The Committee were briefed by the Department of Environmental Affairs and Tourism on the National Environment Laws Amendment Bill (B66 – 2008) and the National Environmental Management: Protected Areas Amendment Bill (B67 – 2008). In each case, the Department set out in full the amendments that were being proposed, tabled the wording and gave a brief explanation of each of the amendments.
Members raised queries on the amounts to be claimed by the Department where there had been environmental damage, for instance oil spills, and questioned why the remedial amount was not referred to as a “deposit”, and the nature of the payment. Members asked whether the amendments caused any conflicts between the South African Police Service legislation and the position of the Green Scorpions, raised questions on the provisions relating to capturing of wild animals and reporting of animals that were loose, and suggested that further attention needed to be given to the wording and the practicalities of the requirements. Members were concerned whether the amendments to the Biodiversity Act were strengthening the position of the S A National Biodiversity Institute, and discussed the distinctions between the labelling of genetically modified organisms, cross pollination, and general monitoring of the organisms and their effect on the biosphere. Members also asked about the status of traditional knowledge that was used to make “new” discoveries and how those with the knowledge were ensured of protection of their rights. They were also concerned how many judicial officers had been trained in respect of environmental issues, and whether they were sensitive to the necessity to deal with such matters firmly.
In respect of the Protected Areas Amendment bill, it was noted that the main rationale was to allow for more effective implementation and enforcement of legislation, and expanding of the SANParks mandate. Members questioned whether the emphasis on revenue collection had the effect of making this a money Bill, and questioned the amendment to section 38 of the principal Act, allowing the Minister to assign management of a special nature reserve to another person. The role of the SANParks in relation to the Southern Cape Indigenous Forests was briefly explained.
National Environment Laws Amendment Bill (B66 – 2008): Department of Environmental Affairs and Tourism (DEAT) briefing
Mr Ishaam Abader, Deputy Director-General: Corporate Affairs, DEAT, briefed the Committee on the proposed amendments to the National Environmental Laws Amendment Bill (the Bill). These were set out in his briefing document (see document attached). He summarised that these amendments included an amendment of section 46 of the Atmospheric Pollution Prevention Act, 1965; amendment of section 29 of the Environmental Conservation Act, 1989; amendment of section 32 of the Environmental Conservation Act, 1989 and the amendment of section 1 of the National Environmental Management Act (NEMA), 1998. He added that there were consequential amendments to NEMA following the amendments to section 1 of NEMA, in particular the deletion of the definition of “Committee” and the deletion of the definition of “Forum”. He added that further amendments were: repeal of Parts 1 and 2 of Chapter 2 of NEMA, 1998; amendment of section 3 of NEMA, 1998; amendment of section 11 of NEMA, 1998; amendment of section 13 of NEMA, 1998; amendment of section 15 of NEMA, 1998; amendment of section 16 of NEMA, 1998; amendment of section 22 of NEMA, 1998 and amendment of section 28 of NEMA, 1998.
Mr A Mokoena (ANC) asked why the DEAT did not rather refer to the remedial amount as a deposit, and added that if this amounted to asking for money in advance, the legislation should refer to it as deposit anticipated in advance.
Mr Abader replied that in the case of an oil spill, it could not properly be called “a deposit”. As soon as a contravention was committed, DEAT would ask for the remedial figure and use that to clean up the spill. The alternative was for the DEAT to cover the costs itself and then try to claim from whoever had caused the harm through court action, which was a lengthy process.
Mr Mokoena replied that in litigation, the defendant could pay a settlement offer into the court’s account, and this figure was called a deposit.
The Chairperson clarified Mr Abader’s position by stating that this was a variable figure and that as soon as pollution occurred, the DEAT would demand compensation up-front, and then would launch a clean-up.
Ms J Chalmers (ANC) was concerned that waiting for the anticipated amount would lead to a delay in implementing remedial actions.
Mr D Maluleke (ANC) asked whether, specifically in relation to oil spills, it would not be feasible for all oil tankers coming into South African jurisdiction to pay a certain refundable amount into an escrow account.
Mr Abader replied that this would have negative economic effects on shipping.
Mr Mokoena asked whether there was not an insurance provision for shipping companies, and whether this could not be linked to a global insurance provision.
The Chairperson stated that that was a topping tax.
Mr Abader replied that in this instance DEAT was looking at the matter from a national basis, but he added that the legislation ensured that there was compliance with international standards. He stated that he was not aware of the existence of a global insurance provision, as suggested by Mr Mokoena. Mr Abader commented that whenever the word “tax” was mentioned this tended to scare investors away.
Continuation of presentation
Mr Abader then continued to go through the proposed amendments of NEMA, as follows:
-amendment of section 30 of NEMA, 1998; amendment of section 31 of NEMA,1998; amendment of section 31F of NEMA,1998; amendment of section 31H of NEMA,1998; Amendment of section 31K of NEMA,1998; amendment of section of 31N of NEMA,1998; amendment of section of 31Q of NEMA,1998; amendment of section 34 of NEMA, 1998; amendment of section 34H of NEMA,1998; amendment of Schedule 3 to NEMA,1998 and the Insertion of section 49A in NEMA,1998. In respect of each amendment, he set out the wording and explained briefly what the amendment was about.
Mr Mokoena stated that the Department needed to check with the South African Police Service (SAPS) Act to ensure that these amendments did not cause a conflict between the powers of the SAPS and the Green Scorpions.
Mr Abader replied that in provision had been made already for Green Scorpion officers to be peace officers, effectively giving them the same powers as SAPS officers.
Mr Mokoena replied that he accepted this, but cautioned that their functions and spheres should not overlap, as law enforcement was not the Committee’s line function.
The Chairperson added that Bill 35 of 2007 (Amendment of National Environmental Laws Amendment Bill) dealt with these concerns.
Mr Abader added that in terms of operations, joint operations were conducted with the SAPS.
Mr Mokoena replied that he was now satisfied on this point.
Mr Mokoena asked, with reference to the insertion of section 49A (2), at line 3, why the drafters did not use the term “recapture” instead of “capture”.
Mr Abader replied that the Department would consider this again, but that he was under the impression that if an animal escaped it needed to be “captured” and not “recaptured”.
Mr G Morgan (DA) referred to section 49A(5) stating that he understood the reasoning behind it, but thought that it was impractical, as it made the failure to report a loose animal a crime. He questioned how ordinary citizens were supposed to be made aware of this legal provision. He also asked whether a park that did not take steps to keep a wild animal enclosed would be held liable.
Mr Abader agreed with Mr Morgan’s sentiments, but stressed that there could be dangerous consequences of not reporting a wild animal that was on the loose. He agreed that the practicality of the wording needed to be looked at. Mr Abader added, in respect of section 49A(8), that there needed to be proof that the park had acted negligently in order for it to be held liable.
Mr Morgan added that the legislation should look to reasonableness, and not automatically make it an offence if someone failed to report a wild animal on the loose.
Mr Mokoena stated that there needed to be provision for dealing with private game reserves, as he was aware of instances where people were employed to shepherd lions with knobkierries.
Mr Abader replied that these concerns were valid, but added that there were regulations for keeping wild animals and that permits were needed for these animals.
The Chairperson reiterated that Mr Mokoena asked whether section 49A(8) applied to private game reserves.
Mr Abader replied that private owners were liable for the protection of and from their animals.
Continuation of briefing
He then proceeded to go through amendments of sections 82,88 and 88 of the National Environmental Management: Protected Areas Act (NEMPAA), 2003; and to set out the amendments of sections 11, 45, 57, 58, 78, 81, 81A, 82, 85, 86, 92, 93A, 97, 98 and 102 of the National Environmental Management: Biodiversity Act (NEMBA), 2004.
Mr Morgan asked for an explanation of the amendment of section 11 of NEMBA, as he was unsure whether the insertion of the term “conduct general surveillance monitoring” reduced the mandate of South African National Biodiversity Institute (SANBI) or strengthened it.
Mr Mokoena interjected that he did not think that this was necessary, as the issue of genetically modified organisms (GMOs) hinged on labelling.
The Chairperson asked why the Department seemed to be “taking the teeth” out of SANBI’s mandate by changing it to general monitoring of GMOs.
Mr Abader stated that labelling of GMOs was not enough, as it did not deal with the potential problem of cross-pollination.
Ms Wadzinayi Mandivenyi, Acting Chief Director: Biodiversity, DEAT, replied that it was her view that the Department was making the monitoring of GMOs more effective. Currently, under the GMO Act of 1997, case-specific monitoring was being carried out by the Department of Agriculture, and it did not make sense to duplicate this process. The provision for general monitoring allowed SANBI to look at the effects on the entire biosphere, to glean more information on the effects on non-targeted organisms. By giving SANBI a wider mandate, this in fact allowed it to be more effective. She added that as far as environmental release went, GMOs had to be labelled.
The Chairperson interjected that DEAT should finish their presentation.
Conclusion of briefing
Mr Abader concluded with the amendments to section 45 and 49 of the National Management: Air Quality Act, 2004.
Mr Mokoena asked about the status of traditional knowledge being utilised to make “new” discoveries, as the traditional use of certain plants was already well attested-to, so that they were not in fact new discoveries. He also added that South African National Parks (SANParks) also had a jurisdiction over protecting biodiversity and stated that this needed to be correlated with SANBI’s mandate.
Ms Mandivenyi replied that in terms of bio-prospecting the initial notification was received by the Minister, then followed by annual reports. If a project was determined to be commercially viable then a benefit sharing agreement would be drawn up, that would take into account the interests of those possessing the indigenous knowledge that led to the discovery.
Mr Abader noted that SANParks had a conservation role in terms of biodiversity, and that SANBI dealt with research issues.
Mr Morgan asked, with reference to the amendment of section 102 of NEMBA, whether magistrates imposed such large fines in other cases. He added that further magistrate training would be needed.
Mr Abader replied that there were cases in which judicial officers had imposed fines in the region of R10 million, and he added that there were other pieces of legislation that allowed for fines in excess of this figure.
Mr Mark Jardine, Deputy Director: Compliance and Enforcement Training, DEAT, replied that for the last three years the Department had been working with the Justice College to ensure adequate training.
The Chairperson asked about the relationship between protected areas that may be rich in biodiversity, and the proximity of GMOs.
Ms Mandivenyi stated that currently the Department monitored case by case according to Geographical Information Survey (GIS) co-ordinates, and performed environmental risk assessments. She added that field trials were not conducted near bio-diverse regions.
Ms Chalmers asked, with reference to the repeal of Parts 1 and 2 of Chapter 2 of NEMA, whether a new advisory committee would be established, and if the consultative process would continue notwithstanding the National Environmental Advisory Forum and the Committee for Environmental Co-ordination (CEC) being phased out.
Mr Morgan asked if there had been an increase in the prosecution of environmental crimes, and what percentage of magistrates had been trained by the DEAT.
Mr Jardine replied that he could not provide a percentage, but that 230 magistrates had been trained.
Mr Mokoena asked if the Environmental Court still existed.
Mr Abader replied that it did not and that that was the reason why the Department was training magistrates and writing into the legislation powers that allowed them to deal with these issues.
National Environmental Management: Protected Areas Amendment Bill (B67 – 2008) (the Bill): Department of Environmental Affairs and Tourism (DEAT) briefing
Ms Skumsa Mancotywa, Director: Protected Areas Planning and Development, DEAT, briefed the Committee on the Amendment Bill. She stated that the rationale behind the amendments was to allow for effective implementation and enforcement of legislation, and the expanding of the SANParks mandate. Ms Mancotywa dealt with the amendment of sections 20, 28, 38, 47, 54, 55 and 75 of the National Environment Management: Protected Areas Act, 2003, setting out the proposed wording and briefly explaining the reasons behind the amendments (see attached document)
Mr Mokoena stated that the emphasis seemed to be on revenue collection, and asked if that did not make this Bill a money bill.
Mr Abader replied that it was definitely not a money bill and that the State Law Advisor had not advised him that it was to be regarded as a money bill. He agreed that there was an emphasis on revenue collection.
Mr Cachalia asked, with reference to the amendment to section 38, for the reasons behind allowing the Minister to” assign the management of a special nature reserve or a nature reserve to a suitable person, organisation or organ of state”. He asked whether indigenous forests now fell under SANParks.
Mr Abader replied that the definition of a “suitable person” would include a juristic person.
Ms Mancotywa added that SANParks currently managed the Southern Cape Indigenous Forests by delegation, but that the Department was discussing the issue with the Department of Water Affairs and Forestry, to give SANParks assignment power, as they intended to incorporate the forests into the proposed Garden Route National Park.
The Chairperson thanked the delegation and noted that the issue of GMO management and biodiversity protection needed future engagement.
The meeting was adjourned.
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