National Environmental Amendment Bill [B36-2007]: deliberations


14 November 2007
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Meeting Summary

A summary of this committee meeting is not yet available.

Meeting report

14 November 2007

Mr L Zita (ANC)

Documents handed out:

Environmental Management Amendment Bill [B 36-2007]
Amendments proposed to National Environmental Management Amendment Bill
Environmental Management Amendment Bill: Clause by clause explanation of Bill
Regulations in terms of Chapter 5 of the National Environmental Management Act

Not Recorded

The Department of Environmental Affairs and Tourism (DEAT) explained the proposed amendments to the Committee. The contentious issue of exemptions was discussed again.  The meeting was stopped to allow the ANC to have a short caucus. When the meeting resumed the Chairperson announced that the ANC had decided that the amendments would be finalised only next year.

Ms Joanne Yawitch (Deputy Director General: Environmental Quality and Protection, DEAT) went through the proposed amendments:

Section 24(4)(a)(v)
Ms Yawitch said that it had been decided that subsection (v), which dealt with public information and participation procedures, was to be made mandatory. Therefore it would be elevated to the status of one of the minimum requirements, which had to be undertaken for every application.

Section 24(4)(b) 
She stated that the phrase “where applicable” had been inserted to ensure that the subsections which followed would be applicable for the purposes of dealing with the appropriate tools.

Mr Gideon Hoon (Principal State Law Advisor) stated that the word “must” which was used in the section still had an objective connotation and the person had to ask himself/herself whether it was applicable. The discretion was circumscribed.

Mr Ishaan Abader (Head Legal Advisor, DEAT) stated that when the decision maker decided that something was not applicable, that person had to offer sufficient reasons to justify that stance.

Ms Yawitch added that if it was applicable, alternatives had to be looked at. She emphasized that all the points contained from 24(4)(b)(i) to 24(4)(b)(h) did not have to be done for everything, only where applicable.

Mr Morgan (DA) wanted to find out why those points could not be attached tightly to subsection (b).

Mr Ibadan said that it was important for the environment to be protected properly. The department needed a certain amount of flexibility in order to be able to do its job well.

Ms Yawitch said that they could not afford to tie the matter up too tightly because that would mean that in circumstances where certain things did not need to be done, they would still be done because of the legislation.

Mr Mokoena (ANC) said that he agreed with Mr Morgan. He believed that they would make a big mistake if they did not ensure that the guidelines were transparent. There was nothing wrong with amending the legislation in three years’ time if it were discovered that it was not working well in application. Guidelines had to be made transparent so that there would be no excuse for non-compliance as everything would be out in the open.

Ms Yawitch stated that the Department was doing its job as best as it could because it wanted to see the environment adequately protected. The Committee should not perceive their proposals as meaning that the department did not want to do their jobs. Tying things tightly would have the effect of ensuring that even when certain actions did not need to be undertaken, they would still be performed.

The Chairperson asked the DDG to move on and stated that the contentious matter would be revisited later on.

The DDG then stated that on page 15, provisions in (g) and (h) were to be shifted into the mandatory section.

Section 24(5)(e)
She noted that the words “environmental impact assessments, or other” had been removed in order to broaden the meaning of the section.

Mr Mokoena commented on the wording saying that he did not think that it was possible to have legislation by anticipation. He believed that the cart was being placed before the horse. He did not think it was appropriate to authorize through the legislation something that they were not aware of, which would be created later on as a result of the legislation.

Ms Vicky Beukes (Legal drafter, DEAT) pointed out that (e) was already part of the law and all they had done was to take out the words “environmental impact assessment or other”.

Mr Gideon Hoon took the stance that the section was an enabling aspect of legislation and gave the Department the opportunity to do other things later on.

Mr Morgan proposed that an element of review be added to the subsection. Ms Yawitch agreed with the proposal.

Section 24(5)(j)
Ms Yawitch stated that the amendment consisted of deleting the word “making” and was merely editorial in nature. They had decided that the word “making” was to be deleted.

The document called Environmental Management Amendment Bill, 2007: Clause by clause explanation of the Bill had the proposed amendments marked in red and green, indicating which words were to be added and which deleted. All the words in green were additions and the words in red were deletions.

Section 24(6)
The words “and specific” were added for the sake of clarity.

Section 24(G)(1)

Ms Yawitch explained that the section allowed an offender to lodge an application when he or she realized that they had committed an offence. It gave people the opportunity to retrospectively work through the assessment process.

Mr Morgan commented on section 24(G)(2A) and stated that some developers could decide not to go through the development procedure and to build their establishment just because they knew they could pay the penalty fine of R1 million later on. He questioned whether the figure of R1 million constituted enough of a deterrent.

Ms Chalmers (ANC) asked what would be done if it was found that although a certain business had paid the penalty of R1 million, that amount was actually peanuts for them.

Ms Yawitch stated that the only feasible solution was for the law to be amended.

Section 24K
Ms Yawitch stated the proposed section set out what needed to be done to avoid duplication of the process when authorizations may be required in terms of more than one Act. She stated that it also provided for agreements between organs of state to be concluded which set out such cooperation mechanisms.

Example 1: Memorandum of Understanding – Department of Water Affairs and DEAT regulated the construction of dams, there was potential to combine processes and reduce duplication, improve government efficiency, etc

Example 2: Relying in part on other processes: Definition of environment was wide and included socio-economic considerations, human health and safety etc. These aspects of an activity were however also often and very specifically regulated through another “expert” process – the idea was not to duplicate or contradict but to rely on each other. Examples: Intent to toll process. Nuclear safety processes, emission licenses, etc.

Section 24L
Ms Yawitch stated that the section explained the internal DEAT process.

Section 24M(1)
The words “of regulations made in terms of section 24(5) laying down the procedures contemplated in” had been added as a result of the discussion, which had taken place with the Committee on 13 November 2007.

The Committee then tried to settle the contentious issue of exemptions.

Mr Hoon stated that there were many examples whereby laws had exemptions. He said that he was satisfied that exemptions as proposed in the context of NEMA were constitutional.

The Chair pointed out that the main concern lay with giving blanket power to the Minister.

Mr Abader said that they had tried to handle the matter through 24M(1) and 24M(2) and added that there was a prescribed process, which had to be followed before an exemption could be issued.

Ms Yawitch said that 24M(3) provided an additional safeguard. It stipulated that an exemption could only be granted if it was unlikely to result in significant detrimental consequences for the environment, or if the provision could not be implemented in practice (in the case of that specific application) or if it was unlikely to affect the rights of parties negatively.

Mr Greyling (ID) said that there was a difference between legislation and regulations. He did not agree that the power to grant exemptions should be conferred to the Minister or the MEC.

Ms Yawitch replied that without the mechanism of exemptions, everything had to be handled in the same manner. The process would be cumbersome.

Mr Abader said that the principal legislation set out the instances were exemptions could be granted. There would be checks and balances in the form of non-governmental organisations, the Department, and even in the process which had to be undertaken before an exemption could be issued. If a person was unhappy with an exemption that had been granted, they could appeal to the minister or the MEC. If that failed, a person could go to court.

The Chairperson stated that as far as he was concerned there were enough safeguards in place. He questioned if most of the applications would be provincially based and whether there was capacity in the Department to oversee them. He also suggested that there was to be a peer review process, which would be able to assess whether the decision of issuing a particular exemption had been correct or incorrect. He said that the department set the task of reviewing the exemptions would not have the power to overrule the decisions, but would merely comment on them.

Ms Yawitch said that there had been a lot of investment into the provincial departments. She said that a database was being built which showcased all the Environmental Impact Assessments (EIAs). She also added that she was not against an assessment of an implementation process.

The Chairperson tried to get the Committee to finalize the amendments. Mr Morgan said that he wanted it especially noted that he did not agree with the idea of making the Minister of Minerals and Energy the competent authority.

Ms Ndzanga (ANC) said that she had been listening to Mr Morgan from the beginning and she believed that he was opposed to the Minister of Minerals and Energy being the competent authority because not only was she a woman, but she was also black.

Mr Morgan responded by stating that he had nothing against the Minister of Minerals and Energy. He had no objections against her, his objections lay with the Department of Minerals and Energy and he did not appreciate the sentiments expressed by Ms Ndzanga because they were untrue.

The Chairperson asked everyone to vacate the room for ten minutes so that the ANC could have a discussion on its own. When the meeting later resumed the Chairperson stated that the ANC had decided that the amendments would be finalised only next year.

The meeting was adjourned.


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