National Environmental Management Second Amendment Bill; National Environmental Management Protected Areas Bill: Negotiating man

Clause 48
Ms Scott said the province was prepared to cede all their other proposed amendments to prohibit mining in protected areas.

Ms Yako said the Department shared Kwazulu-Natal's desire to stop mining in Protected Areas, however this should be balanced against the existing mining rights of affected companies and the mining industry as a whole. The formulation of this bill represented the best agreement between these two competing poles.

Gauteng
Proposed amendment to clauses 38, 45 and 46

Gauteng prepared a presentation on both Bills as it mistakenly believed was requested. Ms Metcalf 's presentation was interrupted by Ms Dlulane's (ANC) objection that it bore little relevance to the negotiating mandate forwarded by the province.

Ms Metcalf insisted that the information was both important and relevant.

Mr Windvoel (ANC) believed the presentation was more appropriate for a MINMEC meeting. It was important to adhere to the established procedures of negotiating mandates.

Ms Metcalf replied that the MEC was a member of the legislature.

Ms Scott suggested the presentation be circulated amongst members for consideration and the Committee agreed.

Mr Windvoel said the Gauteng Negotiating Mandate stated it agreed with the 'principle and detail' of the Bill and queried how Gauteng could both support its detail and request amendments.

Rev Moatshe also referred to the heading "Views of the MEC" in the Negotiating Mandate. He suggested the 'Views of the Standing Committee' would be a more appropriate heading.

Mr Windvoel said the mandate was not drafted in line with the required procedures, which resulted in confusion amongst members. He said the Committee welcomed Ms Metcalf and Gauteng's contribution.

Gauteng proposed the following amendments
Clause 38
The Committee agreed to the proposed amendment to Clause 38.

Clause 45
Ms Yako said Special Nature Reserves were primarily reserved for scientific research purposes and a minimum of human activity was allowed therein. There were currently only two such Reserves in South Africa.

The Committee agreed.

Clause 46
Ms Yako said a Special Nature Reserve would, as part of the agreement, prohibit human habitation. Should this not be possible, sufficient alternate legal remedy was available. The Committee agreed.

Mpumalanga
Proposed amendment to clauses 4, 8, 18 and 19, 23 and 24, 32, 38(2)

Mr Windvoel asked why Prince Edward Island was specifically mentioned in Clause 4.

The State Law Advisor said because of the island's protected status only laws that specifically mentioned Prince Edward Island applied to the island.

The Committee Agreed to the proposed amendment to Clause 38 (2)

North West
Proposed amendment to clauses 28(2)(c)

Rev Moatshe said this was the first time the Committee had seen such a long Negotiating Mandate. It was impossible to fully discuss it within this meeting.

One of the Provincial delegates said the length of the submission should not be a matter of concern. Unfortunately the Committee's late receipt of the negotiating mandates made it difficult for the Committee to fully engage all the proposed amendments.

Mr Windvoel regretted that the late submission of negotiating mandates and the failure to respect required procedures had caused confusion and disarray in this meeting.

Rev Moatshe said he thought ample time was provided for provinces to prepare their Negotiating Mandates.

Ms Scott said the provinces were only requested to forward their mandates on 10 November 2003.

Rev Moatshe said the provinces had been informed that their mandates would be requested on these Bills and should have made preparations timeously.

Ms Dlulane insisted that the NCOP could not be held responsible for the confusion surrounding negotiating mandates.

The meeting was adjourned.


Appendix
MPUMALANGA PROVINCIAL LEGISLATURE

NEGOTIATING MANDATE - NATIONAL ENVIRONMENTAL MANAGEMENT: PROTECTED AREAS [B39B-2003]

The Committee made the following proposals:

It should be clarified why clause 4 makes specific reference to the Prince Edward Islands.

It should be clarified why clause 8 prohibits provinces from dealing with matters already dealt with in the Bill. According to the Committee as these are matters falling within functional areas of concurrent competence, provinces should not be prohibited from dealing with them.

As clause 18 does not require the resolution of National Assembly where the Minister declares an area as a special nature reserve or as part of an existing special nature reserve and assign a name to such special nature reserve, clause 19n should not require the withdrawal of the declaration to be by resolution of the National Assembly. The same applies to clauses 23 and 24 dealing with declaration of nature reserve and the withdrawal thereof, respectively. According to the Committee these clauses have been structured in the same manner as clauses 28 and 29 dealing with declaration of protected environment and withdrawal thereof, respectively.

Clause 32 must require the MEC to consult all national organs of state like clause 31 requires the Minister to do.

Like clause 38 (1) requires the Minister to assign the management of a national protected area to a suitable person or an organisation or an organ of state, clause 38(2) must require the MEC to assign management to same persons and not only to an organ of state.

Clause 39(1) must authorise the Minister or the MEC to make an assignment with the concurrence of a management authority and not a prospective management authority.

Clause 45 is too restrictive in that it does not allow for any person to perform any activity, including rituals, in a special nature reserve.

The permanent delegates representing the province of Mpumalanga in the National Council of Provinces are conferred with authority and mandated to negotiate in favour of the Bill subject to the above proposals.

NORTH WEST PROVINCIAL LEGISLATURE

12 NOVEMBER 2003

PORTFOLIO COMMITTEE AGRICULTURE, CONSERVATION AND ENVIRONMENT

PROPOSED AMENDMENTS:
Clause 28(2)(c)
(iii) delete "…or…"before"…historical…", and after "archeological…" insert "…or geological…"
(iv) After "…scenic…" insert "…and landscape…"

(d) This clause is amended to read: "…to protect a specific ecosystem including, inter alia, meteorite sites outside of a special nature reserve, world heritage site or nature reserve".

23 OCTOBER 2003

CONSIDERATION
With regard to p8, clause 6 of the above, the Committee proposed the retaining of sub-section (1) of paragraph Aa of the principle Act, as we saw no sound reason for the proposed amendment.
A proposal was made that on p9, clause 8, Part (a): National Legislation should come after clause 9, on p10, the transitional provision.
Clause 10, the clause should read as "this Act is called…Or as "This Act shall be called…"

Therefore, the Committee decided that the Permanent Delegate will raise the above matters in the negotiating meeting and send a report to the Committee which will be clarifying whether or not the above stated was deliberate acts, on part of the drafters or not. The Committee will, upon such clarification decide on the final mandate.

RESOLUTION
The Committee having considered the briefing in detail, resolved to support the essence and principle of the Bill.


PARLIAMENT PROVINCE OF KWAZULU-NATAL

NEGOTIATING MANDATE

Clause 1
A definition of "environmental goods and services" is to be inserted in line 38 on page 5 of the Bill immediately after the definition of "ecosystem", thus-
"environmental goods and services" means the benefits people obtain from ecosystems, and include products such as food, fuel, fibre, and genetic resources; regulating benefits from the regulation of ecosystem processes, including climate regulation, disease and flood control and detoxification; and cultural non-material benefits obtained from ecosystems which include spiritual, recreational , aesthetic, inspirational, educational, community and symbolic values,"

Clause 9 - Categories of Protected Areas
9(a) commencing at line 30 on page 8 of the Bill be amended to provide for wilderness areas as a separate category of protected area with the removal of the word "included"

Clause 23(2)(b)(iii)
The paragraph commencing at line 3 on page 11 of the Bill to be amended with the inclusion at the end of "or for the provision of environmental goods and services."

Clause 26(2)(a)
The paragraph commencing at line 36 on page 11 of the Bill to be amended at the end with the inclusion of "the provision of environmental goods and services."


GAUTENG LEGISLATURE

AGRICULTURE, CONSERVATION, ENVIRONMENT AND LAND AFFAIRS
PORTFOLIO COMMITTEE

NEGOTIATING MANDATE ON THE NATIONAL ENVlRONMENTAL MANAGEMENT SECOND AMENDMENT BILL.. [656-2003]
(SECTION 16 BILL)

11 November 2003

VIEWS of the MEC

The committee fully concurs with the following amendments:

Sections 24 A (6)

Section 24A (6) indicates that the MEC may make regulations in terms of

subsection (5) only in respect of listed activities or areas in respect of which the

MEC responsible for environmental affairs is the competent authority.


This contradicts 24A(2) and should be deleted. The implication of 24 (8) is that the MEC may not promulgate for activities related to any sector e.g. roads and railway lines that fall under the Department of Transport, township establishment falls under the Departments of Housing and Development Planning and Local Government etc.

Section 24(1)

The conflict Of interest of the "independent" environmental consultant has not been resolved. A compromise position to that argued by DACEL that an external specialist appointed in terms of section 24(1) be appointed by the competent authority and cost recovered from the applicant

Section 41
This Section requires Regulations to be tabled in the Legislature after promulgation of the Regulations and Legislature can approve or disapprove at this point without invalidating anything done in terms of the regulations.


It is recommended that the regulations be treated as subordinate legislation requiring approval prior to promulgations or that this section be deleted.

NEGOTIATING POSITION ADOPTED BY THE COMMITTEE

The Committee supports the principle and detail of National Environmental Management Second Amendment Bill B56-2003.

FREE STATE LEGISLATURE

PORTFOLIO COMMITTEE ON TOURISM ENVIRONMENTAL AND ECONOMIC AFFAIRS

Report on negotiating mandate on National Environment Management Second Amendment Bill [B56-2003]

Clause 3
Page 5, line 49 to delete "reasonable" and after "period", to substitute "specified in the notice".
Motivation: it is proposed to specify in the notice the period interested parties are to submit their comments.

Clause 9
Page 10, line 24 to delete "the principle" and substitute "this Act".
Motivation: Section 24G is no the principle Act, but may only be found in this Bill as a new provision. In this case the principle Act is the Act which is the subject of the amendment by the amending Bill.

Resolution
The Committee resolves that:
Authority be conferred to the Free State delegation, to vote for the adoption of the Bill with the aforementioned amendments.

NEGOTIATING MANDATE OF THE WESTERN CAPE PROVINCIAL PARLIAMENT

Report of the Standing Committee on Local Government , Environmental Affairs and Development Planning on the National Environmental [B56 -2003] (NOOP), dated 29
Management Second Amendment Bill September 2003, as follows:

The Standing Committee on Local Government, Environmental Affairs and Development Planning having considered the subject of the National Environmental Management Second Amendment Bill [B56 -2003] (NCOP), referred to the Provincial Parliament in terms of the rules of the National Council of Provinces (NCOP), begs to report that it confers on the Western Cape's delegation in the NCOP the authority to support the Bill with the attached amendments.


PROPOSED AMENDMENTS TO THE NATIONAL ENVIRONMENTAL MANAGEMENT SECOND AMENDMENT BILL [B56 - 2003]

CLAUSE 1

1.Clause 1(c) rejected.

2.New Clause l(c)

The following be a new clause 1 (c)

"competent authority; in respect of a listed activity or specified
activity, means the organ of state charged by this Act with
evaluating the environmental impact of that activity and, where

appropriate, with granting or refusing an environmental authorisation in respect of that activity;

3. Clause 1(f) rejected
New Clause 1 (f)
The following be a new clause 1 (f)

"'listed activity: when used in Chapter 5, means an activity identified in terms of section 24 (2)(a) and (d) and includes every element required to give effect to the activity;".

On Clause 2

1. On page 3, to omit lines 31 to 36 and to substitute.

"24. Implementation - (1) In order to give effect to the general objectives of integrated environmental management laid down in this Chapter, the potential impact on
(a) the environment
(b) socio-economic conditions; and
(c) the cultural heritage;

of activities that require authorization or permission by law and which may significantly affect the environment, must be considered, investigated and assessed prior to their implementation and reported to the organ of state charged by law with authorizing, permitting, or otherwise allowing the implementation of an activity.".

2. On page 3: on line 53 to omit", and every MEC with the concurrence of the Minister", and to substitute:
"and every MEC"

3.On page 6, in line 26, after "a statutory body" to insert:

"(excluding any municipality)"


4.On page 6, on line 55, after "refused" to add:
Provided that the authorization contemplated by the aforegoing provision must be obtained before any permit, approval or authorization required in terms of any other legislation.".


5. On pages 7 and 8, to omit lines 41 to 58 and 1 to 7.

Appendix 2
PRESENTATION TO STANDING COMMITTEE ON ENVIRONMENT:
NATIONAL COUNCIL OF PROVINCES
12^TH November, 2003

Mary Metcalfe

MEC for Agriculture, Conservation, Environment and Land Affairs, Gauteng

This Section allows the Minister to norms and standards, indicators and requirements and requires the Minister to consult the MEC.

11(2) allows the Minister to set standards and indicators for provincial or local protected areas.

The question that this raises is whether there will be fiscal implications and the possibility of unfunded mandates.

This sets out consultative processes for specific sections of the Bill. Sections 18(1), 26(1) and 28(1) requires the Minister to 'consult with' the MEC. This could result in unfunded mandates. It is assumed that if the Minister declares a protected area, then the cost would be borne by the national fiscus

Section 38(2) should be amended to reflect the same formulation as section 38(1). There is no reason why the management of a provincial protected area must be assigned only to an organ of state.

Private land can be declared as a special nature reserve and therefore the prohibition in 45(1) on a person residing in a special nature reserve except in terms of 45(2) should be deleted or there should be an addition to 45(2) to allow for a person to reside in a special nature reserve if exemption has been granted by the Minister.

This section should be amended or deleted. Conditions for access to a nature reserve or world heritage site can be managed through the Management Plan required in Section 41. The Cradle of Humankind World Heritage Site has 720 land owners and approximately 2500 residents. The provisions of Section 46 could not possibly apply. The clause is also contradicted by Section 50.

• The memorandum indicates that the implementation of the Bill indicates that the cost to the Provincial Authorities will be R18 199 102.
• It is recommended that DEAT be asked to provide:
• the provincial breakdown for this amount and
• how this is envisaged to be distributed during the five-year period of implementation
• whether additional funds will be allocated for these additional costs

The need for these amendments was reported in MINMEC of 4^th November, and the Minister indicated that he had no problem with them. Implications for funding were not discussed in detail.

The wording of proposed amendments to Version 5 from LRC and GTZ Transform is attached. These additional amendments are strongly supported, and we would request that the Standing Committee adopts these amendments.

(GTZ Transform is funded by the German government and works with DEAT, other spheres of government and communities to achieve effective conservation of land through recognising rights of communities, and optimising through negotiations with owners. Communities it has worked with include the Makuleke community (Limpopo), the Richtersveld community (Northern Cape) and the Nqabarha community (Eastern Cape). The Legal Resources Centre (LRC) is a non-profit public interest law firm. Much of its work is devoted to representing poor rural communities, and its comments on the contract parks and protected conservation areas and the Bill were made on behalf of such communities.)

1. NATIONAL ENVIRONMENTAL MANAGEMENT SECOND AMENDMENT BILL

The key issue relating to the Bill is how the regulations will be drafted and agreement on how extensive the list of scheduled activities is.

Section 24A(6)

Section 24A(6) indicates that the MEC may make regulations in terms of subsection (5) only in respect of listed activities or areas in respect of which the MEC responsible for environmental affairs is the competent authority.

This contradicts 24A(2) and should be deleted. The implication of 24(6) is that the MEC may not promulgate regulations for activities related to any sector e.g. roads and railway lines fall under the Department of Transport, township establishment falls under the Departments of Housing and Development Planning and Local Government, etc.

Recommend deletion of 24A(6)

Section 24I

The conflict of interest of the "independent" environmental consultant has not been resolved. A compromise position to that argued by DACEL that the competent authority should appoint the consultant and recover costs is that an external specialist appointed in terms of section 24(I) be appointed by the competent authority and cost recovered from the applicant

Suggested wording:

24I The Minister or MEC may appoint an external specialist review and recover costs from the applicant in instances where…

 

Section 47

This Section requires Regulations to be tabled in the Legislature after promulgation of the Regulations and the Legislature can approve or disapprove at this point without invalidating anything done in terms of the regulations.

It is recommended that the regulations be treated as subordinate legislation requiring approval prior to promulgations. The Gauteng preference is that this section be deleted. The Gauteng Legislature has adopted the view that Regulations are operational and are within the responsibility of the Executive and do not go to the Legislature. Regulations are tabled in the Provincial Executive after approval by the State Attorney.

The need for these amendments was reported in MINMEC of 4^th November, and the Minister indicated that he was open to discussion regarding the proposed amendments to 24A(6) and 24I, but that in terms of Section 47 he strongly supported our proposed amendment. It would be untenable for regulations to be promulgated and thereafter suspended or disapproved
.

2. ENVIRONMENT CONSERVATION AMENDMENT BILL

This Bill provides for the Department of Environmental Affairs and Tourism to be the authority responsible for landfill permitting. Currently, this function is the responsibility of the Minister of Water Affairs and Forestry.

The Constitution lists refuse removal, refuse dumps and solid waste disposal in Schedule 5B of the Constitution. Section 155(7) of the Constitution also places an obligation on national and provincial government to regulate the exercise by municipalities of their executive authority. To date the permit functions carried out by national government could be interpreted as national government playing its role in terms of Section 155(7) of the Constitution.

There is no objection to:

• the purpose of the Bill set out in the explanatory memorandum
• the amendments providing for compulsory charging for specified waste types and special regulations to deal with identified hazardous waste streams are supported.

Specific issues of concern that should be noted by NCOP include:

• The permitting and inspection of Hazardous Landfill Sites must remain the responsibility of DWAF in view of the specialist assessment required
• The permitting and inspection of all landfill sites is not budgeted for adequately. DEAT should confirm that budget has been appropriated for this function
• The Gauteng Province will not accept delegation or assignment of any function related to permitting and inspection of landfill sites until we have appropriate documentation from National Treasury that confirms that the necessary funds will be allocated for the Province to perform this function
• This issue must be urgently resolved as there must not be a deterioration or suspension of service in the interim

We will not request an amendment to the legislation, but we have informed the Minister in MINMEC that the province will not accept the delegation of this function until we have the appropriate documentation from National Treasury that confirms that the necessary funds will be allocated for the Province to perform this function. This position has been reported to the Provincial Executive Council, and is strongly supported.

Previous minutes of MINMEC reflect that we have raised this problem repeatedly.

We support the broad thrust of the Bill. It is an important improvement on the old legislation. However there are several key problems:

1. The location of permitting responsibility to local authorities is ill-advised
2. Timeframes for implementation should be included in Schedules
3. We are not ready to implement Tradable Emissions
4. Transitional Arrangements
5. This Bill takes forward a new set of responsibilities at Provincial and Local Level for many of which no funds are currently allocated. These are new responsibilities which are allocated in terms of the Constitution

• Our view is that we should insist on a detailed costing of the Bill, followed by appropriate undertakings from the National Government that funds will be allocated. In the absence of both of these, we should abstain in the vote
• We cannot support the Bill with the current allocation of responsibilities to municipalities

• Pollution plumes do not respect municipal boundaries:
• A municipality may license a facility the plume of which affects a neighbouring area - thus ambient air quality standards may be compromised, but licensing may have been regular
• Rationalization of capacity and cost for local authorities (e.g. Emfuleni)
• Conflict of interest - the Bill does not stipulate that municipalities may not license their own installations
• Emission licenses cannot be separated from the EIA process - which is at Provincial level

• plan work around developing the necessary regulations and subordinate legislation as required by the Bill
• develop a clear program of work to ensure that work on air quality management is prioritised and the required targets and objectives are met
• There is a significant backlog in setting ambient air quality norms and standards which take into account the high levels of development and industrialization of many of South Africa's urban environments. The need to provide these air quality norms and standards, both for ambient air quality as well as for point source emissions for contaminants, is of critical importance.
• Timeframes should be included to ensure that provinces and local councils are able to budget and plan against a program that will provide national information and allow the ambient levels to be determined.

These timeframes and commitments could be included as schedules to the Bill to ensure rapid progress in standard setting once the Bill is enacted

3. Tradable Emissions:

• Must first ensure that each point source emission is meeting emission targets and there is full compliance with the standards.
• Any schemes that are to be entered into after meeting these requirements could then be considered.

4. Transitional arrangements (Chapter 9; s 58):

• The Bill does not make provision for DEAT to delegate the conversion of existing registration certificates issued in terms of APPA to provinces (as stated in the memorandum on the objects of the Bill).
• This provision must be included in the Bill so that the new licenses (once converted) are consistent with current environmental management principles and decision support tools adopted by the Province.

Many of the functions identified would require additional budget and there should be a full costing followed by an undertaking from National Treasury that funds will be allocated for the new functions required in terms of this Bill

In the absence of both of these, our view is that we should abstain in the vote.

The Minister is aware of these problems as we formally raised this in the MINMEC of 4^th November. Previous minutes of MINMEC repeatedly indicate that the Minster had undertaken to seek from cabinet the additional funding required to implement this Bill

The sub-committee of our Provincial Executive has supported this approach (as it is consistent with the position taken by our Provincial Executive in respect of other legislation). We will table a memorandum explaining this at the next Provincial Executive meeting.

The committee will need to consider this Bill and formulate its view regarding:

• the location of responsibilities
• transitional arrangements
• time-frames for implementation
• financial implications