The Committee approved the NCOP proposed amendments and made no further changes. The areas of concern emanating from the provincial consultations and reflected in the amendments introduced by the NCOP through Bill 36D are:
- Perceived watering down of EIA through the introduction of compulsory and qualified discretionary requirements for processes and reports leading to environmental authorisations. (The fear was that the provisions to allow for instruments other than EIA may compromise the rigour of EIA)
- Perceived wide discretion of the competent authority in terms of co-operative governance mechanisms introduced through sections 24(8); 24(K) and 24(L).
- Perceived weaker environmental protection in terms of mining activities in terms of NEMA as is the case when managed in terms of the MPRDA
- Perceived weakened requirements around rectification applications (Section 24G)
- Practicalities around powers of the Minister of Minerals & Energy to implement NEMA.
Some members were concerned that a mine could continue to be used even after the loss of lives on a scale such as the Coalbrook mine collapse of 1960. The Department clarified that the Mining Health and Safety Act dealt with loss of human life while the National Environmental Management Bill addressed only with the environmental cost of accidents. The question of whether the Bill would be retrospective was raised. Mines which might be out of use but not yet closed, would be subject to the new legislation
Ms Joanne Yawitch, DEAT Deputy Director General (DDG), briefed the meeting on each of the amendments. Most of the National Council of Provinces’ amendments were of a technical nature only, correcting punctuation or grammar, or were there to provide clarification. She pointed out that some aspects of the Bill had been of concern to the provinces. These were the perceived watering down of the environmental impact assessment (EIA), co-operative governance mechanisms, weaker environmental protection in terms of mining exploration, the requirements for rectification applications and the powers of the Minister of Minerals and Energy.
Of the substantive amendments, Ms Yawitch highlighted in Clause 8 dealing with Section 24L that Clause 24(4)(b) was applicable where environmental impact assessment (EIA) had been identified as an environmental instrument so no discretion by the Minister could apply in this case.
(4) A competent authority empowered under Chapter 5 to issue an environmental authorisation may regard an authorisation in terms of any other legislation that meets all the requirements stipulated in section 24(4)(a) and, where applicable, section 24(4)(b) to be an environmental authorisation in terms of that Chapter.
She noted that the powers of the Minister of Minerals and Energy had been tightened in Section 24N.
The Chairperson, in response to the amendment concerning the environmental management plan being a new addition and requiring the environmental impact assessment to be part of that plan, asked whether it meant restoration of the environment as it was before any activity took place.
Ms Yawitch replied that before authorization would be granted all aspects would have to be addressed, including for example, closure of land fill so as to comply with this legislation. She added that the EIA now formed a compulsory part of the environmental management plan.
Mr A Mokoena asked whether the Bill was retrospective and referred to the Coalbrook mining accident that had occurred in 1960 where more than 400 miners were buried when a mine roof collapsed. There seemed to be no regard for the human lives lost because the mine pillars were left in place so that the mining company could continue to extract more coal.
Ms Yawitch replied that the Bill did not deal with safety aspects and such a matter would fall under different legislation. However, the operations and closure process, with this Bill, would have to come through DEAT. The Bill ensured that there was an ongoing liability since in the past mine owners would disappear and leave government in the position of having to deal with the aftermath.
Mr Mokoena urged government not to lose the opportunity to address the problems of the past by making the Bill retrospective, since in the Coalbrook incident there was no restitution for the miners who lost their lives. Because of an absence of legislation the mine owners were absolved from responsibility.
Ms Yawitch said that the Bill ensured that the environmental liability of mine owners would continue.
Mr D Maluleke commented that in view of this tragedy there should be measures in place after a mine is de-commissioned.
Ms Yawitch replied that only the environmental consequences could be addressed. Their concerns would be addressed under the Mining Health and Safety Act. She noted that in this Bill reference was made to the closure of mines in Clause 8 amending Section 24P.
Members agreed to all the NCOP amendments as read out and the Bill was approved as a whole.
Ms Yawitch thanked all the role-players for ensuring such a thorough process in the formulation of this legislation.
The Chairperson thanked members and the DEAT for their participation.
The meeting adjourned.
NCOP AMENDMENTS TO NATIONAL ENVIRONMENTAL MANAGEMENT AMENDMENT BILL
1. On page 4, from line 10, to omit the second ‘‘environmental matters’’ and to substitute:
with regard to the implementation of environmental legislation, regulations, policies, strategies and guidelines
1. On page 7, after line 6, to insert the following subsection:
(4A) Where environmental impact assessment has been identified as the environmental instrument to be utilised in informing an application for environmental authorisation, subsection (4)(b) is applicable.
2. On page 7, in line 29, to omit ‘‘the procedures for’’.
3. On page 8, in line 33, after ‘‘potential’’ to insert ‘‘impacts or’’.
4. On page 8, in line 37, after ‘‘24(4)’’ to insert:
, provided that such investigation, assessment and communication comply with the requirements of section 24(4)(a) and, where applicable, comply with section 24(4)(b)
1. On page 9, after line 52, to insert the following subsection:
(2A) The Minister of Minerals and Energy must be identified as the competent authority in terms of subsection (1) where the activity constitutes prospecting, mining, exploration, production or a related activity occurring within a prospecting, mining, exploration or production area
1. On page 10, in line 38, after ‘‘Minister’’ to insert ‘‘, Minister of Minerals and Energy’’.
2. On page 10, in line 40, to omit ‘‘one or more of the following, namely’’.
3. On page 11, in line 14, after ‘‘(2)’’ to insert ‘‘(a) or (b)’’.
1. On page 12, in line 4, after ‘‘not’’ to insert:
and provided that section 24(4)(a) and, where applicable, section 24(4)(b) are given effect to in such process
2. On page 12, from line 28, to omit subsection (4) and to substitute:
(4)A competent authority empowered under Chapter 5 to issue an environmental authorisation may regard an authorisation in terms of any other legislation that meets all the requirements stipulated in section 24(4)(a) and, where applicable, section 24(4)(b) to be an environmental authorisation in terms of that Chapter.
3. On page 12, after line 55, to insert the following subsection:
(1A) Where environmental impact assessment has been identified as the environmental instrument to be utilised in informing an application for environmental authorisation, or where such application relates to prospecting, mining, exploration, production and related activities on a prospecting, mining, exploration or production area, the Minister, the Minister of Minerals and Energy, an MEC or identified competent authority must require the submission of an environmental management programme before considering an application for an environmental authorisation.
4. On page 16, in line 3, to omit the first ‘‘an’’ and to substitute ‘‘and’’.
1. On page 19, after line 11, to insert the following item:
Amendment of section 24C of Act 107 of 1998 2. Section 24C of the principal Act is hereby amended by the deletion of subsection (2A).
2. On page 19, in line 34, to omit ‘‘and’’ and to substitute ‘‘,’’.
3. On page 19, in line 34, after ‘‘24F(1)(a)’’ to insert ‘‘and section 24G(1)’’.
4. On page 19, in line 38, after ‘‘24N(1)’’ to insert ‘‘, (1A)’’.
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