In a virtual meeting, the Committee met to receive inputs, discuss and vote on the negotiating mandate submitted by the Western Cape on the National Environmental Management Laws Amendment Bill [B14D – 2017] (s76).
In order for the negotiating mandate from the Western Cape to be accepted, the Select Committee needed at least five provinces to accept the mandate. During the meeting, the National Council of Provinces' (NCOP's) permanent delegate from the Western Cape complained about the lack of attention that other Members had given to the negotiating mandate submitted by the province, and suggested setting up another meeting to vote on its mandate. When this proposal was not accepted by the Committee, the Member left the Zoom platform. The departure of the province from the meeting resulted in the lack of the quorum required, so the voting could not proceed.
As this was the Committee's last meeting before the parliamentary recess, the Chairperson said that the Committee would discuss how to resolve the problem in its management meeting
The Chairperson opened the meeting and outlined the agenda. The only remaining province from the Committee’s meeting last week was the Western Cape, so the meeting would be dealing with the negotiating mandate on the National Environmental Management Laws Amendment Bill submitted by the province.
Western Cape negotiating mandate
Dr Gabriel Lekalakala, Committee Researcher, read the negotiating mandate submitted by the Western Cape.
Ms Linda Garlipp, Chief Director: Law Reform and Appeals, Department of Environmental Affairs (DEA), informed the Committee that Ms Amanda van Reenen, Director: Legal Support: NEMA, would respond to the province’s negotiating mandate clause-by-clause.
Ms Van Reenen said that the Department supported amendments to clauses one and two made by the province on grammatical errors and the consequential editing that needed to be done.
Ms Van Reenen commented on clauses 3 to 7, and said that the Department understood the concern raised by the Western Cape. However, she clarified two points. Firstly, financial provision was not limited to listed or specified activities. There was an intention in the bill to define specifically mining financial provision. Other suggested terms such as mitigate, remediate and rehabilitate were used in other parts of the bill which were not financial specific. She also pointed out that some suggested provisions were not practical. For instance, the Department believed that terms such as “progressive rehabilitation” should be enabled in the bill, and the clarity provided in the subordinate legislation. She also reminded Members that this bill was also limited because terms such as "financial provision" were also being regulated and made reference to in other legislation, such as company law.
Ms Van Reenen referred to comment 4, and said that it would be clearer if the clause was to move to ss8 and 9 of the bill so that there would be more clarity on the financial provision context.
Responding to the input that rehabilitation should include the facilities on the land as well, she said the Department supported the notion, but was of the view that it believed that the wording “land” had included everything that was on the land.
She responded that “mitigate” could be moved to ss8 and 9 of the bill. The word “offset” had no specific relevance in the mining context.
She supported the province’s proposal contained in comment 8.
Ms Van Reenen commented s24(c)(2)(b) and s24(c)(2)(3) of NEMA. The province suggested deletion of the clause s24(c)(2)(b), which stipulates the Minister’s power. The Department felt that it was not part of the amendment that had been subjected to public consultation, and felt that it would be a vast amendment if the suggestion was to be accepted.
Responding to the proposed mandate on s24(c)(13), she said that as the clause was related to the preceding clauses s24(c)(11) and s24(c)(12) that mentioned environmental authorisation, together with permits and licences, it would cause confusion if it were to be amended to environmental authorisation because an integrated decision did not need to be specifically defined, and could just be understood.
The Department found the comments made on s24(g) very useful.
Ms Van Reenen responded to comments made on the aerial emission licence. On 12.1, the Department did not think it necessary to make the change as suggested. On 12.2, she responded that applicants would remain illegal until all outstanding information was provided, so the bill did not have to provide such details, but it would be included in the regulation. On 12.3, the Department did not support the proposed wording, as the provision was sufficiently wide to assume all the activities had been covered.
She said the Department did not support s24(g), as it was of the view that the provision was sufficient to assume all potential actions had been covered. s24(g) focused on addressing illegality, non-compliance and offences, not the administrative part of it.
The Department supported the comments 14 and 15 of the negotiating mandate.
Ms Van Reenen responded to comment 16 on the determination, review and assessment of financial provision. She explained that the whole process of financial provision was intended for s24(p) and 24(p)(a), with details of the provision, to be unpacked in its subsequent regulations.
With regard to comment 17, the Department had no issue with the suggestion, and was of the view it should get rid of the word “shall”.
Ms Van Reenen responded to comment 18 and again reiterated that the Department’s intention was not to be limited to the listed or specified activities.
Referring to comments 19 and 20 in the negotiating mandate, she explained that there was already. provision for a successor entitlement in the current bill. Cross references to ss28(2) and 28(4) to the directive were indications that there was clarity on this provision.
Ms Van Reenen responded to comment 21 of the negotiating mandate. Although the Department did not have a problem with the suggestion, the insertion “in writing” would be excluding some practical scenarios of agreements that would be reached which were not in writing.
The Department supported the province’s suggestion in comment 22, but did not think it made sense to include Municipal Managers in the bill. Since the Director-General and the Head of Department were given the original authority in s28, the Department supported to inclusion of mineral and petroleum resources inspector, but said that it would not make sense to include municipal manager.
The Department supported comments 23, 24, 25, and 26 of the negotiating mandate.
Ms Van Reenen responded to comment 27, and said that the Department felt s31(d) included the provincial Act substantially that dealt with environmental management standards. S31(e) dealt with training standards and not legal mandates, so the Department did not think it appropriate to make the amendment as suggested. S34(c) referred to court powers, and the suggested inclusion would cause confusion. On comment 27(2), the Department did not believe that it was not practical to change “may” to “must”.
She acknowledged the province’s support in comment 28.
On s49(a), Ms Van Reenen noted the suggestion that the word “request” be substituted with “instruction”. The Department noted that the wording had already been proposed to be amended as suggested.
On comment 30 and 31, she said the Department was unsure of what exactly the proposal was suggesting.
It agreed with and supported comments 32 and 33 made by the province in its negotiating mandate.
Ms Van Reenen also noted that some proposed clauses were contradictory, so the Department did not want to state its support or opposition.
With regard to comment 33, the Department supported the amendment of control being amended as suggested.
On s99, the Department realised the mistake upon receiving the mandates, and supported the province’s proposal that Members of the Executive Council (MEC) needed to consult with MECs, and not the Cabinet.
On comment 35, the Department believed that the proposed mandate would be difficult to be aligned in the NEMA. She highlighted the difference between the NEMA and the Air Quality Act in their mechanisms, as well as their intended outcomes. It would therefore be impractical if the proposed mandate was supported.
On comment 36, the Department’s view was that the intention of the establishment of the committee was to advise the Minister. Changing the wording “must” to “may” would undermine that effect and provided more flexibility on the establishment of the Committee.
The Department agreed with comment 37 submitted by the province.
It understood comment 38 and agreed with the proposal.
It did not support the deletion of s36(5)(c) because it was not a proposed amendment to delete. It would be beyond the scope of the bill if it was deleted.
On Comment 40, the Department supported the proposed mandate.
The Department did not support the suggested s42(1) amendment as it would make a provisional license almost become a permanent license.
The Department supported the inclusion of sub-section 4 -- that the board may elect an Acting Chairperson if the Minister failed to do so.
The Department partially agreed with comment 43, and supported the deletion of the word “significantly” and its replacement with “likely to be”. However, it did not support some of the proposed texts because of the unintended consequences.
The Department did not believe the 90-day period, as suggested, would have potentially unintended consequences, as each piece of land was different and potential contamination could be different as well. The capping of 90 days would not create a solution, and a site inspection may not be able to assess the full extent of the contamination within 90 days, so the suggested inclusion was not supported.
The Department noted the potential consequential amendment if it took the advice contained in comment 45 submitted by the province. It could also amend the bill with the assistance of the state law advisor. It was highlighted that schedule 3 had been repealed.
The Department believed amendment to s12 could be difficult for the Department. Ms Van Reenen assured the Committee that the Department had already tried its best to provide clarity on the distinction between environmental management plans and programmes, and environmental authorisation. The Department wanted to know the alternative text if the province had any suggestions.
Mr D Nhanha (DA, Eastern Cape), complained about the lengthy time of the meeting and said that he had begun to lose concentration now as he had been glued to the computer since 10am [the meeting started at 15h30]. He therefore proposed calling a halt to the meeting.
The Chairperson asked Members whether they would like to continue on to the voting, or if they had any alternative options.
Ms C Labuschagne (DA, Western Cape), asked how long it would take for the discussion, as Committee Members had to go clause-by-clause and vote clause-by-clause.
The Chairperson said that before voting, the Committee would still need to hear the inputs from Parliament’s legal advisor and the state law advisor, and then Members could deliberate on the matter.
Ms Labuschagne proposed that the Committee wrap up this meeting and set up another one to finish the remaining business. The only concern that she had was that Members would forget some of the information given by the Department today.
The Chairperson asked if any Member opposed Ms Labuschagne’s suggestion.
Ms L Bebee (ANC, KwaZulu-Natal) asked the Chairperson if there was a deadline by which to pass the bill.
The Chairperson responded that fortunately there was no deadline for this bill.
Ms W Ngwenya (ANC, Gauteng) and Ms Bebee proposed finishing the meeting once and for all.
Mr T Matibe (ANC, Limpopo) asked the Chairperson to make a ruling on the matter.
The Chairperson ruled that it would be better to continue.
The Chairperson asked Members if they wanted to make any inputs on the proposed mandate.
Members indicated that they had no further inputs to make.
The Select Committee proceeded to voting.
Ms Labuschagne expressed her concern over the few provinces present on the Zoom platform. Only five provinces were present. She argued that the intention of the bill was to make sure that the bill would come out as practical as possible. Given that there were only five provinces present, if one province abstained or opposed, then the work of the province would be wasted.
The Chairperson said that she could not dictate whether a province should vote to support or not support the proposed mandate.
Ms Labuschagne said that this was not about making a ruling, but on how Parliament carried out its work. She expressed doubt on whether Members even had the mandate in front of them, expressing here suspicion that some Members did not even know where they were at the meeting, which resulted in their abstaining from voting.
The Chairperson indicated that the negotiating mandate from the province was being displayed on the screen, and had also been sent to Members prior to the meeting, so she highly doubted if any Member would be uncertain or ignorant of the content of the negotiating mandate.
The Select Committee did not adopt clauses 1, 2 and 3 of the negotiating mandate sent by the Western Cape.
As the Committee was about to move on to the voting on clause 4, Ms Labuschagne left the meeting.
Since Ms Labuschagne had left the virtual platform, there was no longer a quorum and the mandate from the province could not be adopted.
The Chairperson said that Ms Labuschagne was out of order for quitting the meeting so abruptly.
The Committee Secretary reminded the Committee that it would be the last meeting for the Committee before the recess for the constituency period. There were therefore two options for the Committee to finalise its voting on the mandate submitted by the Western Cape. The Committee could either call a meeting during the constituency period, or leave voting for the next term.
The Chairperson said that the Committee would discuss the problem in its management meeting.
As there was no quorum after Ms Labuschagne’s departure, the Committee's minutes could also not be adopted.
The meeting was adjourned.
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