THE NATIONAL FORESTS AMENDMENT BILL · AMENDMENT BILL THE SELECT COMMITTEE ON LAND AND MINERAL RESOURCES (02 JUNE 2020) 1. PRESENTATION OUTLINE ... of Provinces – NCOP) on the National

THE NATIONAL FORESTS

AMENDMENT BILL

THE SELECT COMMITTEE ON LAND AND MINERAL RESOURCES (02 JUNE 2020)

1

PRESENTATION OUTLINE

� Acronyms

� Purpose

� Objectives of the Bill

� Process followed to date

� National Forests Amendment Bill Clauses

� Implication of the Bill to the NCOP mandate

2

ACRONYMS

� Bill: National Forests Amendment Bill, [B11-2016]

� DAFF: Department of Agriculture Forestry and Fisheries

� DPME : Department of Performance Monitoring andEvaluation

� EXCO: Executive Committee

� GG: Government Gazette

3

ACRONYMS ….� NCOP: National Council of Provinces

� NEDLAC: National Economic Development and Labour Council

� NFA: National Forests Act

� NFAC: National Forests Advisory Council

� PC: Portfolio Committee

� SEIA: Socio Economic Impact Assessment

4

PURPOSE � The purpose of the presentation is to brief the Select

Committee on Land and Mineral Resources (National Council

of Provinces – NCOP) on the National Forests Amendment Bill

[B11-2016], which seeks to amend the National Forests Act,

1998 (Act No. 84 of 1998) (NFA).

� The purpose of the National Forests Act, 1998 ("the NFA") is to

promote sustainable management and development of forests

and provides for the protection of certain forests and trees.

5

WHY AMENDMENTS ARE NECESSARY

� Recognised need for changes.

� Legislation is not static, it moves with time.

� During implementation, experience since 1998 …. need for

improvements on existing sections

� To make the legislation more responsive to the operational

realities, and challenges on the ground.

6

OBJECTIVES OF THE BILL

The Objectives of the Bill are to:

• provide for clear definitions, for example, natural forests and

woodlands;

• provide for public trusteeship of the nation’s forestry resources;

• increase the promotion and enforcement of sustainable forest

management;

• increase the measures provided for in the Act to control and

remedy deforestation; and

7

OBJECTIVES OF THE BILL…..CONT

• provide for appeals against decisions taken under delegated

powers and duties;

• reinforce offences and penalties; and

• promote equity by inclusion of youth and women in the

National Forests Advisory Council (NFAC).

8

PROCESS FOLLOWED TO DATE

Below is the process followed thus far in amendingthe NFA:

� Stakeholder consultation 2012/13 financial year;

� Publication of the draft Bill in the GovernmentGazette in May 2013 (GG notice No. 36485) andMarch 2015(GG notice No. 38533) for publiccomments;

� Stakeholder re-consultation 2014/15 financialyear

9

PROCESS FOLLOWED….CONT

� Consultation with Government structures such as NEDLAC andEconomic Cluster and internal committees within DAFF such asEXCO;

� Pre-certification of the Bill by the State Law Advisers;

� Engagement with Department of Public Monitoring and Evaluation(DPME) for Socio Economic Impact Assessment (SEIA)

� The Bill was introduced to Cabinet in April 2016, and

� Referred to the Portfolio Committee (PC) on Agriculture Forestryand Fisheries in May 2016

10

PROCESS FOLLOWED…..CONT

� Publication of Explanatory summary of the National Forests

Bill in the Government Gazette in terms of Rule 241 (1)(b) of

the Rules of the National Assembly in July 2016;

� Publication of the Bill for public comments and public hearing

by PC on Agriculture, Forestry and Fisheries in August 2017,

which initiated the extended public hearings in various

provinces with communities living in and around forests;

11

PROCESS FOLLOWED….CONT

� Various deliberations on clauses of the Bill as per outcome of

various consultations were held with PC on Agriculture,

Forestry and Fisheries leading to the adoption of the Bill for

further processing in May 2018;

� The Bill was tabled and adopted by the National Assembly in

August 2018;

� The Bill is currently in the NCOP, and has been published for

comment on 6 December 2019 until 24 January 2020.

12

CLAUSE BY CLAUSE ANALYSIS OF THE BILL

CLAUSE 1 CURRENT

PROVISION

PROPOSED AMENDMENT GAP

Insertion of

a definition

under

section 2

New insertion “Assignment’ means the permanent

or temporary transfer of—

(a) a power, duty, role or function

from the functional domain of

national government to one or more

provincial governments, organs of

state or to persons who are not an

organ of state; or

(b) the administration of a matter

listed in Schedule 4, Part A, of the

Constitution;’’.

To assist in the

interpretation of terms

in the Act. This is a

new insertion

(Assignment is

currently not defined

in the Principal Act)

13


CLAUSE 1 CURRENT

PROVISION


Insertion of

definition

under section

2

This is a new

insertion.

“Appeal committee’ means the

committee constituted in terms of

section 57 A (2).

To assist in the

interpretation of terms

in the Act.

14

CLAUSE BY CLAUSE ANALYSIS OF THE BILLCLAUSE

1

CURRENT

PROVISION


Insertion of

definition

under

section 2

(xx) “natural

forest” means a

group of

indigenous trees—

(a) whose crowns

are largely

contiguous; or

(b) which have

been declared by

the Minister to be

a natural forest

under section 7(2);

“natural forest’ means a group of

predominantly indigenous trees—

(a) whose crowns are largely contiguous in

its undisturbed state;

(b) which may represent any successional

stage or state of forest

degradation, in which case crowns may not

be contiguous;

(c) which occur in association with

characteristic plants or animals recognised in

vegetation science as diagnostic species of a

specific natural forest type; or

(d) which have been declared by the Minister

to be a natural forest in

accordance with section 7(2)”;

To broaden the

definition of a

natural forest

(so as to

include all

vegetation

within the

Natural forest-

grassland,

thicket, shrubs-

under storey)

15


CLAUSE 1 CURRENT

PROVISION


Amendment

of definition

under section

2 (xxxix)

woodland”

means a group of

indigenous trees

which are not a

natural forest,

but whose crowns

cover more than

five per cent of

the area bounded

by the trees

forming

the perimeter of

the group.

“woodland’ means a group of

indigenous trees which are not a

natural forest, but whose crowns

cover [more than] at least five

per cent of the area [bounded

by trees forming the perimeter

of the group] they occupy, and

which may in a degraded state

have a crown cover of less than

five per cent”.

To simplify and

broaden the definition

in order to cater for

situations where

woodland may be

degraded.

16


CLAUSE

2

CURRENT

PROVISION


Insertion

of Public

Trusteesh

ip of the

Nation’s

forestry

resources

as

Section

2A.

New insertion Public trusteeship of nation’s forestry

resources

“The National Government, as the public

trustee of the nation’s forestry resources,

acting through the Minister, must ensure that

these resources, together with the land

and related ecosystems which they

inhabit, are protected, conserved, developed,

regulated, managed, controlled and utilised

in a sustainable and equitable manner, for

the benefit of all persons and in accordance

with the constitutional and developmental

mandate of government”.

To clarify

where the

nation’s

forestry

resources are

to be

managed.

17

Clause by clause analysis of the BillCLAUSE

3

CURRENT

PROVISION


Amendment

of section

7(1)

Prohibition on

destruction of trees in

natural forests

7. (1) No person may

cut, disturb, damage

or destroy any

indigenous, living tree

in, or remove or

receive any such tree

from, a natural forest

except in terms of—

(a) a licence issued

under subsection (4)

or section 23;

‘”cut, disturb, damage or destroy

any indigenous tree or any other

indigenous vegetation in a natural

forest; and or’’;

‘‘(b) possess, collect, remove,

transport, export, purchase, sell,

donate or in any other manner

acquire or dispose of any tree,[ or

any] forest product derived from a

tree contemplated in paragraph

(a), or any other indigenous forest

vegetation, or any forest product

derived from vegetation

contemplated in paragraph (a) ‘’

To broaden the

provision under

section 7 (natural

forest) (to include

all vegetation

within the Natural

forest- grassland,

thicket, shrubs-

under storey)

18


3

CURRENT

PROVISION


Amendment

of section 7

New insertion of

subsection (5)

“(5)If a person is in breach of

subsection 1(a), the Minister may,

by written notice—

(a) inform that person of the−

(i) nature of the alleged breach;

(ii) steps which the person must

take to prevent further damage or

to redress the

said breach; and

(iii) the period within which they

must take the steps referred to in

paragraph (ii); and

(b) in addition to any penalties in

terms of section 63(2)” —

To provide for directive

(to rectify damage) by

the Minister in the case

of non compliance with

the provisions of

section 7(1), dealing

with prohibition of

destruction of natural

forests.

19

Clause by clause analysis of the BillCLAUSE 3 CURRENT

PROVISION


Amendment of

section 7(6)

New insertion “ If the person failed to comply

with the directive within the

period determined under

subsection (5)(b)(ii), the

Minister may—

(i) take reasonable steps to

remedy the situation;

(ii) recover consequential

damage or costs from the

person concerned;

or

(iii) approach a competent court

for relief.’’

To provide for steps to be

taken in the case of non

compliance with the

directive issued in terms

of section 7 (5).

20

Clause by clause analysis of the Bill

CLAUSE 4 CURRENT

PROVISION


Insertion of

new sub-

section 8(3)

New insertion “A person may not conduct any

activity in a protected area which

is inconsistent with the

conservation, recreation or any

other management objectives of

that area, except under a

licence issued by the Minister

in exceptional circumstances

that may be determined by the

Minister”.

To prohibit any

activity in a protected

area, so that the

purpose of protected

area is not defeated.

21


PROVISION


Amendment of

section 14 (6)

by insertion of

subsection 6

New insertion ‘‘The Minister may issue a written

order to immediately terminate the

felling, mutilation or destruction of an

individual tree or group of trees if he

or she has reasonable grounds to

believe that such a tree or group of

trees may qualify to be declared as—

(a) protected, in accordance with

section 12(a) and (b), until such time

that a notice in this regard is

published in the Gazette in

accordance with section 14(2); or

(b) a controlled forest area in

accordance with section 17”.

To provide Minister

with powers to

stop/terminate any

activities e.g. cutting

of trees that may

need to be protected

while still conducting

investigations.

22

Clause by clause analysis of the BillCLAUS

E 6

CURRENT PROVISION PROPOSED AMENDMENT GAP

Amend

ment of

section

15 (3)

(3) The Minister must

publish—

(a)a list of all species

protected under section 12;

(a)an appropriate warning

of the prohibition referred to

in subsection (1) and the

consequences of its

infringement, annually in the

Gazette and in two

newspapers circulating

nationally.

“The Minister must by notice in the

Gazette and in two newspapers

circulating nationally, publish-,

‘‘(b) an appropriate warning of the

prohibition referred to in

subsection

(1) and the consequences of [its]

an infringement [annually] at least

every five years or publish a

change that has been effected to

the list contemplated in paragraph

(a) in the Gazette and in two

newspapers circulating nationally.’’

To minimise

costs for

compliance

promotion

incurred annually

through

publication of

declared national

list of protected

trees.

23


E 7

CURRENT

PROVISION


Amend

ment of

section

16 (1)

(b) a particular tree or

group of trees or

woodland to be

protected under section

12(1),

the Minister may request

the registrar of deeds for

the area to make an

appropriate note.

“where the Minister has

declared:

(b) a particular tree [or], group

of trees [or], woodland, or a

state forest or part of

it, to be protected under

[section] sections 12(1) and 8

(1), respectively, the Minister

may request the registrar of

deeds for the area to make an

appropriate note’’.

To provide for the

registration with

deeds office when a

state forest or part

of it has been

declared to be a

protected area (this

is to align with other

Environmental

legislation such as

the National

Environmental

Protected Areas,

No. 57 of 2003

24


8

CURRENT PROVISION PROPOSED AMENDMENT GAP

Amendm

ent of

section

17 (2)

(2) If the Minister is of the

opinion that urgent steps

are required to—

(b) rehabilitate,

a natural forest or a

woodland protected under

section 12(1) which is

threatened with

deforestation, or has been

deforested, he or she may

declare it a controlled forest

area.

(2) If the Minister is of the opinion

that urgent steps are required to—

(b) rehabilitate,

a natural forest or a woodland, which

is threatened with deforestation, or is

being [or has been] deforested, he

or she may declare it a controlled

forest area.

Syntax

25


8

CURRENT

PROVISION


Amendm

ent of

section

17

New insertion 17(13) ‘‘(c) The Minister may declare a

controlled forest area, and due to the

urgency of the situation, the Minister may

proceed with the declaration without prior

consultation with, or affording a prior

hearing to, any affected person, but as

soon as reasonably possible after the

declaration contemplated in section

17(3), the Minister must—

(i) consult with, and afford a hearing to,

any affected person;

(ii) consider any representations

received during such consultation or

hearing; and

(iii)confirm, vary or cancel the declaration

concerned.

To provide the

Minister with

emergency powers to

declare a controlled

forest area in order to

prevent continued

deforestation (for

example most of the

time the forest is

deforested prior to

declaration due to

process being

lengthy).

26


PROVISION


Addition of

subsection

17(14)

New insertion 17(14) If the Minister is of the

opinion that the owner failed to

comply with the notice issued in

terms of subsections (3) and (4),

he or she may—

(i) take reasonable steps to

remedy the situation;

(ii) recover consequential

damages or costs from the

owner or person

concerned; or

(iii) approach a competent court

for appropriate relief.”

To provide the

Minister with powers

to issue a directive in

the case of non-

compliance

27


CLAUSE 9 CURRENT

PROVISION


To insert new

subsection

23(4)

New insertion ‘’23 (4) No person may engage in

any prospecting or mining activity

in a State forest except in terms

of—

(a) an existing lease agreement

or any other valid contract; or

(b) applicable legislation.”

To prohibit mining

activities in a State

forest in order to

promote sustainability

within the forest.

28


CLAUSE 11 CURRENT

PROVISION

PROPOSED

AMENDMENT

GAP

Amendment

of section 34

Constitution of Council Section 34(2)(j) added:

“(j) youths and women.”.

To include youth and

women in the Council

composition

29


CLAUSE 11 CURRENT

PROVISION

PROPOSED

AMENDMENT

GAP

Amendment

of section 35

(4)

4) Members of the

Council and members

of a committee of the

Council who are not in

the

full-time employment of

the State may be paid

for their services,

except for attending

Council meetings.

Section 35 (4) Members of

the Council and members

of [a committee] the

committees of the Council

referred to in section 36

who are not in the full-time

employment of the State

may be paid for their

services, except for

attending Council meetings.

To include both

committees

(sustainable forest

management and

forest access)

30


PROVISION

PROPOSED

AMENDMENT

GAP

Amendment

of section 35

(4)

(5) The Minister must

determine the

remuneration and

allowances payable

to members of

the Council and

members of a

committee of the

Council with the

consent of the

Minister of

Finance.

The Minister must determine

the remuneration and

allowances payable to

members of the Council and

members of [a committee]

the committees of the Council

referred to in section 36 with

the consent of the Minister of

Finance.".

and to address the

issue of remunerating

NFAC members

when attending

council meetings

31


CLAUSE 12 CURRENT

PROVISION


Amendment

of section 36

(6)

(6) The functions

of the Committee

on Forest Access

are to advise the

Minister on—

36 (6)The functions of the

Committee on Forest Access are

to advise the Council,

Department and the Minister on--

To provide for the

committees on Forest

Access to also advice

the Council and the

Department not only

the Minister.

32


PROVISION

PROPOSED

AMENDMENT

GAP

Amendment

of section 37

(3)

The chairperson of

the Council must

provide the Minister

with advice or

information

emanating from any

meeting within two

weeks.

37(3) The chairperson of the

Council must provide the

Minister with advice or

information emanating from

any meeting [within two

weeks] of the Council within a

period not exceeding one

month after the date of the

said meeting.

To provide for the

extension of the time

period that the

council needs to

advice the Minister on

issues emanating

from the Council

meetings.

33


PROVISION


Amendment

of section

47(1)

(1) The Minister

may—

(a) assign any

power or duty in

this Act to—

(i) a province or

other organ of

State; or

47(1)”The Minister may–

(i) Assign any power or duty in

this Act to –

(a) [province or other] an

organ of State in accordance

with section 99 of the

Constitution of the Republic of

South Africa, 1996; or “

To ensure that

provisions under

section 47

(assignment of

powers and duties) in

the principal Act are

done in accordance

to section 99 of the

Constitution, 1996

34


PROVISION


Insertion of

section 57A

New insertion 57A. Right of Appeal

57B. Composition and membership of

Appeal Committee

57C. Vacancies in Appeal Committee

57D. Investigation and consideration

of appeal by Appeal Committee

57E. Consideration of appeal by

Minister

To provide for appeal

procedure against a

decision taken by a

delegated officer, e.g.

issuing of a –licence by

forest officer)

35


CLAUSE 16 CURRENT

PROVISION


Amendment of

section 58 (6)

"(6) A person who is

guilty of a fifth

category offence

referred to in section

61 may not be

sentenced to

imprisonment, but

may be sentenced to

a fine up to not

exceeding R50 000";

and;

‘’58 (6) A person who is guilty of a fifth

category offence referred to in section

61 may [not] be sentenced to a fine not

exceeding R10 million or imprisonment[,

but may be sentenced to a fine up to

R50 000] for a period of up to 10 years

or both fine and such imprisonment.’’

To strengthen enforcement

, specifically for offences

committed in relation to

major development e.g.

mining and to align with

other environmental

legislation e.g. section 35

of NEM:BA, Act 10 of 2004

36


CLAUSE 13 CURRENT

PROVISION


Amendment of

section 58 (8)

(b)

‘‘(b) for any offence in

terms of this Act, may

suspend or revoke a

licence granted to the

offender under

section 7, or 23.’’.

‘’58 (8) ‘(b) for any offence in terms of

this Act ,may suspend or revoke a

licence granted to the offender under

section 7, 15 or 23.’’

To strengthen

enforcement, previously

section 15 (protected

trees) was excluded

37


PROVISION


Amendment of

section 61

Any person who fails

to take the steps

which he or she has

been instructed to

take in

terms of section 4(8)

within the period or

the extended period

laid down, is guilty of

a fifth

category offence.

Offences relating to

protection of forests

and trees

61(a). Any person who fails to take the

steps which he or she has been

instructed to take in terms of [section]

sections 4(8), 7(5), 8 (3), 14(6) and

17(3) within the period or the extended

period laid down, is guilty of a fifth

category offence.

To provide for new

offences in respect of non-

compliance with

instructions in terms of

sections 7(5), 14(6) and

17(3) of the Act

38


CLAUSE 18 CURRENT

PROVISION


Amendment

of section 62

(1)/(3)

To strengthen

enforcement

and ensure that

amended

provisions under

section 7 are

catered for.

62(1),(2) (c) (ii) and (3)

‘’62 (1) Any person who

contravenes the prohibition of

certain acts in relation to trees,

indigenous vegetation or any

other forests product in natural

forests referred to in section 7(1)

is guilty of a [second] first

category offence.’’; and

To strengthen

enforcement and

ensure that amended

provisions under

section 7 are catered

for.

39

Clause by clause analysis of the BillCLAU

SE 18

CURRENT PROVISION PROPOSED

AMENDMENT

GAP

Amen

dment

of

sectio

n 62

(1)/(3)

(3) Any person who

contravenes a prohibition or

any other provision in a notice

declaring a

controlled forest area under

section 17(3) and (4) is guilty

of a second category offence.

Offences relating to use of

forests.

‘‘’62 (3)Any person who

contravenes a prohibition or

any other provision in a

notice declaring a controlled

forest area under section

17(3) and (4) is guilty of a

[second] first category

offence.

To strengthen

enforcement and

ensure that

amended

provisions under

section 7 are

catered for.

40


E 19


AMENDMENT

GAP

Amendm

ent of

section

63

(5) Any person who

contravenes a condition in a

licence, exemption or other

authorisation

in terms of this Act—

(a) in any protected area is

guilty of a second category

offence;

(b) in any other forest is guilty

of a third category offence.

‘’63 (5) Any person who

contravenes a condition in a

license, exemption or any

other authorization in terms

of this Act, in respect of—

(a) [in any] a protected

area, natural forest or

protected trees, is guilty of a

second

category offence.

(b) [in] any other forest, is

guilty of a third category

offence’’.

To strengthen

enforcement by

the inclusion of

natural forest and

protected trees.

41


E 20


AMENDMENT

GAP

Amend

ment of

section

65

65. The Director-General may—

(a) designate posts in the

Department or in any provincial

administration or local

authority, whose incumbents are

forest officers; and

(b) appoint any other suitably

qualified persons as forest officers.

General powers of forest officers

65 by the addition

of the following

paragraphs:

‘‘(c) determine

different levels of

forest officers; and

(d) determine

qualification criteria

for forest officers.

To strengthen

enforcement and to

provide for grading of

Forest officer, e.g.

Grade 1, 2 depending

on ranks-

42

� The mandate of the National Forests Act is listed in Schedule 4 of theConstitution.

� This causes the Bill to be tagged as a Section 76 Bill in terms of theConstitution.

� The proposed amendments is aiming to strengthen the provisions forpromoting sustainable forest management and not to change the currentadministrative processes of the functional areas listed in Schedule 4.

� The proposed amendments will not affect the current provincial mandate withregards to management of forests.

� The principal Act already has various mechanisms to promote the use offorests for the benefit of all. These have not been affected by these proposedamendments.

IMPLICATIONS OF THE BILL ON NCOP MANDATE

43

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Documents

THE NATIONAL FORESTS AMENDMENT BILL · AMENDMENT BILL THE SELECT COMMITTEE ON LAND AND MINERAL RESOURCES (02 JUNE 2020) 1. PRESENTATION OUTLINE ... of Provinces – NCOP) on the National