National Environmental Laws Amendment Bill [B66-08]: consideration & adoption

Meeting report

Department of Environmental Affairs and Tourism (DEAT) on Liability, GMO Free Zones, Bio-prospecting & benefit sharing
Mr Ishaam Abader, Deputy Director General: Corporate Affairs, DEAT, provided a briefing on matters that had been of concern to the Committee in discussions on the National Environmental Laws Amendment Bill. This was meant as background to the review of the proposed amendments:

Liability in terms of Section 28 of NEMA
This covered the retrospective application in the amendment of section 28 of Act 107 of 1998.

Although the Department had always maintained that Section 28 of the National Environmental Management Act 2008, applied retrospectively, a court decision found that this was not the case. The effect of this decision was that the activities that caused pollution and environmental degradation and which were discontinued before the coming into effect of the National Environmental Management Act, and which were not covered by other legislation, would become the responsibility of the State, even in circumstances where the polluter was traceable.

For this reason the Department requested that the provision that clarified retrospective application, which was omitted by the State Law Adviser just before the tabling of this Bill in Parliament, be re-introduced in the Bill. The reason for the original omission was that the Bill amended a section that is currently being amended by another Bill before Parliament. However, this provision could also be accommodated in another section or as a separate section in the Bill. Mr Abader therefore requested the Portfolio Committee to consider amending section 28 of the National Environmental Management Act, 1998 with the insertion of subsection (1)(A) after subsection (1) of section 28. This was detailed as a proposed amendment of Clause 12 of the National Environmental Laws Amendment Bill.

GMO free zones under the National Environmental Management: Biodiversity Act
He commented that this was beyond the scope of the current proposed amendments. The key issue here was how one would regulate biodiversity. The particular change concerned the environmental risk assessment conducted by the DEAT and the aspects it could include. These were detailed. This was not an exhaustive list and the Portfolio Committee could consider the need for a much wider consultation.

Bio-prospecting, access and benefit sharing regulations
He noted that if they nationalise the resources, it was tantamount to divesting current holdings. He asked that the Portfolio Committee, consider the difference between types of resources. He pointed out that biological resources were movable and susceptible - especially as they were subject to weather conditions. This made them slightly more difficult to control. There were benefits in cultivating the resources, however the gaps would need a wider process. In essence the suggestion was that different resources needed different processes.

Discussion
Mr D Maluleke (ANC) asked how they would deal with protected plants that happen to be on private property.

 Mr Abader responded that the DEAT issued permits for cases where threatened or protected species pf plant were on private property.

Mr Maluleke asked what the DEAT meant by “wider involvement”. He requested clarity on what was intended.

Ms Mandivenyi, Acting CD: Biodiversity Management, DEAT, responded that biodiversity was diverse and it had taken three years for consultations with stakeholders such as nurseries, the wildlife industry, traditional healers, research institutions, SANParks, Marine and Coastal Management and wide range of stakeholders that each have strong viewpoints on matters of biodiversity. This was a matter for a wider Portfolio Committee public hearing on biodiversity and its role in sustainable development.

The Chairperson asked if Agriculture (Department of Agriculture) was going to drag their feet. The Portfolio Committee will have to act if this was the case. There was a fundamental discussion to be had on whether Agriculture should govern Genetically Modified Organisms (GMO). He suggested an approach similar to the one adopted on the mines review. He stated that it was a situation of competing mandates.

The Chairperson queried bio-prospecting and commented that people may not be aware of the implications of the 21st century political economy. He commented that the notions of property must be addressed as to the challenges facing us in this century. As an example he referred to a farmer burning farmland classified as a biodiversity area. He remarked that such an action should be seen as criminal even if the farmer owns the property. The basic issue was that they wanted to have the situation where the biodiversity of South Africa was kept for the use South Africans principally and not for the benefit of other nationals. Partnerships would of course be possible with other countries. He asked the DEAT to help the Portfolio Committee achieve this in the legislation.

Mr Abader agreed with DEAT's understanding of biodiversity. On the active pursuit of bio-prospecting, he said that this would need a process and that they understood the Portfolio Committee's long term objectives. He stated that their view was not to the extent of excluding foreign nations. Rather, it was an access and benefit sharing provision to ensure that South Africans had access to these resources and derived commercial benefit as well. He stated that perhaps the wording of this provision was not strong enough, adding that the DEAT would look at ways to address this.

Mr G Morgan (DA) asked if there were specific regulations, flowing from the legislation, governing bio-prospecting.

Ms Wadzinayi Mandivenyi, Acting CD: Biodiversity Management, DEAT, responded that this was covered in the briefing document. They do have those regulations in place and DEAT could make copies of that available.

Mr Morgan made a general comment that the regulations should come back to the Portfolio Committee as a matter of law. This was not an attempt to undermine Executive authority. He assumed that if the regulations were overly burdensome they would add amendments at that stage. He expressed the view that he was not sure if the Portfolio Committee knew enough about the issues and that there was a need for wider engagement and this was a field in its infancy.

Mr Abader responded that he was hesitant of blurring the line between legislative and executive authority. He recommended that they find another mechanism and not write this into law, adding that provision would have to be made for public participation on this issue.

Ms J Chalmers wanted to know what had happened to the regulations on alien invasive plants. She was of the opinion that the Portfolio Committee should be looking at this as a threat to biodiversity. Indigenous biodiversity suffered the most from this.

Mr Abader responded that Ms Chalmers was correct in her observation and that this was a controversial issue. There had been extensive public participation. He stated that DEAT would republish for request for comments some time in October 2008 and that hopefully that would be the last round of comment.

Ms Mandivenyi agreed that invasive plants were probably a bigger threat than GMO was to biodiversity. DEAT did not have direct interaction with this issue.

Ms R Ndzanga (ANC) commented that she failed to see why the Portfolio Committee was so serious about the certificates for GMO knowing that South Africans have been consuming GM maize since 1997. There has not been anything substantive to show that there is environmental damage due to the propagation of GM maize. She noted that nothing has ever been said about the spraying of crops. She recounted personal observations of the effects of such spraying in rural areas. She noted the disappearance of once abundant wildflowers and butterflies. She asked if this was not indicative of damage. She expressed the view that this spray was damaging to children, the elderly and young animals in particular. She asked if studies had been done on the effects of crop spraying. Taking all this into consideration, she asked if they really saw GMO as more damaging than crop spraying and reiterated that this needed to be looked into.

Mr Abader replied that the GM maize was allowed subject to conditions. The initial findings have indicated that damage to the environment was limited. He added that they could not ignore issues such as cross pollination with vegetation or crops in non-GMO zones. Crop spraying was an issue for the Department of Agriculture and that DEAT was bound by international convention on this. The Department of Agriculture had looked into this.

Mr I Julies (DA) commented that the wind could blow the crop spray elsewhere. It definitely impacted on other areas and the Portfolio Committee must try to intervene here.

Mr Morgan took the point that this was within the Department of Agriculture's realm. He had recently been working on a project in Riebeeck Kasteel concerning a farmer spraying his vineyard. He commented that the legislation governing this dated back to the 1950s and was as such, outdated. He also pointed out that spraying did not have to be done by air and that the Department of Agriculture had not acted upon this as it was deemed a human health case. He highlighted this was an issue for the Portfolio Committee to keep on the agenda.

Mr Abader responded that if environmental damage due to crop spraying could be proven then section 28 of the National Environmental Laws Act would apply.

Ms Zikalala asked if farmers were ever invited to discuss such issues with them. She queried if they were given any information by DEAT and the Department of Agriculture. She also asked how these meetings were conducted and what languages were used for people to be well informed about what was going on.

Ms Mandivenyi responded that they did have programs with farmers in the form of community based natural resource management. This was people-based and covered issues such as land degradation and land care. The literature used has been translated into all eleven official languages and information was distributed on regional radio broadcasts. This was their implementation arm for communities.

Ms Ndzanga remarked that seeing as there was nothing to show that GMO was that damaging, they needed this to come out clearly for people to be able to plant these seeds and not be afraid of doing that. By way of reason, she stated that nobody wanted to be against the law.

Ms Mandivenyi responded that the GMO Act involved six government departments in the executive council. The DEAT had an extra vote providing them with an effective veto power. As part of the group review process, she commented that some of the applications were in the process for three years. There were lots of controversial applications and the DEAT's issues with GMO were not around stopping the Department of Agriculture but merely calling for an approach that looked at all agriculture to establish norms and standards to govern organic as well as GMO agriculture. There was access to either as per the choice of any farmer. She commented that agriculture, as a whole was a threat to biodiversity. DEAT has engaged with the Department of Agriculture on that. Their role was to monitor applications to see where there could be a negative impact on biodiversity. Part of this was phasing out old practices and bringing in newer technologies.

Proposed Amendments to National Environmental Laws Amendment Bill
Mr Abader presented the proposed amendments (see document):

Long Title
The changes here were technical.
Clause 1
There were no questions or objections to the substitutions on page 3 – line 9 and line 13
Clause 2
There were no questions or objections to the substitution on page 3 – line 22
Clause 11
There were no questions or objections to the insertion on page 5 – line 10
Clause 12
Dealt with the retrospective application of the Act. There were no questions on the insertion on page 5 – line 13. The substitution on page 5, line 21 was reviewed. The DEAT expressed a preference not to include “significant” in line 29, as it had the implications for what would be considered less significant pollution or degradation leading to that being ignored.
Clause 13
There were no question on the two substitutions to page 5, line 44
New Clause
The content of the new clause was outlined and no queries arose.
Clause 17
Mr Abader reported that the changes were designed to expand the purview of the Act. The insertions to the search provisions expanded the powers of the Environmental Management Inspectors (EMIs) in the event of a search.
New Clause
Amendment of Section 34 D of Act 107 of 1998 by a substitution for subsection (1). There were no questions
Clause 21
Insertion into 34H in Act 107 of 1998. No questions.
Clause 23
Was previously rejected by the committee due to criminalising provisions.
New Clause
Insertion of Section 49A in Act 57 of 2003.
Ms Chalmers (ANC) had a grammatical query on the alternate use of the singular “animal” and the plural “areas”. She requested that this be corrected as it was badly phrased. Mr Abader responded that he was happy with that request and stated that the final version would look more closely at the language.
New Clause
Amendment of Section 1 of Act 10 of 2004. Section 30 of the National Environmental Management: Biodiversity Act was hereby amended. Mr Abader reported that the changes here were not substantial. There were no questions or comments from the committee.
Clause 27
Page 9 – line 11, concerned the GMO zones and the substitution was reviewed. There were no questions or comments.
New Clauses
Amendment to Section 33 of Act 10 of 2004. Schedule 1 had to be amended accordingly.
The amendment of Section 34 of Act 10 of 2004 and insertion of Section 36A in Act 10 of 2004 were detailed. The latter regarded the winding up or dissolution of the Institute. Mr Abader reported that the issue of assets transfer was now included. The DEAT had omitted the Portfolio Committee request for a full house vote of Parliament.

Mr Maluleke sought clarity on 36A. He noted that provisions for SANParks (South African National Parks) would have to be more rigorous as millions of hectares were involved.

Mr Abader responded that the provision was for dissolution by an act of Parliament. Therefore, they would have to go through a National Assembly and National Council of Provinces process.
Clause 30
Section 58 of Act 10 2004.There were no questions or comments on the substitution
Clause 38
The insertion referred to the renewal and amendment of permits (Section 93A in Act 10 of 2003). No questions or comments.
Schedule
The amendment to the schedule was reviewed.

Adoption of Bill
The Portfolio Committee considered the Bill clause by clause. The Chairperson noted that each clauses of the Bill had been accepted. He called upon Members to take a decision on the clauses and the Bill.

 The Committee accepted the Bill with amendments.

The Chairperson read through the Report of the Committee. The Committee accepted the Report.

The meeting was adjourned.