National Environment Laws Amendment Bill [B66-2008]: Department’s response to public submissions

Meeting report

Briefing by the Department of Environmental Affairs and Tourism (DEAT) on the National Environment Laws Amendment Bill (B66 – 2008) (the Bill)
Mr Ishaam Abader, Deputy Director-General: Corporate Affairs, DEAT,  briefed the Committee on the Department’s responses to the comments and submissions made concerning the National Environmental Laws Amendment Bill (NELA). He noted that comments had been received primarily from Enviropaedia, Transnet, BUSA, SANParks, The Department of Public Enterprises, South African National Biodiversity Institute (SANBI) and various concerned citizens. In respect of each of the  comments, the Department set out the comment, the clauses in the Bill to which it referred, the Department’s response and any proposed changes following that comment. Full details appear on the attached document.

Discussion
 Mr G Morgan (DA) remarked that the DEAT was handling the matter well. He noted that there were no substantial comments received from those who would be affected. He added that there was some difficulty in trying to legislate on a bill without further input from those who had served on the National Environmental Advisory Forum (NEAF) or the Committee for Environmental Co-ordination (CEC). Mr Morgan added that he felt slightly uncomfortable at civil society’s lack of input. He added that maybe this was an indication that NEAF did not work and that the DEAT was correct in dissolving it.

The Chairperson remarked that he was under the impression that there was a need for NEAF in the transitional period, but that now it was no longer necessary. He added that it seemed that the DEAT had engaged in consultative work with people, without the need of NEAF. The Chairperson remarked that from last week the Committee had felt comfortable with the position of DEAT. He requested that there be an outline given of the other comments received. 

Mr Abader replied that he would proceed as quickly as possible. He stated, with reference to the insertion of a new section 49A into the National Environmental Management: Protected Areas Act (NEMPAA), that the reporting requirement had been retained, but that failure to report a wild animal on the loose was decriminalised.

The Chairperson asked what exactly that meant, and whether it meant that there would be no liability or sanctions imposed.

Mr Abader replied that this was correct. He added that the powers of Environmental Management Inspectors (EMIs) had been expanded in terms of search mandates.

Mr M Maluleke (ANC) stated that the Green Scorpions did not have a mandate to search for illegal firearms, and asked why the legislation did not specify the types of items that they were allowed to search for.

Mr Abader replied that this would then lead to an extremely long and cumbersome piece of legislation. He drew attention to the fact that EMIs were in fact peace officers and therefore had a duty to attend to handing in of an illegal firearm if found in the process of a search.

Mr Maluleke asked if there could not at least be one sentence referring to the particular piece of legislation that contained their search mandate.

Mr Abader noted that in terms of scope the Department was including all the specific environmental management acts (SEMAs) in the provisions. Amendments to sections 34D and 34H of National Environmental Management Act would allow for the inclusion of the SEMAs.
He summarised that the Department had agreed to comments received from the South African National Biodiversity Institute (SANBI) in relation bio-prospecting, and specifically the commercialisation and prospecting phase for Section 81 of the National Biodiversity Management Act (NEMBA. New definitions of commercial exploitation were now included. Provisions for the dissolution of SANBI, along similar lines to SANParks. were included by way of the insertion of Section 36A into NEMBA.

The Chairperson added that the Committee might not be in full agreement with that proposal. He added that there also needed to be a Pan African response to the biodiversity threat.

Mr Abader replied that the purpose of Chapter 6 of NEMBA was to regulate bio-prospecting, and to regulate the export from South Africa of biological commodities, as well as to ensure the fair distribution of revenue. He added that before a permit could be issued, the applicant needed to provide all information on the proposed uses.

The Chairperson replied that those were proposed safeguards, but that they did not deal with extra-national entities.

Mr Abader replied that that was why there was an export clause.

Mr Maluleke was concerned about rights to fauna and floral commodities on privately owned pieces of land. He asked if a similar provision to that in respect of mineral rights could be crafted to protect biodiversity.

Mr Abader replied that the Department would analyse what protection the section afforded.

The Chairperson added that what he wanted was to make it difficult for a non-South African entity to exploit the Republic’s biodiversity.

Mr Morgan was also concerned with protecting the intellectual property of South Africans, especially with regard to indigenous knowledge. He alluded to a Bill presently before Parliament, and a matter concerning solar panels, which he thought was to the effect that if the State put any funding into a venture then the intellectual property rights could not be commercialised. Mr Morgan added that there was, however, a need to balance this off with reciprocity from other countries’ input into research.

Mr Abader replied that the Department would look again at that issue.

The Chairperson added that he was not saying that foreigners should not take part in research, merely that close regard needed to be paid to benefits and due process.

Mr Abader stated that in conclusion the members could refer to the comment document, with solutions highlighted in blue. He requested that if the Members wanted him to deal with any specific issues, he would be happy to do so.

Mr Morgan asked if this document contained the Department’s suggestions for change.

Mr Abader explained hat the blue highlighted section was the section reflecting decisions after the written submissions from the public and after the Committee’s hearings. This section indicated what the Department had decided to change in the Bill.

The Chairperson replied that this was clear.

Mr Morgan asked if there were any further amendments on which the Department needed assistance or guidance.

Mr Abader replied that issues related to the retrospective application of Section 28 of NEMA, and the addition of a list of botanical gardens both required some attention.

The Chairperson asked for an outline of the key issues around these.

Mr Abader replied that the Department wanted Section 2 of NEMA to apply to damage that had been inflicted in the past. The State Law Adviser said that this could be included in a separate section. The issue of the inclusion and listing of botanical gardens was related to the forthcoming review of the National Forests Act.

Mr Morgan stated that section 28 of NEMA dealt with correcting environmental pollution. He agreed that if someone had caused pollution to an area, that person should bear the responsibility to clean it up. Mr Morgan asked about the problem of land transfer after pollution and asked who would then be liable.

Mr Abader replied that the suggestion for this amendment was litigation, as it was determined in a court of law that the current legislation had no retrospective application.

Mr Morgan asked where the application of this proposed law would end. He wondered if it should apply only to current owners of land and not stretch back further than this, as South Africa had a long history of pollution, beginning with the mines.

Mr Abader replied that this was a valid point and that he did not have an answer, but that the Department would give careful consideration to it.

The meeting was adjourned.