NEMLA BILL – CLAUSE BY CLAUSE DISCUSSIONS

NEMLA BILL – CLAUSE BY CLAUSE DISCUSSIONS

Parliamentary Portfolio Committee on Water and Environmental Affairs,

5-6 September 2012, Parliament, Cape Town

1

PROPOSED AMENDMENTS TO THE NATIONAL ENVIRONMENTAL

MANAGEMENT ACT, 1998

2

Clause 1: Amendment of section 1

• Comment on proposed changes to the definition of Department and Minister.

• DEA: Disagrees with proposed changes.

• Comment on specific environmental management Act consequential amendment to Schedule 3 to the NEMA.

• DEA: Schedule has been amended to include NEMWA offences and will be gazetted for final implementation.

3

Clause 2: Amendment of section 11• Comment on clarity that provincial EIP must be based on

inputs from every other provincial department.• DEA: Disagree. Provincial departments for environmental

affairs coordinates provincial inputs.

• Comment on non-alignment of timeframes between section 11(1) and (2) and 11(4) of NEMA.

• DEA: Disagree. Section 11(4) of NEMA does not indicate the period.

• Comment on why municipalities are not required to prepare EIPs.

• DEA: To avoid duplication, municipal IDPs contain a chapter on environmental management and DEA comment on IDPs based on NEMA requirements (annually reviewed).

4

Clause 2: Amendment of section 11• Comment on removing reference to the Amendment Act.• DEA: Disagree. The intention is to refer to the commencement of the

Amendment Act.

• Comment on change of timeframes for the compilation of the EIPs and EMPs. Another comment on consequential delays on other plans due to change of timeframes for compilation of EIPs and EMPs.

• DEA: Disagree. Propose amendment is to align the cycle with the MTEF period which runs for 5 years, in order to enable the plans to be informed and aligned with government priorities.

• Comment on why EIPs only to be compiled by provincial department responsible for environmental affairs.

• DEA: Disagree. Provincial departments for environmental affairs coordinates provincial inputs.

5

Clause 3: insertion of section 16A• Comment on textual amendments to section 16A were

addressed before tabling of Bill in parliament.

• Comment on change of timeframes for the compilation of the report to two years and reviewed every three years.

• DEA: Intention is to compile the Environment Outlook Reports a year before the EIPs and EMPs are submitted because these reports form the basis of the EIPs and EMPs.

• Comment suggesting the inclusion of municipalities in the compilation of the environment outlook report.

• DEA: To avoid duplication, municipal IDPs contains a chapter on environmental management and DEA comments on IDPs based on NEMA requirements.

6

Clause 4: Amendment of section 24• Comment on rewording of clause 4(b) to indicate whether

environmental authorisation should be granted in prohibited or restricted areas.

• DEA: Agree. The DEA has suggested text in the urgent amendments.

• Comment on whether decision by Minister overrides any other decision by other authorities.

• DEA: Disagree. Decision is based on NEMA and specific to listed activities requiring environmental authorisation.

• Comment that landowners and broader public must be consulted on Minister’s decision.

• DEA: PAJA requirements are applicable and no need for repetition.

7

Clause 4: Amendment of section 24• Comment regarding compilation of non-listed activities, norms

and standards as well as legal mandate to develop such norms and standards as well as other environmental management instruments.

• DEA: Section 24(10) of NEMA provides for the legal mandate to develop such norms and standards, and work is currently being undertaken with respect to the development of such norms and standards.

• Comment suggesting rewording of clause 4(b) – (2A)(a) to align with section 24(a) of the Constitution.

• DEA: Agree. Clause 4(b) – (2A) to be reworded so as to replace the “and” with “or” between the words human health and well-being.

SECRET 8

Clause 5: Amendment of section 24C

• Comment raising concern around clause 5(a) with respect to providing certainty on whether the Minister is a competent authority for development in protected areas.

• DEA: Disagree. The intention of clause 5(a) is to provide legal clarity on the national competency on applications for environmental authorisations that may have implications for the country’s international commitments.

• Comment suggesting the deletion of a comma after the word “seawards” in clause 5(b).

• DEA: Agree. Proposed deletion or wording will further clarify the intention of the clause.

9

Clause 5: Amendment of section 24C• Comments on clause 5(c) regarding increased burden for

national department, delays in decision-making as well as unconstitutionality.

• DEA: If retained, the matter must be not be referred to the Minister on application as there might be capacity constraints to deal with such applications. Limitations for when this may occur must be included in the clause. With respect to the constitutionality of the clause, it is submitted that the environmental function is delegated to the MECs through an Act of Parliament, in this instance section 24C of NEMA. Therefore, the Minister still retains the accountability with respect to the performance of such function. (Two legal opinions)

10

Clause 6: Amendment of section 24E• Comment that section 24E does not prescribe technical

and/or financial capacity as a requirement to transfer rights and obligations.

• DEA: Section 24E contains minimum requirements for environmental authorisations and the amendment merely provides for other circumstances when a transfer of rights and obligations may occur.

• Comment that the transfer of rights and obligations in environmental authorisation must be subjected to a public participation process.

• DEA: The transfer of an environmental authorisation will require an amendment of the environmental authorisation, and the EIA Regulations prescribes a public participation process if a substantive amendment.

11

Clause 7: Amendment of section 24F• Comment that section 24F(3) should include an element of

proportionality in order to ensure that the defence of emergency is so serious as to warrant committing the offence.

• DEA: The Department is of the view that necessity as a defence is well established in criminal law. Alternatively, the defence should be deleted from section 24F.

• Comment that the penalties in section 24F(4) should also be increased.

• DEA: The Department is in the process of standardising the penalties under NEMA, and is in support of the proposal to increase.

12

Clause 8: Amendment of section 24G• Comment on why section 24G is only applicable to the waste

management activities and not air quality activities under NEMAQA and water use licence under the NWA.

• DEA: The proposed amendment is to extend the applicability of section 24G to the waste management activities under NEMWA because of the assessment process undertaken in terms of NEMA. As the application to undertake the air quality activities is preceded by an environmental impact assessment, the view of the Department is that the section 24G process will be followed in respect of the EIA contravention, and making section 24G applicable to NEMAQA would largely be a duplication.

• Comment on abuse of section 24G process by companies.• DEA: The Department is currently in the process of identifying areas

for comprehensive amendments to section 24G through the Mintech/Minmec Working Group to inform comprehensive amendments.

13

Clause 8: Amendment of section 24G• Comment on non-alignment between section 24F(1) offence and section

24G process.

• DEA: Disagree. Section 24G provides for an opportunity to a person that commenced a listed activity without an environmental authorisation to obtain one, and it does not apply to the contravention of norms and standards.

• Comment that the section 24G administrative fine of R5 million could be imposed without a judicial process.

• DEA: In terms of NEMA and PAJA, there will be an opportunity to appeal the administrative fine to the Minister or MEC, and thereafter if the person would like further recourse it is possible to apply for a review to court.

• Comment that emergency response situation must be linked with section 30 emergency incident.

• DEA: The Department’s view is that the emergency response situations envisaged in clause 8(b) cannot be equated to the section 30 emergency incidents.

14

Clause 8: Amendment of section 24G• Comment seeking clarity whether the section 24G

rectification process is an administrative procedure unrelated to the prosecution of such persons for offences committed in terms of the NEMA, and whether the payment of the administrative fine is no defence to the offence in terms of section 24F(2) of NEMA.

• DEA: The Department is currently in the process of identifying areas for comprehensive amendments to section 24G through the Mintech/Minmec Working Group to inform comprehensive amendments.

15

Clause 9: Amendment of section 24M

• Comment on why the proposed amendment appears not to allow exemptions under the NEMA.

• DEA: The intention of the proposed amendment is to provide legal clarity that no person may be granted an exemption from the requirements of obtaining an environmental authorisation.

16

Clause 10: Amendment of section 24O

• Comment that the environmental management instruments must be gazetted for implementation before implementation.

• DEA: Section 24(10) of NEMA sets out the process of developing and adopting such norms and standards.

17

Clause 11: Amendment of section 28• Comment on seeking clarity on the inclusion of the words “any

organ of state”.• DEA: The expansion of the authorities to issue a section 28 directive

is aimed at providing administrative mechanisms to other administrative heads that are responsible for undertaking compliance and enforcement in terms of NEMA and SEMAs (i.e. CE of SANParks, municipal managers for air quality licences). However, for further clarity it is suggested that a definition of “relevant organ of state” is included or list them in a schedule to the NEMA.

• Comment that it is not reasonable to require cessation of the activities and the application of any measures without making a clear link between the two.

• DEA: The authority that issues the directive will be bound by the PAJA requirements of reasonableness as the issuing of the directive is an administrative decision.

18

Clause 11: Amendment of section 28• Comment seeking clarity why in certain instances the words

“reasonable measures” and “measures” are used in the subsection.

• DEA: The trigger for the issuance of a section 28 directive is no longer failure to comply with subsection (1) but rather the causing of or potential to cause significant pollution or degradation. Therefore there is no need to keep the language the same. However, in order to provide for flexibility, it is proposed that “or” must be included in the various subparagraphs. Agree with Committee recommendation on “or” inclusion.

• Comment that the word “significant” should not be deleted from the section 28 directive requirement.

• DEA: “Significant” is not omitted in section 28, it is still contained in clause 11(a) of the Bill.

19

Clause 12: Insertion of section 28A• Comment that NEMA refers to “significant pollution” and any

reference to an offence must be aligned with that.

• DEA: Agreed. The word “significant” should be inserted before the word “pollution” in section 28A(1)(a).

• Comment that section 28(12) has been deleted.

• DEA: Section 28(12) is not deleted, and still contained in clause 11(g).

• Comment that non-compliance with a section 28 directive is no longer an offence.

• DEA: in terms of clause 12 (section 28A(2)), it is still an offence not to comply with a section 28 directive.

20


• Comment that the proposed amendment of failure to comply with a directive is too subjective, and guidance must be provided on what constitutes “failure”.

• DEA: The Department looks objectively whether there is substantive compliance with a section 30 directive or not.

21

Clause 15: Amendment of section 44• Comment that the administrative power be limited to the

extent that the publication of such regulations will not result in duplication or process or activity, taking into consideration other regulations already in existence regulating certain products.

• DEA: Comment is noted, and the Department is proposing the deletion of the words “or human health”. In addition, the consultation with other relevant Ministers is meant to avoid any duplications.

22

Clause 17: Amendment of section 47D

• Comment suggesting the inclusion of other alternative technologies, for example, telephone.

• DEA: The intention of the proposed amendment is to include only those methods of delivery set out in the clause.

23


• Comment that the proposed amendment must indicate that the Accounting Officer must be criminally liable.

• DEA: The Public Service Act already holds the relevant Directors-General, as accounting officers for the relevant Departments, accountable. Therefore, it is not necessary to repeat it.

SECRET 24

PROPOSED AMENDMENTS TO NATIONAL ENVIRONMENTAL

MANAGEMENT: BIODIVERISTY ACT, 2004

25

Clauses 22, 23, 31, 32, 33 and 34

• Comment seeking clarity why the word “specimen” is used in the proposed section 71A. In this regard, a proposal to delete the word “specimen”.

• DEA: The intention is to prohibit the carrying out of restricted activities involving certain specimens of listed invasive species in certain areas only, or in certain circumstances. The prohibition cannot relate to listed activities in its entirety. In this instance the reference to “specimen” should be retained.

26


• Comment that the proposed amendment to section 85(5) violates communities constitutional principles of equality, freedom of association, self-determination, the African Charter on Human and Peoples Right to development and international law principles of free, prior and informed consent. The payment of monetary benefits should be paid directly to communities that hold the traditional knowledge or indigenous resource.

• DEA: The intention of the proposed amendment is to expedite the payment of monetary benefits to beneficiaries that have established systems in place. In addition, the amendment aims to provide protection to vulnerable beneficiaries that do not have those established systems by providing for the monetary benefits to paid to the Fund for the Director-General to transfer to the vulnerable beneficiaries.

27


• Comment regarding over utilisation of indigenous resources for subsistence purposes.

• DEA: The intention of the proposed amendment is to enable exemption of certain activities linked to bioprospecting for domestic use or subsistence purposes. However, the business of growing and producing indigenous species for commercial use in bioprospecting (biotrade) is regulated by the permit systems.

28

Clauses 41 and 42• Comment suggesting proposal that the clauses should

further allow the Minister to refuse a permit where a person is convicted of an offence under the Act.

• DEA: The proposal is supported. Clause 42 should expressly provide for the circumstances that the Minister may refuse a permit. The clause should also be expanded to indicate that previous conviction for an offence under the Act will be taken into consideration whether a permit should be granted or refused.

29

Clause 44, 45 and 46

• Comment supporting the streamlining of the appeal procedure under section 43 of NEMA. However, regulations prescribing appeal process for TOPS and bioprospecting appeals must also be developed.

• DEA: The Department is currently in the process of developing appeals regulations prescribing the appeals procedure for EIA, TOPS, bioprospecting appeals under section 43 of the NEMA. The draft regulations will be consulted with all provinces as well as member of the public.

30


• Comment raising concerns around the principle of allowing self-administration within the wildlife industry.

• DEA: The intention of the proposed amendment is to allow industry associations to assist with oversight and facilitate compliance within the industry, and to allow government to focus more on permitting and compliance monitoring and enforcement. However, it is also suggested that clause 47(f) should be reworded to “biodiversity sector” rather than the “wildlife industry”.

31


• Comment suggesting consistency for offences relating to bioprospecting and listed alien and invasive species to be subjected to “topping up” of fines in the same way as that of the threatened or protected species offences.

• DEA: The proposal is supported.

32

THANK YOU

33

Documents

NEMLA BILL – CLAUSE BY CLAUSE DISCUSSIONS