National Environmental Laws A/B [B35-2007]: Negotiating Mandates

Meeting report

The Chairperson asked the provinces to place their respective negotiating mandates on the National Environmental Laws Amendment Bill before the Committee. The Department of Environmental Affairs and Tourism (DEAT) was in attendance and was represented by Ms Joanne Yawitch (Deputy Director General), Mr Mark Jardine (Deputy-Director: Legal Research & Development) and Ms Vicky Beukes (Legal drafter, DEAT). Mr K Mathipo represented the Department of Water Affairs and Forestry (DWAF).

Mr L Van Rooyen (ANC, Free State) stated that the Free State was in favour of the Bill. He wished, as a member of the committee, to raise the issue of the proposed amendments to the Bill. He said that the need for the amendments arose due to the fact that DEAT had powers of enforcement whereas DWAF did not. He asked Mr Mathipo to elaborate further.

Mr Mathipo stated that the crux of the matter was that there was a need for collaboration to deal with environmental issues broadly especially as they related to water. He noted that the National Environmental Management Act (NEMA) was on over the issue of water and the National Water Act did not contain broad powers of enforcement. Environmental Management Inspectors (EMI) on the other hand did have wide powers, which enabled enforcement. Hence the proposed amendments to broaden the scope of NEMA to cover water as well. The National Water Act would be included in NEMA and the Minister of Water Affairs and Forestry would be able to designate its officials and officials of any other organs of state as EMI’s.

Ms Yawitch added that enforcement of air and soil pollution was covered but enforcement over water pollution was lacking. She felt that the amendments would strengthen the fight against environmental crime. The result would be that DWAF officials would be trained as designated inspectors.

The Chair said that the question was whether the provinces concurred with sentiments expressed by the departments.

Mr Adams (ANC, Western Cape) accepted the importance of the amendments but asked why had it been referred to the Committee at such a late stage. It made things difficult for the Committee. This was especially so for him as his mandate was to agree to the Bill without amendments. Mr Adams remarked that he would have to go back to the provinces for a mandate on the proposed amendments.

The Chair agreed that the amendments had been referred to the Committee at a late stage.

Mr R Tau (ANC, Northern Cape) said it was not the first time that amendments had been referred to the Committee at the eleventh hour. He stated that the Department needed to address the concern. The issue was about processes and more specifically those of the NCOP. The question before the Committee was how to deal with the proposed amendments.

Rev P Moatshe (ANC, North West) stated that his province supported the amendments.

Ms K Oliphant (ANC, KwaZulu-Natal) said that she did have a mandate to approve amendments to the Bill if amendments were so proposed. She pointed out that the amendments referred to an MEC and asked which MEC was being referred to. Ms Oliphant said that most of the provinces were unaware of the amendments and said that members needed to go back to the provinces to discuss it.

Ms Yawitch responded that the MEC referred to was the MEC for Environmental Affairs. The Minister of Water Affairs and Forestry would designate DWAF officials to implement the Water Act. There would be agreement by the Minister and the MEC to delegate powers to provinces.

Mr Tau said that he had been given a broad mandate. He stated that he could support the proposed amendments and hence lobby other provinces to support it as well.

The Chair said that the understanding of the provinces on the process seemed not to be the same.

Mr V Windvoel (ANC, Mpumalanga) felt that the Department should elaborate on the matter.

Ms Yawitch said that when pollution crimes were investigated the Department was unable to do a comprehensive investigation. An investigation team that included DWAF would normally be formed. It allowed for an integrated process. The problem that surfaced was that enforcement on water pollution was lacking and hence DWAF’s hands were tied. Soil and air pollution which fell within DEAT had proper enforcement. She stated that DWAF officials did not have the search and seizure powers that DEAT officials did. The amendments therefore extended these powers to DWAF officials as well. DEAT had engaged in useful discussions with the provinces. She said that one of the problems of provinces was that officials at municipal level should be able to enforce the Act.

Mr Mathipo agreed that the amendments were a priority for the Minister of Water Affairs and Forestry.

Ms Oliphant referred to the amendment which provided that the Minister of Water Affairs and Forestry could designate any employee of any other organ of state as an environmental management inspector. She was concerned about the provision.

Mr Mathipo explained that a designation could only be made if there was agreement between the Minister of Water Affairs and Forestry and the relevant organ of state.

Ms Oliphant proposed that “after consultation” be added after the word “agreement” in the provision.

Both DWAF and DEAT agreed to the proposal.

The Chair asked whether the Bill and proposed amendments were accepted or not. He said that
the Committee was negotiating.

Mr Tau stated that the Northern Cape Province supported it. Ms Dlulane (EC), Mr Van Rooyen (Free State) and Ms Matlanyane (Limpopo) supported both the Bill and the proposed amendments. Mr Adams (WC) also supported the Bill and the proposed amendments with the proviso that a final mandate be obtained from the province in this regard. He reiterated earlier comments that the amendments could have made its way to the Committee earlier.

Mr V Windvoel (Mpumalanga) stated that he preferred to be non-committal for the present and would first take the proposed amendments back to the province.

The Chair asked Mr Windvoel if he did not have a broad mandate.

Mr Windvoel answered that he did not.

The Chair stated that the majority of the provinces had agreed to the proposed amendments. The proposed amendments would henceforth be forwarded to the provinces for consideration after which members would return with final mandates.

Mr Adams asked whether the proposed amendments came from the Northern Cape even though Mr Van Rooyen from the Free State introduced it.

The Chair confirmed it to be the case.

Mr Windvoel was of the opinion that the amendments were from DEAT.

Mr Tau said that DEAT could not be involved with dealing with negotiating mandates. He noted that during deliberations he had agreed with the amendments and had been supported by KZN. Based on the broad mandate of the Northern Cape, Mr Tau stated that he had taken ownership of the amendments as if it was his own even though it had been drafted by DEAT.

Mr Windvoel responded that he did not disagree with the fact that the Northern Cape had lobbied the support of KZN in support of the amendments but felt that the amendments ultimately came from DEAT. He asked whether the amendments had been deliberated by MEC’s at MinMEC level.

Ms Yawitch responded that the proposed amendments had been discussed in Environmental MinMECs with MECs.

Mr Tau stated that policy development was an evolutionary process. He said that if the Bill had been a Section 75 Bill and last minute amendments had been proposed, the Minister would have liaised with the Chairperson of the Portfolio Committee on Environmental Affairs and Tourism. Mr Tau said that seeing it was a Section 76 Bill and if MECs had been involved in the process why had they not introduced the amendments at their level. He stated that in the future the Minister could instruct MECs to inform legislative committees about amendments.

The various provinces proceeded to read their negotiating mandates to the Committee. In the process highlighting concerns and suggestions raised in the negotiating mandates.

Ms Dlulane (Eastern Cape) proposed that community service be considered as a penalty for minor offences. She also proposed that a national grant must be set up for waste management. She also suggested that environmental practitioners be trained as EMIs.

Ms Yawitch responded that the penalties for minor offences were within the discretion of the presiding magistrate. DEAT had put in a request for EU funding and the prospects of obtaining it looked good. The funding would mostly go to provinces and municipalities. She said that health officials were being trained as EMIs.

The Chair commented that the EC supported the spirit of the bill.

Mr Windvoel read out the negotiating mandate of Gauteng Province given that its delegate was not present. The negotiating mandate stated that Gauteng supported the Bill with no proposed amendments.

Ms Dlulane asked whether the minutes of the meeting would be sent to Gauteng given that much discussion had taken place.

The Chair agreed that minutes of the meeting would be sent to Gauteng.

Ms Oliphant stated that KZN supported the Bill but also had concerns. It was felt that EMIs should involve communities. KZN also felt that the R5m penalty should be increased.

The Chair stated that KZN supported the proposed amendments.

Ms Matlanyane stated that the Limpopo Province supported the Bill but also had concerns. Limopopo felt that consultation had only been limited to government departments and that NGOs etc. had not been consulted. The Bill had also overlooked the role of traditional leaders.

Mr Tau stated that the Northern Cape Province supported the Bill.

The Chair presented the negotiating mandate of the North West Province to the Committee and stated that the Bill was supported. It had however raised some concerns as well. The Bill did not set out the responsibilities of municipalities on waste management. The training of EMIs needed to be outlined in the Bill.

Mr Adams reiterated that the Western Cape supported the Bill without amendments.

Rev Moatshe said that the proposed amendments were good and felt that it would seem that provinces would not reject it. He requested DEAT to send the proposed amendments to the provinces as soon as possible. The Chair reiterated earlier concerns that legislation was often referred to the Committee at a late stage. DEAT was asked to see to it that it did not happen again.

The Committee agreed to consider final mandates on the 10 June 2008.

The Committee adopted its minutes of 13 May 2008.

The meeting was adjourned.