The Department of Environmental Affairs and Tourism made a presentation on the National Environmental Laws Amendment Bill, which aimed to amend the Atmospheric Pollution Prevention Act, 1965, by adjusting the penalties provided for in that Act, and the Environmental Conservation Act, 1989, also by adjusting the penalties, and removing the need to publish directions in the Gazette. The National Environmental Management Act would be amended by deletion of certain definitions, providing for the establishment of forums or advisory committees to make provision for increased powers of the courts, removing the requirement that environmental management inspectors must carry notices of designation with them, extending the scope of routine inspections to the search of vehicles, and regulating the jurisdiction of magistrate’s courts in instances where the maximum fines had been increased.
The National Environmental Management: Protected Areas Act, 2003, was also being amended, so as to provide for increased measures of control over escaped animals and adjusting the penalties. The National Environmental Management Biodiversity Act of 2000 was to be amended so as to provide for general surveillance monitoring, to provide further considerations for a biodiversity management plan, to provide for an environmental impact assessment when genetically modified organisms were involved, to introduce notification requirements in the discovery phase of a bio prospecting project, to take into consideration knowledge of specific individuals when issuing specific bio prospecting permits. The Director- General or a trustee was to be permitted to manage the bio prospecting Fund, and the renewal or amendment of a permit. The Act would further amend the regulations to allow for hunting, and finally effect certain textual alterations.
The National Environment Management Air Quality Control Act, 2004 was to be amended so as to provide for a processing fee to review a license and to include directors or senior managers in a justice person for the criteria for a fit proper person.
Members questioned some of the definitions, and asked about waste dumping, treatment of sewerage and pollution, particularly air pollution caused by cooking fires and motor vehicles. Another area of concern was the funding and management of control of genetically modified organisms, and the Committee noted its concerns and the need to be vigilant on these issues and receive further reports. The Department was also advised that the Members did not think that the Bill adequately explained the need for the amendments and the wording could be assessed again.
National Environmental Laws Amendment Bill: Department of Environmental Affairs and Tourism (DEAT) briefing
Advocate Linda Garlipp, Chief Director: Legal Services, DEAT, briefed the Committee on the National Environmental Laws Amendment Bill (NELAB). She apologised for the absence of Mr Ishaam Abader, Deputy Director General: Corporate Affairs, who was supposed to attend the hearing but had to attend a management meeting with the Minister.
The Department’s presentation on the National Environmental Laws Amendment Bill (NELAB).was meant to amend six pieces of environmental management legislation. The purpose of the meeting was to provide the Committee with a general briefing on the Bill. Originally this Bill had contained more amendments, but after being presented to the State Law Advisers, the Bill had been split. Advocate Garlipp read through the presentation document (see attached document) and highlighted the following details about the process.
The process of the Bill was based on the requested amendments internally and externally, which were submitted in October2007. In November 2007 the first draft of the Bill was circulated and the Department held internal consultations, which were then approved by the Director General in March 2008. The Bill was circulated further to National and Provincial Departments and Non Government Organisations (NGOs) for comment. In April 2008 the Bill was referred to the State Law Advisors for initial assessment and was given cluster approval with MinMec. The Bill was published for public comment 30 days later and that period was then extended by another 30 days. After Cabinet approval, the State Law Advisors certified and split the Bill into B66 and B67 of 2008, and later tabled them in Parliament.
Advocate Garlipp read through the presentations and highlighted amendments and reasons for their insertion. She explained that this Bill would be amending the Atmospheric Pollution Prevention Act, 1965, by adjusting the penalties provided for in that Act, and the Environmental Conservation Act, 1989, also by adjusting the penalties, and removing the need to publish directions in the Gazette. The National Environmental Management Act would be amended by deletion of certain definitions, providing for the establishment of forums or advisory committees to make provision for increased powers of the courts, removing the requirement that environmental management inspectors must carry notices of designation with them, extending the scope of routine inspections to the search of vehicles, and regulating the jurisdiction of magistrate’s courts in instances where the maximum fines had been increased.
The National Environmental Management: Protected Areas Act, 2003, was also being amended, so as to provide for increased measures of control over escaped animals and adjusting the penalties. The National Environmental Management Biodiversity Act of 2000 was to be amended so as to provide for general surveillance monitoring, to provide further considerations for a biodiversity management plan, to provide for an environmental impact assessment when genetically modified organisms were involved, to introduce notification requirements in the discovery phase of a bio prospecting project, to take into consideration knowledge of specific individuals when issuing specific bio prospecting permits. The Director- General or a trustee was to be permitted to manage the bio prospecting Fund, and the renewal or amendment of a permit. The Act would further amend the regulations to allow for hunting, and finally effect certain textual alterations. The National Environment Management Air Quality Control Act, 2004 was to be amended so as to provide for a processing fee to review a license and to include directors or senior managers in a justice person for the criteria for a fit proper person.
Ms J Chalmers (ANC) noted that she had not had a chance to study the implications of the amendments. She understood that the infringements would come before the courts by way of charges, but she had grave misgivings about the power being given to the average calibre of magistrate to impose such large fines. She was not sure whether the training on environmental issues that was given to both magistrates and prosecutors was sufficient to ensure proper public protection, and enquired what was being done in this regard.
Advocate Garlipp responded on the competency of magistrates to impose fines, and affirmed that the Department would provide the Committee with training materials and programme of scheduled training. She pointed out that it was serial training.
Ms Chalmers asked if these amendments were retrospective or would operate only once the Bill was finally passed.
Advocate Garlipp said that when the Bill was first published for public comment the Department had included a Clause 28, which aimed to have a directive issued in respect of retrospective action for historic pollution. However, although there was still a reference to that in the Memorandum on the objectives of the Bill, there was no further reference to that Clause and she thought that it was probably taken out by the State Law Advisers.
Mr I Julies (DA) noted that Clause 26 made reference to the “failure to report an escaped animal”, and asked how a person could be charged for failure to report an escaped animal.
Ms Chalmers questioned “protected animals”, asking what would be the situation if a protected animal were to threaten something of value, but not human life.
The Chairperson asked how the Department would define an “escaped” animal.
Dr Geoff Cowan, Deputy Director, DEAT, said that Clause 26, which related to escaped animals, referred mainly to wild animals. Therefore domesticated sheep, goats, or cattle would not fall into that category, It was restricted to a protected area, and hence it imposed a responsibility on those responsible for management of that area for the damage caused by an escaped animal. The animal could be killed if it threatened human life, but if it damaged livelihood, such as crops, then immediate corrective action could be taken to prevent further damage. The final obligation and responsibility lay with management.
The Chairperson stated that the he grew up in rural areas where the community used to hunt animals that were not protected. He asked how the Bill was now addressing the hunting of animals. The right to hunt was allowed in private parks and communal areas.
Dr Cowan responded that it was clear that in areas that were not protected areas, wildlife was hunted, and communities’ hunting was protected by legislation. This amendment applied only to animals in protected areas. Provincial legislation would apply when it came to areas that were not protected.
Mr D Maluleke (ANC) wanted clarity on the person who “fails to report”, asking if this was intended to refer to any ordinary person, or if it was intended to refer to a parks manager who may have not been aware that the animal had escaped.
Dr Cowan explained that failure to report may, for example, cover the situation where an elephant might be seen in a maize field or a lion on a stock field, yet was not reported. It would apply to any person. However, there were some concerns about the severity of the fines, and he believed that there might be a need to review the amounts. Clause 13, for example, carried a much lower fine.
Advocate Garlipp added that this part of the legislation was intended to cover any person who became aware of an animal which would not generally be seen outside of a national park, and placed on them the responsibility of reporting to the management of the area of concern.
Mr Julies refuted that it was not dangerous animals that were protected animals. He cited the example of perhaps seeing a kudu, which was not likely to cause damage, and yet a failure to report this could attract a find of R5 million. He thought the legislation was too vague and it could cause a lot of problems. He wanted more clarity on this point.
The Chairperson asked the Committee for the moment to leave the discussion on protected animals, and return to it later.
Ms R Ndzanga (ANC) raised a concern with regard to pollution. In rural areas, she explained, people used coal for energy, and she was concerned whether that would be counted as causing pollution attracting a fine. She also asked how the community would be informed of the possible contraventions, and pointed out that the fire was needed for warmth and cooking.
Advocate Garlipp responded that this legislation was not intending to deal with the normal situation in rural areas and coal-burning pollution. This should be covered by the bye laws. Therefore the Department would not prosecute, as the Act was not intended for this. However, the DEAT and Department of Minerals and Energy (DME) had an initiative to use fuels that created less smoke, and the Department would provide more information to the Committee about the awareness campaign on this issue.
Mr Maluleke remarked that he didn’t believe that the law took into consideration the illiterate rural people, who would not know who the animal belonged to, and whose natural response would be to destroy a wild animal that was perceived as a threat.
Ms Zikalala said she was concerned about air pollution caused by exhaust fumes, and asked what traffic officers were doing about badly-maintained vehicles that were emitting smoke.
Advocate Garlipp responded that the Department was busy working on strategies and could provide the committee with details.
Ms Zikalala wanted to know if there any means, whether chemical or otherwise, that could be used to treat putrid sewage.
Advocate Garlipp responded that sewage in general was managed by the National Water Act, and that DEAT could only issue directives under Section 28.If the sewage was run managed the smell was minimal.
Ms Chalmers noted that Clause 28 stated that any person who caused pollution would be liable to a fine. She asked what would happen if a municipality, by default, produced an emission that caused pollution, and who would be liable, the municipality or the responsible management.
Advocate Garlipp replied that prior to 1994 it was possible to prosecute municipalities, as they were not regarded as part of government. Since municipalities now formed part of government, it was a little uncertain whether they could or could not be prosecuted. Individuals who were liable could be prosecuted. Corrective action could be taken using the directives of Section 28.
Mr Maluleke asked if the amendment relating to the new fines did relate to mining companies who were close to communities and polluting them with dust and sand, and whether it would be possible to actually minimise the pollution through to the fines increase.
Advocate Garlipp responded that the new fines did not apply to mine dumps, as mine dumps were regulated in terms of the Minerals and Petroleum Resources Development Act. However, the general duty of care in terms of Section 28 would also apply to mine dumps.
Mr Julies asked when this legislation was likely to be passed, as he pointed out problems around dumping and the burning of refuse and tyres.
Ms C Zikalala (IFP) raised a concern about dumps that municipalities allowed to be created near residential areas. She cited the example in Thembisa where people were squatting on or very close to rubbish dumps.
Advocate Garlipp replied that currently the regulation of dumps was dealt with under Section 20 of the Environment Conservation Act (ECA). Waste could be discarded only in the manner prescribed by the ECA or licensed disposal sites, and if that did not happen, then that was an offence punishable by a fine. No squatting was allowed on dumping sites. There were no regulations that prescribed where waste should be disposed of, except that it must be at licensed waste disposal sites. Only the amount of the fines, and not the principle of this legislation, was being amended. New provisions would be contained in the Waste Bill when it came into effect.
The Chairperson commented that the overall motivation of the Bill was not clear. It was not stated in the Memorandum on the Objects why there was a need for amendments.
The Chairperson observed that in respect of the genetically modified organisms (GMO) portion he had hoped to hear a lengthy rationalisation and discussion on the issue, as well as an explanation of bio prospecting and the purpose of the bio prospecting fund.
Ms Sonja Meintjies, Deputy Director: Biodiversity Compliance, DEAT, said that the portion of the legislation dealing with GMOs also dealt with general monitoring to identify established GMO’s units for monitoring, and this was a responsibility that fells under the South African National Bio diversity Institute (SANBI). Prior to this legislation it was difficult to conduct the monitoring, but now monitoring was now broadened to include all GMOs, including non targeted organisms. Monitoring now was more restrictive due to the amendment as it targeted all categories.
The Chairperson noted that two years ago there were no discussions on GMOs.
Ms Meintjies undertook that the Department would make regular reports to the Committee about the impact of all categories of GMOs released to the environment.
The Chairperson said there was another dimension about the GMOs, which involved not only the environment but the consumers, as well as the state of labelling in the country.
Ms Meintjies acknowledged that she was not conversant with the GMO Act, but it was not appropriate to include the health aspects in this legislation.
The Chairperson commented that with regard to GMOs, the Committee was needing to be vigilant and firm in its management, because GMOs were manipulated products which may have shortcomings and only after many years could the after-effects become known.
The Chairperson requested an explanation of Biodiversity and its funding.
Advocate Garlipp said that the Fund was not operating yet, although it had been established. Its funding in future would be from money arising from sharing agreements.
Mr L Khoarai (ANC) asked about the commitment of the Department in terms of raising community awareness and the method to be applied in doing so.
Mr Maluleke added that it was the Public Service’s responsibility to make communities aware of their rights, through public meetings and conscientious communication.
The meeting was adjourned.
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