National Environmental Management Act Draft Amendments: briefing

ENVIRONMENTAL AFFAIRS AND TOURISM PORTFOLIO COMMITTEE
22 August 2007
NATIONAL ENVIRONMENTAL MANAGEMENT AMENDMENT BILL [B35-2007]: BRIEFING

Chairperson: Mr L Zita (ANC)

Documents handed out:
Presentation on Proposed Amendments to National Environmental Management Act, 1998 (NEMA)
Presentation on Compliance and Enforcement of NEMA Amendment Bill, 2007
National Environment Laws Amendment Bill [B35-2007] as introduced on 24 August 2007
National Environmental Management Amendment Bill [B 36-2007]

Audio recording of meeting

SUMMARY
The Department of Environmental Affairs and Tourism (DEAT) briefed the Committee on the development, amendments and consultation of the NEMA Amendment Bill. The amendments were intended to improve the efficiency and effectiveness of the environmental impact management system. The second part of the presentation focused on the compliance and implementation of the legislation.

Members posed questions about the backlogs in the Environmental Impact Assessment (EIA) process, the costing of the Bill and the role of consultants in the industry. The Committee interrogated the functions of Environmental Management Inspectors and the penalty imposed for failing to comply with a compliance notice. The Committee scrutinised the issue of competent authority. Most Members voiced their opposition towards the Department of Minerals and Energy having its own EIA system.

MINUTES
Proposed Amendments to National Environmental Management Act, 1998: DEAT Briefing
Ms J Yawitch, Deputy Director-General: Environmental Quality and Protection, DEAT, briefed the Committee on the proposed amendments to the National Environmental Management Act, 1998. The NEMA EIA Regulations were introduced in 2006, in order to rationalise EIA by streamlining and integrating processes and introducing strategic tools. NEMA, as enabling law, needed to be amended to address this new development. Consequently, the enabling provisions of Chapter 5 of NEMA would depart from focusing on EIA as the only tool that ensured proper environmental management of development activities. She noted that Cabinet had approved the introduction of the Amendment Bill into Parliament.

Ms Yawitch stated that the amendments were intended to improve the efficiency and effectiveness of the environmental impact management system. The main areas targeted in the amendments were:
- Amendments of and additions to definitions of terminology
- Provision for tools other than EIA
- Improved provisions for cooperative governance
- New provisions for integration and alignment of regulatory process
- Strengthening provisions to use spatial tools in environmental impact management
- New provisions for management, Provisions on the development of new or adoption of existing norms and standards
- Exemption provisions and checks and balances
- Alignment with the Promotion of Administrative Justice Act.

The presenter reiterated that NEMA needed to be amended before similar provisions in the NEMA EIA Regulations were eligible to come into force. She then read out the exhaustive list of proposed amendments, together with a brief justification for each revision (refer to document for this).

Ms Yawitch repeated that there was an attempt to fundamentally broaden the system beyond just using EIAs. The new EIA system would be supported by the introduction of other strategic tools, such as spatial planning. Moreover, the EIA system would be integrated with other authorisations and prescribe the processes and criteria for the new tools.

Her concluding remarks related to the participation process undertaken. The amendments had been published for comments and workshops had been held with key industry stakeholders, Non-Governmental Organisations (NGOs) and other government departments. NGOs had expressed anxiety about the exemption provisions. DEAT had successfully allayed their fears, pointing out that people would not be exempted from the entire process. The establishment of a set of criteria would safeguard against this. NGOs were also comforted by assurances that EIAs would not be done away with.

Discussion
Ms M Ntuli (ANC) wondered whether the Bill eradicated the powers of municipalities.

Ms Yawitch did not believe that this was the case. The intention was to have the environmental plan become part of the local authority plan.

Ms Ntuli asked DEAT to elaborate on the necessity of consulting and sharing power with the Minister of Finance.

Ms Yawitch replied that the Minister of Finance needed to be consulted on anything that had financial implications. She added that this prescription was applied to other legislation as well.

Mr L Khoarai (ANC) observed that the State Law Advisors deemed certain amendments unnecessary.

Ms Yawitch confirmed that the State Law Advisors often advised DEAT on the constitutionality of legislation and the technicality of drafting. For this particular Bill, DEAT had been advised to draft some provisions in one line as opposed to long clauses. There was an emphasis on ensuring simplicity and avoiding complexity.

Ms J Charmers (ANC) complained about the huge backlogs in the EIA process. It took a minimum of two years for a rezoning to take place. She expressed hope that this Bill would alleviate this problem.

Ms Yawitch emphasised that a lot of resources and effort had been expended in the cause of reducing backlogs. There was differential progress across the different provinces. The previous year’s amendments to the systems and procedures had markedly reduced this problem.

Mr A Mokoena (ANC) asked for a definition of the term ‘competent authority’.

Ms Yawitch explained that a competent authority had full responsibility in the way in which they implemented the EIA system. Competent authorities also had the ability to make regulations for their specific area of jurisdiction.

Ms Ntuli and the Chairperson expressed concern about the power of authorisation given to the Minister of Minerals and Energy.

Mr Mokoena and Ms Charmers also voiced their unease about Department of Minerals and Energy (DME) having competent authority.

Ms Yawitch acknowledged that this was a contentious topic. DEAT had an EIA system and DME had a separate one. Confusion and problems arose when it was discovered that some of the activities listed in DEAT’s EIA system took place on mines. Hence, a decision was taken to create one environmental system for the country. There was a written agreement between the Ministers of DEAT and DME that NEMA should fulfil this role. At the same time, DME insisted that they should be a competent authority for mining. She concluded that this matter remained unresolved and required some political intervention.

Mr D Maluleke (ANC) believed that the Committee was passing a law that would not be respected by other government departments. He appealed for Parliament to work together; otherwise the judiciary would expose its lack of co-operation. There was every possibility that DME would argue that NEMA did not apply to it. He recommended that the Chairperson engage the other relevant players to find a solution.

The Chairperson asserted the Committee’s custodianship over environmental matters in the country. Consequently, he pondered whether these amendments could be used to override any other environmental law.

Ms Yawitch admitted that she was not an expert and could only give her understanding on the issue. Those perspectives lead her to believe that there was a possibility to use these amendments to override other environmental law. Finally, she urged the Committee to take a leading role in bringing together and aligning the different parties, namely, the State Law Advisor, DME and DEAT.

The Chairperson requested a comprehensive memorandum that covered all the concerns and possible solutions. The document should also clarify what was negotiated and what was not followed through. All the information gathered would then be used as a basis for moving forward.

Ms Yawitch promised to fulfil this request.

The Chairperson asked the Department’s view on whether the Committee should undertake public hearings on this Bill. He also asked if the amendments gave enough power to oversee the implementation of the Act.

Ms Yawitch replied that it would be useful to engage the public further on this matter. Concerning the latter question, she stated that implementation was addressed through co-operative governance and MinMEC structures. She emphasised that implementation was not related to the law but to the building of capacity, systems and procedures.

Mr Mokoena wondered about the costing of the Bill.

Ms Yawitch confirmed that the Treasury had allocated an additional R60 million to DEAT, in the previous MTEF period, for the implementation of the EIA system. Treasury recognised the priority of EIA funding and would be approached for a further R13 million for the current year.

The Chairperson observed that the amendments were of a technical nature. Consequently, he requested that the Committee be supplied with detailed motivations for each amendment.

Ms Yawitch made a commitment to provide this information to the Committee.

Mr Mokoena noted that this industry was notorious for spending huge sums of money on consultants. Accordingly, he asked whether consultants were regulated and accredited.

Ms Yawitch responded that DEAT worked closely with the South African Qualification Authority to address the issue of accreditation. It was required of consultants to be registered with a body, to which they were ultimately accountable. Their functions were prescribed in a code of conduct and also set out in the Bill.

Compliance and Enforcement of NEMA Amendment Bill, 2007: DEAT Briefing
Mr Sonnyboy Bapela, Chief Director: Regulatory Services, DEAT, described the compliance and enforcement of the NEMA Amendment Bill. He specified the four mechanisms that would lead to more effective compliance and enforcement:
- Establishing a comprehensive legislative mandate for Environmental Management Inspectors (EMIs).
- Clarifying the status of EMIs as peace officers for the purposes of enforcing NEMA and the specific Environmental Management Acts (SEMAs).
- Adding a penalty for failing to comply with a compliance notice.
- Rectifying certain incorrect cross-references in the Environmental Conservation Act (ECA) relating to the illegal discarding/disposal of waste.

Discussion
Mr Maluleke agreed with the severity of the punitive penalty prescribed in the Bill. It was felt that this figure would get the attention of potential perpetrators.

Mr I Julies’s (DA) suggestion that the amount be increased to R10 million generated a great deal of laughter.

Ms Chalmers sought an explanation on the decision to classify EMIs as peace officers. She also wanted a list of their powers.

Mr Bapela explained that their powers were similar to those of a non-combatant policeman, in terms of the Criminal Procedure Act.

Ms Yawitch added that EMIs would obtain wide-ranging powers that were clearly set out in the Bill. This included the powers of search, seizure and arrest in relation to environmental crimes. There were currently 900 EMIs operating around the country. This figure would continue to increase.

The Chairperson proposed that DEAT engage the Committee at a later stage on the work of the EMIs.

Ms Yawitch welcomed the opportunity to interact further with the Committee on this subject.

The meeting was adjourned.