National Environmental Management Amendment Bill [B36-2007], Mineral & Petroleum Resources Development Amendment Bill: Departmental briefings

Meeting report

National Environmental Management Bill (NEMA) and Mineral And Petroleum Resources Development Amendment Bill (MPRD): Joint briefing by Department of Environmental Affairs and Tourism (DEAT) and Department of Minerals and Energy (DME)
Ms Joanne Yawitch, Deputy Director General, DEAT, stated that the briefing would focus on the amendments to NEMA Bill that had an impact on mining. She started out by giving an overview of the amendments to the NEMA Bill, and also an overview of the whole amendment process so far (see attached presentation for detail).  Some of the main areas targeted in the amendments included new provisions for integration and alignment of regulatory (authorisation) processes, improved provisions for cooperative governance, the strengthening of provisions to use spatial tools in environmental impact management, new provisions for management, including exclusions, based on norms or standards, and alignment of this legislation to the Promotion of Administrative Justice Act (PAJA).

She then explained that under the current legal framework, environmental impact management and assessment (EIA) for mining was regulated by the MPRD Act, which prescribed an EIA process to be followed before prospecting, mining and reconnaissance related authorisations would be granted. Therefore the Department of Minerals and Energy (DME) was the competent authority over environmental management and EIAs for mining. At present DEAT and the provinces were only a commenting authority and must formally object if an application was opposed.

Both Ministers had however agreed that it was not desirable to have different environmental management systems for different activities. It had therefore been agreed that there should be one system, and this system should be prescribed by the environmental authority DEAT, under its relevant legislation. Therefore, while the Minister of M&E retained the mandate as competent authority to implement systems related to mining, the Minister of EA&T remained the appeal authority in relation to mining environmental management processes, to enable a proper exercise of that Minister’s function as the custodian of the environment.

To give effect to this agreement, the MPRD Bill proposed to repeal all those provisions in the principal MPRD Act that related to environmental management. It would also make the granting of prospecting, mining, or reconnaissance subject to environmental authorisations. Then the NEMA Bill would amend its principal Act by including in the Act those environmental management provisions currently in the MPRD Act, which were not already adequately covered in NEMA. The Minister of Minerals and Energy would then be assigned competence for the implementation of environmental management systems. NEMA was further to be amended to assign the Minister of EA&T as the appeal authority for all environmental authorisations issued for mining activities by the Minister of M&E.

The result of these amendments would be that that NEMA would regulate environmental management, develop policy or guidelines or norms and standards in this regard, while DME would only implement these as they concerned mining. To further give effect to the agreement between both Ministers, it was proposed that the transition from the MPRD environmental management system to the NEMA environmental management system should take place within 18 months of the enactment of either the MPRD amendment or the NEMA amendment, depending on whichever was enacted last.

Ms Yawitch stated that the exercise had been a long and difficult process and commended the willingness and cooperation shown by officials from both DEAT and DME.

Ms Futhi N Zikalala, Deputy Director General, DME, started by giving a brief overview of the status of the MPRD Amendment Bill. She restated some of the points made by Ms Yawitch from the perspective of the DME. A three-pronged framework criterion was agreed upon to achieve alignment of environmental management requirements in the MPRD and NEMA legislation. She reiterated that one environmental management system would be followed in South Africa. The Minister of Minerals and Energy would be the responsible authority implementing environmental matters in terms of NEMA, 1998, only insofar as these related to prospecting, mining, exploration, production and related activities on a prospecting, mining, exploration and production area, and she re-stated that the Minister of Environmental Affairs would be the appeal authority in respect of those authorisations issued by the Minister of Minerals and Energy. She too thanked the officials from DEAT and members of the Committee for their support and cooperation throughout the process.

Discussion
Co-Chairperson Mr L Zita (ANC) noted that it would be in the interest of good governance to have environmental affairs management moved to DEAT in the long term and he stated that this would be a focus area for the future.

Mr L Greyling (ID) stated that it was necessary for environmental affairs to be under the ambit of DEAT. This was a critical issue that should be concluded as soon as possible. He suggested that the Committee simply change the authorisations now instead of waiting for the agreed three year period.

Mr G Morgan (DA) noted that the NEMA Bill empowered the Minister to allow certain exemptions. He asked if there was any assurance that the Minister of M&E would not have powers to grant exemptions regarding environmental affairs. He also asked what was the reason why the DME felt that it had to retain power in respect of authorisations for environmental affairs on mines, since their records regarding authorisations of mines had been bad so far. He wondered how many mines were going to be authorised within the next 18 months that would fall under the purview of NEMA. He also asked for explanation of what exactly the Minister of M&E had appeal authority for.

Mr A Mokoena (ANC) said that he did not see the need to wait for 18 months and suggested that parliament should assert itself by making laws to deal with the challenges immediately. Provisions should be made immediately for the DEAT to handle EIAs, instead of leaving it until later.

Mr S Louw (ANC) noted that the MPRD Act was a notable historical document and asked if DEAT had the capacity to process the huge numbers of applications that were still with DME, seeing that the responsibility was now shifting to DEAT. Also, he wondered why the Minister of M&E could not regulate or make policy regarding environmental affairs as it affected mining, but yet must implement it.

Ms R Ndzanga (ANC) noted that the ordinary people were now enjoying some benefits from the mining activities in the areas where they lived. She asked how these changes and amendments would affect them, and hoped that they would be well informed and made to participate in these processes as it would affect their daily existence.

Ms Yawitch noted that as civil servants, the DEAT took directions from the laws passed by parliament, and from the policies of the government. A rationalisation of the environmental management system was in the best interest of all parties and stakeholders, and this was what the agreement with DME tried to achieve. Both departments tried to ensure that economic activities were carried out in such a way that the environment was protected. The DME gave mining guidelines to DEAT, and the DEAT would also act in concurrence with the DME when making the regulations.

Under NEMA, she confirmed that there were circumstances when exemptions could be granted. However, any exemption that did not meet the set criteria could be challenged. She assured Members that once the legislation was passed, there would be intensive engagement with all the relevant communities, to explain how it would affect them.

Ms Zikalala then stated that mining had been going on for over 100 years and the agreement between DEAT and DME was aimed at enhancing cooperative governance in mining activities. She stated that DME could not give any guarantees regarding exemptions, and that DME was not holding on to authorisations as suggested by some committee members. DME was only trying to implement policies and trying to create a system that would be of economic benefit even to foreign investors in the country. She noted that consultations between both departments would be strengthened.

Co-Chairperson Mr E Ngcobo (ANC) stated that both NEMA and the MPRD legislation were enacted with a view to also benefits the poor and previously disadvantaged groups and communities. He thanked the various departments and other stakeholders for their hard work and commitment through the whole process.

The meeting was adjourned.