National Environmental Management: Integrated Coastal Management & Waste Bills: adoption of NCOP amendments


22 October 2008
Chairperson: Mr Langa Zita (ANC)
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Meeting Summary

The Committee approved the NCOP amendments to the National Environmental Management: Integrated Coastal Management & Waste Bills.

The Department noted that the response from provinces during the public participation process for both Bills was positive and sparked lively debate. With regard to the Integrated Coastal Management Bill, members of the Committee expressed some concern about how inclusive the public participation had been, and indeed whether the wording “non-governmental organization” was adequate to describe all stakeholders other than government. Members then contemplated whether the matter was serious enough for the Bill to be returned to the NCOP, even with the realization that the progress of the Bill would be delayed. The debate on this issue and the subsequent response from the Department helped to allay the concern. The effectiveness of the proposed Provincial Coastal Committee was discussed. There was considerable debate on the Lexshell sale of land by Transnet, but the Department assured members that, while this legislation did not address at regulation of the sale of Transnet property, it did place an emphasis on the very stringent processes that would culminate in an environmental impact assessment (EIA). The EIA would be the determining factor for any proposed use, sale, lease or development of coastal property.

With regard to the Waste Bill, the effect that the NCOP legislative amendment would have on the lending practice of banks would be far-reaching. Banks becoming landowners of contaminated land in the case of foreclosure, would have an obligation to clean up the land or declare by means of the Deeds Registry, that such land was contaminated. The onus then rested with the new landowner. There was some debate on the fact that a new kind of insurance would have to come into being. The fines imposed for environmental misuse came under discussion.

Meeting report

National Environmental Management: Integrated Coastal Management Bill:
The Department’s Director for Legal Services, Advocate Radia Razack, made the presentation on the changes proposed by the Select Committee. All comments and proposals had been considered. Some of the changes were by and large cosmetic, while some changes were quite substantive. The word “zoning” in the municipal sense would afford much more clarity by changing it to “planning”. This would apply throughout the Bill as it appeared extensively. The role of the Minister of Agriculture was not clear and was found under scrutiny to be unnecessary, and was therefore removed from the Bill. She then proceeded to brief the Committee on each change clause by clause.

Mr I Julies (DA) asked about the effective date of the legislation and Ms Razack replied that the legislation would not apply retrospectively.

The Chairperson questioned whether, in regard to Clause 40(3), the term “community based organization” was superfluous since “public participation” was already in the text.

Ms Razack replied that the public hearings in the provinces yielded much discussion on this point and had settled on “community based organizations” and “non-government organizations”.

The Chairperson, however, was concerned that if the legislation dealt only with broad planning and not individual developments, that NGOs may not have been consulted during the public hearings.

Mr G Morgan (DA) asked whether it made any difference since the body (Provincial Coastal Committee) would likely not work effectively.

Mr A Mokoena (ANC) asked about the participation of churches and sport bodies, and if they had not participated, then the “non-government organizations” wording needed to be removed from the Bill. And if so, he asked whether the Bill would have to be returned to the NCOP.

The Chairperson replied that it would.

Ms N Ntuli (ANC) said that she agreed with Mr Mokoena, and that the Pension Fund would have endless problems with not having participated. She further motivated that this was not merely the Pension Fund, but the lives of people belonging to that Pension Fund.

Ms J Chalmers (ANC) said that since the decision to appoint persons to the Provincial Coastal Committee rested with the MEC, would there be regulations in place to guide such appointment. She asked how this legislation would affect the recent sale of property by Transnet, as the Committee had heard earlier that the legislation was not retrospective. She wanted to know what the progress was with that problem.

Mr Mokoena asked if there was any parallel in other legislation insofar as public participation included the participation of NGOs.

The Chairperson replied that NGOs had a vested interest and therefore did not represent public participation.

Mr Mokoena cautioned that the Bill should not create a platform that would make sectors of the community vulnerable.

The Director General, Ms Nosipho Ncgaba, added that the Committee could take comfort that it was not mandatory for participation of NGOs, rather the Bill sought to include the participation of NGOs and other organizations such as community based organizations.

A question was raised on the definition of the term “accretion” and Dr Niel Malan, Deputy Director for Coastal Planning and Environmental Protection, stated that in simple language it meant that the coast was growing bigger, in other words, it was the opposite of erosion.

Mr Mokoena asked whether there was a loophole in changing the word “zoning” to “planning”.

Ms Razack replied that it would not since planning was a broader term than zoning which referred to only a specific site within a larger area, and the latter being referred to as “planning”.

Ms Joanne Yawitch, Deputy Director General: Environmental Quality and Protection, added that “planning” was the preferred term since it was in line with wording in other legislation where it related to a municipality.

Mr Morgan asked how the amendments corresponded with what Transnet had been asking for, and from a departmental point of view, where did all the stakeholders stand with this matter.

Ms Razack replied that the question was not the sale as such. But this created a red herring. The idea behind the Bill was not to impact on legitimate port operations. Coastal public property belonged to all, but if there was a need to protect it, then such property could be excluded. Thereafter it could be reclaimed and the Minister then had to act and comply with this legislation, including bringing such a matter before Parliament.

Mr Julies said that this meant the Transnet matter should come before Parliament.

Ms Razack replied that the legislation was not intended to regulate the sale of property.

Ms Chalmers stated that Transnet owned huge tracts of land for example between Port Elizabeth and the Swartkops River. If, in the future, Transnet wanted to sell off land then would this Bill intervene in such a process?

Ms Razack answered that there were two sets of things: the land, in terms of which there is ownership, and, buildings and infrastructure which is owned by Transnet, and this Bill is not about the land, only the coast.

Ms Yawitch said that there were other legislative frameworks within which that would apply.

Ms Chalmers said that there were no buildings or infrastructure on the land in her example. Her concern was that the land is an extended area running along the coast and not attached to the port. She requested that Dr Malan give more clarity about the level of public participation when considering management of that land should Transnet want to develop it.

Ms Yawitch said that Transnet was an organ of state, and as such owned land. Any development following a sale would have to go through rezoning and all other processes including an environmental impact assessment (EIA).

Mr Julies said that what was worrying was that there was [intermediate] land which was different from coastal land. Could this land be sold to a private owner? He wanted to know whether that sale could be achieved without government intervention.

Mr Mokoena stated that the EIA was the crux of the matter.

Ms Ncgaba confirmed this, as well as other legislation necessitating compliance to strict regulations. In terms of management of the coast, Clause 27 of this Bill was aimed at addressing this by means of a thorough process.

Ms Razack explained that the concern with the sale came about as a result of the Lexshell deal, which made the Department look more closely at this legislation, but it was not aimed at regulation of the sale. That was contained within a different legal framework. There were only small areas which form part of the sale by Transnet, but in order for development to take place, she assured the Committee that this legislation obligated the developer to come before Parliament. In the spirit of the Constitution there would then follow an engagement with all the stakeholders. In addition, these areas of coast concerned not only the V & A Waterfront, but all other ports in the country.

National Environmental Management: Waste Bill
Ms Yawitch commenced by saying that there were huge debates and large meetings in the provinces. This NCOP process had been concluded in June and all the provinces supported the Bill. Ms Yawitch went through the NCOP amendments clause by clause.

Ms Yawitch was asked to define the term “contaminated land” and how it related to banks. She explained that the legislation forced banks in the case where it foreclosed, to assume a new responsibility as the landowner, to clean up the land if it was contaminated, before re-selling it. Should a bank choose not to clean up the contamination, it could only sell the land with a declaration to that effect, and thereby having an impact on the value of the land by passing on the task of clean-up to the new owner.

Ms Chalmers wanted to know whether a situation would arise that a bank had a period of time to clean up or whether the bank would be able to hold on to contaminated land indefinitely. She asked if the bank could use the opportunity to inform a landowner to do something about the contamination.

Ms Yawitch replied that currently banks were not compelled to do anything about contamination on land it owned or bonded. Section 40 of the Bill stated that no person may sell on without notifying the Deeds Registry of this fact. Banks had asked for a clause to be inserted to the effect that banks would not have to comply with this in terms of land they already owned. This was viewed as a big compromise by the provinces. The provinces maintained that if land reverts back to a bank, the bank should be held responsible for the clean up. In other words, if land was held for a substantial period of time, the bank should be treated like any other landowner. This would have the result that an accurate cost of risk could be calculated.

Ms Chalmers asked whether there would be a fine for non-disclosure.

Ms Yawitch said that the consequence of having a register of contaminated land, was that banks will be interested in that register and would be wary of issuing bonds on land so registered. A precedent has been set with coastal property where environmental and climate risk were being calculated. In effect the message the bank would be sending out was that should contamination occur, it would reserve the right to re-calculate the risk. She said the Department would be working closely with provinces to set up and implement the register.

Ms Chalmers asked whether non-disclosure of pollution would be an effective way of placing a major disincentive for selling on such land.

Ms Yawitch said that in regard to the issue of Mittal Steel, a series of law enforcement actions including criminal action against them, was underway, prompting the company to work on a long term plan. She added that it was an offence not to declare, and would lead to a new kind of insurance. Section 35 in Part 8 (Contaminated Land) provided for retrospective enforcement of the Act.

Voting on NCOP amendments
The discussion was concluded and the NCOP amendments of each Bill were accepted by the Committee.
The meeting adjourned.


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