ATC161019: Report of the Portfolio Committee on Mineral Resources on President’s reservation on the Mineral and Petroleum Resources Development Amendment Bill [B15B -2013], dated 19 October 2016
Report of the Portfolio Committee on Mineral Resources on President’s reservation on the Mineral and Petroleum Resources Development Amendment Bill [B15B -2013], dated 19 October 2016
The Mineral and Petroleum Resources Development Amendment Bill [B15B – 2013] (National Assembly – section 76 was referred to the Portfolio Committee on Mineral Resources in terms of Joint Rule 203, on 16 January 2015 due to President’s reservations as outlined below:
- The definition of “This Act” is likely unconstitutional in that the amended definition elevates the Codes of Good Practice for the South African Minerals Industry, the Housing and Living Condition Standards for the Minerals Industry and the Amended Broad-Based Socio-Economic Empowerment Charter for South African Mining and Minerals Industry to the status of national legislation. In addition, in terms of Section 74 of the Amended Act, the Minister is given the power to amend or repeal these instruments as and when the need arises effectively by-passing the constitutionally mandated procedures for the amendment of legislation;
- As amended, Sections 26(2B) and 26(3) appear to be inconsistent with South Africa’s obligations under the General Agreement on Trade and Tariffs (GATT) and the Trade, Development and Cooperation Agreement (TDCA) in so far as they appear to impose quantitative restrictions on exports in contravention of GATT and TDCA and in so doing render the state vulnerable to challenges in international fora;
- The President is of the view that the NCOP and the Provincial Legislature did not sufficiently facilitate public participation when passing the Amendment Act as required by Section 72 and 118 of the Constitution in that the consultation period was highly compressed and there appears to have been insufficient notice of the public hearing held by the provincial legislatures;
- The President is of the view that the Bill should have been referred to the National House of Traditional Leaders for its comments in terms of Section 18 of the Traditional Leadership and Governance Framework Act in that the Bill impacts upon customary law or the customs of traditional communities by:
- allowing persons to enter upon land to conduct an investigation after notifying and consulting with the owner, occupier or person in control in term of Section 50 and in so doing ignores the consent principle in customary law;
- amending the definition of “community” in Section 1 of the Amendment Act”.
The Portfolio Committee on Mineral Resources, having considered the President’s reservations, reports as follows:
- The power given to the Minister to amend Codes, Standards and Charter does not bypass constitutional mandated legislative procedure. The definition of “this Act” read with clause 74 will pass constitutional muster.
- The ratification of the GATT and the TDCA does not create constitutional right or obligations and the amendments to the section 26(2B) and 26(3) will pass constitutional muster.
- In terms of joint rules, rule 203 (2)(b)(i) the Committee conferred with the Select Committee on Land and Mineral Resources. The Committee agrees that the consultation period in the NCOP and in the Provincial Legislatures was highly compressed and recommends that the Select Committee on Land and Mineral Resources remedy this procedural defect by starting their legislative process anew.
- The Committee referred the Bill to the NHTL on 01 March 2016 and they submitted the comments which were considered by the Committee on 17 May 2016.
The Bill was amended as follows:
1. On page 3, in line 38, after “a” to insert "metropolitan municipality or a".
- On page 8, in line 24, after "parties" to insert "and communities".
- On page 8, in line 31, after "persons" to insert "and communities".
- On page 8, in line 34, after "person" to insert "or community".
- On page 8, in line 40, after "person" to insert "or community".
- On page 11, in line 52, to omit "and [any interested and] an affected party" and to substitute "[and any interested and], an affected party and community".
1. On page 15, in line 36, to omit "may" and to substitute “[may] must”.
- On page 25, from line 38, to omit "or person in control of such land” and to substitute "[or], person in control of such land or community".
The Committee reports an amended Bill.
Report to be considered.
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