Nuclear Energy Bill [B10-99]; National Nuclear Regulator Bill [B 11-99]

Meeting report

MINERALS & ENERGY AFFAIRS PORTFOLIO COMMITTEE
24 February 1999
NUCLEAR ENERGY BILL, NATIONAL NUCLEAR REGULATOR BILL

Documents handed out:
State Law Advisors Briefing (See Appendix)

SUMMARY
The Portfolio Committee heard the report of the State Law Advisors on the Nuclear Energy and National Nuclear Regulator Bills. The advisors presented both their own concerns, and responded to the concerns raised at the public hearings. The Portfolio Committee postponed debates on the Bills until the 1 March.

MINUTES
Kmdt. Blaas (New National Party) stated that he had two issues to raise that resulted from the committee hearings. The first was a request to the committee for the development of a culture in hearings in which committee members would not react to presentation, as this may jeopardize the future relationships with stakeholders. Secondly, large amounts of evidence were presented suggesting the Bills need to be referred back to the department. This issue should be decided on first.

The chair asked if other members of the committee would like to access how the hearings were conducted.

Mr. Nash (African National Congress) stated that he did not think that the committee members should sit like dummies at hearings, but should test the evidence being presented. He noted that some stakeholders came to committees and were arrogant.

The Chair ended the discussion by noting that the Portfolio Committee could be more accommodating, but that all would agree that the Committee members should check and recheck evidence given to it. On the issue of deciding whether to send the Bill back to the department, the Committee would wait until Monday. He requested that all parties bring amendments to the Chair by Friday, so that these could be distributed to all the other parties by Monday. The Portfolio Committee would then see how many amendments were agreed to, and whether consensus would be able to be found on a way forward.

Mr Lucas (African National Congress) noted that the committee was once again trying to push legislation through in a short time, and that the Portfolio Committee should be weary as mistakes may be made.

The state law advisers were asked to present their briefing.

The briefing was structured around 11 main points as contained in the briefing document. The law advisers read each point and then paused for comments or queries from the committee members.

The first point was around the tagging of the Bill. The law advisors thought it was properly tagged as a section 75 Bill, but noted that it could be a mixed bill. They proposed that the Bill be sent to the Joint Tagging Mechanism for reevaluation to get clarity. The committee accepted this proposal.

After the law advisors had finished their briefing, the committee decided to hold further debate until Monday.

Mr Machlangu (African National Congress) congratulated the legal team on preparing the document in such short notice. The Chair requested the department to have a document compiled for each of the Bills by Monday, highlighting the various complaints and concerns.

Appendix
State Law Advisers' comments on legal issues raised in submissions
PORTFOLIO COMMITTEE ON MINERALS AND ENERGY

Comments of State Law Advisers on legal issues raised during Public Hearings on Nuclear Energy Bill [B 10-99] and National Nuclear Regulatory Bill [B 11-99]

1. Classification (so-called tagging) of NE Bill and NNR Bill
In the Memorandum of both Bills it is indicated that we are of opinion that the Bills must dealt with by Parliament in accordance with the procedure established by section 75 of the Constitution. The Joint Tagging Mechanism (JTM) of Parliament tagged both Bills as a section 75 Bill.
Although both Bills deal with nuclear matters that impact or might impact on the environment, the pit and substance of both of these Bills is not to regulate environmental matters.
The NE Bill provides for the South African Nuclear Energy Corporation and the responsibilities regarding the Safeguards Agreement and further protocols in support of the Nuclear Non-Proliferation Treaty and to regulate certain activities in respect of nuclear fuel, certain nuclear and related material and certain related equipment.
The NNR Bill provides for a Regulator in order to regulate nuclear activities and for safety standards and regulatory practices for protection of persons, property and the environment against nuclear damage. The main purpose of this Bill, in our view, is not the protection of the environment. Such protection is one of the consequences of nuclear activities that are provided for in the Bill.
In addition it should be added that none of the Bills entrusts any specific functions to the provinces.

Proposal: However, if the Committee still have doubts or reservations about the tagging of any of these Bill, we
recommend that the Committee approach the JMT, the body of Parliament (finally) deciding on the tagging of Bills.

2. Possible conflict between clause 33(1) of the NE Bill and section 5 of the Non-Proliferation of Weapons of Mass Destruction Act 87 of 1993
Clause 33(1) of the NE Bill provides that the Minister of Minerals and Energy acts as the national authority of the Republic for the purposes of the implementation and application of the safeguards agreement between the Republic and the International Atomic Energy Agency with regard to the application of the Nuclear Non-Proliferation Treaty and any additional protocol. It appears that according to section 5 of the Non-Proliferation of Weapons of Mass Destruction, 1993 (1993-Act), the Atomic Energy Corporations is such national authority.

Proposal: Although the NE Bill, if enacted into law and when it takes effect, will prevail over the 1993-Act, it is desirable for the sake of clarity that the 1993-Act be amended in this regard and also in general as regards references to the Atomic Energy Corporation. This could be done by adding a Schedule to the NE Bill containing these amendments.

3. Disqualification of holders of nuclear authorisations and their employees as board directors of the Regulator.
Proposal: Since such a provision would be in line with the one of the underlying principles of the Convention on Nuclear Safety, i.e. that there must be an independent regulator, we recommend that such disqualification be included in clause 7(5) of the NNR Bill. A similar provision is contained in the current Nuclear Energy Act, 1993.

4. Consistency of NNR Bill in general with the Convention on Nuclear Safety
Proposal: We will scrutinize that Convention as well as the International Joint Convention on the Safety with Spent Fuel Management and on the Safety of Radioactive Waste Management again to ensure that the NNR Bill is line with these Conventions.

5. Safety standards and regulatory practices: clause 32(1) of the Bill
Proposal: We propose that the wording of the introductory part be changed as follows:
"The Minister must, on the recommendation of the Board and by notice in the Gazette establish safety standards and regulatory practices which are in accordance with and not less restrictive than ...".
The addition of reference to other pertinent international conventions and recommendations of the International Atomic Energy Agency in this clause will be considered.

6. Limitation on liability for nuclear damages: clauses 27(2)
and 29(4) of the NNR Bill
Clause 27(2) provides that the liability for nuclear damage by a holder of a nuclear installation license is limited, for each nuclear accident, to such amounts as the Minister, after consulting the board and by notice in the Gazette, determines. Clause 29(4) provides that the liability of a person who has provided or must provide financial security as contemplated in clause 26, is not affected by any appropriation by Parliament to render financial assistance to the holder as contemplated in clause 29(3)(ii). Thus, the provisions of clauses 27(2) and 29(4) conflict.

Proposal: We suggest that clause 27(2) be deleted and that clause 26(5) be amended to read as follows: "The holder of a nuclear installation license must annually provide proof to the Regulator that any claim for compensation to an amount determined by the Minister, after consulting the board, by notice in the Gazette, can be met."

We also recommend that the heading of clause 29 be amended to read as follows: "Claim for compensation in excess of financial security".

The question as how a claim which exceeds the financial security provided by the holder in question if Parliament does not appropriate funds or sufficient funds to that end, is a matter of policy. The effect of the policy decided on must, however, not to be limit a claim of compensation in a manner which is unconstitutional.

7. Disclosure of information: clause 46(2) of the NNR Bill
Clause 46(2) provides that a person may not disclose information which relates to any nuclear installation or site or activities in respect of which a nuclear installation license or certificate of registration has been issued or is to be issued and which is not yet public knowledge, if the disclosure is likely to jeopardise the security arrangements in respect of such installation, site or activities as required by the Regulator for the protection of persons or the security of the Republic.

Section 32(1) of the Constitution of the Republic of South Africa, 1996 ("the Constitution"), provides as follows:

"(1) Everyone has the right of access to -

(a) any information held by the state; and

- (b) any information that is held by another person and that is required for the exercise or protection of any rights.".

Section 32(2) of the Constitution, read with item 23(1) of Schedule 6 thereto, requires the enactment of national legislation to give effect to this right within three years of the commencement of the Constitution, that is before 4 February 2000. Item 23(2) of Schedule 6 to the Constitution provides that until such legislation is enacted section 32(1) must be regarded to read as follows (which is similar to the corresponding right in terms of the Constitution of the Republic of South Africa, 1993 (Act No.200 of 1993)):

"(1) Every person has the right of access to all information held by the state or any of its organs in any sphere of government in so far as that information is required for the exercise or protection of any of their rights.".

One of the principal objects of the Open Democracy Bill [B 67-99], tabled in Parliament in 1998, but not yet finalised, is to give effect to the right to information held by the state and to partially give effect to right to information held by another person.

Proposal: In our opinion, clause 46(2)(a), in so far as it relates to disclosure of information held by the state, is a limitation of the current right to information held by the State, but the limitation is in line with the requirements of section 36 of the Constitution and also with the grounds for refusal of information in the Open Democracy Bill. However, in view of the new right of access to information which will take effect on 4/2/2000 will be prepare a new clause 46(2)(a) for consideration.

8. Exclusion of mining sector from the NNR Bill: clause

2(2)(e) of the Bill and the right to equality entrenched in the Constitution
Only if the safety standards and regulatory practices established by the NNR Bill from those in the Mine Health and Safety Act, 1995, result there that everyone is not equal before the law or does not have the right to equal protection and benefit of the law in this regard, there will be a limitation of the right entrenched in section 9(1) of the Constitution. This right is, however, not absolute and may be limited as set out in section 36.

Proposal: We will compare the Mine Health and Safety Act with the NNR Bill and report on it and, if there is a limitation of the right to equality, whether it is in accordance with section 36 of the Constitution.

9. Power of the Minister-
(a) to exempt any radioactive material or site or activity involving radioactive material: clause 2(2)(f) of the NNR Bill; and
(b) to change the Schedule to that Bill: clause 2(2)(b) excludes any human activity involving occupational exposure to naturally occurring radioactive materials where the radioactive nuclides do not exceed the values listed in the Schedule.

In our view of these provisions, amounts to a delegation of Parliament's legislative power to the Minister in a manner which would be declared unconstitutional if tested by the Constitutional Court. In addition it appears that the implementation of clause 2(2)(f) might cause practical problems.

Proposal: Clauses 2(2)(f) and 44 should be deleted or revised to bring in line with the Constitution (e.g. by stipulating criteria or conditions when the Minister may exercise these discretion).

10. Provision for persons having duties at or in nuclear installation or on the site or in connection with the radioactive material or activity to make representations to the Regulator regarding the exercise of its powers in terms of clause 22(1) or (2).

Proposal: In our view this right is not provided for in the Constitution, but there is nothing that prevents the provision for such a right in the NRR Bill.

11. Right of appeal to the High Court against the decisions of the Minister in terms of the NRR Bill

Proposal: This right is in the existing Nuclear Energy Act, 1993. The common law provides for administrative review of administrative decisions. There must be statutory provision for an appeal against administrative decisions. Such provision is, in our opinion, required by the constitutional right of access to courts (section 34).