Centre on Environmental Rights on Climate Governance; Parliament Legal Services on Climate Change Justice Charter

Environment, Forestry and Fisheries

08 December 2021
Chairperson: Ms F Muthambi (ANC)
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Meeting Summary

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In a virtual meeting, the Portfolio Committee on Environment, Forestry and Fisheries heard briefings from Parliament Legal Services on the legal counsel it sought on the referral by the Deputy Speaker of the Climate Justice Charter and from the Centre on Environmental Rights on Climate Governance.

Parliament Legal Services said that the Co-operative and Policy Alternative Centre (COPAC) drafted a Climate Justice Charter putting forward systemic solutions to the current climate crisis facing South Africa and the rest of the world. The Deputy Speaker referred the Charter to the Committee for consideration to engage on the matter “and the legal implications thereof and, thereafter, to map out an appropriate approach by Parliament which could serve as a basis for a discussion in the Rules Committees on the content of any rules for the implementation of Section 234 of the Constitution in general.”
 
The Committee sought legal advice on; whether the Charter qualified as one of those rights consistent with the Constitution; the legal status of the Charter in relation to the existing body of policies which already addressed the matters the Charter sought to address; whether by adopting this Charter Parliament was embracing an alternative policy-making approach; and whether there were National Assembly (NA) rules for processing this Charter.
 
Parliament Legal Services said that Sections 45, 59 and 234 of the Constitution provided for a Joint Rules Committee, the facilitation of public involvement and for the adoption of Charters of Rights respectively. It felt that Section 234 provided a discretionary power on Parliament to adopt Charters of Rights. Should a Charter of Rights be adopted, the rights would, depending on the nature of the rights, be enforceable against the state. The rights in the Charter would not have the same status as legislation as a Charter would be considered ‘soft law’. It said there were no specific rules to give effect to the realisation of Section 234 of the Constitution and that it would be appropriate to make specific rules for the implementation of Section 234. It would be appropriate for the House or the Speaker to consider referring the recommendations to the National Assembly Rules Committee. The Rules Committee may also, on its own, decide to consider such policy and rules. Should the Committee consider that legislation was desirable to address the policy considerations contained in the proposed Charter, the options included that the Committee may wish to initiate a Committee Bill to deal with the substantive rights if they were not adequately addressed in existing legislation?

Members asked if this was the first charter to come before Parliament. Members suggested a joint ad hoc committee be established to advise the Committee as it was premature to delve into the content of the charter at this stage. Members asked if the Committee should not wait for the Climate Change Bill first. Members were in favour of the charter as it would assist in the implementation of legislation.

The Committee adopted a motion that a draft report of the matter which would indicate that the matter was cross- cutting across all departments and there were no rules so consideration should be given to put in place joint rules and therefore the matter should be referred to the Joint Rules Committee to make rules to implement s234.

The Centre on Environmental Rights on Climate Governance’s briefing spoke to sharing key best practices on climate change governance. It spoke to what was impacted by the climate change crisis, referring to the example of the Knysna fire recently. It said the world had less than ten years to act to strengthen resilience to climate change impacts and that it would need a drastic reduction in fossil fuel consumption as the natural greenhouse gas effect was leading to global warming. This new era of climate crisis was of unprecedented proportions and the country needed to act with urgency to be a low carbon emission economy. The Paris Agreement called for countries to submit Nationally Determined Contributions (NDCs) to emission reduction targets. South Africa was offered a climate finance deal of R130 billion to accelerate decarbonisation. The responses were classified under either mitigation responses or adaptation responses. Referring to the forthcoming Climate Change Bill: It said what was needed was collaboration and cooperation across all sectors and geographic areas of society. It spoke to the need for access to information, transparency and public participation and effective monitoring and oversight. The Committee was made aware of red flags such as; that there was no such thing as clean coal; further coal-fired power infrastructure development was climate harming, technologically unnecessary, and was unnecessarily expensive, amongst others. Governments around the world were being increasingly called upon to account for their lack of ambition and sufficient action on the climate crisis.

Members said that moving away from coal and coal powered power stations would have an effect on unemployment. They requested that the Departments of Water and Mineral Resources also see the presentation as everyone needed to work together on these issues. Members said there was a need to require a multilateral approach to come to grips with the issues. Members expressed the hope that the CER would make inputs when the Climate Change Bill came before the Committee. Members felt that South Africa needed to have a Climate Change Command Council like the Corona Virus Command Council that was established. They asked if the climate emergency warranted having as great an engagement as the Covid emergency. Members said the impacts and effects of climate change ultimately impacted the poor who were the first to suffer. Members asked what the best approach was to address this emergency. They said the seismic surveys off the Wild Coast would add to SA’s carbon footprint instead of reducing it. The Committee felt that South Africa’s policies were not climate conscious and the biggest concern in SA was poverty. Members asked how the Committee could help CER to get improvement in climate change awareness while waiting for a charter to be passed by Parliament. The Committee was keen to find out if any SA products had been subjected to carbon border taxes and further if countries were allowed to unilaterally impose carbon border taxes on traded goods according to the trade rules of the World Trade Organisation (WTO). They asked how environment NGOs, like the CER, see their participation in the Presidential Climate Commission? What criteria did the Climate Tracker use?


 

Meeting report

Opening remarks by the Chairperson
The Chairperson said Minister Barbara Creecy, Deputy Minister Maggie Sotyu and Ms Nomfundo Tshabalala (DG) had sent letters of apology.

The Chairperson said the Committee was meeting with the Centre on Environmental Rights (CER) who advocated for environmental justice. Bodies such as these were useful as they conducted research to facilitate policy development and facilitated independent dialogue with civil society to help live more sustainable lifestyles. Environmental NGOs faced many barriers in carrying out their work.

The Chairperson said that the Committee would initially get a briefing from Parliament Legal Services on the Climate Justice Charter that was referred to the Committee by the Deputy Speaker. The Charter should be processed under Section 234 of the Constitution which allowed for a Charter to be adopted by Parliament. The Committee had to reach a decision on what to do regarding the Charter while keeping in mind the proposed Climate Change Bill that would be before the Committee soon, and which would create a legislative framework to implement National Climate Change matters to curb emissions but had limited global temperature increases to 1.5 degrees Celsius.

Briefing by Parliament Legal Services on the Climate Justice Charter as per the referral from the Deputy Speaker’s office

Adv Frank Jenkins, Senior Parliamentary Legal Advisor, said that on 22 September 2020, the Co-operative and Policy Alternative Centre (COPAC) drafted a climate justice charter putting forward systemic solutions to the current climate crisis facing South Africa and the rest of the world. On 14 October 2021, the Deputy Speaker referred the Charter to the Committee to consider in terms of the mandate of the Committee and for the Committee to engage on the matter “and the legal implications thereof and, thereafter, to map out an appropriate approach by Parliament which could serve as a basis for a discussion in the rules committees on the content of any rules for the implementation of section 234 of the Constitution in general.”
 
The Committee sought legal advice on:
1. Whether the current Climate Justice Charter qualified as one of those rights consistent with the
  Constitution?
2. The legal status of the Charter, if adopted by Parliament in relation to the existing body of policies
  (legislation), which already addressed the matters that the Charter seeks to address, though not in line
  with existing policies?
3. Whether by adopting this Charter, Parliament was not embracing an alternative policy-making approach
4. Whether there were National Assembly rules for processing this particular Charter?
 
Adv Jenkins said that in terms of the Constitution, Section 45 of the Constitution provided that the NA and National Council of Provinces (NCOP) must establish a Joint Rules Committee to make rules and orders concerning the joint business of the Houses; Section 59 provided that the NA must “facilitate public involvement in the legislative and other processes of the Assembly and its committees”; and Section 234 provided for the adoption of Charters of Rights consistent with the provisions of the Constitution in order to deepen the culture of democracy established by the Constitution.
 
He said Joint Rule 2 provided for “unforeseen matters” where the Speaker and the Chairperson of the Council, acting jointly, may give a ruling or make a rule in respect of any matter for which the Joint Rules do not provide and that in Chapter 12 of the NA Rules Rule 167(f), provides that “For the purposes of performing its functions a committee may, subject to the Constitution, legislation, the other provisions of these rules and resolutions of the Assembly determine its own working arrangements;”. He said that NA rule 190 establishes the Rules Committee and Rule 193 provides that the Rules Committee was empowered “to develop and formulate policy proposals concerning the exclusive business of the Assembly in respect of the proceedings, procedures, rules, orders and practices concerning the business of the Assembly;”.
 
He said the legal analysis was that Section 234 provides a discretionary power on Parliament to adopt Charters of Rights consistent with the provisions of the Constitution and the procedural and substantive aspects of the exercise must comply with at least Sections 57, 59, 70, 72 and 234 of the Constitution. He said that from a substantive perspective, in giving effect to Section 234 of the Constitution, the purpose must be “to deepen the culture of democracy established by the Constitution” and must be “consistent with the provisions of the Constitution”. Should a Charter of Rights be adopted by Parliament in terms of Section 234, the rights would, depending on the nature of the rights, be enforceable against the State. The adoption of the Charter would bind the state in certain circumstances to the responsibilities assumed therein. The rights in the Charter must be consistent with the Constitution and would not have the same status as legislation as a Charter would be considered ‘soft law’. He said there were no specific rules to give effect to the realisation of Section 234 of the Constitution and that it would be appropriate to make specific rules for the implementation of Section 234.
 
The advice of legal services was that the implementation of Section 234 of the Constitution required rules made in terms of Sections 57 and 70 of the Constitution. Legal services were of the view that Joint Rule 2 was not purposively meant to cater for constitutional prerogatives such as those contemplated in Section 234. Further, they were not aware of any specific rules in the NA, NCOP or Joint Rules that facilitate the implementation of Section 234. They advised that there was nothing in the interpretation of Section 234 that required only the Joint Rules to accommodate the submission of a Charter of Rights to Parliament. Similarly, there was nothing in Section 234 that required a separate process of adoption by resolution in each House. Hence, the NA and NCOP may determine and control this process, as mandated by Sections 57 and 70, respectively; or, through Joint Rules. Their opinion was that the implementation of Section 234 required specific rules dealing with the submission, referral, reporting, debate and adoption of Charters of Rights consistent with the Constitution.

He said that the Committee may decide to proceed with public participation and discussion around the content of the Charter referred to it in terms of NA Rule 167(f) by determining its own working arrangements. However, given the paucity of the procedure to deal with Section 234, Legal Services were of the view that the Committee should recommend that specific rules be developed to deal with processing referrals of this nature as the NA Rules the Committee was empowered to develop and formulate policy proposals concerning the exclusive business of the NA in respect of the proceedings, procedures, rules, orders and practices concerning its business. Hence, it would be appropriate for the House or the Speaker to consider referring the recommendations to the NA Rules Committee. The Rules Committee may also, on its own, decide to consider such policy and rules. Should the Committee consider that legislation was desirable to address the policy considerations contained in the proposed Charter, the options include that the Committee may wish to initiate a Committee Bill to deal with the substantive rights if they were not adequately addressed in existing legislation.

Discussion
Mr N Singh (IFP) asked if this was the first Charter to come before Parliament.

Adv Jenkins said that this was the first time. In 2006/7 a Service Charter for Victims of Crime in South Africa (Victims’ Charter) was developed and approved by Cabinet, but did not make it to Parliament, so there were no specific rules for Charters.

The Chairperson asked which route the Committee should follow.

Mr Singh suggested, as per Adv Jenkins’ advice, that a joint ad hoc committee be established to advise the Committee. He said it was premature to delve into the content of the charter at this stage.

Ms C Phillips (DA) asked if the Committee was not putting the cart before the horse and should wait for the Climate Change Bill first. He thanked the Cooperative and Policy Alternative Centre for taking the initiative.

Ms S Mbatha (ANC) said Adv Jenkins had pointed out that the Charter would not have the same status as legislation, but the Charter would assist in the deepening of democracy by making it more accessible to people. She was in favour of the Charter as it would assist in the implementation of legislation.

Adv Jenkins said he was not sure of the timeframes for the Committee to report on the matter. He said the Committee wanted a draft report of the matter which would indicate that the matter was cross- cutting across all departments and there were no rules so consideration should be given to put in place joint rules, and therefore the matter should be referred to the Joint Rules Committee to make rules to implement s234. On the issue of the Climate Change Bill, he said it should be dealt with when it came to the Committee. Once joint rules were drafted then the Committee could take the process forward via these rules.

The Chairperson suggested that this be accepted by the Committee so that it could provide the requested feedback to the Speaker.

This motion was adopted by the Committee.

Briefing by the Centre for Environmental Rights on Climate Change Governance in South Africa
Mr Brandon Abdinor, CER Climate Advocacy Lawyer, gave a briefing that spoke to sharing key best practices on climate change governance. He spoke to what was impacted by the climate change crisis referring to the example of the Knysna fire recently. He said the world had less than ten years to act to strengthen resilience to climate change impacts and that it would need a drastic reduction in fossil fuel consumption as the natural greenhouse gas effect was leading to global warming. This new era of climate crisis was of unprecedented proportions and the country needed to act with urgency to be a low carbon emission economy. The Paris Agreement called for countries to submit Nationally Determined Contributions (NDCs) to emission reduction targets. South Africa was offered a climate finance deal of R130 billion to accelerate decarbonisation. He spoke to the risks SA would be exposed to if global warming continued. (See briefing notes) He then moved on to what needed to be done and these responses were classified as either mitigation responses or adaptation responses. He then spoke to the current regulation of climate change in South Africa and South Africa’s international commitments and to the forthcoming Climate Change Bill. He said what was needed was collaboration and cooperation across all sectors and geographic areas of society. He spoke to the need for access to information, transparency and public participation and effective monitoring and oversight. He made the Committee aware of red flags such as; there is no such thing as clean coal; further coal-fired power infrastructure development is climate harming, technologically unnecessary, unnecessarily expensive, amongst others. He then spoke to Governments around the world increasingly being called to account for their lack of ambition and insufficient action on the climate crisis.

Ms Nicole Loser, CER Program Head: Pollution and Climate Change presented a small part of the presentation when the presenter experienced internet difficulties.

See presentation attached for further details

Discussion
Mr Peter Lukey, Acting DDG: Climate Change, Air Quality and Sustainable Development, complimented the presenters on an excellent presentation. However he said that responding to climate change was not just about law, but about voluntary change and the need for all to work together. He drew attention to the HSRC Climate Change Awareness Survey which reported that SA had very poor levels of climate awareness when one was looking for voluntary behavioural change. Only nine percent saw climate change as a top national concern and 16% believed that the climate was not changing while 28% believed that the climate was changing but not because of human processes. In total 44% of South Africans were climate change denialists. Such high levels of denial made it difficult to make the dramatic changes the CER was envisaging. There was a unique role for civil society and NGOs to play in building public awareness.

Ms A Weber (DA) thanked the CER for its presentation and wished she had received this presentation in 2019. She came from Mpumalanga where there were 12 fossil fuel power stations. There were a lot of coal mines and power stations there and moving away from coal and coal powered power stations would have an effect on employment. She agreed with Mr Lukey that many people did not know about climate change. She requested that the Departments of Water and Mineral Resources should also see this presentation as everyone needed to work together on these issues.

Mr Singh complimented presenters on the presentation. He said there was a need to require multilateral approach to get to grip with the issues. He hoped that when the bill came before the Committee, the CER would make inputs.

Ms Mbatha said that South Africa had industries that were not complying and had Eskom that was using coal to generate energy. South Africa needed to benchmark other countries on the issue of compliance.

Mr N Paulsen (EFF) agreed that a lot needed to be done. He said the issue was not being driven with the commitment it deserved. He said SA needed to have a Climate Change Command Council like the Corona Virus Command Council that was established. He said the Shell seismic surveys were being conducted off the Wild Coast that would add to SA’s carbon footprint instead of reducing its footprint. SA’s energy sources should be renewable energy to reduce the harm that carbon energy had on the environment. He said that alternative building methods too would reduce the carbon footprint. SA’s policies were not being climate conscious. He asked if the climate emergency warranted having as great an engagement as the Covid emergency. He said the impacts and effects of climate change ultimately impacted the poor who were the first to suffer. He asked what the best approach was to address this emergency.

Ms Phillips said the biggest concern in SA was poverty. She asked how the Committee could help CER to get improvement in climate change awareness while waiting for a charter to be passed by Parliament.

Ms T Mchunu (ANC) said the presentation allowed for more understanding. She said the Committee needed to get all other departments and committees to have inter-departmental collaboration on these issues and to get solutions to the challenges. ‘Was it possible to assist the Committee look at the long- term competitiveness and climate resilience of the economy’? She said the country relied on coal as a source of energy. ‘What could work effectively to get clean coal and what was the role of the Committee to get there’.

The Chairperson said the Committee valued the CER as a critical stakeholder. She asked what the CER would like the Committee to do as legislators. She said climate change mitigation was only effective if countries worked towards goals multilaterally. She asked if any SA products had been subjected to carbon border taxes and were countries allowed to unilaterally impose carbon border taxes on traded goods according to the trade rules of the World Trade Organisation (WTO). ‘How did environment NGOs, like CER, see their participation in the Presidential Climate Commission’? ‘Were they not becoming part of the executive decision- making processes’? As a collective, the Committee understood that a strategic environmental assessment was one of the tools for environmental management. ‘How did this happen in the real world, in terms of climate change’? Regarding the Climate Tracker, which spoke too SA’s low or insufficient target reductions, she asked what these targets were relative too. ‘Was it to technology or financial support’?What criteria did the Climate Tracker use’?

Responses
On what the Committee could do, Mr Abdinor said it was to support the process to get a strong Climate Change Act. He said the Bill was missing a lot of the issues that was mentioned in the presentation. He said the CER was very keen to be involved in the process.

On public awareness of climate change, he said this was an issue. The CER did a lot of popular education to get climate literacy. While responses would come from individuals a lot of the response was also systemic. One should not get stuck in the belief that people needed to understand to change the crisis.

Regarding people employed in the coal value chain, he said there were 100 000 workers directly involved and this was where the issue of a just transition came in. The Climate Change Bill was the only legislation that dealt with a just transition whose purpose was to ensure that no one got left behind by reskilling people in the coal value chain with skills in the renewable energy field. The Presidential Climate Change Council was working on a just transition framework.

On the Climate Action Tracker, he said that the reference was that SA’s actions were insufficient to stay at the 1.5 degree warming mark. Nearly all the countries in the world were also deemed insufficient, while most of the countries including SA were starting to go in the right direction.

On the carbon border taxes, he said this would start to be implemented from 2023 onwards which was when levies would be applied and exports would be affected. He could not answer how it related to the WTO rules.

On NGOs being part of the executive through their participation in the Presidential Climate Commission, he said the Commission was there in an advisory capacity.           This could be powerful if it was balanced out by the other stakeholders on the Commission which represented other strata of society.

On different departments doing different things related to climate change, he said this was where the Committee could assist, like for example the search for fossil fuels off the Wild Coast, or new coal and gas energy projects being proposed, which did not tie up with the country’s NDC targets.

On the question of clean coal, he said there was no such thing as clean coal and there never would be.

On getting other departments involved with the presentation, he said the CER would welcome that.

On Ms Phillips’ comment on poverty, he said that was an issue, but it was not a luxury as climate change only exacerbated poverty issues. Addressing the climate crisis by creating climate resilience can start reverting these social pressures. It can be expensive to address the climate crisis properly but it was nothing like the cost if it was not addressed.

Ms Loser said it was important to acknowledge that the context was an enormous issue in scope and time sensitivity where one had less than 10 years to reverse the worst effects of climate change. There was not time to get the necessary legislation in place; it needed the best efforts of everyone. She appreciated the questions on what the Committee could do. She said that the CER had commissioned a number of expert reports.
 
On Mr Mchunu’s question that if not coal, then what. She said modelling by the CSIR and the Energy Research Centre showed that the country could have an energy system that met demand quite easily and which did not include any new coal powered power stations and would be a least cost electricity system going forward that could be made of renewables and she could forward these reports to the Committee.

The Chairperson said the reports should be forwarded to the Committee.

The meeting was adjourned.
 

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