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ENVIRONMENTAL AFFAIRS AND TOURISM PORTFOLIO COMMITTEE
6 November 2007
NATIONAL ENVIRONMENTAL MANAGEMENT AMENDMENT BILL [B36-2007]: PUBLIC HEARINGS
Chairperson: Mr L Zita (ANC)
Documents handed out:
National Environmental Management Amendment Bill [B 36-2007]
Public Hearings on National Environmental Management Amendment Bill [B36-2007]
Liz Burroughs: National Environmental Management Amendment Bill Submission
Susie Brownlie: National Environmental Management Amendment Bill Submission
Professional Aviation: NEMA Second Amendment Bill Submission
Bonita Clack National Environmental Management Amendment Bill Submission
Sally Clark: National Environmental Management Amendment Bill Submission
Ruediger Dahlhaeuser Submission
David Daitz: National Environmental Management Act Submission
Ryan Donnelly National Environmental Management Amendment Bill Submission
Keith Du Toit: National Environmental Management Amendment Bill Submission
David Fincham: Chairman Africa Tilapia Producers Association Submission
Prof Jan Glazewski National Environmental Management Amendment Bill Submission
Thandi O'Hagan National Environmental Management Amendment Bill Submission
National Environmental Management Amendment Bill B36-2007: Written Comments for Public Hearing
Paul Lawrence National Environmental Management Amendment Bill Submission
Marie Le Roux: Executive Officer: Habitat Council Submission
Legal Resources Centre presentation
Legal Resources Centre Submission
Business Unity South Africa Submission
Wildlife and Environment Society of South Africa Submission
Bench Marks Foundation of Southern Africa for Corporate Social Responsibility report
Chamber of Mines of South Africa Submission
Escarpment Environment Protection Group (EEPOG) Submission
National Environmental Management Amendment Bill B36-2007 Written Submission
Nick Milaras Submission
National Association of Conservancies of South Africa (NACSA) Submission
Carmen Nottingham Submission
Adrian Piers Submission
Peter Ranby Submissions
Mark Richardson Submission
Kathy Watson Submission
Wildlife and Environment Society of South Africa Lowveld Region
Audio recording of meeting
The Committee had received several submissions on the National Environmental Management Amendment Bill. It was agreed that submissions by Macassar Environmental Nature Conservation Society and by Crayfish &Tilapia would be accepted for later discussion by the Committee, as they raised points not pertinent to the current discussions.
The Committee then heard presentations from a number of organizations, most of whom expressed support for the principles in the Bill but had doubts about the effectiveness of the drafting. Major concerns were expressed around the removal of minimal requirements for environmental impact assessment, the section that dealt with the exemptions and the section that allowed the competent authority to recognise sections under other laws as complying with the principal Act. It was submitted by some that the minimal requirements of environmental impact assessments should be maintained, as otherwise they would lose their effect of protecting the environment. Several concerns were expressed with various parts of the new Section 24. Further concerns were expressed about the regulation of environmental effects of mining. Some organisations submitted that the position of the two Ministers was not clear, and that there should not be the possibility of overturning of one Minister’s decision by another. Some of the submissions claimed that there were provisions in the Bill that would not pass a constitutional court challenge, whereas the State Law Advisors believed that it would. All commentators believed that the process had been delayed and cumbersome, and would welcome a streamlining of the process, but some were not convinced that this Bill was setting out the correct route. Most of those making submissions believed that, with some amendments, the Bill would still be able to be functional, and that not all the provisions were bad. However, it was stressed that the public should be involved in the participatory process.
The Department of Environmental Affairs and Tourism then commented that perhaps the Bill was not drafted as clearly as it should have been because there seemed to be problems of interpretation, and the Department had not intended the meanings ascribed to several aspects. She wondered whether the Bill should not be redrafted. The Committee decided to consider the submissions and discuss the points raised in detail..
National Environmental Management Amendment Bill (NEM Bill)
The Legal Resource Centre (LRC) Submission
Ms Angela Andrews, Environmental Justice Project, LRC, stated that for communities affected by land use and the legacy of apartheid the environmental impact assessment (EIA) process had been critical to air issues and protect their health from future impact. She raised the constitutional implications of the proposed amendments. She stated that the Bill removed constitutionally protected sections in the National Environmental Management Act (NEMA). LRC was concerned with the removal of minimal requirements for environmental impact assessment, the section that dealt with the exemptions and the section that allowed the competent authority to recognise sections under other laws as complying with NEMA.
With regards to EIAs she proposed that sections 2 and 23 be mandatory. She emphasised that there were mandatory positions and discretionary positions and she was not certain how the department intended to regulate that.
She stated that the minimal requirements were not developed in South Africa and they were not an aberration. These were the result of the Rio Declaration in 1992, when 182 nations drew up principles because of concern about protecting the environment. The focus was on protecting the way that decisions about the environment were made. The nations had decided that public participation in the decision making process would add transparency and access to information, and this would result in better decisions. These principles were formed into minimal requirements for the EIAs. Most nations had agreed that these requirements consisted of a description of the environment, the alternative mitigation measures, public participation, reports on gaps of knowledge and monitoring. Reports by countries who adopted the principles stated that without the minimal requirements EIAs could not be used as a decision making tool to protect the environment. The legislation said that minimal requirements may apply but it did not state when they should be applied. The result was that there would be no assurance that there was public scrutiny for decision-making, and there would be uneven standards for impact assessment and uncertainty for monitoring and enforcement of findings. Therefore protection of environment would be lost.
The new subsection 24 (8) gave no guideline for the exercise of discretion. There was an overall contradiction between the two provisions as there was no requirement that 24(8)(b) authorisations be compliant with NEMA Chapter 5 provisions. She stated that that the right to public participation was no longer clear. She said the consequences of these amendments were that there was no longer any uniform procedural fairness in NEMA. The consequence of the amendments was that government decision makers were disempowered. These problematic provisions of the bill should be reconsidered.
Ms Ellen Nicol, LRC, stated that mining had been responsible in South Africa and many other countries for a negative impact on the environment. She highlighted three aspects of concern in this regard. The proposed amendments created the possibility that regulation of environment impact in mining would be taken backwards instead of forwards. There was concern with the designation of the Department of Minerals and Energy (DME) as the competent authority, the provisions on obtaining of authorisations and dealing with appeals. She spoke about how mines could obtain environmental authorisations and elaborated on the effects of the proposals. She concluded that the Bill would weaken the regulation of environmental effects of mining in particular.
Mr Henk Smith, LRC, drew the attention of the committee to pages 3 and 4 of the submission, which were self-explanatory, and noted that the LRC was requesting joint hearings between this Committee and the Portfolio Committee on Minerals and Energy.
Mr G Morgan (DA) said that the Department of Environmental Affairs and Tourism (DEAT) wished to see more regulations and turn applications over more quickly. He asked for comment on the regulations and legislation as they stood presently, in the light of the Department’s views, and what leeway the Bill could give the Department so that it did not have to endorse the amendments.
Ms Andrews responded that with regard to the problem of streamlining of Environmental Impact Assessments she could not answer the question without being aware of the resources that were available to the Department or the difficulties that it faced.
Mr Morgan asked whether there was any justification for DEAT to handle all authorisations with regards to EIAs. He stressed that his question was not about whether the Department was the competent authority but about the department in its dealings with the DME.
Ms Nicol responded that on the question of which process should be used for mining applications, the NEMA EIA process should be used and it should be dealt with by the DEAT.
Mr Morgan asked whether in the view of the LRC this Bill would be rejected by the Constitutional court in its existing form.
Ms J Chalmers (ANC) said that from her understanding of the presentation, the Bill was fundamentally flawed because of the removal of minimal requirements. She questioned if this would mean that it must be redrafted completely.
Ms Andrews responded that this observation was correct and that in respect of the Environmental Impact Assessment the bill was fundamentally flawed.
Mr A Mokoena (ANC) thought that the proposed legislation created checks and balances. He wanted to be informed as to why such legislation was to be avoided.
Ms Andrews said that it was inappropriate for the Minister of Minerals and Energy to be subordinate to another Minister, and this had been acknowledged before a different portfolio committee.
Ms Nicol said she was not aware of a situation in legislation where an appeal by one Minister was to be determined by the Minister of another department. It created jurisdictional uncertainty.
Escarpment Environmental Protection Group (EEPG) submission
Dr Koos Pretorius, Chairman, EEPG, noted that in South Africa coal was used for generating electricity. He was concerned with coal from a social, economic and environmental perspective as it was used to generate electricity. He said that considerations to use coal should be weighed against the other resources in the country, such as water.
He submitted that the changes through this Bill would alter the process for exemption, and parallel processes. Removal of the minimum standards would alter the whole framework in which mining of coal took place, to the worse. He gave an analogy of a personal computer, which consisted of a hard drive and software, stating that the hard drive was analogous to this country, run on liberal democratic and Constitutional principles. The software was analogous to NEMA and the National Water Act. However, those pieces of legislation were not compatible with the ideals of liberal democracy set out in the Constitution.
It was necessary to consider the social and environmental impact of mining coal. He quoted from page 27 of his written submission. He stated that the process for challenging the granting of a license was cumbersome. He highlighted amongst other things the need for a viable appeal process within the legislation. He stated that EEPG submitted that mines should be made to pay for the groundwater pollution that they created. He said that NEMA and the Water Act should be the pieces of legislation that gave effect to this concept.
Prof Jan Glazewski Submission
Prof Jan Glazewski, specialist in environmental law, noted that environmental rights were enshrined in section 24 of the Constitution, and were clearly set out in a Constitutional Court judgment of Judge Ncobo. Sustainable development was defined in NEMA in a manner similar to how Judge Ncobo had clarified the position. The practical tool, which gave reality to the notion, was the EIA. Committee Members should ask themselves whether the proposed amendments enhanced or detracted from the process by ensuring the provision of enough relevant and reliable information for decision making. This included information from stakeholders, and also had to do with how streamlined the process would be. He mentioned that the EIA process was becoming long and delayed and it must be streamlined. He asked what the legal formula was which triggered the EIA process. He mentioned that in South Africa, as overseas, there was a two-fold approach. There was a list of activities, and to undertake an activity, an EIA must first be done. In the past there had been reliance on the principle of whether the activity had a significant effect on the environment. He said that the “catch-all” term pertaining to the significant effect should be maintained. He noted that the fundamental problem was contained under paragraph noted in 8.2 of a written submission he had prepared. He said that he believed that the minimal requirements should be placed back and that the significance requirement must be given more prominence.
The Chairperson asked whether Prof Glazewski believed the amendment should be adopted.
Prof Glazewski said that the amendment should be adopted subject to the proposed changes. He felt the exemption provision was necessary because the process had to be made faster, but there should be criteria set out more clearly for granting of exemptions. He would support the amendments in so far as they would streamline the process, but would stress that minimum requirements must be retained.
Mr Morgan asked Dr Pretorius if he felt there was anything redeemable in the amendment Bill - for instance whether the bill did create the new opportunity for the use of other environmental tools, not just the EIA.
Dr Pretorius responded that there were some redeemable aspects. He added that from a Constitutional perspective there were difficult issues facing the Department. The first was whether a mine should have any development. Within a participatory framework there should be principles set out. The first consideration was a sustainability issue, and the second was the EIA issue. Within the proper framework he did not see why there should be any conflict. He added that there were some secondary and tertiary agendas, which were being followed, and they should not be coming to the fore.
Prof Glazewski added that the amendment should be accepted but mining should be brought back into the environmental assessment fold.
Business Unity South Africa (BUSA) Submission
Dr Laurraine Lotter, Standing Committee on Economic Policy, BUSA, stated that she was not going to discuss mining. She stated that BUSA welcomed the amendments as a first step to achieving the objectives they deemed as being important. She did express some concerns, which were noted in the submission. These were explained briefly as problems with the definition of “competent authority”. The new Section 24(1) introduced the concept of “consequences for” but did not add anything, and it was proposed that this be removed. Detailed submissions were contained in the written memorandum in relation to the remaining clauses of the new Section 24, the proposed section 24C, 24G, 24K , 24L and 24M. Further submissions were made to re-draft Section 43, which was now too wide. The provision in relation to transitional provisions should be inserted back in the Bill. Suitable regulatory changes would also need to be made to EIA regulations.
Mr Morgan asked Dr Lotter whether she perceived any constitutional problems with regard to the amendments.
Dr Lotter said that BUSA assumed that the government and state law advisors knew what they were doing and therefore on the face of it they did not perceive any constitutional problems.
Mr Morgan asked her to comment on the statement made by Prof Glazewski with regards to significant impact.
Dr Lotter responded that as far as norms and standards were concerned she wanted to draw the attention of the Committee to a listed approach, whereby an impact assessment was considered proportional to the risk of the development. She elaborated that where the risk of the activity was low then the requirement of the impact assessment was lower.
Mr Morgan asked what she thought the problems were with EIAs in their current state.
Dr Lotter responded that there was a lack of amalgamation within the provinces. There were many companies operating in different provinces. One thing would be said in one province and a different thing in another. She said there was a lack of clear requirements set out in writing. Another problem was that irrespective of the size of the application, there same bureaucratic processes applied, and she added that this process was cumbersome. Another problem lay in the conditions of the authorisation, many of which had to be complied with under other legislation.
Mr Morgan acknowledged that BUSA did support the majority of the legislation, albeit with some caveats, and noted that the legislation could possibly deny ordinary South Africans the chance of participating in the decision making process. He wanted to know whether this was of concern to BUSA.
Dr Lotter stating that public participation was preferred by BUSA. She said that there had to be a favourable system understood by all departments and that in that process it should be ascertained how the public could also participate.
Ms Chalmers asked how the objectives of the legislation would be taken back to BUSA. She asked how the process worked and whether it would be effective.
Dr Lotter explained that BUSA did not deal directly with companies in South Africa but rather with the affiliate associations. She added that those associations were extremely active in ensuring that their members complied with the legislation.
The Chairperson asked about prevailing global debates in the context of the discussion that was taking place.
Dr Lotter said that the challenge faced by countries like South Africa and those in South East Asia was how the countries could develop their economies at a rapid pace without ruining the environment. She said that the approaches developed by mature economies were different. They were outcomes-orientated and their legislation left it to companies to decide on how they would operate within the confines of the expected outcome, but there the governments would not advise companies how they should get to the outcome. She said the realities in South Africa necessitated a different approach. This was in part due to the legacy of apartheid, which meant that the government and companies did not have the kind of relationship that existed in industrialised nations.
Wildlife and Environment Society of South Africa (WESSA) Submission
Mr Andy Gubb, Regional Manager for Western Cape, WESSA, stated that there were some improvements made by the Bill to the principal Act, because the wording had been changed and some of the confusion had subsequently dissipated. He said that with regards to sustainable development it was important for all to be reminded that there were three pillars, the economic growth pillar, social upliftment and environment integrity. He quoted a paragraph from a 2006 report released by DEAT, in the publication South African Environmental Outlook. He emphasised that this report noted that the overall condition of the environment was deteriorating.
Mr Gubb said that there were some flaws which were the result of an attempt to speed up the decision making process, in particular the extension to other government departments such as DME. Other flaws included the use of tools such as an integrated development plan and other standards, the contents of which were not clear, making the existing environmental impact process less vigorous. He objected to the Bill’s attempts to make environmental participation by the public optional, to the dispensing with the requirements of applying the precautionary principle, and avoiding scientific assessment of the potential impact of a development on the natural environment. He said that the effect of each amendment was to become more streamlined but there had to be consideration of what was being sacrificed in order to make that happen. He noted that some other comments were contained in the more detailed written submission. He concluded that if the Bill was approved in its current form, NEMA would become ineffectual.
Bench Marks Foundation of Southern Africa for Corporate Social Responsibility (BFSA) Submission
Mr John Capel, Executive Director, BFSA, said that one of the problems that the organisation had identified was that there was a conflict of interest. Government officials were expected to be neutral arbiters between communities and the mine controllers. He said that the DME could not be a player and a referee at the same time. He noted that last year in August President Thabo Mbeki stated that EIAs were holding up investments in the economy. Mr Capel said economic growth should be concerned with long term as opposed to short-term gains. He proposed some solutions, which were contained in the written submission.
Mr Richards, representative of BFSA stated that there was a Constitutional limitation and drew the attention of the committee to Section 24(b) of the Constitution. He said not only did his concern centre around environmental rights but the right to just administrative action.
Mr Morgan questioned whether BFSA thought that there was anything good in the legislation that ought to be retained.
Mr Richards responded that though the focus had been on aspects that had to be improved, there were some aspects of the legislation, as acknowledged by others, which were not bad.
Ms R Ndzanga (ANC) noted that the presentation by Mr Capel had mentioned that communities were being uprooted for mining purposes. She asked if the specific communities could be named.
Mr Capel said that the communities he spoke about were all over the Limpopo province. He said that some of the mining houses were offering families R20 000 to relocate so that they could mine the areas. He said he could furnish details of the actual mining houses and communities to the Committee.
Ms Ndzanga said that she did not know which communities had been forced to move. She stated that mining companies gave royalties to the people in the communities in which they wanted to mine and these royalties assisted the people. She had not been aware that there was a situation currently existing in South Africa such as described by Mr Capel.
Habitat Council Submission
Ms Marie-Lou Roux, Habitat Council, expressed concerns about the fact that NEMA had continued to be watered down. She said she believed that this had been triggered by the fact that DEAT could not cope with its work. She referenced a report from 2004 in which it was stated that the legislation for the EIA had to be amended for the sake of streamlining of procedures and to relax the pressure on authority. She said that it was not right to diminish environmental protection because the Department was insufficiently funded, and had insufficient capacity. She highlighted that the effect of the work undertaken by workers in mining on their health should be addressed. She mentioned that she was concerned with authorisation under other laws such as mining, where the laws did not contain all the requirements that were to be found in NEMA. She said that the alternative decision making tools could be useful but they did not take the place of the EIA. She raised concerns about the exemptions and said that when they were applied there would be no public participation and so people would not know what was happening and this was problematic. She said scientific studies must be the foundation upon which decisions were made. She stressed that mitigating measures and public participation should not be overlooked. She added that the proposed amendments were contrary to what was ideal in NEMA.
Chamber of Mines of South Africa Submission
Ms Maryna Mohr-Swart, Assistant environmental adviser, Chamber of Mines, stated that the Chamber was opposed to EIAs and sound environmental practices. She said they were committed to cooperation with government to streamline the processes. She stated that the DME governed the Chamber, and they supported it as the competent authority but took the view that in environmental issues clear guidance was needed from DEAT. She said the Chamber supported clause 8 of the Bill and supported the fact that NEMA should be the leading environmental legislation. She stated that some further concerns and recommendations were stated in the written submission. These concerns were similar to those expressed earlier about the position of the two Ministers, relative to each other. The new Section 24M should be clarified, and other aspects would need to be dealt with in the Regulations.
Ms Chalmers noted that the Chamber had spoken about the need for less duplication, yet their recommendation that the Minister for Minerals and Energy should be the competent authority resulted in more duplication because there would be two authorities.
Ms Mohr-Swart responded that at that stage the industry was undertaking parallel processes because of the confusion. Most mining companies were producing an EIA for the DEAT, but were working through the process of the DME.
Ms Chalmers asked why the Chamber recommended the perpetuation of the problem.
Ms Mohr-Swart disagreed that this was what the Chamber was seeking to do. She noted that it wanted clear guidelines on how the mining industry was to move forward, and on which matters were to be handled by a particular department.
Mr Morgan enquired what the Chamber’s contentions were about the competencies of the two departments, pertaining to the monitoring process. He also asked why staff could not be shifted from the DME to the DEAT.
Ms Mohr-Swart responded that she agreed that there were enough skills in the department but they did not have enough people. She did not believe that moving the environmental department of DME to DEAT would solve the problem immediately because the number of people would still be the same. She said that there could be some positive aspects because the combined effort might be better, and added that the option could be further explored.
The Chairperson asked for her opinion on DME being a player and a referee.
Ms Mohr-Swart said this had been an issue that had been discussed at length by the Chamber. She added that having one department might give the perception that the EIA process would be much easier. She stated that despite such a perception, that assertion would not be true.
Response by Department of Environmental Affairs and Tourism (DEAT)
Ms Joanne Yawitch, Deputy Director- General, DEAT, said she wanted to address issues raised about the process. She said that the Bill went through a long process. Workshops were held within government for stakeholders, the Bill was published and went to Cabinet, it was published for public comment and there were adverts in newspapers in all the provinces and well-attended public workshops in the respective provinces. She stated that meetings were held with NGOs and businesses, followed by further consultation with people who gave written comments to the Department. There was further drafting, and the State Law Advisor looked at it. Much consultation had taken place to get the Bill to the stage that it was at.
She said that with regard to constitutional issues, the draft legislation went through internal legal scrutiny and was sent through to the State Law Advisors. The issues of constitutionality were considered. She said that she was not certain that the Bill would not pass muster in the constitutional court.
In terms of the larger picture, there had been a crisis in the EIA system and its credibility two years ago. She said there were thousands of EIAs which had become stuck in the system. Clearly, there was a need for well functioning EIA systems in any country where development was taking place. She said the other problem was with the integration of environmental issues in planning. The focus, in the bigger picture, should be on the effect to the environment, on whether things should or should not happen, and on what the risks and the opportunities were. This meant that before a development was even considered the people must be aware of the environmental issues. The tools that were recommended, for example the environmental management framework, were additional tools that DEAT felt the country needed to promote the integration of environmental considerations into planning. She said that they were not concerned with diluting the system but rather with adding quality to it. She said that DEAT was interested in streamlining the process to make it easier for people to engage with it. She believed there had to be one supreme regulatory system, and that was to be the NEMA system.
She then moved on to the technical issues raised in the submissions. This led her to the conclusion that perhaps DEAT should be reviewing the Bill, because their intention had not been clearly articulated. For example, DEAT was not trying to say that public participation should not take place. It was rather talking about the setting out of guidelines pertaining to public participation, rather than public participation itself. It seemed that the language was not clear enough, and some drafting issues needed to be taken into account. The criteria around exemptions needed to be more clearly set out. On the issue of appeals, she noted that anyone could write a letter appealing against a decision on the grounds that they would be affected by an environmental decision. The Department had to acknowledge the Promotion of Administrative Justice Act.
She added that there were many aspects of the Bill that had attracted no comment, so she was going to assume that those aspects were fine. She would like to have a document brought to the Committee that addressed as many concerns as was feasible, so that it could move on from there.
Mr Ncolo (State Law Advisor) commented on Ms Yawitch’s statements. He believed that at this stage the Bill belonged to Parliament and not the Department, and that any amendments must be made with an express mandate from parliament. The State Law Advisors had believed that the Bill would pass constitutional muster.
The Chairperson agreed with that position. He stated that the Committee would discuss the submissions in the next meeting.
The meeting was adjourned.
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