The Chairperson noted that the Legal Resource Centre had been invited to make their submissions on the National Environmental Management Amendment Bill (the NEMA Bill) and he would allow the Department and Parliamentary Legal Advisors to comment. It would have been useful if the Chamber of Mines could also have attended. The Legal Resources Centre then stated its concerns around the Bill. There were two interlinked Bills, and it was considered not useful to have public consultations ongoing about the Minerals and Petroleum Resources Development Amendment Bill while the public process in respect of the NEMA Bill had closed. The Centre appealed that more consultation be allowed, as this Bill was amended in such as way as to amount essentially to a new Bill. Concerns were expressed about the requirements for environmental impact assessments and the requirements for an environmental management plan. Mitigation of environmental impacts should be mandatory. The use of “may” and “must” was queried under Clause 24. The Department of Environmental Affairs and Tourism explained that Clause 24 was applicable to specific activities over which the Minister had discretion whether to apply the mandatory rules. The change to the original process in fact related to strengthening of it. Mining was in addition a listed activity in terms of the Environmental Impact Assessment regulations. The procedural concerns around Rule 240 were not applicable to this case since this Bill had not been finalised. The concerns about mitigation of impact had been discussed already with the Centre, and no provision should be read out of context. Members commented that the issues around mining must be treated with sensitivity, and that effective implementation would be vital. Members pointed out that the Department had agreed that any changes to the regulations would be placed before the Committee. The Committee, having gone through the Bill clause by clause, resolved to adopt the Bill, with amendments.
The Chairperson stated that it would have been ideal to have had the Chamber of Mines present at the meeting as it had raised certain issues around the content of the Amendment Bill. The Committee had gone far out of its way to engage with the public on policy issues and had kept an open-ended approach. The Legal Resources Centre wished to raise certain issues and would be given a chance to do so. The Parliamentary Legal Advisers and the Department were both invited to comment on the substantive issues raised by the LRC
National Environment Management Amendment Bill (NEMA Bill): Legal Resources Centre (LRC) Submission
Ms Angela Andrews, Attorney, Legal Resources Centre, raised some concerns around procedure relating to the NEMA Amendment Bill. She noted that there were two interlinked Bills, the NEMA Bill and the Minerals and Petroleum Resources Development Amendment Bill (MPRD Bill), and although there would still be public hearings for the MPRD Bill, there would no longer be public consultations regarding the NEMA Bill. LRC felt that the public should still be given a chance to air their views and concerns about issues that were in the NEMA Bill but which would be reflected in the MPRD Bill. She believed that having public consultations ongoing for one but not the other would created a lopsided process that would not necessarily take into account all the concerns.
Some of the concerns were related to the requirements for Environmental Impact Assessment (EIAs) under the MPRD. She appealed to the Committee to allow more consultations with the public. She also pointed out that it had been argued that the NEMA Bill was in effect a new Bill, since what was now before the Committee was substantially different from the original Bill. This Bill had introduced a new system for mining and had a curious arrangement with the Minister of Minerals and Energy. She highlighted that under the MPRD Act it was mandatory to have an environmental management plan – which was perfectly correct - but under the NEMA legislation this was no longer mandatory. Mining impacted on the lives of all people, but especially those who lived close to mining sites, and such communities needed to know what had been prescribed in the Bill and be given a chance to raise their concerns regarding the implications of the Bill. She believed that this NEMA Bill should thus be re-introduced to the public.
Ms Andrews pointed out that there was a lingering concern regarding the issue of discretion, under the old NEMA there were certain mandatory obligations in regard to environmental impact assessments (EIAs). She asked if there was a process that was so well regulated that impact assessments were not needed. It was problematic if mitigation in impact assessment was not mandatory. This seemed to be contradictory because the NEMA Act was strong on the fact that impacts on the environment must be minimised. Monitoring should be constant, thus follow ups should always be made to ensure that the legislative principles were obeyed.
Ms Andrews said that the LRC was also concerned about the fact that a person wishing to apply for the authorisation of mining activity ‘may’ be required to have an Environmental Management plan, whereas LRC believed that this should read ‘must’.
Ms Lize McCourt, Chief Director: Environmental Impact Management, DEAT, stated that the issues around discretion in clauses 24(4)(a) and (b) of the Bill had been emphasised in all the discussions between the LRC and the Department, and that these issues had been raised and considered by the Committee. There was some misunderstanding on this. Clause 24(4)(a) applied to regulation of specific activities. The Minister, when making the EIA regulations for a specific identified activity, should decide whether the mandatory aspects were indeed applicable to that particular activity, not on an individual basis but in context. She mentioned that when the analysis was made questions whether mitigation was required would be raised. Mitigation was thus applicable when addressing issues around EIA and this would be included in the MPRD Bill. The current EIA regulations were in place and any mining activity needed to be compliant with the EIA regulations. She then pointed out that the principles of the NEMA Act remained mandatory for all activities. Mining was in addition a listed activity in terms of the EIA regulations. Clause 24(4)(b) said that if the Minister were to list an activity that was managed by or fell under the mandate of some other Minister, then there should be consensus between both Ministers. Approval for the Environmental Management Programme Report (EMPR) was emphasised in the MPRD Act. The change now being proposed was that the approval would still be required, but it must be obtained via the environmental authorization. This was in effect stronger, because there would be an appeal process in respect of declined applications. All principles of the NEMA Act would remain.
Adv Anthea Gordon, Parliamentary Legal Advisers, pointed out that the procedural concerns raised by the LRC with regard to the National Assembly Rule 240 were not applicable to this case. The NEMA Bill was not a new Bill; it had gone through a deliberation process. The National Assembly Rule 254 applied to a Bill that had been finalised and that the NEMA Bill had not progressed to that stage. The Committee was entitled, during its deliberations, to make amendments to the Bill.
Ms Andrews stated that the EIA requirements and the way in which the NEMA Bill was drafted created a loophole. EIAs needed to be distinguished from all the other tools, as it would consider specifically matters that could impact on the environment.
The Chairperson asked if the LRC felt that the current Bill was not giving weight to mitigation of environmental impact.
Ms McCourt pointed out that with regard to the mitigation, LRC had already raised these concerns before the Committee. The Bill must be read in its entirety and no provision should be read out of context and singled out. She said that NEMA Act and this Bill both emphasized that where it was impossible to avoid impact on the environment, then attempts must be made to minimise that impact. She also mentioned that over emphasis being placed on mining activities was in one sense useful, but could also have detrimental effects on the legislation and the activity itself.
Ms J Chalmers (ANC) pointed out that the debates between the Department and the LRC were very useful, especially in regard to the legal impacts. She believed that it was important to unpack the core details and concerns around the Bill, because the issue of mining should be treated with awareness and sensitivity as it was historically harmful to the environment. She elaborated that all the mechanisms that would safeguard the environment should be implemented effectively.
Mr V Ngema (NACEDO) mentioned that he had been on the receiving end of mining activities, and he was comfortable about what this piece of legislation attempted to do.
Mr L Greyling (ID) concurred with the point raised by Ms Chalmers. Any change to the regulations must be addressed to the National Assembly, in order to safeguard the interests of the legislation and of the public.
The Chairperson proceeded to summarise the Bill, as amended, clause by clause.
Members agreed to the clauses, and the Bill was adopted, with amendments.
The meeting was adjourned.
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