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MINERALS AND ENERGY PORTFOLIO COMMITTEE
20 October 1999
CONSIDERATION OF THE NUCLEAR ENERGY BILL [B 10-99] AND THE NATIONAL NUCLEAR REGULATOR BILL [B 11-99]
Portfolio Committee on Minerals and Energy Actions Arising from Deliberations on the Nuclear Energy Bill on 19 October 1999.
Portfolio Committee on Minerals and Energy Proposed Amendments to Nuclear Energy Bill [B 10-99]
Portfolio Committee on Minerals and Energy Proposed Amendments to National Nuclear Regulator Bill [B 11-99]
Consolidated amendments proposed by the Chambers of Mines (COM), the National Union of Mineworkers (NUM) and the Department of Minerals and Energy (DME) to the Bill as introduced to Parliament in February 1999.
National Nuclear Regulator Bill; Liability for Nuclear Damage and the Provision of Security in Respect of Holders of Certificates of Registration.
Addendum to CNS Motivation with Regards to the Outstanding Issues Relating to the National Nuclear Regulator Bill Reference CNS/99/10/16/L17
The Committee completed its informal consideration of the Nuclear Energy Bill and then proceeded to discuss the proposed amendments for the National Nuclear Regulator Bill.
Dr De Waal and Mr Mokoena represented the Department of Minerals and Energy. Mr Pienaar represented the State Law Advisors.
Nuclear Energy Bill
The first flagged issue regarded the definition of "nuclear installation". The representative from the Department of Minerals and Energy proposed that this be left until the committee discussed the Regulator Bill. Mr Davidson (DP) felt that if the committee were to take a definition from one bill and put it in another that it would make "messy" legislation. It was decided to leave the issue and bring it up again during the discussions for the Regulator Bill.
The committee accepted the new changes to the definition of "nuclear site" and to delete "(if any)" from section 7 (3). They further agreed to the new clause 9.
There was still some debate surrounding including "overdraft" as a "loan". Mr Mokoena explained that it is customary for the Minster to approve budgets and oversee expenditures. In terms of operation of current bank accounts arrangements are made if necessary with the Minister.
Mr Davidson (DP) felt that if he was a banker and saw that he had to get permission from the Minister of Mineral Affairs and the Minister of Finance then he would find it extremely cumbersome. Mr Nel (NNP) asked if section 57 (1)(a) covers the issue of the overdraft. Mr Pienaar said that he believed that section 59 (2) (b) should cover the problem with the overdraft.
M Mokoena explained that this law provided for succession; so whatever laws were governing the issue with the current AEC Board and the Minister would continue in the new act. To raise loans in the money market there was a need for the Minister's approval. It will not be possible to go into overdraft over a long period of time without the permission of the Minster.
Mr Davidson (DP) explained that he was not disagreeing with the fact that long-term loans need the permission of the Minister. What he is pointing out is that the legislation does not distinguish between short and long term loans. He believes that it would be very cumbersome to get permission for a short-term overdraft. The Chairperson, Mr Mohamed (ANC) decided that the matter would be left to give the State Law Advisors more time to consider Mr Davidson's concerns.
The Committee agreed to the amendments clarifying Section 20 dealing with the "delegation of powers".
Mr Nel (NNP) brought up some concerns surrounding Section 21 (1) of the Bill. He thought that considering the Board was going to be constituted by the Minister, it seems strange to now say that the Minister was not capable of relying on the same people that she has appointed to the Board. He said that any Minister was a political head of a department who will take recommendations from their officials and appoint the appropriate people. This amendment proposes that the Minister would not have confidence in these people. Mr Nel proposed that the Board should be able to recommend who they want to work with. He asked that it be changed to "on recommendation of the Board" after "Corporation".
Mr Nash (ANC) agreed with Mr Nel. He believed that the proposed amendment would curtail the Minister's powers. Ms Dudley (ACDP) agreed that it should remain "on recommendation of the Board". Mr Davidson (DP) also agreed with Mr Nell. He felt that the Minister must have confidence in the people that she appoints to the Board. He did not feel that it would be a good sign if the Minister did not have confidence in the same people she appointed.
Mr Nash (ANC) pointed out that the discussion should not reflect the current Minister. He felt that they doubted the current Minister's ability and integrity when they say she could not judge who was the best individual to chose a chairperson.
Mr Davidson explained that none of these comments were directly linked to any Minster. He said that this is legislation for a Minster not the Minister. He pointed out that the Board must apply their minds to get the best CEO that they can. The Chairperson decided to let the issue stand for now and the parties could discuss the issue during the morning break.
Mr Davidson (DP) raised a concern regarding the proposed changes to Sections 34 and 35. He noticed a consistent removal of power from the Board and giving it to the Minster. He pointed out that this raises the question as to whether or not the department has the capacity to have this power. Mr Davidson mentioned that some powers could lie outside of the Department. Ms Dudley (ACDP) expressed a similar concern.
Mr Mokoena agreed that there is a shift of power to the Minister. This was decided in order for the Minister to consider competent agencies to perform functions. Even though the Minister has more power, there will still be an element of consultation with national authorities.
Mr Oliphant (ANC) pointed out that they were only raising questions of capacity, which show they would have to work to ensure that the Department is capable of dealing with the powers they are given. The Chairperson decided to let the issue stand so the parties could consult with each other over the morning break.
Mr Oliphant (ANC) asked if the proposed change to Section 46 (3) could stand. He felt uncomfortable with the clause as it was written, and wanted more time to consider the amendment. The Committee agreed to flag the issue.
Mr Pienaar explained the proposed change to Section 54, line 6. The sentence was moved in order to make the section more clear. The prison sentence was raised to six months because of the concerns raised by the committee in the previous meeting. There are no fines mentioned because there has been legislation enacted that gives the corresponding fine to a prison sentence.
This completed the informal consideration of the Nuclear Energy Bill [B 10-99]. The committee decided not to formally go through the Bill until they has gone through the informal stages for National Nuclear Regulator Bill [B 11-99].
National Nuclear Regulator Bill
Regarding the first Clause, Mr Nel (NNP) asked if it was necessary to define words like "action". He pointed out that since this was a nuclear bill, any act, activity, or action would automatically be in connection with nuclear energy. Dr De Waal explained that it was common practise in legislation to define everything, in order to ensure clarity.
Mr Davidson (DP) asked if there was a difference between "practise" and "action". Dr De Waal explained that the Department considered the word "activity", however they thought that it might be confused with "radio activity". They then considered "human activity" but that left out machines. The CNS had proposed "practise". The Department decided that it should be left as "action".
Mr Pienaar mentioned that if a word is not defined in legislation then it is referred to its dictionary meaning. The dictionary meaning for action is extremely broad. The amendment was accepted.
Regarding the second change to Clause 1, Mr Oliphant (ANC) asked why "attributable to" was taken out of this section. Before Mr Oliphant's question was answered a debate surrounding whether or not the stakeholders should be participating in the process was started.
Mr Nel (NNP) said that he believed that the committee couldn't make the right decision without input from everyone. Mr Davidson (DP) agreed that the different groups could contribute different ideas and help make decisions. He invited any interested stakeholder to make a short statement to the Committee.
The Chairperson explained that they had already allowed the stakeholders to participate before when they had met with the Department of Minerals and Energy. They had had their opportunity and could not be allowed to contribute all of the time. The Department met with the concerned parties and came up with compromises. Unless the members disagreed, the Chairperson wanted to leave it like that.
Mr Louw (ANC) recommended having an open ended discussion in order to reach conclusions and make the necessary amendments.
Mr Oliphant (ANC) thought that there was a problem in the process and the way in which things were happening. He felt that the Committee is going to be lobbied because they are still allowing amendments. He requested that they be allowed to caucus over the issue and see what everyone thinks.
Mr Gomomo (ANC) said that they had reached a point where people either agree or disagree. He felt that it was okay for individuals to consult one another but that there was no more time for an open debate. Mr Mongwaketse requested a caucus break.
The Chairperson mentioned that there would be a tea break and the parties could caucus then on this issue and on the other outstanding issues. In addition, he pointed out that the Committee was unable to keep arguing the reporting line. He pointed out that the Minster herself has said that it was pointless to go onward if they were going to keep arguing this point. He suggested that they just continue.
Mr Oliphant and Mr Louw (ANC) requested caucus again in light of this serious issue raised by the Chairperson. The committee broke for caucus for a half an hour.
Upon coming back from caucus Mr Oliphant (ANC) said that the ANC decided that the Committee should proceed through the document and have the Department give them the issues as they go along. They decided to flag any undecided issues and come back to them during the formal process.
There was agreement from all sides and the Chairperson told the members and stakeholders that they could still bring in amendments on Thursday and Friday. It was decided that the formal process would not begin until Monday.
Regarding clause 1 (xiv) Mr Nel asked if nuclear damage could only occur at a nuclear installation. Dr De Waal explained that the definition for "action" covered the issue. Ms Dudley (ACDP) asked if "action" then covered mining. Dr De Waal said that it did. Mr Oliphant (ANC) asked Dr De Waal to clarify further.
Dr De Waal explained that when looking at the definition for nuclear damage in section (b) it referred to "action". If you then look at the definition for "action" all of the scenarios are included.
Mr Oliphant said that he was concerned that the Committee keeps on coming back to the question of mining. His proposed that they should flag all of the issues that deal with mining specifically and deal with them in the formal process. This proposal was agreed to.
The Committee agreed to the amendment to Clause 1 (xvi)(b).
Mr Davidson (DP) raised a concern regarding Clause 1 (xvii). He said that he did not understand why there is not a definition of "radio active waste". Since it is referred to in this particular section of the Bill, he felt that a definition should be added.
Dr De Waal explained that the definition for "radio active material" had been amended to include radioactive waste.
Mr Davidson (DP) said that it was a matter of conformity and that they should try to be consistent with the definitions. He referred to the Nuclear Energy Bill where radioactive waste was defined. He asked why it was not defined in both bills. Dr De Waal explained that they shied away from defining all of the categories. He told the Committee that if they defined "radio active waste" then they would have to define everything else under "radio active material".
Mr Oliphant felt that a very simple matter was being confused, he asked if "radio active waste" could be defined for clarity. Dr De Waal told the Committee that the Department would like to reconsider their position and get back to the members.
Ms Dudley (ACDP) asked if "nuclear installation" would normally have included mining processes.
Dr De Waal said the nuclear installation is only used when referring to processes that have a potential for a major accident. The mining process, according to him, did no have the same danger.
Mr Mokaba (ANC) disagreed with Dr De Waal. He referred to Russia where they have used nuclear equipment for mining and there have been disasters. Mr Mokaba did not feel that it was accurate to say that there was no potential for major disasters in the mining process.
Dr De Waal responded that there was an amendment made to Clause 3 that would cover mines in the installation process. This section dealt with classified licences that would cover installation.
Mr Mokaba (ANC) asked again why the mines were excluded in this section when the technology is moving towards using nuclear driven tools. Dr De Waal reiterated that they were not excluding mining. It was only being excluded from the installation section because it was not necessary to include it there. Mining fell under another licence certificate of regulation.
Mr Oliphant repeated his point that the debate keeps on returning to mining. He suggested that the issue be flagged so the committee can discuss all of the mining issues together. The committee agreed to this.
There were no arguments for the remainder of the amendments proposed to the definitions in Clause 1.
The Committee accepted the first amendment proposed for Clause 2. For the second amendment in Clause 2, Mr Davidson thought that the wording was confusing and he asked if it could be changed. Mr Pienaar replied that it was standard wording but he would look into alternatives and get back to the Committee.
The Committee decided to flag the last two proposed amendments for Clause 2.
Mr Davidson (DP) raised concerns about clause 6 (2). He noted that it states that the Regulator has to try and achieve co-operation among every organ of state. However, Mr Davidson wondered what would happen if there no agreement reached. He wanted to know why there was no mechanism to force an agreement. Dr De Waal referred to section 3(a) witch related to co-operative agreements. Mr Davidson (DP) said that regardless of the time periods and procedures there is nothing that indicates what happens if the Minister and the Regulator cannot come to an agreement. The chair reiterated that this would be covered under 3(a).
Mr Nel (NNP) said that he thought that the Minister has stated that she would ask the Department of Environmental Affairs and Tourism to consult on any disagreements between the Minister and the Regulator. He wondered if that could be put in this section.
Mr Mohamed understood that the Minister had no ideological position on this. He said that they were trying to in corporate a clause so that the Minster could consult with the Minister of Environmental Affairs and Tourism and the President. That had not yet been done.
The representatives from the Department directed the committee to Clause 6(3) of the amendment. In the section the word "Ministers" is used which incorporated the Minister of Environmental Affairs and Tourism, the Minister of Water Affairs, the Minister of Health, and others. Because there is a specific mention of the Minister of Environmental Affairs and Tourism that allows the process of consultation to take place.
Mr Davidson (DP) referred to the Minister's comments about an appeal mechanism with specific mention to the Minister of Environmental Affairs and Tourism, and a trigger mechanism to ensure the consultation process. Mr Davidson was concerned that these changes were not yet before the committee.
The committee decided to flag this issue until the meeting later on in the day. The committee adjourned until 4:30 p.m.
The Committee went through Clauses five to twelve of the Nuclear Energy Regulator Bill, with it's proposed amendments and decided to return to some of the key issues at a later stage.
The Committee resumed deliberations at Clause 4. The Department, represented by the Deputy Director, General Mr Mokoena, proposed that section 4 of the Proposed Amendments Document be withdrawn, as the mines were being included in the legislation. This proposal was accepted.
Clause 6 and 7
The Committee moved on to Clause 6. Mr Nel (NNP) noted that in section 3 of Clause 6 the Minister for Minerals and Energy needed to consult with other relevant Ministers. He asked whether the Minister for Environmental Affairs and Tourism could not be specifically mentioned. Mr Mokoena replied that the Ministers of Water Affairs and Forestry and Health were also key role players, and that other Ministers might be identified at a later stage. Therefore the Department would like to leave the Clause to cover as many a range of Ministers as possible.
Mr Davidson (DP) noted the Department had committed to drafting a key amendment requiring that when there was a dispute between the Regulator and the Minister for Minerals and Energy, the Department of Environmental Affairs would automatically become involved in looking at the dispute. As that clause was still to be drafted, the current Clause Mr Nel was concerned with was not necessarily the best place to look to enforcing an independent Regulator.
The Committee accepted the proposals made by the Department.
The Department introduced the new proposed amendments for Clause 7, dealing with the appointment and constitution of the Board of Directors. Mr Nel queried why, as the industry, labour and community directors were refused the voting right, the Department representative had been given voting powers. Mr Davidson agreed, stating that it seemed as if the other stakeholders were being discriminated against.
Mr Mokoena replied that he did not have an adequate explanation for why the Department was given a vote, but could explain why the other stakeholders were not given a vote. The other stakeholders were included to ensure transparency and accountability by allowing them seats on the Board of Directors. However, to ensure that there would be no conflict of interest, these directors would not be entitled to vote.
Mr Mohammed (ANC) noted that a panel would draw up a shortlist of candidates to be directors, and that the parliamentary committees would then recommend candidates from the list to the Minister for appointment. He asked whether, as in other legislation, a provision could not be included allowing the Committee to add people to the shortlist. Mr Mokoena stated the Department had no objections in principle, but was a little concerned with the logistics as this may provide opportunities for people to get in via the back door and after the application deadlines. The Department undertook to consider the proposal and report back to the Committee.
Mr Oliphant (ANC) asked if "suitably qualified" could be clarified. Mr Mokoena noted that the current legislation was very specific, and the Department had left the Clause vague to ensure that a degree of flexibility could be maintained.
Mr Mohammed and Mr Davidson returned to the issue of the Department of Minerals and Energy Affairs representative having a vote. Both reiterated that as a stakeholder the Department of Minerals and Energy Affairs representative should be treated the same way as the other stakeholders, and that if all stakeholders were not given a vote, the Department of Minerals and Energy Affairs should not have a vote either.
Mr Oliphant suggested that the issue should be flagged for the Department to motivate once they had considered the issue.
Mr Davidson noted that while understanding the principle around having representatives of stakeholders, the reality of identifying an individual to represent the stakeholders might be difficult. For example, identifying a single individual to represent the communities may be difficult, as there may be communities all over the country that could be affected.
Mr Nash (ANC) disagreed, stating that the stakeholders were organised groups with identified representatives. For example, the National Union of Mineworkers was organised, as was the community at the Vaalputs waste site. These representatives must be on the Board to ensure transparency.
Mr Oliphant noted that the issue was one of clarity, as all agreed on the principle. He asked the Department to report back at a later stage on how they envisaged implementing the issue.
Clauses 8 to 12
The Committee moved on to Clause 8. The Department proposed new amendments, which were accepted by the Committee.
The Department proposed new clauses 11 and 12 to be inserted. Prof. Mohammed asked why the holders of nuclear authorisations and the employers of the holders of nuclear authorisations were specifically mentioned in terms of being able to be members on the committees of the Board. Mr Mokoena replied that the Regulator might need to have these people on the committees. The Committee accepted the clauses.
The meeting adjourned.
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