National Environmental Laws Amendment Bill [B66B-2008]: final mandates; National Environmental Management Protected Areas Amendment Bill [B67B-2008]: finalisation

NCOP Land Reform, Environment, Mineral Resources and Energy

02 February 2009
Chairperson: Rev P Moatshe (ANC/North-West)
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Meeting Summary

Objections were raised about the Western Cape’s final mandate. The Western Cape, by presenting amendments, had given a negotiating not a final mandate. The State Law Advisor’s view was that this was not a problem as the Western Cape’s amendments were already incorporated in the Committee’s proposed amendments. Thus the amendments that the Western Cape was proposing were not something new.

The Western Cape’s permanent delegate defended his province by saying that the Mandating Procedures of Provinces Bill which mapped out correct procedure had only just been passed. Agreement was reached that enough provinces supported the Bill to enable the Select Committee to pass the legislation. The Western Cape’s delegate was expected to raise the Select Committee’s concerns with the Western Cape Legislature.

The Committee adopted the National Environmental Laws Amendment Bill [B66B-2008] with amendments.

The Committee was satisfied that the Department of Environmental Affairs and Tourism and the Department of Transport had reached consensus on previous matters of contention. It agreed to proceed despite the unexplained absence of the latter Department. The Committee adopted the National Environmental Management: Protected Areas Amendment Bill [B67B-2008] with amendments.

A formal meeting had not taken place on 27 January 2008 on account of lack of a quorum. A Member expressed great concern at the wastage of public money on travelling expenses incurred at the failure of the 27 January 2009 meeting to achieve a quorum. He said that Members unable to attend must send apologies in writing and make an effort to send an alternate. The Chairperson noted the Member's concern.

 

Meeting report

Introduction
The Chairperson said that a delegation was expected from the Department of Transport to hear whether it had reached consensus on the assignment given to them previously by the Committee.

The Chairperson said that enough Members were present to constitute a quorum, so the meeting could proceed. The Chairperson also welcomed other stakeholders, media, and those interested parties within Parliament or outside, while indicating acknowledgement of the Parliamentary Monitoring Group monitor. 

Final Mandates: National Environmental Laws Amendment Bill [B66b-2008]
The Chairperson said that he understood that everyone had a copy of the package of Provincial Legislature mandate reports in alphabetical order.

Eastern Cape
Mr Windvoël (ANC, Mpumalanga) said that there was no Member present from the Eastern Cape as yet. However, Mr Windvoël read the Eastern Cape Provincial Legislature’s negotiating mandate final report, in which the province indicated that it supported the adoption of the Bill without amendments.

The Chairperson verified that the Eastern Cape favoured voting for the adoption of the Bill without amendments.

The Chairperson thanked Mr Windvoel, thanked him for clarifying a point, and said that he had represented the Eastern Cape very well.

Free State
Mr L Van Rooyen (ANC, Free State) said that the Free State legislature supported adopting the Bill as amended by the National Council of Provinces.

Gauteng
Ms Dikeledi Tsosetsi (ANC, Gauteng) said that Gauteng supported adopting the Bill without amendments.

KwaZulu-Natal
Ms M Oliphant (ANC, KwaZulu-Natal) said that, in terms of KwaZulu-Natal’s mandate, there was some confusion, but read the mandate.

Ms M Oliphant explained the confusion: the Select Committee had just adopted the minutes, and they had been signed or were about to be signed by the Chairperson.  Ms Oliphant would have to check with the province, because, according to the province, it had not, by reason of the minutes not having been signed, conferred the mandate; but otherwise the province agreed with the amendment mentioned in those minutes. Ms M Oliphant assumed that since the minutes had been signed, she therefore was obligated to support the Bill with amendments. Nevertheless, she would have to telephone her province to confirm.

Limpopo
Ms H Matayane (ANC, Limpopo) said that Limpopo also had its own way of dealing with things. She read the first page of the mandate to the effect that Limpopo supported the Bill.

The Chairperson inferred that Limpopo supported the Bill, ‘probably with amendments’.

Mpumalanga
Mr Windvoel said that Mpumalanga conferred on him the authority and a mandate to vote in favour of the Bill with amendments proposed by the Select Committee.

The Chairperson said that when the sun rose [in Mpumalanga] it was always brighter than when it set.

Northern Cape
Mr Tau (ANC, Northern Cape) said that he was mandated to support the Bill

North West Province
The Chairperson said that the North West Province mandated him, as the province’s permanent delegate, to support the Bill ‘with the inputs made on the mandate’.

Mr Windvoël said that there appeared to be ‘a slip of the typewriter’ in the North West Province’s mandate to support the Bill ‘will amendments’. This he construed as ‘with amendments’.

The Chairperson thanked Mr Windvoël and accepted his correction.

Western Cape
Mr Adams said that the Western Cape supported the Bill ‘with the following amendments: clause 35 on page ten, after line 43 insert a new paragraph  (b) and the insertion of “and” after paragraph (c)”.’

The Chairperson inferred that the Western Cape supported the Bill and asked if he (the Chairperson) was correct in his assumption.

Mr Windvoël objected to the manner in which the Western Cape had presented its mandate. The Western Cape, by presenting amendments, had given therewith a negotiating mandate. The Select Committee, however, was no longer negotiating. The province would just have to accept or reject. Maybe they would need to clarify that. He inferred that the Western Cape’s support for the Bill was conditional on the Select Committee’s accepting the Western Cape’s recommended amendments. He felt that  ‘It was a case of missing breakfast and wanting to have it during dinner.’

Ms B Dlulane (ANC, Eastern Cape) apologised for her late arrival on account of difficulty in finding the venue.  Contrary to Mr Windvoël’s understanding, she said that it was clear that the Western Cape’s mandate was final, since the Western Cape Legislature had written ‘final mandate’. She recommended proceeding on the basis that the Western Cape supported the Bill, despite the Western Cape’s being ‘a bit confused’. She suggested that the Select Committee hold a workshop on how to write a final mandate.’ She reiterated that the Select Committee accept it as a final mandate regardless of the confusion.

The Chairperson said that the Committee Secretary could explain.

The Committee Secretary said that it was merely a matter of words. The Western Cape, when, in their final mandate, they support a Bill with amendments, they merely reiterate what they said in their negotiating mandates. Thus the amendments mentioned in the final mandate are those that the Western Cape listed in their negotiating mandate. It was clear that the Western Cape supported the Bill with amendments, which they listed.

Mr Tau agreed with the Committee Secretary in that this was a consistent and wrongful tendency of the Western Cape. He asked how it could be justified in a court of law. This was a written document; this was a legislative process. The Committee could not accept that, as that province was in effect not supporting the Bill. They were in fact saying that they would support the Bill only if the Committee accepted their amendments. Any judge would read it thus. He asked that the Committee not expose itself to unnecessary legal conversations or constraints but rather accept that the Western Cape was not supporting the Bill as it stood. The Select Committee must report to the Western Cape Legislature that they must stop creating confusion in the Committee by stating initially that they are submitting a final mandate, but then at the same time adding things that would change this final mandate into a negotiating mandate. Perhaps they did it to be unique, but the issue had already been raised with the legislature of the Western Cape (though not necessarily with their permanent delegate).

Mr Windvoël supported Mr Tau. It was a final mandate on the official letter head of the Western Cape Legislature but it was written as if it was a negotiating mandate. One should not come with a final mandate and then propose certain amendments. It was signed by the Speaker of the Provincial Legislature who was the presiding officer. One could not undermine that formal process. The final mandate said ‘with the following amendments’. With regard to their proposed amendment on the insertion after line 43 of a new paragraph (b), it meant that if the Select Committee did not insert a new paragraph (b), the words of which were not before the Committee, the province would not support the Bill. Thus it was a provisional mandate. One should not ‘try to twist the simple English written here’ by assuming it to be ‘a blanket mandate’. 

The Chairperson asked the permanent delegate from the Western Cape, Mr Adams, to enlighten the Committee on the matter.

Mr Adams defended himself. The staff of the provincial legislatures and the staff of the National Council of Provinces had participated in a workshop on mandating legislation procedure the previous Monday. He recalled that the Mandating Procedures Bill had only just been passed and brought into law. So there had been no form of having a mandate. However, it was the wrong forum in which to raise it. The permanent delegate had forums in which to raise these issues. Since the Mandating Procedures Bill had just been passed and brought into law, all provinces should report back to the Select Committee, but he made it clear that this was the wrong place in which to raise the matter.

Mr Windvoël said that this matter was something that was happening not only to this particular Select Committee.  This kind of anomaly did not arise only from the Western Cape. The Western Cape was unique only in that it brought amendments during the final mandating process. However, the anomaly was such that the mandate of one province would be signed by the secretary of the legislature, and the mandate of another province would be signed by the chairperson of the legislature, and so on. It should be noted as one of the priority issues for the next Parliament. Part of the training and workshops should focus on this area so that a uniform approach could be adapted.

The State Law Advisor in attendance said that the amendments were already incorporated in the Select Committee’s documentation and were already incorporated into the final version of Bill. Thus the amendments that the Western Cape was proposing were not something new. They were already incorporated into the final version of the Bill.

Mr Windvoël maintained that his proposal still stood. He did not take the State Law Advisor’s opinion as an objection.

Mr Tau said that he did not have a problem with the State Law Advisor’s opinion.  If the amendments mentioned were indeed incorporated he still wanted to know the status of the province’s final mandate. It remained quite confusing. If it was read by a person who was not a Member of the Committee or who did not have the benefit of the present discussion, the person would conclude that the province was supporting the Bill subject to those conditions. He submitted that the Select Committee should ask the Western Cape to redraft their mandate to be unambiguous.

Ms Dlulane said that all Members of the Select Committee agreed that the contents of the final mandate were wrong, so if the province was supporting the Bill, they were nevertheless confusing Members. The document was headed ‘final mandate’ but as one read further it became clear that it was a ‘negotiating mandate’.

The Chairperson opined that enough provinces supported the Bill to enable the Select Committee to pass the legislation. Members had said much about the confusion surrounding the Western Cape’s final mandate, but obviously, in the future, it would be rectified.

Ms Oliphant said that she thought that the Chairperson had covered the matter, and urged that the Committee proceed. She trusted that Mr Adams would raise the Select Committee’s concerns with the Western Cape Legislature. She believed that the provinces were still to send their final voting mandate. She did not think that there was really any problem.

The Chairperson read the Select Committee on Land and Environmental Affairs’ motion of desirability on National Environmental Laws Amendment Bill; as amended by the Portfolio Committee on Environmental Affairs and Tourism [B66B-2008] which included the long title of the Bill:

In the opinion of the Committee, legislation was desirable to amend the –
Atmospheric Pollution Act, 1965, so as to adjust the penalties provided for in the said Act; Environment Conservation Act, 1989, so as to adjust the penalties provided for in the said Act and to remove the need to publish directions in the Gazette; National Environmental Management Act, 1998, so as to delete seven definitions, to provide for the establishment of fora or advisory committees  to make provision for increased powers of the court to remove the requirement that environmental management inspectors must carry notices of designation with them to extend the scope of routine inspections to the search of vehicles and regulate the jurisdictions of magistrate’s courts in instances where the maximum fines had been increased; National Environmental Management: Protected Areas Act, 2003, so as to provide for increased measures of control over escaped animals; and to adjust the penalties provided for in the said Act; National Environmental Management: Biodiversity Act 2004, so as to provide for general surveillance monitoring; to provide further considerations for a biodiversity management plan; to provide that an environment impact assessment must be obtained when genetically modified organisms were involved; to introduce notification requirements in the discovery phase of a bio-prospecting project; to take into consideration knowledge of specific individuals when issuing specific bio-prospecting permits; to allow the Director-General or a trustee to manage the Bio-prospecting fund; to allow for the renewal or amendment of a permit; to amend the regulations to allow for hunting; and to effect certain textural alterations; National Environmental Management: Air Quality Act, 2004, so as to provide for a processing fee to review a licence; and to include directors or senior managers in a juristic person for the criteria for a fit and proper person; and to provide for matters connected therewith.

Mr Windvoël recalled that in a previous meeting it had been said that a draft motion of desirability was not a Cabinet classified document. He suggested that draft motions of desirability should therefore be circulated to Members, so that the Chairperson would not have to read alone the whole draft motion in the meeting. Mr Windvoël said that Members believed in transparency.

The Chairperson thanked Mr Windvoël. He felt that it would be complied with in future.

Mr Tau objected. He did not know why the Chairperson had agreed. It was the responsibility of the Chairperson to read out the motion of desirability. The Chairperson should however be careful with that power.

The Chairperson replied that he also believed in transparency. He thanked Mr Tau.

The Chairperson placed before the Committee Clauses 1 to 52. He asked if Members agreed.

Mr Tau proposed. Ms Matlanyane seconded.

The Chairperson read the Report of the Select Committee on Land and Environmental Affairs on the National Environmental Laws Amendment Bill [B66B-2008] dated 27 January 2009. The Select Committee on Land and Environmental Affairs, having considered the National Environmental Laws Amendment Bill [B66B-2008] (National Assembly) Section 76, reported that it had adopted the Bill with amendments.

Mr Van Rooyen proposed. Ms Matlanyane seconded.

The Chairperson signed the report, and thanked the Committee for passing the Bill. He opined that the Committee had done justice to it and completed its work.

The Chairperson then asked the Members if they wished to engage in debate on the Bill just passed or have a statement. The Committee agreed on a statement. 
 
National Environmental Management Protected Areas Amendment Bill: further deliberations and briefing by Department and possible finalisation
A delegation from the Department of Environmental Affairs and Tourism was present. A delegation from the Department of Transport had been expected, but it had failed to materialise.

The Chairperson opined that, in the absence of any representative of the Department of Transport, the Committee would be unable to consider the National Environmental Management Protected Areas Amendment Bill [B67B-2008].

The Chairperson stated that it was the Department of Transport that had raised objections; he asked the Committee for its opinion as to how to proceed in the Department’s absence.

The Chairperson said that the Committee had categorically assigned the two Departments - Environmental Affairs and Tourism, and Transport – to reach consensus. He wanted to hear from them in their presence. He did not want the Committee subsequently to be accused of not having done justice to the Departments.

Mr Windvoël wanted to check how the matter had been co-ordinated, and to determine whether the absence of the Department of Transport was the result of a failure of communication by the Committee or a failure by the Department. Also copies of the presentation that the Committee was to receive had only just arrived; it would have been advantageous if it had been sent in advance. It was important for the two Departments together to brief the Committee on whatever compromises they had made, since very critical issues had been raised.

The Committee secretary explained that he had spoken to an official of the Department of Transport, and advised him, that, since it had been the Department of Transport that had raised objections, it would be appropriate for the Department to attend. He had also asked the official if they had reached consensus with the Department of Environmental Affairs and Tourism; the official replied that indeed they had. The document that had been sent with the package to Members the previous week was the amendment that had been agreed upon by the two departments. The official had assured the Committee Secretary that the Department would attend. The document that Ms Oliphant was perusing was a copy of a previous presentation that the Secretary thought would be of benefit to Members.

Mr Van Rooyen said that the document was not clear that this was the final agreement. It just referred to an amendment to section 47. It was thus very difficult to accept this document, since it was not clearly stated that this was the final agreement between the two Departments.

A Member noted that there had not even been an apology from the Department of Transport.

The Chairperson asked the Department of Environmental Affairs and Tourism to give its views.

Mr J Du Rand, Parliamentary Officer for the Department, responded that the meeting had originally been scheduled for the previous week. Mr Bierman from the Department of Transport had definitely presented himself at the venue for the previous week’s intended meeting. The two Departments had already reached agreement before that occasion. He gave some background as to how the two Departments had reached agreement. Subsequent to the last meeting a directive had been given by the Directors-General of both Departments that the drafters must agree. Prior to the previous meeting, the speaker met with a responsible official for compliance and regulatory services and the officials for drafting these amendments. They had worked tirelessly over the weekend to ensure that they had the amendments ready before the previous meeting that was subsequently cancelled. From the perspective of the Department of Environmental Affairs and Tourism it was important to note that the Department had reached consensus with the Department of Transport. Mr Du Rand said that he had brought with him copies of some email messages as evidence. Although he was ‘at the mercy of the Committee’ he could assure them that the two departments had reached agreement.

The Chairperson said that he fully understood the Department’s view that the two Departments had reached consensus, but that the Department of Transport should have been fully aware that the meeting had been postponed, and their absence at this day’s meeting could not easily be excused, since the Committee was dealing with legal issues. The Committee were the law makers. The Department of Environmental Affairs and Tourism’s word was insufficient.

Mr Windvoël said that he felt assured that the two Departments had achieved consensus, and proposed that the Committee proceed.

Mr Van Rooyen objected. He could not accept the mere word of the Department of Environmental Affairs and Tourism, in the absence of a written response on their letterhead from the Department of Transport.

The Chairperson said that the Committee was dealing with legal issues. It was necessary to be doubly sure.

Mr Windvoël felt that the Committee had done its best to ensure that all legal issues had been fully covered. He said that the Bill was the responsibility of the Department of Environmental Affairs and Tourism, and the views of other Departments or entities involved, for example, the South African Civil Aviation Authority, should be fully taken into account. He suggested allowing the emails mentioned by Mr Du Rand to be circulated; and secondly the issues raised by the Department of Transport should be reviewed against the document in front of Members. The issue was less the presence or absence of the Department of Transport, but whether or not the issues raised by the Department of Transport had been resolved. It was not the mistake of the Department of Transport that the previous week the Select Committee had failed to achieve a quorum; it was the Select Committee’s mistake. He therefore proposed examining those issues in the absence of the Department, in order to expedite the Select Committee’s business.

Ms Dlulane said that she was happy with the two Departments’ efforts to reach consensus, and recommended that the Select Committee ‘pardon’ the Department of Transport for its absence, but require them to apologise in writing for absence on any future occasion when called before the Select Committee. Since the Select Committee wanted to complete its business in order to pass the piece of legislation concerned, she supported Mr Windvoël in his above proposal that the Committee proceed.

Ms Oliphant agreed with Ms Dlulane and Mr Windvoël that it was essential that the Committee proceed.

The Chairperson inferred that Members were motivating that it was ultimately the Select Committee’s responsibility to take a decision. The Select Committee had given enough time to the two Departments. Now there was a strong feeling that the legislation should be passed.

A Member said that the Committee should proceed.

The Chairperson said that, moreover, the objecting Department was not present; and if they were absent while having been aware of this meeting, they were obviously happy with the consensus reached with the Department of Environmental Affairs and Tourism. He asked the Department of Environmental Affairs and Tourism to recap.

Mr J Du Rand said that he was glad that the majority of Members were ‘not uncomfortable’.  It was not clear why the Department of Transport had not attended. He had thought of suggesting that the Chairperson speak to Mr Bierman by telephone, but he now thought that unnecessary. He read through the Amendment to Section 47 of Act 57 of 2003 as amended by Section 17 of Act 31 of 2004. As Members would recall, there had been contention around Section 47 of the Act.

Mr Winvoël asked Mr Du Rand to focus on the issues that had been contentious. 

Mr Du Rand proceeded to Sub-section 3, referring to over-flying of protected areas, flight corridors, and flight plans.

Mr Van Rooyen queried the minimum flight altitude of 2 500 feet above sea level, given that the altitude of protected areas was often in excess of 2 500 feet above sea level.

Mr Tau said that the minimum flight altitude of as low as 2 500 feet above sea level was dangerous, given the risk that hunters might take the opportunity to hire aircraft and shoot animals illegally from the air. 

Mr Windvoël said that his understanding was that the altitude of 2 500 feet was above the highest point of the protected area. He proposed that the Committee accept the contents of the negotiated settlement.

Mr Du Rand thanked Mr Windvoël. The altitude of 2 500 feet was above the highest point, not above sea level. The interests of the protected area and its animals, and the safety requirements of the Civil Aviation Authority had to be recognised.

Mr Windvoël proposed that the Committee accept the contents of the negotiated settlement.

The proposal was seconded.

The Chairperson read the motion of desirability on the National Environmental Management: Protected Areas Amendment Bill [B67B-2008], that in the opinion of the Committee legislation was desirable to amend the National Environmental Management: Protected Areas Act, 2003, so as to provide for a comprehensive list in the Schedule of all national parks; to provide for the assignment of national parks, special nature reserves and heritage sites to the South African National Parks; to make provision for flight corridors and permission of the management authority to fly over a special nature reserve, national park or heritage site; to provide for specific areas to be available for training and testing of aircraft; and to provide for matters connected therewith.

The Chairperson asked if the Members agreed.

Members indicated their agreement.

The Chairperson, noting a misprint in the Bill, whereby the Short Title and Commencement clause was wrongly numbered 7 but was actually the Bill’s ninth clause,  put before the Committee clauses 1 to 9.

Mr Van Rooyen proposed. Ms Matlanyane seconded.

The Chairperson read the Report of the Select Committee on Land and Environmental Affairs on the National Environmental Management: Protected Areas Amendment Bill [B67B-2008] dated 27 January 2009. The Select Committee on Land and Environmental Affairs, having considered the National Environmental Management: Protected Areas Amendment Bill [B67B-2008] (National Assembly) Section 75 reported that it had adopted the Bill with amendments.

The Committee agreed to the report. 

The Chairperson, noting that there were no outstanding Bills, thanked the Department of Environmental Affairs and Tourism for its assistance and wished it well. He said that the South African people, who were becoming highly politicised, looked to the Department for rapid change, transformation, and delivery.

Committee programme 2009
It was agreed that since there was no outstanding legislation to consider, there would be no programme to discuss.

Consideration and adoption of minutes
Mr V Windvoël (ANC, Mpumalanga) called for Members unable to attend to tender apologies in writing and specify reasons for absence; he was appalled at the failure of the previous week's (27 January 2008) meeting to achieve a quorum, a failure which had resulted in fruitless expenditure of public funds on travel expenses. It was known that the present year was a hectic one; however, it was irresponsible for any Member, knowing in advance of inability to attend, not to arrange for the presence of an alternate Member. He did not know if the two Members who had tendered their apologies were in hospital, and suggested perhaps sending them 'get well' messages. It was important to prevent future failures of meetings to proceed through lack of a quorum. If the business in hand could not be completed, it would adversely affect the Committee’s ability to pass legislation.

The Chairperson thanked Mr Windvoël. Seven or eight Members had been absent on 27 January 2008. This had necessitated postponement of the meeting to this day.

The Chairperson was informed by the Committee Secretary that Mr Watson had an appointment with his heart specialist; Mr Krumbuck had not indicated why he was unable to attend.

The Chairperson said that in future it would always be appropriate that Members unable to attend must tender their apologies in writing and state the reasons for inability to attend, ‘in spite of the hectic year we have just entered into’. He hoped that such mistakes would be rectified as the Committee ‘moved forward’.

Ms H Matlanyane (ANC, Limpopo) apologised that she had been unable to attend the 18 November 2008 meeting.

The minutes of the 18 November 2008 meeting were duly adopted with corrections.

Mr Adams said, with regard to the 27 January 2008, that the Committee Secretary should explain to the Department of Environmental Affairs and Tourism why the meeting could not take place as a formal meeting. This was not clear in the minutes as drafted. 

The Chairperson said that the 27 January 2009 meeting could not take place due to lack of a quorum.

Mr Windvoël said that what the Committee was endeavouring to do was to adopt records of meetings – formal meetings. To be realistic and honest, the Committee had not held any formal meeting on 27 January 2009 in terms of the rules and orders of the National Council of Provinces. That meeting had no quorum.

The Chairperson said that it was quite clear what Mr Windvoel was saying.

Conclusion
This being most probably the last meeting of the Committee not only in this term but in this Parliament, but the Chairperson thanked Members for their co-operation and efforts, despite their heavy schedules. He praised them as being ‘a lovely group of people’.

The meeting was adjourned.

 

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