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ENVIRONMENTAL AFFAIRS AND TOURISM PORTFOLIO COMMITTEE
13 November 2007
NATIONAL ENVIRONMENTAL MANAGEMENT AMENDMENT BILL: RESPONSE TO PUBLIC SUBMISSIONS
Chairperson: Mr L Zita (ANC)
Documents handed out:
National Environmental Management Amendment Bill [B 36-2007]
Legal Resources Centre submission
Proposed amendments to National Environmental Amendment Bill
Environmental Management Amendment Bill: Clause by clause explanation of Bill
Audio recording of meeting
The Department briefed the Committee on its response to the three major concerns that had been expressed during the public submissions on the National Environmental Management Bill. The three main issues were the exemptions, public participation and the question whether regulations should be issued by the MEC or the Minister. The Department stressed that it did not have any control over the environmental issues that pertained to mining, as mining environmental impact assessments fell under the Department of Minerals and Energy, and the Department of Environmental Affairs supported the continuation of this situation. The Department stressed that public participation was a bottom-line requirement, and it would have been clearer had the word “guideline” been used instead of “procedures”. The Department suggested that the clause dealing with public participation be renumbered and moved to a different position where it would become clear that it was mandatory. In regard to exemptions, it was explained that there was no exemption from the process, but only from certain procedures within the general framework. Each tool would need to be governed by a set of guidelines. The general principle remained that provinces could only make regulations within the framework of national legislation. Members asked questions on the tools, their binding effect, the competent authority, whether there was a need to hurry this legislation along, and the need for more input to the Committee. Members commented that the minimum requirements must be established clearly, and asked for clarity between what was in the main body of the legislation and what was in the regulations. The Department clarified that the matter was urgent as the current situation with one-off decisions posed a risk to overall environmental management. The background was described. Members asked if the Department would have the capacity to cope with the new procedures, whether it would be possible to set up a time frame to review amendments, and enquired if there could be joint meetings with the Portfolio Committee on Minerals and Energy.
The Department proceeded to take the Committee through the Bill. The new definitions were explained. The Department briefly described some of the changes to Section 24 of the principal Act, but due to shortage of time, the remainder of the Bill would have to stand over.
National Environmental Management Amendment Bill (the Bill): Department of Environmental Affairs and Tourism (DEAT) responses to public submissions
The Chairperson stated that three main issues had arisen from the previous discussions and submissions on the Bill. These related to exemptions, public participation and whether regulations should be issued by the MEC or the Minister. The chairperson invited the department of Environmental Affairs and Tourism (DEAT) to address the Committee on those points.
Ms Joanne Yawitch, Deputy Director-General. DEAT, stated that the Department had taken note of all the concerns. However, she wanted to make it clear that the Department did not have any control over the environmental issues that pertained to mining, as the regulations did not fall under the National Environmental Management Act (NEMA) administered by the Department. She also stated that with regards to the matter of the competent authority, the Department wanted to see one system in place for the sake of establishing clarity and consistency, and it supported the Minister of Minerals and Energy as that competent authority.
She said that public participation was not a discretionary matter. She stressed that it was a bottom-line requirement. She said that what the Department had wanted to make discretionary was the guideline about public participation. She stated that the word “guideline” should have been used instead of “procedures” because this would have made the intention more clear. The department would like to suggest to the Committee that perhaps the clause which dealt with public participation should be elevated in numerical positioning from 24(4)(b) to 24(4)(a). This would have the effect of making public participation mandatory.
She stated that with regards to exemptions, the Department’s understanding was that a company could not be exempted from an environmental authorisation. It could be exempted from certain procedures in the process, but obtaining of an environmental authorisation was in the final event mandatory.
She stated that with regards to the additional tools that were needed for environmental regulation what had not been clear was that each of those tools needed a set of guidelines to ensure that they were used properly and under the appropriate circumstances.
Ms Lize McCourt, Chief Director, Environmental Impact Management, DEAT, commented on the ability of the provinces to make regulations and how this would be managed under NEMA. She said that the general principal of the law was that provinces could only make regulations within the framework of national legislation, and these must not detract from that legislation.
Mr L Greyling (ID) said that he wanted clarity on the tools that had been mentioned, and wanted also to know if they were binding. He asked how, for example, the legislation dealt with coalmines in Mpumalanga and how these were to be treated with regard to these other tools.
Ms Yawitch said that at the moment a Strategic Environmental Assessment (SEA) was a voluntary thing and it had no legal force or effect. All it could do was to act as a background document that may or may not be taken into account. She said that the Department was doing excellent strategic work, but some of their efforts could be overlooked because there was no legal effect to them. If the amendments went through these processes would become part of the decision-making. An Environmental Impact Assessment (EIA) would still have to be obtained and complied with, but it would be informed by the outcome of that strategic environmental assessment.
With an SEA for the Mpumalanga highveld the Department would then start to assess what the receiving nature of the environment was like now, but also into the future. They would assess the value of the resources situated in that area, looking at the wetland system, grassland and mining resources in that area.
Mr G Morgan (DA) said he was still concerned with the issue of the competent authority. He noted that the Department said that it wanted one system, but he did not think that they had managed to achieve the set objectives. He said that he did not think that the Bill should be dealt with hurriedly and he wanted the Department to state why matters needed to be hastened along.
Mr Morgan said that he understood that there were some noble intentions pertaining to exemptions. However he had a problem with the right to grant exemptions being conferred on the Minister. He said that by conferring such power the Portfolio Committee was surrendering more of its authority to the Executive.
Mr Morgan also said that he was concerned that the Committee had not had enough substantial input. He questioned whether all the Members of the Committee were appropriately briefed about the pertinent issues concerning the Bill. He alluded to the fact that the Committee needed to proceed at a slower pace for the sake of attaining more information and if the need arose the matter had to be left unresolved until next year.
Ms J Chalmers (ANC) said she wanted clarity on exemptions. She said that she understood that there were no exemptions from the EIA as a process. She said she understood that different norms and standards would be applied to different exemptions, but she needed the matter to be explained further. She said that she felt the minimum requirements should be established clearly so that everyone could understand what was meant to be mandatory.
Ms Yawitch said that exemptions were currently dealt with in the regulations. The regulations stated that nobody could be exempted from the process. Some activities fell into the basic assessment category and others into the full approach category. Some activities had minimum impact on the environment – examples might be the erection of a cell phone mast. The way that exemptions worked was that people had to advertise to the public, in a manner that was set out in the regulations. The exemption option did not mean that the person could circumvent the requirements. She said it was not possible to get an exemption from fulfilling the public participation requirement.
Mr A Mokoena (ANC) asked whether the Committee should not be considering whether to split the Bill. He stated that the Deputy Director General was to identify the necessary points, which should obviously be included now, and the more complex matters were to be dealt with next year.
Ms Yawitch responded that if the Department made public participation mandatory, and it was clear that a person could not be exempted from the process, but rather they could be exempted from certain procedures (by way of regulation) then this would go very far to resolving the contentious issues that had become apparent during public participation. She said not all the issues were easy to sort out. She said that the issue of tools could not be left for any length of time because if things were left in that way, the one-off decisions would not facilitate a robust picture of what the environmental issues were in the country. As a result environmental management in the country would continue to be at risk. Government should not enable such a situation.
Ms Yawitch said it was important to explain some of the events that had culminated in a need for amendments. In 1998 the EIA system was put into place. The Department established the procedures, trained the people, and acquired the administrative facilities to address the multiple legal complexities that arose from different interpretations of the legislation. It had to deal with the issues of provincial capacity and to deal with the need for guidelines, particularly the bottom lines. She said the system was working well. This system was based on exemptions. The majority of EIA applications were exemption applications as development in the country sped up. She said that when one activity was authorised, the broader view could not be taken into account and the consequences were that the tools were no longer appropriate for the other kinds of activities. This had resulted in problems in capacity, with huge blockages in the system. She stated that about two and a half years ago EIAs were perceived as the main reason why development was not taking place quickly enough. She said there were regulations introduced in July last year in an attempt to streamline the system, but they were written in the framework of the existing law and many things that the Department wanted to do to for the sake of having a better system, could not be done, because the enabling clauses did not exist in the overarching legislation. DEAT could not have a better system unless there were changes to the existing legislation. She said that as development continued to grow in the country the Department’s ability to produce quality work was being impeded.
Ms McCourt stressed that exemptions could only be attained against certain procedural requirements. She said that there was no exemption from the necessity to have an environmental authorisation. She emphasized that the exemption would relate not to the process, but to parts of the procedure of the environmental authorization. The environmental authorization itself was mandatory in every case.
Ms Chalmers asked if that specific point was clear in the Bill.
Ms Yawitch responded that it was clear in the Bill. She drew the attention of the Committee to clause 24, line 7 of the bill and she read to the end of line 44. She said that all those clauses constituted the bottom-line and the steps listed there would have to be done. She said that DEAT also stated that there were other things, which may be done, and DEAT was also suggesting that for each of the tools, there would have to be guidelines.
Ms R Ndzanga (ANC) asked whether mining EIAs would be done under NEMA.
Ms Yawitch said that with regard to mining the Department of Minerals and Energy (DME) was the competent authority. The DME issued mining authorisations and it was stated as the competent authority for this under NEMA.
Ms Chalmers said it had been mentioned that as the pace of development continued to increase it had been discovered that the EIA was flawed. This had resulted in the exploration of other strategic tools. She asked how the Department anticipated that it would cope with a whole range of additional options when its existing capacity was failing to cope with the EIA, despite having had ten years of experience with the EIA.
Ms Yawitch responded that, under the issue of capacity, the more strategic tools were in place, the more capacity would be release, enabling people to function more effectively. Strategic tools were necessary for the sake of streamlining the process. The strategic capacity would enable the one-by-one system to work more smoothly. She also added that in regard to capacity the Department received a large amount of money two years ago from National Treasury. A lot of that money would go towards job training and remuneration for environment assessment professionals.
The Chairperson asked whether it would be possible to set up a time frame so that if the amendments were adopted their effect could be reviewed three years down the line.
Ms Yawitch responded that review was seen as an ongoing process of development. DEAT would monitor and evaluate the system and push for changes where appropriate. She emphasised that the Department perceived the process as one of growth and learning. She said review was essential and good.
Mr Greyling said he agreed with the philosophy of Strategic Environment Development. He asked whether there was capacity for the SEAs to take place around the country. He then suggested that this Committee should sit with the Portfolio Committee on Minerals and Energy so that there could be cooperation between the two with regard to the legislation that they were to produce. He said he was reluctant to give a blank mandate to DME and trust them to come up with the legislation with regard to NEMA since the Minister of Minerals and Energy was to be the competent authority. He stressed the need for cooperation between the two.
Mr H Maluleka (ANC) said if they went along with the suggestion that the competent authority was the Minister of Minerals and Energy, then he would like to know what mechanisms would be put into place to ensure that the Minister of Environmental Affairs would be kept abreast with whether there was compliance with NEMA through the activities of the DME.
Mr Morgan said he wanted the Committee to engage with the issue of making the Minister of Environmental Affairs the centre of appeal for authorisations granted by the Minister of Minerals and Energy. He said it appeared to be a good check and balance, but he wondered if it would work in reality because these were two Ministers of equal standing in Cabinet and yet one would have the final say over authorisations made by the other.
Ms Yawitch responded that it was in the country’s interest for the matter of the competent authority to be resolved as soon as possible. As far as DEAT was concerned the Minister of Minerals and Energy was the competent authority for mining activities.
Mr Morgan said he supported the strategic tools and the need to expand them. He asked the Department to comment on whether it was confident that the regulations would in years to come contribute to an environmental report that was more positive. He asked if the DDG thought that the legislation was something that could be instituted in all departments in South Africa. He said he was concerned with the fact that there were major staff shortages in her Department. He also said he supported the need for a joint meeting with the Minister of Minerals and Energy.
Ms Yawitch said that reporting all these information bases would assist the Department to produce better reports and information on the national strategic sustainable development and environment. The national strategy for sustainable development was in the Cabinet system and she hoped that the matter would be finalised soon.
The Chairperson asked Mr Morgan to summarise his key concerns.
Mr Morgan stated that the key concerns were about the competent authority and the exclusions. He said that he was wary that DEAT was giving their power over to the executive with regards to exclusions.
The Committee proceeded to look at the clauses in the Bill.
Clause by clause examination of the Bill
Ms McCourt noted that a new definition of “commence” had been inserted. This was because there had been confusion about how to interpret the existing definition. She expanded on what “commence” meant in the context of undertaking an EIA or another process was concerned. She read from the submission by her Department that commence, when used in chapter 5, would mean the start of any physical activity on the site in furtherance of a listed activity.
Ms McCourt said that the definition of competent authority was clear. The Minister of the DME was the competent authority.
A definition of development footprint was included and this referred to land that had been transformed as a result of the undertaken activity.
Ms McCourt said DEAT had amended the definition of environmental authorisation to say that, in chapter 5, it meant the environmental authorisation by the competent authority of a listed or specified activity in terms of the NEMA Act. It included similar authorisations contained in a specific environmental management act. She said that specific environmental management Acts were the legislation around air quality, biodiversity, protected areas, integrated coastal management and waste management. DEAT was trying to ensure that all authorisations under a Director general or Minister could be issued under one process and one information base. The amended definition allowed for this to happen.
Ms Yawitch said that a definition had been inserted to cover norms and standards, specifically referring to Section 24(10).
Ms Yawitch said the Bill also made provision for a new definition for “spatial development tool” saying it meant a spatial description of environmental attributes’ developmental activities and developmental patterns and their relationship to each other.
Ms Yawitch said that a new subclause (5) had been inserted into Section 1 of the Act. It clarified that when the principal Act did not make provision for a procedure, in a case where an administrative process needed to be carried out, then the Promotion of Administrative Justice Act would apply. It was a catchall phrase and a default position.
Ms Yawitch noted that Section 24 of the Act had been amended, in regard to environmental authorization. The proper reading of the amendment could be found in the submission by the Department.
The use of the words competent and impact in 24(1) resulted from the fact that a broader set of tools was being used and therefore possible consequences would be evaluated.
Ms Yawitch read out the new Section 24 (2)(b) and proffered an example of an area in a world heritage site, where an MEC or Minister could say that in the entire area, due to its special sensitivity, a person had to have authorisation no matter how large or small the activity. Therefore the Minister or MEC could say that they did not want a cell phone mast to be erected on a hill if this could leave an irreparable pothole in the ground. Therefore, in such a context, it was necessary to go through the entire authorisation process.
Mr Greyling said that he wanted to know what she meant by “specified activities” as referred to in the Department’s submission.
Ms McCourt explained that DEAT was dealing with the enabling clause for the management framework. The area would be mapped and it would be stated what kind of development was suitable for which area. Using the example of a world heritage site, DEAT could say it was not generally opposed to guesthouses or tourism in certain zones, but if they were in other areas then there might be additional listed matters, because the area was sensitive. There would have to be a list of activities for the specific identified area. The process for that was described in the regulations.
Ms Yawitch stated that there were small instances in the Bill where language had been tidied up in the proposed amendments. She would not take the Committee through each and every instance due to their technical nature, and the fact that they did not affect the substance of the Bill.
The new Section 24(4)(a) was the mandatory section. She read it out and said that it contained the new bottom-lines. She said that section 24 (4)(d)(iii) was to be moved up to section 24(4)(a). She said this was in order to address the concerns that public participation had not been interpreted as being mandatory for all processes. Therefore the reference to this would be contained as Section 24(4)(a)(v).
Section 24(4)(b) would be amended, so that instead of reading “may include” it must start off as “must include”. Ms Yawitch said DEAT had taken into account the interpretations expressed at the public hearing, and the concerns that alternative considerations were worded as discretionary.
There was insufficient time to continue any further.
The meeting was adjourned.
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