ATC130521: Report of the Portfolio Committee on Water and Environmental Affairs on the National Environmental Management Laws Amendment Bill [B13-2012], dated 15 May 2013.
REPORT OF THE
PORTFOLIO COMMITTEE ON WATER AND ENVIRONMENTAL AFFAIRS ON THE NATIONAL
ENVIRONMENTAL MANAGEMENT LAWS AMENDMENT BILL [B13-2012], DATED 15 MAY 2013.
The Portfolio Committee on Water and Environmental Affairs having considered the subject of the National Environmental Management Laws Amendment Bill [B13-2012], (National Assembly sec 76), referred to it and classified by the Joint Tagging Mechanism (JTM) as a section 76 Bill, reports as follows:
The National Environmental Management Laws Amendment Bill (the Bill) was introduced
and referred to the Portfolio Committee on Water and Environmental Affairs (the
Portfolio Committee), on 6 May 2012. The Bill is a composite amendment Bill,
which seeks to amend five pieces of environmental legislation, namely the National
Environmental Management Act, 1998, Act No.107 of 1998 (NEMA); the National
Environmental Management: Biodiversity Act, 2004, Act No.10 of 2004 (NEMBA); the
National Environmental Management: Air Quality Act, 2004, Act No. 39 of 2004 (NEM:AIR
QUALITY); the National Environmental Management Laws Amendment Act, 2008, Act No.
62 of 2008 (NEMLA); and the National Environmental Management: Protected Areas
Amendment Act, 2003, Act No. 57 of 2009 (NEM: PROTECTED AREAS).
Committee processed the Bill, by receiving briefings from the Department of
Environmental Affairs (the Department), calling for written submissions from
the public, hosting public hearings for oral submissions by the public and the
Portfolio Committee engaged in deliberations on the Bill. After deliberations,
the Portfolio Committee proposed that the Bill be split into two Bills, and to
propose the immediate passing of the National Environmental Management Laws
First Amendment Bill (the First Amendment Bill), in order to amend the
Management: Biodiversity Act, 2004, Act No. 10 of 2004, (NEMBA);
Management: Air Quality Act, 2004, Act No. 39 of 2004, (NEM:AIR QUALITY);
Management: Waste Act, 2008, Act No. 59 of 2008, (NEM:WASTE);
Management Laws Amendment Act, 2008, Act No. 62 of 2008, (NEMLA); and
National Environmental Management:
Protected Areas Amendment Act, 2009, Act No. 57 of 2003 (NEM: PROTECTED
The First Amendment
Bill was adopted by the National Assembly on 14 November 2012 and was recently adopted
with amendments by the Select Committee on Land and Environmental Affairs, in
the National Council of Provinces (NCOP), on 7 May 2013.
The Portfolio Committee
further agreed that the proposed amendments in the Bill to the National Environmental
Management Act, 1998, Act No.107 of 1998, (NEMA), required further deliberation,
as they raised serious constitutional and political challenges, in respect of
which the Portfolio Committee required further information, legal advice and
proposed amendments. These amendments would then be processed in a separate
Bill, when the necessary information, advice and amendments was placed before
and processed by the Portfolio Committee and would then be passed as a National
Environmental Management Laws Second Amendment Bill, B13 of 2013 (the Second
Amendment Bill, after the said information, advice and amendments was placed
before the Portfolio Committee and after thorough and exhaustive debate and
discussion, has now been processed and unanimously adopted by the Portfolio Committee.
The Portfolio Committee also agrees with the tagging of the Bill as a section
76 Bill and is of the view that the Second Amendment Bill should also be tagged
as a section 76 Bill.
As the Second Amendment Bill makes many substantive and innovative
amendments to the present environmental legislative framework, contained in
NEMA, the Portfolio Committee deems it prudent to elaborate on some of the amendments,
1. Clause 2 amends section 11 of the Act to adjust the time-frames for
the preparation of environmental implementation plans and environmental
management plans by national and provincial government departments to enable a five
(5) year as opposed to four (4) year planning horizon to achieve mainstreaming
of environmental considerations into policy management systems and
implementation and decision making within national and provincial government
2. Clause 3 inserts a new section 16A to provide for the preparation and
publication of national, provincial and, on a voluntary basis, metropolitan and
district municipal, four-yearly environmental outlook reports, to track the
state of the environment and the effectiveness of the environmental management
system in achieving the desired level of sustainability. The preparation and
publication process, procedure, format and content of these reports are
determined by the Minister.
3. Clause 4 inserts a new section 23A to promote or facilitate the
mainstreaming of integrated, environmentally sustainable and sound management
considerations into business processes, practices, technology and
decision-making, within and across civil society, especially the economy.
The Minister may provide guidelines on the
development, content and use of voluntary or organisation based instruments,
consider such instruments and endorse or approve them.
4. Mindful of the urgent need for sustainable development in our country;
the need to effectively track the environmental management systems and
mainstream plans and processes implemented by national and provincial
Departments; the need to monitor the environmental sustainability of
development and the need to facilitate the selection and use of the most
appropriate and effective environmental management instruments and spatial
tools in developmental decision-making, amendments to
section 24, the centerpiece of NEMA, have
been made that will give effect to these intentions. Clause 5 amends section 24
of the Act to enable, when appropriate, the use of spatial tools, norms and
standards and environmental management instruments in decision-making as an
alternative to environmental authorization procedures, where:
Specified activities in certain
geographical areas, based on environmental attributes and specified in adopted
spatial tools or environmental management instruments may be excluded from the
requirement to obtain an environmental authorisation;
Listed activities may be excluded
from the requirement to obtain an environmental authorisation as long as they
comply with adopted norms or standards;
Listed activities, based on
adopted environmental management instruments may be excluded from the
requirement to obtain and environmental authorisation; or
The Minister may prohibit the
granting of environmental authorizations in a particular geographic area if it
is necessary to ensure the protection of the environment.
5. Clause 5(d)
amends section 24(5)(
) and was inserted to allow
the Minister or the MEC, in concurrence with the Minister, to lay down the
procedure for the preparation, evaluation and adoption of the instruments
referred to in section 24(2)(c),(d) and (e), including criteria or conditions
to be included in such instruments. This power is to be distinguished from the
regulation-making power in section 24(5
), which relates to environmental management instruments
that are considered when decisions are made, for example, when an environmental
authorisation is issued.
6. Clause 6 makes amendments to
section 24C of the Act in order to address the concern that there is a lack of
clarity in the procedure in identifying the Minister as the competent authority
to issue environmental authorizations where an activity has international
implications. It also inserts a new subsection (2A), to provide clarity on the
procedure for identifying the Minister as the competent authority, under
circumstances where the MEC is usually the competent authority, for example
renewable energy applications, and where the activity has now been declared a
national priority by Cabinet. Furthermore, new and innovative subsections are
inserted to address the procedure to be followed, in instances where a MEC is
the competent authority and may fail to take decisions on the issuing of
environmental authorisations within the prescribed time-frames, due to the lack
of capacity or for any other reason, an amendment has been introduced to give
the Minister responsible for environmental affairs the power to take the
decision under certain strictly prescribed circumstances.
When considering clause 6(d) (subsection
(2A) of section 24C) the Portfolio Committee was mindful of section 125(2
b) of the Constitution of the Republic of South Africa,
1996, which provides that the Premier
the power to implement all national legislation within the functional areas
listed in Schedule 4 or 5 of the Constitution,
except where the Constitution
or an Act of Parliament provides otherwise.
The intention of this amendment is therefore to make provision for this
exceptional circumstance, in instances where the MEC either unreasonably or due
to capacity challenges or for any other reason, fails to take a decision within
the prescribed time-frames.
Portfolio Committee was also mindful of section 125(3), which obliges the
national government by legislation or other measures to develop the
administrative capacity of provinces to the extent required for the effective
exercise of their powers and performance of their functions.
The Minister is obliged to report annually to
Parliament on the exercise of this power.
7. Clause 9 makes substantive amendments to section 24G of the Act, to
address the numerous complaints received from the public that section 24G
(rectification of the commencement of unlawful activities performed without the
necessary environmental authorization - EIA) is extensively and excessively abused,
in that applicants proceed with illegal activities on the assumption that their
24G applications will be successful and further that competent authorities have
experienced a reluctance from the National Prosecution Authority to institute
prosecution once a person applied for or has been granted an environmental authorization,
retrospectively, in terms of section 24G.
The Minister of Environmental Affairs, the Minister of Mineral Resources
and the MEC responsible for environmental affairs are granted new substantive
powers to issue directives to curb the present abuse of this retrospective procedure.
The administrative fine has been increased considerably. The requirements for
the report to be compiled by the applicant have been tightened.
The section has also been amended to make it
clear that criminal prosecution may still be instituted despite the fact that a
person has applied for or been granted an environmental authorisation in terms
of section 24G.
The amendment also
allows the Minister of Environmental Affairs, the Minister of Mineral Resources
or the MEC to defer a decision until such time that the criminal investigation
has been concluded. Most importantly, the Minister has also, for the first time
ever, been granted these powers in respect of the rectification of unlawful
activities in terms of the NEM: Waste Act.
8. Clauses 13 and 14 introduce amendments that clarify the distinction
between an incident as referred to in section 30 of the Act; and an
emergency situation which will be regulated in terms of a new section 30A.
While section 30 deals with the reporting and remediation duties of a person
responsible for the sudden, unexpected and uncontrolled release of a hazardous
substance; a new section 30A seeks to address a situation where a listed or
specified activity is about to commence in response to an emergency
situation, where the time-frames do not allow for normal environmental assessments
or applications for environmental authorisations. An example of the latter
emergency situation is the commencement of flood defence activities by a
local authority in response to sudden and inclement weather conditions. In
these types of emergencies/disaster situations, the urgent response times would
not permit the conducting of the normal environmental assessment and
authorization process, but would now be subject to written or verbal directives
by the competent authority. The definition of an emergency situation is now
aligned to a disaster as defined in the Disaster Management Act, 2002 (Act
57 of 2002).
9. Clause 20 inserts a new subsection 2 in section 34H to serve as a
reminder to the authorities that the High Court is not bound by the limitation
in relation to penalties set by this Act and that in cases where the competent
authority is of the view that more severe penalties are warranted, it can
approach the National Prosecuting Authority to institute criminal proceedings
in the High Court.
10. Clause 25 consolidates the offenses, penalties and
clauses scattered throughout the Act, into a
single section, for ease of reference.
It also further clarifies the defence provision
2) which is only applicable to the offence
relating to the commencement of a listed or specified activity in the absence
of an environmental authorization (section 49A(1)(a)).
The defense provision is only applicable in
the event that a listed or specified activity commences without an
environmental authorization in response to an emergency situation as defined
in section 30A or to an incident as defined in section 30.
In relation to an emergency situation, the
defence is only applicable if the response complies with the directive issued
in terms of section 30A. In relation to an incident, the defence is only
applicable if the response is aimed at complying with the obligations set out
in section 30(4) and is necessary and proportionate in relation to the threat
to human life, property or the environment.
11. The remaining clauses not specifically referred to above are either
consequential amendments arising from the substantive changes referred to above
or adjustments in the process of consolidating the offences and penalties
clause or adjustments to definitions and terminology to ensure
order for this Bill, when enacted, to come into effect
the following requires immediate action by the Department:
Section 16A(4) requires the publication of a notice in the
Gazette determining the procedure for compiling the environment outlook report,
and the format and content of the report;
Section 23A requires the development of guidelines relating
to the development, content and use of voluntary organisation or sector-based
) requires the
development of regulations relating to the procedure to be followed when oral
requests are made in terms of section 30A.
Acknowledging, therefore, that it will not be possible to bring ALL the
sections of the Bill into effect immediately, the Schedule to the Bill
indicates the dates on which the various sections will enter into force.
Therefore, all the clauses of the Bill will come into effect immediately upon publication
of the Bill in the Gazette by the President, in terms of Section 81 of the Constitution,
except for four (4) clauses, which will come into effect at a later date.
The Portfolio Committee further notes that these amendments are part of
the Portfolio Committees ongoing efforts to monitor and improve the
Environmental Management system both in the immediate and longer term. In this
context the Portfolio Committee notes that the legislation is focused to a
large extent on regulating sustainable production and that there is little
emphasis on sustainable consumption issues. To this end, the Portfolio Committee
requests the Department to provide the Portfolio Committee with a report,
before the end of 2013, on possible options for a more comprehensive and
balanced integrated environmental management system.
The Portfolio Committee recommends that the House agrees that the Second
Amendment Bill should be tagged as a section 76 Bill and that the amendments
contained in the Second Amendment Bill be adopted.
Committee requests the House to adopt this Report.
Report to be considered
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