National Environmental Management A/B [B36B-2007]: Department Response to Negotiating Mandates; Integrated Coastal Management Bill issues

NCOP Land Reform, Environment, Mineral Resources and Energy

22 September 2008
Chairperson: Rev P Moatshe (ANC – North West)
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Meeting Summary

The Department of Environmental Affairs and Tourism briefed the Committee on its response to the negotiated mandates received from the different provinces. They also proposed further amendments to the Bill that emanated from the provinces’ submissions, and were made in order to give further clarity. A full document was tabled, setting out the Provinces’ comments, followed by the proposed amendments, then a table setting out comments and responses together, and finally an amended version of the Bill. The Committee noted with appreciation the effort that the Department had put into the amendments. Most of the provinces’ delegates indicated their support for the amendments proposed and accepted the comments of the Department. However, it was noted that the Committee would have to wait for the provinces’ final mandates in order to deliberate formally on the amendments. Members raised questions around sand mining and the necessity for the Departments of Environmental Affairs and Tourism and Water Affairs and Forestry to deal with each other on these issues, and also questioned the fines that could be imposed, questioning whether community members and big businesses should be liable to pay the same fines.

The Chairperson then noted that he had received a request from the Department of Environmental Affairs also to brief the Department on further amendments that were now being proposed to the Integrated Coastal Management Bill, as a result of further discussion and now consensus on the issues that had been problematic between this Department, Transnet,  and the Department of Public Enterprises. Members argued that the correct procedures had to be followed in all cases. This was a Section 76 Bill, and the provinces had already given their final mandates to their delegates, in preparation for the discussion in the House on 25 September. Some Members expressed the view that the manner in which this matter was approached could undermine the Parliamentary procedure. The Committee also questioned why the proposed amendments were being submitted to the Committee under the Chairperson’s name, if it was in fact the Department that was proposing the amendments, as this undermined the Chairperson’s position as well as his place in the delegation. The Department explained that it wanted to explain the changes that were proposed as a result of the agreement and pointed out that in fact the proposed amendments did not fundamentally change the contents of the Bill. However, the Members still objected and the Chairperson ruled that the matter could not be considered. The debate would proceed on 25 September on the current Bill.

Meeting report

National Environmental Management Amendment Bill (the Bill): Department of Environmental Affairs and Tourism (DEAT) Response to the Negotiating Mandates
Ms Joanne Yawitch, Deputy Director General: Environmental Quality and Protection, DEAT, and Ms Lize McCourt, Chief Director: Environmental Impact Management, addressed the Committee on the Department’s response to negotiating mandates of the provinces. They tabled a document that set out the proposals by the Select Committee, clause by clause and then recommendations on textual amendments emanating from these submissions. They said that they had further made some proposed amendments where areas had been identified needing clarity. They finally summarised the areas where the Department did not deem it appropriate to make further amendments. Finally a proposed new draft of the amendment Bill was given.

The Department then read through the list of amendments, which commenced on page 12 of the document (see attached document) and noted that the sections marked in different colours had been amended. A full explanation was given in respect of each of the amendments.

Discussion

The Chairperson noted that the Department had worked hard to make the amendments clearer after the first round of discussions that were held.

Mr R Tau (ANC, Northern Cape) stated that it was not going to be easy to agree or disagree on any concrete proposals. The Committee would only be able to do this once Members had received their provinces’ final mandates and once the provinces had familiarised themselves with the responses from DEAT. At this point in time, the key issue was to appreciate what the Department had done for the Committee and the provinces, because it was clear that  a great deal of effort was put in to responding to the provinces.

Mr V Windvoel (ANC, Mpumalanga) added that he agreed with the Department’s proposed amendments. He agreed that Members needed to negotiate the amendments amongst themselves and with their provinces. He stated that Mpumalanga would accept the responses that were given to its concerns.

Mr L van Rooyen (ANC, Free State) stated that he also had no problems with the responses, as the Free State had already agreed to the proposed amendments. However, he stated that there was a further matter that the Limpopo province was worried about, which had been raised by the Committee and which was not included in the amendments. This related to permission being needed from Chiefs in the area to mine sand near rivers. This was a serious issue, as the mining of sands and rivers usually caused floods and then erosion. He wanted to know how the Department would monitor this specific issue.

Ms Yawitch agreed that sand mining was an important issue. It related to an area of competency that fell under the Department of Water Affairs and Forestry (DWAF). In order to engage in sand mining, a person would require a water-use license or a license that allowed diversion or dredging of a river. DWAF; however, had a set of guidelines in relation to mining applications. DEAT would need to engage with DWAF on such issues, more so because DWAF would be needed in the implementation of the Bill.  

Mr M Mzizi (ANC, Gauteng) noted that Clause 6 of the Bill would be amended to say that community members were not expected to pay the same fines as large companies, as set out on page 10 of the document. He did not agree with this, saying that if people did not pay the same high penalties, then the idea of fines would not serve as a deterrent. To his mind, an offence was an offence, and everybody had to pay the same fine.

Ms Yawitch stated that the punishment would fit the crime. Generally, smaller developments had smaller impacts on the environment. Correcting these impacts was a smaller problem than correcting action by someone who might set up a large shopping complex without permission. A calculating tool was developed to determine the fines. The tool took into account quite a wide set of criteria; it was not about who the person was, but rather about the scale of the impact on the environment and the appropriate rectifications. The Department could look at putting a clearer set of criteria in the regulations, which would provide guidance.

Mr Ishaam Abader, Deputy Director General: Corporate Affairs, DEAT, added that usually the courts would look at aggravating and mitigating circumstances. Each matter would be dealt with in its own merits and the circumstances that related to the particular crime would be taken into account.

Mr Tau informed the Committee that it was interesting that Mr Mzizi had made that particular statement, as his own province’s negotiating mandate argued for consideration to be given to fines and penalties, and that the nature of the offences were to be looked into.

Mr Mzizi stated that now that he had heard the Department’s proposals, he could inform his province better.

The Chairperson reminded the Committee that they were dealing with negotiating mandates where provinces were airing their issues. If Members agreed with the Department’s responses on the issues that were raised by the provinces then the amendments would be sent back to the provinces for agreement. From what the Chairperson understood from the comments, there was a general agreement with the responses that DEAT had made. Even if all the Members agreed to all the amendments, it would still be necessary for the Committee to formally adopt the amendments clause by clause. He noted; however, that the Committee Members clearly agreed with all the amendments, therefore it would go on record that all the Members had agreed to all the clauses.

The Chairperson thanked the Department for all their good work. It was obvious that all the provinces’ concerns were taken seriously. 

The Chairperson wanted to know when the Committee could expect the final mandates for the Bill, and particularly whether these would arrive during the constituency period or after it.

Mr Windvoel asked if the Bill was so urgent that it needed a special sitting, or if the Committee could look at the proposals when they came back as a Committee to discuss other issues.

Ms B Dlulane (ANC, Eastern Cape) stated that there was a lot of work to do in the National Council of Provinces (NCOP). She would not have any problems with the Committee passing the Bill in the next term. It would not serve any purpose to call a meeting during recess, as there was nothing that the Committee could do in that time.

The Chairperson confirmed that the Committee would look in to the Bill when they returned from recess.

Ms M Oliphant (ANC, Kwazulu-Natal) added that the constituency period was dedicated to political parties, and therefore no Committee meetings would be held during the constituency period.

Other Matters: Integrated Coastal Management Bill
The Chairperson informed the Committee that DEAT wanted to talk to the Committee about the Integrated Coastal Management Bill. He understood that there had been problems with the Bill from the beginning, as Transnet and the Department had disagreed on certain issues. The Department had just informed the Committee that Transnet and the Department had reached consensus on the issues causing disagreement, and that they wanted to brief the Committee on the amendments that they were now proposing to the Bill. He asked if the Committee would allow the Department to brief the Committee on these amendments.

Mr F Adams (ANC, Western Cape) stated that he thought that the Members’ provinces had to look at the proposal first, as well as to the National Assembly. The Department could not bypass the provinces because it would undermine the procedure.

Mr Windvoel warned the Committee that it had to be careful about procedural matters when processing legislation in Parliament. He noted that the amendments now being proposed were not included in the amendments that had been tabled in Parliament.

Mr Asgar Bawa, Committee Secretary, informed the Committee that NCOP rule 173 stated that after a Bill was placed on the Order Paper and before the Council decided on the Bill, a Member could place amendments to the Bill on the Order Paper. The Committee Section had advised him that the Chairperson or any Member of the Committee could make additional amendments to the Bill and put these to the House. The House would then discuss whether they agreed or disagreed with the amendments.

Ms Oliphant raised her concerns, stating that the Committee was discussing Section 76 legislation, not Section 75 legislation. In addition, the proposal for the Chairperson should in terms of this Rule, make amendments, and it seemed that here it was the Department making the proposal. The Committee had already passed this legislation and was now ready for the debate.

Mr Tau noted that Mr Bawa had not consulted the Constitution to see how Section 76 Bills would be dealt with. He stated that if the amendments were critical to the Bill, then the Committee had to be given time to understand the implications and the impacts that the amendments could have on the implementation of the legislation. If it was to be found that there were serious implications, then a province could propose the withdrawal of the debate on the Bill.

Ms Dlulane commented that Members had to consult their provinces first, as the Bill was supposed to be debated on 25 September.

Mr Windvoel wanted to know who the actual sponsor of the Bill was.

The Chairperson answered that he had received the advice that, from a procedural point of view, his name was supposed to be on the proposal. He asked if the Committee would allow the Department to address the Committee to explain if the matter was urgent. 

Mr Windvoel noted that it was in fact the Department that was proposing the amendments. He wanted to put it on record that the Department was undermining the parliamentary processes. Putting the Chairperson’s name on the proposal compromised his position in the Committee as well as in the delegation, as the proposals did not come from the provinces.

Mr van Rooyen warned that the Committee had to be very careful in dealing with this issue. They were dealing with a Bill that was already in the public arena.

Ms Nosipho Ngcaba, Director-General, DEAT, stated that the Department had met with the Department of Public Enterprises (DPE) as well as Transnet to discuss how the Bill would affect them. The Department wanted to brief the Committee on the amendments that the three entities had arrived at, so that the Committee could tell the Department whether it felt the proposals were fundamental or not. She appealed to the Committee to listen to the proposed amendments. She noted that the Department was aware that the Committee had to pursue the correct procedure. She added that the amendments did not fundamentally change the contents of the Bill.

The Chairperson urged that the Committee listen to the Departments proposal.

Mr Windvoel disagreed, as the final mandates had already been given to the Committee by the provinces. He reminded Members that they were dealing with a Section 76 Bill. The provinces’ final mandates were based on the amendments that were already made. There was also the risk that the Bill would not be passed before the general election.

Ms Oliphant stated that the Committee had discussed Transnet’s issues with DEAT and DPE and were told that the Transnet issue was resolved and that they were not considering proposing any further amendments to the Bill. She could not understand why the Department wanted to propose new amendments now, without any other warning. If the Department wanted to amend the Bill even further then they had to follow the correct procedure. The debate on the Bill would still be held on 25  September. The Committee could not listen to the briefing in the meeting.

Ms Ngcaba answered that the Department respected the Committee and understood that they had to follow the correct procedure.

Mr Watson noted that there were four coastal provinces that could be affected by the Department’s amendments.

Mr Adams stated that this was precisely the reason that the proposals had to go to the provinces first. If the Department felt that they could not propose the amendments by proclamation, then the Bill would have to go back to the National Assembly.

Mr Windvoel reiterated that the Bill was a Section 76 Bill and the amendments had to go to all the provinces. He proposed that the Chairperson close the matter.

Mr Tau seconded this proposal.

The Chairperson agreed.

The Committee adopted the minutes of 9 September.

The meeting was adjourned.

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