N.E.M: Protected Areas Bill, Second Amendment Bill, Air Quality Bill & Environmental Conservation Amendment Bill: final mandates

LAND AND ENVIRONMENTAL AFFAIRS SELECT COMMITTEE
24 November 2003
NATIONAL ENVIRONMENTAL MANAGEMENT: PROTECTED AREAS BILL [B39B-2003], NATIONAL ENVIRONMENTAL MANAGEMENT SECOND AMENDMENT BILL [B56-2003], NATIONAL ENVIRONMENTAL MANAGEMENT: AIR QUALITY BILL [B62-2003], AND ENVIRONMENTAL CONSERVATION AMENDMENT BILL [B45B-2003]: FINAL MANDATES

Chairperson: Rev P Moatshe (ANC)

Documents handed out:
Final mandates of the nine provinces on the four Bills (See Appendix below; hard copies available on request.)

SUMMARY
The Land and Environmental Affairs Select Committee discussed the final mandates of, and later voted on, the National Environmental Management: Protected Areas Bill [B39B-2003], National Environmental Management Second Amendment Bill [B56-2003], National Environmental Management, Air Quality Bill [B62-2003], and Environmental Conservation Amendment Bill [B45B-2003]. KwaZulu-Natal and Gauteng abstained from voting on two Bills, the rest of provinces supported all four Bills.

DISCUSSION
National Environmental Management: Air Quality Bill [B62-2003]
Gauteng did not present a written submission on any of the Bills. Dr E Conroy reported that the mandates would be ready for Wednesday, when the Bills would be debated in the House. The Chairperson of the Standing Committee in Gauteng informed him that they had not received any response from the Department and so could not produce the final mandates. The processes were questioned by the Gauteng Legislature.

The Chairperson said that the Committee had never in a position where a province did not prepare a final mandate in time. Presentation of a final mandate on the day of the debate was not in line with prescribed procedures. All the necessary documentation had been sent to Gauteng.

Ms N Dlulane (Eastern Cape, ANC) and Mr V Windvoel (Mpumalanga, ANC) expressed their dissatisfaction with Gauteng coming to the meeting not prepared.

Mr McKenzie (KwaZulu-Natal) said that his province supported the Bill subject to the amendments listed in the document submitted (see Appendix 1).

The Chairperson said that, during the negotiating mandates, the Committee rejected amendments proposed to Clauses 20 and 30by KwaZulu-Natal. The other mandates were agreed to.

Mr K Durr (Western Cape, ACDP) pointed out that the Select Committee was not able to accept any additional mandates at this stage unless the Bill was sent back to the Provincial Legislatures for reconsideration.

The Chairperson said that the proposed amendments were not of a substantive nature, hence the Provincial Legislatures did not have to be consulted again. Prof J Glazewski (Special Adviser to the Department of Environmental Affairs and Tourism) agreed.

Mr Durr asked if quorum was present for the legislation to be passed, as only five provinces were in fact represented at the meeting, and whether the written submissions were sufficient measures of constituting mandates.

The Chairperson said that in his opinion, the procedure was lawful. Mr H Smuts (State Law Adviser) agreed.

The National Environmental Management: Air Quality Bill [B62-2003] was passed with amendments. KwaZulu-Natal did not support the current Billas not all of its proposed amendments had been accepted. In effect, both KwaZulu-Natal and Gauteng abstained from voting.

National Environmental Management: Protected Areas Bill [B39B-2003]
All provinces supported the Bill except for KwaZulu-Natal.

Mr McKenzie (KZN) quoted from the minutes of the negotiating mandates meeting held on 12 November, stating that the Committee had considered the negotiating mandates of all provinces except for KwaZulu-Natal due to the time constraints. It was proposed that the Department response to these proposed amendments be circulated to provinces together with the agreed amendments. KwaZulu-Natal was willing to support the Bill subject to the amendments (listed in Appendix 2.)

The Chairperson asked that one of the Department representatives familiarise the Committee with the amendments proposed by KwaZulu-Natal.

Dr G Cowan (Deputy Director: TFCA and Protected Area) said that last week the Committee had accepted a number of proposed changes.

Prof Glazewski outlined two of the most substantial amendments. The first one asked for introduction of a definition of "environmental goods and services". The Department had agreed to included the definition in Clause 1 of the Bill. The other amendment suggested that a wilderness areas be recognised as a separate category of protected area. The Department did not support that proposal. The remaining amendments were of lesser importance.

Mr G Grove (Legal Drafter contracted by the Department) explained that the Committee initially proposed broadening the management provisions of the Bill by inclusion of protected environments. Currently the Bill applied only to special nature reserves and nature reserves. That change was made in Clause 28. It would, however, better achieve the desired result if Subclause 5(a) was included in Clause 38. He also suggested changing the new Clause 37 to include a reference to protected environments.

Mr McKenzie was very concerned that the Committee was only being briefed on the proposed amendments at such a late stage, and that only the Department had taken the time to study KwaZulu-Natal's proposal. The Bill was vital environmental legislation and should not be passed hastily without proper discussion. He asked for clear identification of the proposals that were not considered due to time constraints.

Dr Cowan explained the KwaZulu-Natal proposed amendments to the Committee members.

Clause 1- accepted

Clause 9 - no change

Clause 23 - accepted

Clause 26 - accepted

Clause 28(4)
Mr H Smuts (State Law Adviser) explained that the KwaZulu-Natal proposed insertion of the following subsection:
"The Minister or the MEC may assign, in writing, the management of a protected environment to an organ of state or any other institution or person, if the owner and lawful occupier has requested or consented to such assignment, and the Minister or the MEC has given the owner and lawful occupier notice in writing in terms of section 33"
This amendments referred to the management of protected environments. Mr Smuts suggested insertion of that paragraph in Clause 38 rather than in Clause 28, as that clause dealt with management authorities.

Clause 37
The Department, after having consulted with the Legal Advisers, decided to reject this amendment.

Mr Smuts explained the KwaZlu-Natal position that Chapter 4 should apply to all protected areas. The proposal could have unintended consequences as it could encroach on forest areas. The idea of Chapter 4, however, was to specifically apply to special nature reserves or nature reserves. The Department rather advised insertion of the expression, "protected environments".

Clause 38(3) - accepted

Clause 39(4) - rejected as unnecessary

Clause 41 - editorial (move on)

Clause 46 - rejected as unnecessary. The protected area was normally privately owned land, hence normal access and trespassing rules applied. The proposed amendments to subsections of this clause dealing with access to protected environments, were similarly rejected.

Clause 47
KwaZulu-Natal suggested raising the minimum prescribed flying height of 1 500 feet above the highest point of the reserve to 2 500 feet. The proposal was accepted.

Clause 48
KwaZulu-Natal suggested the prohibition of mining in the protected areas.

Mr Cowan explained that the protected environment might include areas where mining was already taking place and control over them would be quite difficult. The Department suggested exclusion of the amendment.

Mr McKenzie asked whether the alternative proposal submitted by KwaZulu-Natal had been considered.

Mr Cowan confirmed that the Department had studied the alternative but that it had also turned it down.

Prof Glazewski added that that politically sensitive topic of mining in protected areas had been thoroughly debated during the extensive hearings. The Department's principal view was that there should be no mining in those areas at all. However, that was not a realistic decision to make in light of future financial implications.

The amendments was rejected by the Committee.

Clause 49 - accepted

Clause 50
The proposal was to replace "nature reserve and world heritage sites" with "protected areas".
The Department suggested that the Committee oppose that amendment as it was already established that there would be no commercial and community activities in special nature reserves. However, it was suggested that the State Law Adviser provide wording that would allow this clause to be effected in protected environments.

Mr Smuts suggested leaving the clause as it stood. The Committee agreed.

Clause 84
KwaZulu-Natal proposed changing the wording from 'with the concurrence' to 'after consultation with the Cabinet member responsible for mineral and energy affairs". The Department supported this as the amendment provided the Minister with the ultimate responsibility for protected areas.

The Committee agreed.

The National Environmental Management: Protected Areas Bill [B39B-2003] was passed with amendments. KwaZulu-Natal and Gauteng abstained from voting on two Bills, the rest of provinces supported all four Bills.
KwaZulu-Natal did not support the Bill in its current form due to the fact that not all of the amendments proposed by KwaZulu-Natal were accepted. In effect KwaZulu-Natal abstained from voting.

National Environmental Management Second Amendment Bill [B56-2003]
The National Environmental Management: Second Amendment Bill [B56-2003] was passed unanimously with amendments.

Environmental Conservation Amendment Bill [B45B-2003]
The Bill was passed unanimously without amendments.

The meeting was adjourned.

Appendix 1
National Environmental Management: Air Quality Bill [B62-2003]

Eastern Cape - supported the Bill
Free State - supported the Bill
Gauteng - no written submission. Dr E Conroy (Gauteng, NNP) said that the mandate would be ready on Wednesday when the Bills were to be debated in the House.
KwaZulu-Natal - supported the Bill subject to the following amendments: (Hard copies available on request)
Limpopo - supported the Bill
Mpumalanga - supported the Bill
Northern Cape - supported the Bill
North West - supported the Bill
Western Cape - supported the Bill

Appendix 2
National Environmental Management: Protected Areas Bill [B39B-2003]
Eastern Cape - supported the Bill
Free State - supported the Bill
Gauteng - no written submission. Dr E Conroy (Gauteng, NNP) said that the mandate would be ready on Wednesday when the Bills were to be debated in the House.
KwaZulu-Natal - supported the Bill subject to the following amendments: (Hard copies available on request)
Limpopo - supported the Bill
Mpumalanga - supported the Bill
Northern Cape - supported the Bill
North West - supported the Bill
Western Cape - supported the Bill

Appendix 3
National Environmental Management Second Amendment Bill [B56-2003]
Eastern Cape - supported the Bill
Free State - supported the Bill
Gauteng - no written submission. Dr E Conroy (Gauteng, NNP) said that the mandate would be ready on Wednesday when the Bills were to be debated in the House.
KwaZulu-Natal - supported the Bill subject to the following amendments: (Hard copies available on request)
Limpopo - supported the Bill
Mpumalanga - supported the Bill
Northern Cape - supported the Bill
North West - supported the Bill
Western Cape - supported the Bill

Appendix 4
Environmental Conservation Amendment Bill [B45B-2003]
Eastern Cape - supported the Bill
Free State - supported the Bill
Gauteng - no written submission. Dr E Conroy (Gauteng, NNP) said that the mandate would be ready on Wednesday when the Bills were to be debated in the House.
KwaZulu-Natal - supported the Bill subject to the following amendments: (Hard copies available on request)
Limpopo - supported the Bill
Mpumalanga - supported the Bill
Northern Cape - supported the Bill
North West - supported the Bill
Western Cape - supported the Bill