern Cape.
Mr J Radebe (ANC, Free State), Chairperson of the Free State Portfolio Committee on Agriculture, Rural Economic Development, Small Business, Sport, Arts and Culture, remarked that it goes without saying that Free State recognises NEMA as the umbrella legislation, which has a number of environmental management Acts, that are instituted to control and regulate functions of the state organs. It has been uncovered that amongst the provisions, the Act has been amended to allow for the provision of environmental authorisations and consultations, which becomes mandatory as part of the responsibilities of the provincial MECs, where oversight has to be done when it comes to defects. Therefore, the amendments to the NEMA laws are important because the constitutional provision ensures there is a secure environment which caters for the wellbeing of South Africans, both now and in the future. The Free State welcomes the areas where the Amendment Bill addresses the defects. If the goal is to ensure, amongst other things, to improve waste control, and focus on people and their participation in environmental decisions, then the Free State appreciates the Bill very much. It appreciates that the policy and the legislation embodies sound democratic principles for the implementation, compliance, and enforcements that were lagging behind in the past. The Free State agreed to the general approach that it should note the amendments, then sit as the Free State Committee to consider the amendments and write down its questions which will be responded to later.
Mr S Selamolela, (ANC, Limpopo), Chairperson of the Limpopo Portfolio Committee on Economic Development, Environmental Affairs and Tourism said that Limpopo also appreciates the amendments. The province felt that NEMA was very important in the developmental agenda and developmental trajectory of the country. What was important for Limpopo was the process that would unfold from this meeting especially public participation on the NEMLA Bill. There needs to be a multi-stakeholder buy-in to this. The Regulations and NEMA itself cut across many sectors and affect many people on a day-to-day basis. It will be very important to get their views. He asked how to go about getting such views, especially public hearings.
Mr G van Staden (ANC, Northern Cape), Chairperson of the Northern Cape Portfolio Committee on Agriculture, Land Reform, Rural Development, Environment and Conservation, welcomed the presentation and appreciated this meeting platform which allowed the provinces to get insight on the Bill. Due to the complexity of the Bill, and the importance of it impacting on Northern Cape operations, the Northern Cape would come together, and ask specific questions. He asked for a deadline for submitting questions.
The Chairperson said the Select Committee would give a deadline for questions at the end of the meeting. It was important for the Legislatures to discuss this Section 76 Bill as it affects the provinces. The NCOP did not want to act quickly and then have a scenario where the provinces were not satisfied.
Ms K Lenkopane (ANC, North West), Chairperson of the North West Portfolio Committee on Agriculture and Economic Development, said that North West regards NEMA as being very important. One view cannot consolidate the views of the collective of people at the grassroots level, as well as the views of the Portfolio Committee. North West noted the presentation, and its view was that it will consolidate as a committee, and then refer its questions. However, its main interest is to ensure that it must explore ways and means to get it down to the grassroots level, so that people have a better idea of the NEMLA Bill.
Mr J Skosana (ANC, Mpumalanga), a Member of the Mpumalanga Portfolio Committee on Agriculture, Rural Development, Land and Environmental Affairs, appreciated the presentation on the NEMLA Bill. He said that Mpumalanga supported the Bill because it would protect South Africa’s environment. In the apartheid era, people were forced out of certain areas. This Bill has created a set-up that will work very well with environmental issues. There are traditional leaders who own pieces of land in South Africa, mainly in the Eastern Cape, Mpumalanga, North West, Limpopo and elsewhere. Has the Bill considered traditional leaders? On the funding for the officers who will be working in the provinces, will the national or provincial Department be responsible for funding?
Mr A van der Westhuizen (DA, Western Cape), Chairperson of the Western Cape Portfolio Committee on Agriculture, Environmental Affairs and Development Planning, asked if the Department saw opportunities for job creation for small enterprises that become involved in some aspects of this law.
Ms M Govender (ANC, KZN) said that KwaZulu-Natal recommended the amendments that had been made, and that it would require time to investigate the amendments further. Perhaps what should also be considered is a presentation to provincial portfolio committees so that these committees can deal with this further, and in preparation for the public consultation and participation process. KZN noted the addition of the principle of the promotion of the involvement of black professionals. She thought that was very important, and KZN wanted more discussion and information on that.
Mr P Ndamase (ANC, Eastern Cape), Chairperson of the Eastern Cape Portfolio Committee on Economic Development, Environmental Affairs and Tourism, welcomed the amendments on behalf of the Eastern Cape provincial legislature. The province saw these amendments as trying to address the gaps, especially for the Eastern Cape, as the Eastern Cape Parks and Tourism Agency had a run-around with a case which went up to the Supreme Court of Appeal, and the Agency would lose some animals. Eastern Cape welcomed the amendments and would coordinate the questions as a committee, and make submissions in due course.
Mr M Gana (DA, Gauteng), a Member of the Gauteng Portfolio Committee on Economic Development, Environment, Agriculture & Rural Development, said that he did not have questions. He would wait for the briefing in the Gauteng Portfolio Committee. Gauteng would wait for further interaction on the Bill itself.
Ms S Thakur-Rajbansi (MF, KZN), a Member of the KZN Portfolio Committee on Environment and Conservation, said that in the coastal province of KZN, when fishing licences or fines go up, generally the communities are up in arms. The NEMLA Bill states the Minister has the power to specify offences and prescribe the fine amounts. With so many amendments now coming, it would have implications for the new types of fines and the amounts of those. She asked for the ramifications of the newer types of fines that would be gazetted. Members would then know what to expect in the context of the public hearings.
She noted that for the more dangerous invasive species found on private properties, the Minister has the power to prescribe the circumstances in which written notification of the invasive species must be given to the competent authority. She asked for clarity on when the invasive species was not particularly dangerous. Would there be guidelines and would it be the responsibility of the municipality or the province? People could then be properly informed for when their properties are inspected.
On environmental waste, Ms Thakur-Rajbansi saw that the Bill inserted definitions for different types of waste. She did not know if that included IT waste, which was both an important type of waste and something that could create a lot of jobs if we give some thought to it in the Bill. On the Waste Management Bureau, she said that the NEMLA Bill is a progressive Bill, and she welcomed it and thanked the Minister, the legal advisor, and everyone who put their thoughts into it. She suggested that the Bureau should have a fully representative board – meaning people from different provinces. The Waste Management Bureau will affect every province, and every province has its own unique situation when it comes to different waste types.
She asked for more clarity on residual waste and the stockpiling of waste. She thought that it was moving from the auspices of the Waste Management Act to NEMA; she wanted clarity on whether that was the correct view. On the prescribed payment for waste processing for waste, as this has never been charged before, she asked for an indication of the type of work that it involves and the proposed fee. If the fee amount is known, then one can judge whether it is too high. This is an industry where many jobs and small businesses can be created; the first fee should not be inhibitory. A fee that is too high would inhibit people from entering a market which has a lot of potential.
Mr D Smit (FF+, Free State) said he had a few questions, but would prefer to put the questions in writing.
Comments and questions from the Select Committee
Ms C Labuschagne (DA, Western Cape) asked about Clause 9 that inserts section 24PA(2). This provides that the Minister may approve an annual drawdown of the financial provision "in the prescribed manner". She asked if the Minister prescribing is only allowed through the drafting of regulations. What way of prescribing is the Minister allowed? Is it on an ad hoc basis, or is it by way of regulations? On appointment of an independent party to conduct an assessment of the determination on the Minister's behalf – will this independent party be defined in this law, or in regulations? In this Bill, the Department referred to environmental petroleum and gas practitioners – what would the impact be on this Bill if the MPRDA Bill is split; one for mineral resources, and one for oil and gas? Will that mean that the NEMLA Bill has to be amended again?
Mr A Arnolds (EFF, Western Cape) noted that provinces and municipalities were now also licencing authorities on their own. The Select Committee needed clarity on the licensing of national authority, provincial authority and municipal authority, in terms of any licencing conflict. Concerns about licencing had been raised previously. He asked about the establishment and the running of the National Resource Management Agency. This was going to be another entity that was going to manage the national resources for the Department. However, one of the purposes of NEMA was to make environmental management “one system”. There are a lot of different pieces of legislation and the legislation needed to be integrated.
His other question was about the Select Committee and the submissions made, and submissions that were outstanding; he wanted the Committee to deal with public participation. He welcomed the amendments that addressed the need for improved enforcement, which included the increase in fines and penalties.
Mr A Cloete (FF+, Free State) said that he had thought about the issues Mr Arnolds mentioned about engaging the sector; he wanted to speak within the Select Committee about how to engage with the sector. He noted that a principle is added to section 2 of NEMA that the environmental sector must advance and promote the full participation of black professionals. There was also a proposed amendment to the definition of black professionals within the environmental sector. The Broad-Based Black Economic Empowerment Act (BBBEE) already provides for promoting the achievement of the constitutional right to equality, increasing broad-based, effective participation of black people in the economy. Considering that a professional in the environmental management sector is an economic activity, why is the clause on black professionals added. There are existing provisions in the BBBEE Act – is it a duplication, or is the BBEEE Act not sufficient?
Ms W Ngwenya (ANC, Gauteng) noted the Bill was passed by the NA on 27 November 2018, and sent to the NCOP for concurrence. The NCOP could not process the Bill in time and it lapsed on 7 May 2019 due to the national and the provincial elections in May 2019. The Bill was revived by the NCOP on 17 October 2019 [audio cut out]. She said that the degradation of land and duty of care directive could have multiple meanings and asked for a more detailed explanation of the duty of care directive. She asked if the environmental inspectors have support so they can execute their tasks effectively and without harm.
Ms Labuschagne asked further questions:
- Clause 9 inserting section 24PA(4) empowers the Minister to access the financial provision on issuing of a closure certificate if the financial provisioning vehicle used is an insurance. What does DEFF mean by that?
- Clause 11 repeals section 24S and it is unclear if an environmental authorisation will be required, and if the management of residual stockpiles and deposits will be under the MPRDA, or the new Upstream Petroleum Resources Development Bill once enacted.
- Clause 17 inserting section 31D(3A) refers to “with any applicable duty provided for in this Act”. What are the duties that are transferred by this amendment?
- Clause 26 amends section 31M. To what extent would this provision replace an appeal in terms of NEMA? The Minister is [unclear 1:43:50] to decide on appeal after an objection has been lodged.
- Clause 30 substitutes section 34E. Why was “must” changed to “may” when it comes to the depositing of live specimens in a suitable institution?
- Clause 34 amends section 43 [audio cut off].
Ms L Bebee (ANC, KwaZulu-Natal) asked about NEMA: Air Quality which gives the licencing authority legal powers to revoke and suspend an atmospheric emissions licence, subject to the legal requirements set out in the section. How does DEFF envisage the enforcement and monitoring of atmospheric emissions licences for compliance, as the available air quality monitoring station operated by the South Africa Weather Service (SAWS) is the deemed reference monitor for industrial activities? In light of the lack of empirical measurements for compliance with the atmospheric emission licence, what will be the determining factor for revocation of the licence? Can these reports withstand the test of court, or acceptable international standards?
The Chairperson noted that the Minister had been released from the meeting as the Minister was going to join the National Assembly plenary sitting. When she read the Bill, it was silent on the promotion and development of township recycling businesses, especially those who are recycling metal. Perhaps the reason the Bill was silent on that topic was because it would be covered in policy and the regulations. Could DEFF provide clarity on that? She said that questions would be submitted in writing, and the legislatures in particular would get an opportunity to submit written questions.
Ms van Reenen replied that in general, she thought that the NEMLA Bill and the proposed amendments were intended to ensure that there is proper consultation and public participation when there is the potential that a decision or a development is likely to impact on landowners.
On the question of traditional leadership and land ownership and how these processes are related to that: There is definite recognition that consultation is an important aspect of all the processes contained in all of these Acts being amended.
On job creation and the recognition of small enterprises: There are a lot of amendments that deal specifically about the potential for ease of doing business. Specifically, the NEMA and the Waste Act provisions about processes and decision-making are intended to facilitate and streamline the process, and even do away with environmental authorisations through alternative means, and alternative environmental management instruments, where that is relevant and can be applied in a certain scenario.
On section 24P and financial provisioning: The intention of “in the prescribed manner” means prescribed by regulations, so DEFF does not intend to leave a vacuum for people not to understand when financial provision is or is not required. She did not believe a definition had been inserted for an independent party to determine financial provision, but she also believed that this would be a part of the regulations that will deal with [audio cut out]. She continued that the Department was engaging with the Department of Mineral Resources and Energy (DMRE) on the amendments in the NEMLA Bill and MPRDA Bill, as well the Upstream Petroleum Resources Development Bill. DEFF and DMRE have set up a discussion in a few days' time to discuss some realignment issues to ensure that whenever that chapter goes to a separate Bill under the Mineral Resources Ministry, that the Department ensures there is alignment.
On potential conflicts for licensing and decision-making in the different spheres: DEFF has proposed in some instances (and where there are already existing provisions) that agreements can be made between multiple authorities that have the authority to make decisions and run processes – that either one or the other party can run with all the relevant processes and issue decisions. It is also very important from a consultation point of view that there is always discussion and consultation is required, especially amongst decision-makers to ensure there is alignment on these matters.
On the fines and invasive species questions, Ms van Reenen said her colleagues would reply to these.
The Chairperson interjected that there was a problem with a bad network connection. She requested that the Department provide answers to all the written questions and these would be sent to the provinces. She asked if DEFF could afford the Select Committee an opportunity to reflect in detail on the NEMLA Bill:
- On the waste management amendments: It is “too silent” on the use of the waste management licence for disadvantaged people who are awaiting access to the waste management sector.
- On section 24G: DEFF must ensure that prospective applicants are not exempt for liability, especially those who have transgressed environmental law. Noncompliance is happening in the area of environmental law.
The Chairperson requested that while the Select Committee awaits the mandates from the provinces, could the Committee have a meeting with DMRE and DEFF together to clarify this Bill. When the Department then does something with those people who are not compliant, the Department must raise a question, because even in waste management, there is a “serious crisis”. This is happening in mining as well. The provinces have until 17 June to submit questions so they have a chance to discuss the Bill thoroughly.
Mr Skosana asked about public consultation as movement is restricted throughout the province during lockdown. There are restrictions on movement that the people of South Africa face for consultation with the communities. How would they deal with these restrictions on movement? This Bill is very important, and needs a physical consultation. Would the media be used for consultations? He agreed that questions would be obtained from the province before 17 June, if there were any, after the Bill had been checked thoroughly,
Ms Govender proposed that response date be by Friday 19 June. She did not think it was possible for the KZN committee to meet by 17 June as 16 June is a public holiday. Monday is a day set aside for other work and Members were out on [audio cut off].
Ms J Theologo (DA, North West) agreed with the arrangement.
A Member from Gauteng agreed on 19 June as the submission date for questions.
The Chairperson said that the provinces must decide on their own process for public hearings, because the Select Committee understood that there was a lockdown. The power was in the hands of the provincial portfolio committees to decide how they would do their public hearings. The Select Committee would not dictate anything to the provinces.
There was agreement about her point on public hearings.
The Chairperson thanked the provinces for participating in the Amendment Bill process. It was important for the Select Committee to have the provinces in the meeting.
The Chairperson asked Select Committee Members to submit questions on the Bill. This Bill is very important and the Select Committee needed to be part of it.
The Committee adopted the minutes of the 2 June 2020 meeting.
The meeting was adjourned.
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