National Environmental Management Laws Amendment Bill: negotiating mandates

Meeting report

The Chairperson noted the apologies received from the Northern Cape and Western Cape delegates. All decisions in the meeting would be taken without the Northern Cape and Western Cape delegates on the platform. It was proposed that the Committee Researcher read out each negotiating mandate.

Eastern Cape
Dr Gabriel Lekalakala, Committee Researcher, read the negotiating mandate which proposed several amendments.

Ms Linda Garlipp, DEFF Chief Director: Law Reform and Appeals, gave a response. It did not think that the role of municipal manager needed to be clarified. The Department’s view was that the Constitution gave the enforcement right to local government in schedule 4 and 5 of the Constitution. This explains why there has been such ongoing effort to build environmental inspectorate capacity at municipal level. So far, there were 410 local authorities in 64 municipalities that could undertake inspectorate work.

On Clause 38, Ms Garlipp pointed out that the Bill addressed this sufficiently as s48 prohibits mining within a world heritage site. The proposed amendment would open up a precedent, thus the Department did not support the proposed amendment.

The Law Advisors and Content Advisor had technical problems and they were advised to comment in the Zoom chat.

The provinces on the platform accepted the Eastern Cape negotiating mandate.

Free State
Dr Lekalakala read the negotiating mandate which proposed many amendments.

Ms Garlipp commented that the Department was not in support of the proposed amendment to the definition. Due to biodiversity, conservation plans usually are not developed for Chapter 5 of National Environmental Management Act (NEMA). The current wording of the definition includes any environmental instrument that was developed over time. Ms Garlipp noted there was a consequential amendment that was being included.

Ms Garlipp did not think that the amendment to clause 3(a) was required as the term ‘conservation’ did not appear in clause 3(a). However, she noted a typographical error in the printed Bill which would need to be corrected.

Ms Garlipp said that the Department supported the proposal to amend clause 4(a) to make it clearer.  A further amendment was recommended that the Minister of Mineral Resources is the competent authority.

Ms Garlipp responded that the Department did not support the proposal to amend clause 5(c). DEFF was of the view that it would broaden the ambit of the categories of persons qualified to apply s24(g) of NEMA. Free State proposed that not only those that were involved to undertake listed activities were entitled to apply s24(g) authorisation, but also a person in control of the property would be qualified to apply. The term ‘in control of’ is not a controversial term and can be defined through appropriate legal courses.

Ms Garlipp responded that clause 8(3) was not a self-regulatory system. The amount was determined by a regulatory process which included the cost of plans.

On Clause 8(6), Ms Garlipp explained ‘and’ meant any options available may be used and thus it did not think that there would be many variations on the interpretation of the word ‘and’.

On clause 9, the Department supported the amendment and said it agreed that a review needed to take place to review the variety of conditions as the current wording did not include shorter period. It could be added into the Bill’s regulations. Consequential amendment may be needed for s24(5).

On clause 9(5), Ms Garlipp pointed out that the Financial Provision Regulations 2015 indicated that the financial adequacy must be made or adjusted in relation to environmental impact that must always be remediated.

On clause 11, the Department did not view it necessary to make an amendment to s24(s) because the power to make amendments in terms of NEMA for residues already existed in s24(5)(vi). The concern has been addressed in the existing Act.

On clause 17, the Department did not see it necessary to make amendment to s31(b), (c) and s42 of NEMA. She explained that clause 17 made specific reference to mining function.  Unlike environment which is a national and provincial competency, minerals and residual resources are national competences, hence, it is a national function which should be under the charge of the national department, not provincial MECs.

On clause 34, Ms Garlipp again clarified the Department’s position on the authority of local government council as the authority for appeal provision. According to Schedule 4 and 5 of the Constitution, the authority of appeal provision is the exclusive executive competence at the local government level.

On clause 39, the Department did not think it appropriate to leave the function to the Minister. There should be no perceived conflicts between the CEO and CFO for public entities. The Minister may only make appointment if the relevant legislature provides for this.

On clause 43, the Department did not think that there was need for amendment.

On clause 67, the Department did not think that there was need for amendment.

The Parliamentary Legal Advisor, due to connectivity difficulty, posted his commentary in the Zoom chatroom. The commentary read: I concur with the responses from the Department regarding the negotiating mandate from the Free State. The proposed technical amendment to the definition of "environmental management instrument" and the proposed amendments to section 24C(2A), 24C(3), 24C(12) and the definition of "mining activity" and section 24(PA). The word "may" is more appropriate that the word "must" because it allows the Minister the discretion to make regulation from time to time. If the Committee agrees to the amendments such amendments will be duly captured in the C-list amendments.

The provinces on the virtual platform went through each of the Free State proposed amendments to indicate their support. All proposed amendments submitted by the province were supported.

Gauteng
Dr Lekalakala read the negotiating mandate that had proposed amendments.

Ms Garlipp explained that the national and provincial Environmental and Conservation Authorities do have capacity to raise awareness among stakeholders. This function would fall under advocacy, environmental awareness, education and empowerment services. DEFF hence did not think it necessary to make the amendment.

Ms Garlipp said that the Department supported Gauteng’s proposal to simplify the definition of waste in clause 58(j) to avoid necessary challenges. She also provided alternative definition to the original text.

On clause 5, the Department agreed with Gauteng’s comment and provided alternative text on public participation. The Department proposed the alternative ‘Undertake public participation which is appropriate to bring the unlawful commencement undertaking and or, to conduct an activity to the attention of, and to provide interested parties an opportunity to comment on the application which public participation may include appropriate elements of public participation as prescribed by the environmental impact assessment regulation and s24(g) promulgated in terms of this Act’. 

On the cooperative arrangement between SAPS and environmental management inspectors, the Department did not support the amendment. Ms Garlipp clarified that Chapter 3 of the Constitution provided the framework under which spheres of government and organs of state must give effect to cooperative governance. Hence, it did not support the amendment.

The Department agreed with the amendment that black professionals and indigenous knowledge practitioners should be included in the Bill. The Department’s recommended text was ‘The full participation of previously disadvantaged professionals with specific emphasis on black professionals and indigenous knowledge practitioners in the environmental management sector must be recognised and their participation in the sector promoted’. DEFF also suggested the definition of ‘indigenous knowledge’. It is defined as assigned by s1 of the Protection, Promotion, Development and Management of Indigenous Knowledge Act.

The Department noted the struggling of indigenous practitioners and traditional leaders to get licences but did not think it necessary that an amendment was required. It believed that this has been addressed in various regulations where fees were prescribed. The fees regulations in 2014 has already provided a fees waiver to certain environmental applications.

All recommendations of the Gauteng negotiating mandate were accepted by the provinces online.

KwaZulu-Natal
Dr Lekalakala read the negotiating mandate.

Ms Garlipp commented on the KZN submission on the re-definition of the remediate, rehabilitate and residual environmental impacts. The Department understood the concern and recommended to move amendments to s24(p). DEFF also proposed the terms no longer be deleted.

Ms Garlipp said that the Department did not support inserting a definition for offset because the term was not used in NEMA.

The Department noted the concern raised by KZN on s24(g) but also pointed out that s24(g) had already been amended specifically to curb the abuse of the provision.

Ms Garlipp commented on s24(p) and clarified that the Department was of the view that there had not been a change in text. The calculation is determined by a set of details such as the financial provisioning regulations which the Department was in the process of amending and an independent team of specialists. DEFF did not support the suggested amendment to use external experts to determine the financial provisioning. The responsibility for that falls on the applicant and the calculation is determined by a team of specialists regulated by the regulations.

Ms Garlipp commented on the timeframe proposed for s24(b)(a). The Department did not support the amendment. Timeframes should be determined by regulations rather than amending the existing Act.

Ms Garlipp commented on the proposal to replace ‘well being’ with ‘welfare’. The court judgement has linked the welfare of wild animals with their conservation and protection to s24 of the Constitution. The term ‘well-being’ was proposed to be consistent with s24 of the Constitution. The ordinary meaning of welfare also refers to the well-being of animals. The revised well-being definition has included the physiological health of animals. Since Animal Protection Act of 1962 remains the primary legislation on cruelty to animals, the Biodiversity Act will be a supplementary legislation to address legislative gaps on the well-being of wild animals. Hence, the Department was of the view that it is not advisable to create a dual legislative system with two Bills addressing the same detail. The Department proposed to define ‘well-being’ as holistic circumstances and conditions of animals which are conducive to their physical, physiological and mental health and quality of life and ability to cope with its environment. The sequential changes were proposed so that ‘faunal biological resources’ be replaced with ‘an animal’ in clause 44(9)(a) and elsewhere.

Ms Garlipp commented on s48 of the Protected Areas Act and explained that the Minister of Mineral Resources is already required to undertake environmental authorisation. The retention as suggested by the KZN mandate would only create duplication. Further, in terms of the Constitution, the Minister of Environmental Affairs needs to consult the Minister of Mineral Resources before making a decision on issues involving the environment.

All proposed amendments submitted by KZN were accepted by the provinces on the platform.

Limpopo
Dr Lekalakala read the negotiating mandate that proposed amendments.

Ms Garlipp commented on the definition on the term ‘mitigate’ and stated that the Department’s position was that there was no amendment required for the definition but for the ordering of the term ‘mitigate’ to be moved and applied to clauses 8 and 9.

Ms Garlipp commented on the suggested definition on ‘minimise’ and said that since the term was not being used in the Act, there was no need to re-define it.

On the proposed period of three years for review, Ms Garlipp said that the Department did not support the amendment. Timeframes should be determined by regulations rather than amending the existing Act.

Ms Garlipp reiterated the Department’s view on s48 of the Protected Areas Act. The Minister of Mineral Resources is already required to undertake environmental authorisation. The retention as suggested by the Limpopo mandate would only create duplication. Further, in terms of the Constitution, the Minister of Environmental Affairs needed to consult with the Minister of Mineral Resources on issues involving the environment.

Ms Garlipp said that the Department did not agree with the proposed ‘wildlife welfare’ and suggested the term ‘well-being’ be used in the Bill. She had already explained in response to the KZN mandate why the Department preferred the term ‘well-being’ to welfare.

Ms Garlipp commented on s41(3) of the Air Quality Act in which it proposed the atmospheric licence be extended to an additional one year. The Department did not support the proposed amendment as the proposal would allow the provisional licence to be renewed endlessly. There are already licences issued by provinces that had a five-year period without a need to comply to emission standards. The Atmospheric Commission Licence cannot be issued to facilities that fail to demonstrate their compliance to regulations. The facilities are designed with minimum emission standard being the battery limit or the boundary condition for the plant. The two-year period is sufficient to demonstrate its ability to comply with the law.

All proposed amendments submitted by Limpopo were accepted by the provinces on the platform.

Mpumalanga
Dr Lekalakala read the negotiating mandate.  As there was no amendment proposed by the province, there was no need for the Committee to vote.

Northern Cape
Dr Lekalakala read the negotiating mandate.  As there was no amendment proposed by the province, there was no need for the Committee to vote.

North West
Dr Lekalakala read the negotiating mandate that proposed amendments.

Ms Garlipp commented on the definition of mitigate, remediate, rehabilitate residual environmental impacts and reiterated that there was no need for amendment except that it can be moved to the section to which those terms apply which were s24(p) and s24(p)(A). She clarified that if the proposal was accepted by the Committee, then the term 'remediate residual environmental impact' should be deleted from the Act.

Ms Garlipp commented on the proposed amendment on ‘offset’. Since the term was not being used in the Act, it was not needed to amend the term.

Ms Garlipp responded to the comment that ‘residual negative environmental impact’ was nonsensical saying that the term does include the residuals to be mitigated after remediation and rehabilitation had been undertaken.

Ms Garlipp said that the Department did not view it necessary to amend the term ‘remediate’ and proposed to move it to s24(p).

Ms Garlipp commented on clause 3 about simultaneous applications and said that the Department did not require an amendment. The intention of s24(c)(11) was to ensure that multiple processes can be combined to save time where possible because of the similarity of the procedural and content aspects.

Ms Garlipp commented on clause 82 and said that there are provisions that deal with new mining applicants to ensure environmental and waste management compliance.

Ms Garlipp commented on clause 30 and explained that currently in terms of s31 only employees from government and organs of state could be appointed as environmental inspectors. There is no provision to appoint non-governmental personnel as inspectors.

Ms Garlipp commented on s38. She explained again that the Minister of Mineral Resources is already required to undertake environmental authorisation. The retention as suggested by the North West mandate would only create duplication. Further, in terms of the Constitution, the Minister of Environmental Affairs needs to consult with the Minister of Mineral Resources on issues involving the environment.

Ms Garlipp responded to clause 42 and said that the proposed amendment was already contained in s24 of the Constitution so no amendment was required.

Ms Garlipp responded to clauses 46 and 47. The Department supported the awareness and educational programmes that should be rolled out.

All proposed amendments submitted by North West were accepted by the provinces on the platform.

The Select Committee decided to deal with the Western Cape mandate in the next meeting as Members needed to rush to attend an NCOP plenary meeting.

Meeting minutes of the 8 June 2021 were adopted.

The meeting was adjourned.