National Environmental Management Amendment Bill [B36B-2007]: Department of Environmental Affairs briefing

Meeting report

National Environmental Management Amendment (NEMA) Bill (the Bill): Department of Environmental Affairs and Tourism (DEAT) briefing
Ms Joanne Yawitch, Deputy Director: Quality, Department of Environmental Affairs and Tourism, gave a background briefing to the amendments that were being tabled to the Committee. There were three Environmental pieces of legislation that were currently being dealt with. The NEMA Bill, B36B, was the one that was now being presented to this Committee for review.

Ms Yawitch said that Environmental Impact Assessment (EIA) regulations were introduced after the principal NEMA Act had been passed, and environmental management components were set up with varying levels of success. However, government did not anticipate the numbers of EIAs that cropped up. The Department had, within the old Conservation Act, to improve the system, but since this did not work out, NEMA was drafted, incorporating the lessons learned from past successes and failures, to address problems identified in the system. She stated that most problems were identified in NEMA’s Chapter 5. Regulations were then adopted in 2006. Once again that Act was up for review. A ten-year conference on EIAs was to be held in October to assess what had been done and where to go. She finally indicated that the EIA was implemented jointly by the National Department and the Provinces, as amendments were drafted with the provincial offices.

Ms Yawitch then tabled, and took the committee through the summary of amendments (see attached document). She stated that provision had been made for use of tools other than the EIAs. EIAs regulated construction based activities but could not help in cases of risk assessments. She stated that broader strategic environmental management was needed and provisions for improved cooperative governance had also been made. She gave an example of the erection of cell phone masts. She said this allowed agreement to be made between different organs of government and the use of spatial planning tools involved a more proactive approach.

Ms Yawitch then moved to the overview of the process (see attached document). She noted that the Portfolio Committee on Environmental Affairs in principle supported the proposed amendments, subject to editorial corrections and compulsory public participation. She said that the Bill as introduced had initially stated that the Minister of Environmental Affairs was the competent authority to implement the EIAs but the Portfolio Committee had not agreed to this and had asked for some further work by the legal drafters.

The main problem was concerned with the environmental impact of mining. In 2002 the Minerals and Petroleum Resources Development Act (MPRDA) had proposed development of a management programme for Mining Rights. No environmental veto was in that Act, and this had posed problems since some mines required EIAs. She stated that it was also suggested by the public that Department of Mining should not bear responsibility for approving EIAs. The State Law Advisers stated that they could not amend the existing law without an agreement between the affected departments. Therefore in 2007 it had been agreed by both departments that there should be one EIA for the country.

Ms Yawitch then proceeded to a more detailed provision on the exact provisions of the Bill (see attached document) and suggested that she answer questions. 

Discussion
Mr M Mzizi (ANC) wanted to know how the various departments, particularly the Departments of Minerals and Energy and Justice and Constitutional Affairs, stood in relation to these Bills and to the DEAT. 

He also asked about the overview process, particularly whether the mandatory function consolidated with the custodian function.

Mr Mzizi also referred to clause 1, the definition section, and was concerned with the safety measures as far as drilling exercises were concerned. He suggested that the use of an Inspectorate would be appropriate and wanted to know if the Minister of Environmental Affairs will be responsible for this.

Mr Mzizi sought clarity on the provisions of the new section 24(9). He noted that it appeared that the Minister and MEC had a similar function, and wanted to know when it would be necessary for either of the two to make regulations.

Mr L Van Rooyen (ANC, Free State) wanted to know the definition of ‘tools’ as used throughout the Bill, since that word was not defined.

Mr van Rooyen wanted clarity on the new section 4C(2)(d), which seemed to be in conflict with the Coastal Management Bill.

Hon Makai from the Kwazulu Natal Provincial Legislature said that the Amendment Bill could not do much about the environmental degradation that had already taken place. He wanted to know whether the Department would come to Provinces to assist in the prevention of degradation.

Mr F Adams (ANC, Western Cape) wanted to know which specific MEC was being referred to in the Bill.
He also wanted clarity on the Provincial Department’s capacity to carry the workload that this Bill would require them to do.

Ms Yawitch responded to these questions in general. She stated that the Department would be happy to provide officials to travel to the provinces for provincial briefings. She stated that draft regulations for commencement of the Act had been prepared and have been published for public comment. She said that the questions around ,mandates and custodians were to do with the legal situation. In terms of delegation of authority, the responsibility for the environment was assigned by the President to the Minister of Environmental Affairs. However, Parliament had held that as far as environmental issues specifically in mining were concerned, the Minister of Minerals and Energy should be responsible. The process had been to work out with legislation in both the Environmental  and Mining sectors, and move clauses from one piece of legislation to another, to ensure that responsibility was properly placed at the door of the responsible Minister in each case and ensure that all issues were covered. 

On the question of degradation, she pointed out that other legislation such as the Integrated Coastal Management Bill, and legislation on Protected Area and Biodiversity were being worked on to deal with degradation and it would be handled through integrated authorisations.

She clarified that the MEC referred to in the Bill was the MEC for the Environment.

In regard to the capacity of provinces, she noted that training systems had been put in place with national reporting standards to assist the provinces, and other major interventions would also take place.

Mr Mark Jardine, Deputy Director: Legal services, DEAT, noted that there had been a misunderstanding on the role of Department of Justice. He said that decisions in terms of this Bill were administrative decisions that must be in line with the provisions of administrative justice set out in Promotion of Administrative Justice Act (PAJA). Those decisions must be lawful, reasonable and procedurally fair. This Bill therefore did not concern the Department of Justice. He noted that both the National Minister of Environmental Affairs and the relevant MEC of the province could make regulations and if there was a conflict; the Constitution has provided safeguards to resolve it. He noted that there was no conflict with the Coastal Management Bill, as certified by the State Law Advisers.

Another Member of DEAT spoke to the question of definitions, clarifying that since mining had now been integrated with NEMA, the issue of an Inspectorate was now subject to the green scorpions, the official Environmental Management Inspectorate. The same official touched on the issues around degradation as well, stating that Chapter 5 contained some prospective measures to prevent degradation, while other measures could be regarded as corrective. She noted that the word “tools” was not in fact used in the Bill. The term “environmental management instrument” was used in the revised section 24(5)(b)(A), and this was already defined. She stated that no MEC definition appeared in the Amendment Bill because the definition in the principal Act had not been amended. She also touched on the issue of capacity of the provinces and stated that no new requirements were being made of the  provinces and the amendment actually streamlined existing EIAs.

In respect of the mandates under the new section 24(9) she added that there was a wide mandate in the principal Act, except for the section on cross-bounding to the Minister. She agreed that it would be useful to provide a matrix of legislation to parliament to assess.

Mr Van Rooyen asked a follow-up question on the provincial capacity, noting that in fact the provincial capacity to deal with issues did not exist. He insisted also that there was a conflict between the Coastal Management and NEMA Bills, and requested that the Department must check up on this issue. 

The Chairperson asked the Department to let Mr van Rooyen know of any instances where non-compliance had been noted.

The Chairperson also asked the Department to elaborate on who qualified for exemptions in terms of the Bill.

Ms Yawitch stated that the impact on the environment did not relate to the economic position of the individual and this linked to the issue of exemptions. She expanded further on this later in her responses.

The Chairperson also indicated that the Bill said nothing about the previously disadvantaged and would in fact hinder the development capacity of the previously disadvantaged. He also queried the exorbitant amounts being charged by consultants for doing EIAs.

Ms Yawitch agreed that the Department had been concerned about amounts being charged, and that the Bill aimed in part to regulate this by using a registration authority that would regulate these consultants.

A Northwest provincial representative asked about how the fines in the Bill would affect the previously disadvantaged. He further was worried that the Bill did not talk about delegation to the Provinces, pointing out that there was no such thing as a national community. He further asked whether the Department did not think that it would be more appropriate to implement the regulations simultaneously with the Bill.

Ms Yawitch stated that the Constitution guaranteed environmental rights but local authorities were not willing to take on role of environmental management functions. She stated that the Department bore the responsibility to support financially ill-equipped provinces. She noted that when people ignored decisions, this in fact posed a threat to the safety of citizens.

On the issue of funding for the previously disadvantaged, she stated that once the regulatory authority exists, the Department would be prepared to assist small entrepreneurs. She noted, in regard to the fines, that the small activities were being distinguished from large developments. The fines would vary according to the size of the establishments. She stated that mechanisms such as the integrated authorisation and spatial tools would make it easier for officials to run processes that were simpler.

She also stated that existing impact on poor communities was not within the ambit of the current amendment and concentration is directed to substantial expansions.

She noted again that the draft regulations were out for comment and they could not be regarded as final at this stage but would be ready for implementation once the Bill was approved.

Ms Yawitch clarified that that this was an Amendment Bill and the Principal Act had already dealt with several of the matters now being raised by the Committee. She stated that, for instance, the mechanisms to deal with the previously disadvantaged were in the Principal Act, and were not being amended. She added also that the Department was busy with comprehensive capacity assessments and were busy consulting with Universities to use students to do their research on real cases, which would assist the previously disadvantaged. She said that the requirement to use environmental practitioners was in terms of the Regulations and this provision had been moved to the Act. She expanded on the question of exemptions saying that any person could apply for an exemption provided the requirements had been met.
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Ms Yawitch noted that an earlier question had been posed around drilling. This took place as  part of a scientific exercise, and was not regarded as commencement of activity in terms of the Bill. It would constitute a commencement for mining companies in the Mining legislation and would be subsequently regulated through that channel.

Finally Ms Yawitch said that the Department would look again at the concerns around conflict in the specific context referred to.

The meeting was adjourned.