National Environmental Management Amendment Bill [B36-2007]: Department briefing & deliberation

Meeting report

National Environmental Management Amendment Bill (NEMA Amendment Bill): Briefing by Department of Environmental Affairs and Tourism (DEAT)
Ms Joanne Yawitch,  DDG:  Department of Environmental Affairs and Tourism (DEAT) began by giving a brief overview of the proposed amendments to the NEMA Amendment Bill. She then outlined the current legal context surrounding environmental management and mining. She explained that environmental impact management for mining activities was currently regulated through the Minerals and Petroleum Resources and Development Act (MPRDA), while other activities were managed through the National Environmental Management Act (NEMA). In terms of the current administration of Environmental Impact Assessment (EIA) as related to mining, the Department of Minerals and Energy (DME) was therefore the competent authority, as these activities were not monitored through NEMA and administered by the DEAT.

Due to the uncertainty created by that current situation, both Ministers of DME and DEAT had agreed as follows:

-There should be one environmental management system and that system should be prescribed by the environmental authority.
-The Minister of DME had an existing mandate in terms of environmental management for mining and this must be retained.
-The Minister for DEAT was the custodian of the environment, and must be enabled to fulfil this function, also in terms of mining.

In terms of this agreement, the MPRDA was to be amended by repealing all provisions relating to environmental management. The granting of prospecting, mining, and / or reconnaissance was to be subject to environmental authorisations. Then NEMA was to be further amended by inclusion of the environmental management provisions that were currently in the MPRDA that were not adequately covered by NEMA. Also, NEMA was to be amended by assigning competence to the Minister of M&E for the implementation of environmental management systems. As a result, environmental management was to be regulated by NEMA only. However, in respect of mining, the environmental management would be implemented by DME.

In terms of the agreement, NEMA was to be further amended by assigning the Minister of EA&T as the appeal authority for all environmental authorisations issued for mining-related activities by the Minister of M&E. In addition, it had been proposed that the transition from the MPRDA environmental management system must take place within 18 months of the enactment of either the MPRDA amendment or NEMA amendment, depending on which was enacted last.

Ms Yawitch then described the proposed amendments to the NEMA in more detail. These were as follows:

Section 24(4)(a) would be amended to include public participation in environmental authorisation processes.
Section 24(4)(b) would be amended to place onus on the authority to demonstrate applicability of requirements as per the Portfolio Committee’s decision.
Section 24C(2A) was amended to identify the Minister of M&E as the competent authority for prospecting, mining, exploration, production and related activities within a mining, prospecting, exploration and production area.
References to environmental management plan would be replaced or supplemented with references to environmental management programme (EMPR).
There would be insertion of new section 24O to provide for EMPRs.
There would be insertion of provisions from MPRDA, describing relations between regional mining development and the environmental committee and the granting of environmental authorisations.
There would be insertion of provisions from the MPRDA prescribing obligations of holder of mining rights or permit holders in terms of environmental management.
A new section 24P would be inserted, setting requirements for the competent authority in granting environmental authorisations (adopted and adapted from the MPRDA and EIA regulations).
There would be insertion of provisions to allow amendment of EAs and EMPRs.
There would be insertion of a new section 24Q allowing financial provision for remediation of environmental damage (adopted and adapted from MPRDA).
There would be insertion of new section 24R providing for monitoring and performance assessment (adopted and adapted from MPRDA).
There would be insertion of a new section 24S providing for issuance of closure certificates (adopted and adapted from MPRDA).
There would be insertion of a new section 42B to provide for delegation of functions by Minister of M&E to allow for practical implementation of the Bill.
There would be addition of section 43(1A) and (1B) to clarify appeal mandates of Ministers of EA&T and M&E.

Discussion
Mr A Mokoena (ANC) stated that before the Bill was passed, there was a need to ensure that the MPRDA was contextually similar without any contradictions. In this regard, the amended text of the MPRDA should be made available to the Committee to study, while the NEMA Bill should be forwarded to the Portfolio Committee on Minerals and Energy for the same purpose. This was to ensure that the two Bills were in agreement and not contradictory.

Mr M Kalako (ANC) hoped that the Bill, when passed, would have some positive implications on the activities of mining companies.

Ms J Chalmers (ANC) observed that the two Departments seemed to have compromised but noted that the Committee had never had the opportunity to study the new Mining Bill. This was inappropriate.

The State Law Adviser noted that in making the amendments, three issues were being dealt with - mining, environment and legislative function. The question was how to achieve the various goals without encroaching on one function. The Schedule to the Bill would be an effective way of accommodating the amendments. Also, a transitional arrangement could be made to accommodate the amendments in both Bills and to achieve legal enforceability.

Mr G Morgan (DA) agreed that it was necessary to study the MPRDA. He also noted that the Schedule would be a good arrangement and the Committee would like to see the transitional arrangements proposed.

The Chairperson noted that there was need to move forward with the Bill, even if the amendments to the MPRDA were not ready. He directed the State Law Adviser to write formally to the Committee stating that the Schedule was the better and more effective procedure to follow in accommodating the amendments.

The meeting was adjourned.