National Environmental Management Amendment Bill [B36-2007]: Agreement on wording of amendments incorporated from Mineral and Petroleum Resources Development Bill

Meeting report

National Environmental Management Amendment Bill (the Bill): Briefing by the Department of Environmental Affairs and Tourism (DEAT) and the Parliamentary Legal Adviser, and consideration of amendments proposed by the Committee
Ms Lize McCourt, Chief Director: Environmental Impact Management, Department of Environmental Affairs and Tourism stated that amendments were made to the Bill and she proceeded to go through these as follows:

Clause 1
Section 1 of the National Environmental Management Act (the Act) dealt with definitions and administrative procedures relating to the entire Act. The amendments that were made were in relation to definitions of activities that were formerly included in the mining legislation. Amendments were also made following requests from the Committee.

The following definitions were included or amended in the Bill:

‘Aircraft’
The definition was included in the Bill. The definition for ‘applicant’ was inserted under the definition.

‘Community’
The Mineral and Petroleum Resources Development Act’s (MPRDA) definition of ‘community’ was inserted in to the Bill, however, the DEAT felt it was too restrictive and the definition was amended to be less limiting.

‘Environmental management plan’
The definition for “environmental management plan” was included in the clause under which the definition of ‘environmental management programme’ was included.

“Evaluation”
The definition was included in the Clause. The definition of ‘exploration area’ was included under it. 

‘Hazard”
The definition of “hazard” was amended to include the definitions of ‘holder’, ‘holder of an old order right’ and ‘interested and affected party’.

’MEC’
The definition for ‘MEC’ would be included in the clause. The definitions for ‘mine’, ‘Mineral and Petroleum Resources Development Act, 2002’ and ‘mining area’ would be inserted after the definition of ‘MEC’.

’Minister’
Clause 1 would also include the definition of “Minister”. The definition for “Minister of Minerals and Energy” would be inserted under the definition of “Minister”. The definitions were included to differentiate between the Minister of Environmental Affairs and Tourism’s and the Minister of Minerals and Energy’s jurisdictions in property and mining. The Minister of Minerals and Energy’s duty was restricted to the implementation of environmental matters relating to prospecting, mining, exploration, production and related activities within a mining, prospecting, exploration or production area.

‘Organ of state’
The definition would be included in Clause 1. The definition of ‘owner of works’ would be inserted after the definition. The definition was derived from the Mine Health and Safety Act.

‘Prescribe’
The definition would be included in the clause after the definition for ‘norms and standards’. Definitions for ‘production area’ and ‘prospecting area’ would be inserted under ‘prescribe’. Both definitions were adopted from the MPRDA.

‘Provincial Head of Department’
The definition would be included in the clause. Definitions of ‘public participation process’ and ‘Regional Mining Development and Environmental Committee’ would be inserted after the inclusion of ‘Provincial Head of Department’. The definition was included to provide guidance as to what public participation entailed. The ‘Regional Mining Development and Environmental Committee’ was an important tool in dealing with objections based on environmental grounds.

‘Regulation’
The definition was included in the Bill. Definitions for ‘residue deposit’ and ‘residue stockpile’ were inserted under the definition of ‘regulation’.

‘Competent Authority’
The definition was omitted from the Bill.

Clause 2
Ms McCourt stated that Section 24 of the Act related to ‘Environmental authorisations’ and dealt with the identification of activities that required environmental authorisation, the procedures that needed to be followed and the obligations.

Amendments to Subsection 24(1)
Ms McCourt read out the proposed amendment to the Subsection. The subsection was further amended to include subsection 24(1A), reflecting comments made by the Committee about the process consideration in the Act. This was also on par with the MPRDA approach.

Subsection 24(2d)
‘Paragraph (a)’ was substituted for ‘paragraph (a) and (b).

Subsection 24(4)[(b)]
The subsection was amended, on request of the Committee, to include public participation in the compulsory section. Regardless of the tools that were used, public participation and information were compulsory requirements. 

Subsection 24(b)
The wording was amended. ‘May’ was changed to ‘must’. This ensured that there was qualified discretion for environmental authorisation.

Subsection 24(4)[(d)](iii)
Subparagraph (iii) was omitted and replaced with a statement contained in the MPRDA.

Subsection 24(5)(b)
Subparagraph (iii) was deleted, as the subparagraph was elevated to a separate section that dealt with environmental instruments. The subsection was also amended to include five more subparagraphs that dealt specifically with things that the MPRDA provided for. These provisions were moved to NEMA to enable DEAT to make regulations around management and control of residue stockpile. This mechanism allowed the Department to have a set of regulations specifically around consultations.

Subsection 24(5)(bA)(iv)
The word ‘plan’ was substituted with the word ‘programme’. The DEAT wanted to focus on the Environmental Management Programme rather than the Environmental Management Plan, which was found to be too limited. 

Subsection 24(8)(b)
The statement ‘required for environmental authorisations’ was omitted from the subsection. The statement was deleted because it was found to be nonsensical. Also, ‘an activity identified’ was omitted and replaced with ‘a listed activity or specified activity’. Specified activities were in addition to listed activities because they occurred in a specific geographical area.

Subsection 24(10)(a)
In subparagraph (i) the word ‘listed’ was replaced with ‘or for any part of an activity or for a combination of activities, contemplated’. The Department amended the subparagraph because they wanted norms and standards for specific areas and a combination of activities that formed one development. Another subparagraph was inserted under subparagraph (ii) that said that the Minister, or an MEC with the concurrence of the Minister, may ‘prescribe reporting and monitoring requirements’.   

Clause 5
Subsection 24F(5)(1)(a) of the Act
This Subsection was amended to include ‘or the Minister of Minerals and Energy, as the case may be’ after the word ‘authority’. The subsection was amended to make provision for the involvement of the Minister of Minerals and Energy.

Subsection 24F(5)(1)(b)
Subsection was amended with changes to the numbering of the subparagraphs. An additional subparagraph was inserted.

Clause 6
The clause was amended by making changes to certain words. ‘Plan’ was substituted for ‘programme’.

Clause 8
Section 24J amendments
Everything following ‘guidelines’ was omitted and replaced with subparagraphs (a) and (b). The subsection was amended because the Committee felt that there had to be provisions around guidelines for adhering to procedures, specifically to help previously disadvantaged communities. 

Section 24M
Subsection 1 of 24M was omitted and replaced. The section was also amended to include a subsection 2. The numbering for the rest of the section was amended. The amendments ensured that it was not possible to be exempted from compulsory provisions. The Minister of Minerals and Energy may only, in his or her competence, grant an exemption in terms of section 24(4)(b). The exemptions were linked to checks and balances. An exemption may only be granted if it was not going to result in a detrimental impact on the environment.

Section 24N
This Section was inserted in to Clause 8. It described the environmental management programme. The programme had to contain information on any proposed management, mitigation, protection or remedial measures that would be taken to address the environmental impact that was identified in a report. It also had to contain planning and design activities and the details of the person who prepared the environmental management programme. All these provisions were adopted from the MPRDA to substantially strengthen the NEMA.

Section 24O
Section 24O was now being inserted into the Act to indicate the criteria to be taken into account by competent authorities when considering applications. This section dealt with consultations with other organs of state in regards to mining and other environmental authorisations. When considering applications for environmental authorisations, the MEC, the Minister of Environmental Affairs and Tourism and the Minister of Minerals and Energy, were to comply with the Act and were obliged to take in to account all the relevant factors. They also had to take into account the ability of the applicant to implement mitigation measures.

Section 24P
This Section was now being included to clarify the financial provision for remediation of environmental damage. The section was adopted from the MPRDA with conceptualisations for the NEMA. 

Section 24Q
A new Section was included to look at monitoring and performance assessment. The section was adopted from the MPRDA and was made applicable to all environmental authorisations. 

Section 24R
This new section was being inserted to include requirements around mine closure on environmental authorisation. The section was adopted from the MPRDA.

Section 42B
The section described delegation by the Minister of Minerals and Energy. The section was expanded upon to allow for the Minister of Minerals and Energy to grant powers to officials within the Department of Minerals and Energy.

Clause 9
Section 43
Subsection 43(1) of the Act was to be amended to include two subparagraphs. Subsection 43(4) was also amended to include subparagraphs (1A) and (1B). Section 43 explained why the DEAT had to give the Minister of Minerals and Energy some appeal authority.

Clause 10
Clause 10 was amended to include three more subsections, which would allow for the first eighteen-month implementation process. The three new subsections looked at transitional arrangements.

New Clause
Clause 12
Advocate Anthea Gordon, Parliamentary Legal Adviser, informed the Committee that a new clause 12 was now included in the Bill. The new clause was an amendment to the principal Act in order to transfer to the Minister of Environmental Affairs and Tourism the power in respect of environmental matters in so far as it related to mining. The Minister’s powers would come into effect eighteen months after the Amendment Bill came into effect.

Clause 11
‘2007’ was changed to ‘2008’. The clause was further amended with the inclusion of another subsection. The sections stated that any provision related to mining, prospecting, exploration and production would come into operation eighteen months after the date of commencement of the Bill. 

The Long Title
The title was amended by the inclusion of certain statements that could be found in the Bill. The long title clarified that the Bill aligned the environmental requirements in the MPRDA and the NEMA.  

Discussion
The Chair stated that Members were to analyse the Bill clause by clause to see if they were comfortable with the changes that were made.

Mr D Maluleke (ANC) asked if there was a need for the Department to check the transitional arrangements in the Bill.

Ms McCourt agreed that the Department and the Committee had to refer back to the MPRDA; however, she had not encountered any problems while analysing it. She would ask the legal advisors and state law advisers to check for implications.

Mr G Morgan (DA) commented on the nine original environmental instruments. He noted that the provisions would streamline the environmental authorisations and make the Environmental Impact Assessment (EIA) process both rigorous in assessing impacts and simple in that there was a more targeted impact assessment. However, he noted that there was a drafting issue around the procedures that would be included in the instruments. He suggested that the Committee add a simple amendment, which said that once the regulations that surrounded each of these instruments were made, the Department or the Minister was obliged to bring them back to the Committee purely for consultation.

Ms McCourt stated that she wanted the opinion of the Parliamentary Legal Adviser regarding consultations. As the Chief Director for Environmental Impact Management (EIM), she had no personal objection to Mr Morgan’s request.

Advocate Gordon stated that Parliament’s considered view was that it should ‘apply its mind’ to regulations. It was her opinion that the regulations should come before the Committee so that the Committee could ‘apply its mind’ and have consultations around regulations. 

Mr Morgan suggested that the Committee should combine oversight within the reasonable capacity of what the Committee could do. He wanted to limit consultations to the nine instruments contained in the Bill.

Ms McCourt stated that this recommendation could be included in Section 24(5)(4)(bA) of the Bill.

Mr L Greyling (ID) addressed submissions made to the Committee by the Legal Resources Centre (LRC) after the amendments were made. He stated that there were interesting and profound points in these submissions. He wondered if the Committee should not take a further look at the submissions and ask the legal advisers for an opinion.

The Chairperson stated that the Committee could ask the Department to look at the submissions.

Mr Greyling said that the issue was whether or not the points made in the submissions were correct. The Committee had to engage with the Department to find out if the submissions were valid.

The Chair assured Mr Greyling that the Bill would not be finalised without the Department’s presence at the meetings. The Chairperson further stated that the Committee would discuss the matter the following week, as many Members had not received the LRC’s letter.

Mr Morgan stated that there was a part in the letter from the LRC that the Committee could resolve now. He wanted the legal adviser’s opinion on the matter. There was a considered view by some of the stakeholders that Bill presently on the table was substantially different from the Bill that went through public hearings the previous year.

The Chairperson clarified that the LRC was suggesting that the Committee should have reopened discussions after the amendments were made, and that the Committee did not follow the proper procedure.

Ms McCourt stated that the Department’s opinion was that the bulk of the changes that were made after consultations were the direct result of comments made by the Committee and the MPRDA process. The essence of the matter was the part of the Bill on which the Committee had consulted. This related to bringing the environmental management of mining into the ambit of NEMA. This was agreed to in all the consultation processes. These amendments now were not new provisions; they were in fact the existing wording of the MPRDA that was being brought in to the NEMA Bill.

Advocate Gordon stated that the amendments made to the Amendment Bill emanated from the entire process that was followed. It was not as if the Committee did not have public hearings, the amendments were a result of the Bill’s process. She cautioned that, in terms of the public processes, every Committee had to evaluate what steps it had taken in the public process. However, the amendments were not made in isolation of the public hearing process and the final product was reached due to input from the public.

The Chairperson warned the Committee that they were to be careful with this issue.

Mr Greyling stated that the Committee had to consider both the NEMA and the MPRDA, as the Bills were interlinked.

Mr Maluleke stated that the mining houses were represented at the public hearings and that amendments were made as a result of the hearings.

The Chairperson asked if the Committee was in agreement that the amendments that were made had emanated from and had a direct bearing upon the public hearings.

Ms McCourt stated that the issues were debated in public hearings.

Advocate Gordon advised the Committee to have a cursory glance at the processes that were taken so as to satisfy Members that they fulfilled their constitutional obligations.

The Chair suggested that the Committee move onto the adoption of the amendments. A motion to adopt the amendments as stated by Ms McCourt was proposed and seconded and a motion of desirability was read and accepted.

The Chairperson stated that the Committee would discuss the matter again the following week.

Consideration and Adoption of the Budget Vote Report
The Committee’s report on the budget vote was proposed and seconded, and adopted by Members.

The meeting was adjourned.