National Environmental Management Amendment Bill [B36B-07]: Negotiating Mandates

Meeting report

National Environmental Management Amendment Bill: Consideration of Negotiating Mandates
Ms B Dlulane (ANC, Eastern Cape) suggested the proposed amendments be tabled. She suggested that the Department of Environmental Affairs and Tourism (DEAT) and the Office of the State Law Adviser should come in to help with the correct formulation of these amendments.

Mr A Watson (DA, Mpumalanga) stated that the Committee should move from the premise that it agreed that DEAT was needed for the provincial briefings and that now the Committee was considering the mandates point by point, without even being comprehensively acquainted with the Bill. He added that the negotiating mandates must be tabled province by province, and that this should provide some guidance to the Committee, after which all concerns must be considered and input given by DEAT and the State Law Advisor’s Office.

Ms J Yawitch, Deputy Director–General: Environmental Quality and protection, DEAT, replied that the Department had briefed the provincial committees and that in many cases workshops were held, and furthermore the Committee had attended the public hearings. She added that she had not studied all of the provincial mandates in depth, but that from the hearings it was noted that there were certain consistent issues being raised. The Western Cape had put forward a textual comment around the proposed section 24(4), and issues were raised around the strength of public participation. Another fear raised was the possible dilution of the strength of the Environmental Impact Assessment (EIA) processes, specifically with reference to the proposed section 24G. Ms Yawitch added that the correct wording could redress these issues. She added that once the Committee gave her direction on what they wanted to see, the Department could work with the State Law Adviser’s Office to put the Committee’s decisions into the correct language. Ms Yawitch stated that the Department could respond to each province’s mandate.

The Chairperson suggested that the mandates be read out and the Committee could then consider what DEAT had to say, and if time for formulation was needed then it would be given.

Ms M Oliphant (ANC, Kwazulu-Natal) agreed, saying that all provinces would be in a position to formulate final mandates after hearing what the Department had to say.

The Chairperson agreed to this proposal.

Ms B Dlulane stated that she would begin from point 3.2 on the document containing the Eastern Cape mandate. All the comments from here to 3.11 related to the proposed section 24 (see attached document) and continued up until 3.11, all of which were in reference to section 24.

Mr D Worth (DA, Free State) stated that the Free State voted in support of the Bill without amendments.

The Chairperson stated that Gauteng was not present, but that their negotiating mandate indicated that they had no proposed amendments.

Ms Oliphant presented the Kwazulu Natal mandate. She stated that she was not going to go through all the content as their concerns had been covered by the Eastern Cape and DEAT. However, one concern was that some of the environmental protection contained in the Minerals and Petroleum Resources Development Act (MPRDA) would be weakened by being included in the National Environmental Management Act (NEMA).

The Chairperson stated that Limpopo was not represented in persona but he read out their negotiating mandate, which indicated that they were in favour of the Bill.

Mr Watson presented the mandate for Mpumalanga. This noted that the proposed Bill did not reflect a clear definition for the terms “competent authority” and “environmental assessment practitioner”. Mpumalanga believed that the word “customary” be removed from Section 24(9)(b); that in Section 24(Q)(b) the word “an” be replaced with “and”.  Furthermore, their Committee’s recommendations on Section 24(5)(a) and Section 25(G)(1) were included in the attached document. Mr Watson added that a general comment had come out that public education prior to the hearings was lacking.

The Chairperson remarked that these proposals needed to be considered.

Mr Worth asked whether the Committee could not table this and wait for all provinces, then for the Departmental comment.

The Chairperson replied that DEAT would reply in writing.

The Chairperson stated that the Northern Cape was not represented at the meeting, but read through their input. The Northern Cape was concerned about the exorbitant rehabilitation costs that small miners could not afford to pay, the immense environmental damage caused by mining activities in the province and the “conflict” between DEAT and the Department of Minerals and Energy (DME) over the role that each party should play. It supported the Bill, but with amendments.

The Chairperson then proceeded to read through the North-West’s comments, as they were also not represented in person. The North-West requested for the inclusion of their views into the amendments.

Mr F Adams (ANC, Western Cape) read through the document from the Western Cape. He cited the proposed amendments from Clause 1. This document suggested that on page four, line 10, the second reference to ”environmental matters” would be substituted with “ with regard to the implementation of environmental legislation, regulations, policies, strategies and guidelines”. In Clause 2.1, on page 7, it was suggested that after line 6 a new subsection (4A) be added, to read: “where environmental impact assessment has been identified as the environmental instrument to be utilised in informing an application for environmental authorisation, section 24(4)(b) is applicable”. In Clause 2.2, on page 7, line 29, “the procedures for” would be omitted. In Clause 2.3, on page 8, it was suggested that in line 33, after the word “potential”, there should be insertion of “impacts of”.

In Clause 2.4, on page 8, line 37, the Western Cape had suggested that after “24(4)”, the following words be inserted: “provided that such investigation, assessment and communication comply with the requirements of section 24(4) (a) and where applicable, comply with section 24(4) (b)”.

In Clause 6.1, on page 10, line 40, it was suggested that the following phrase be omitted:  “one or more of the following namely”.

In Clause 6.2, on page 11, line 14, after “(2)” the phrase “(a) or (b)” must be inserted.

In Clause 8.1, on page 12, line 4, after “not”, the following phrase must be inserted: “and provided that section 24(4)(a) and where applicable, section 24(4)(b) are given effect to in such process”.

In Clause 8.2, on page 12, from line 28, it was proposed that the existing subsection (4) be omitted and a new clause replace it as follows: “(4) A competent authority empowered under Chapter 5 to issue an environmental authorisation may regard an authorisation in terms of any other legislation that meets all the requirements stipulated in section 24(4) (a) and where applicable, section 24(4) (b) to be an environmental authorisation in terms of that Chapter”.

The Chairperson thanked Mr Adams and noted that this matter needed to be taken further. He stated that he would now allow the Department to comment.

Ms Yawitch replied that she would have a document ready by the end of the week that incorporated the comments from this meeting.

Ms Lize McCourt, Chief Director: Environmental Impact Management, DEAT, said that most of the concerns raised by all the provinces were addressed by the Western Cape mandate.  She clarified what the Western Cape’s amendments meant.  Clause 1 excluded the implementation of policy and legislation from the DME, but not the making of it. Clause 2 related specifically to the request around the EIA process losing its vigour around qualified discretionary exemption, but made Section 24(4) completely applicable. Clause 6 dealt with Section 24(G) concerns. Clause 8 related to Section 24(K) and 24(L), linking it back to 24(4)(a) and 24(4)(b). Ms McCourt reiterated that these covered most concerns and stated that she would deal with the other provinces’ comments briefly.

Mr Watson replied that he appreciated the effort, but stated that it was pointless going through this in depth until the Committee Members could read the forthcoming DEAT response document and familiarise themselves with it.

The Chairperson asked whether it made sense to have another meeting on these issues.

Mr L Van Rooyen (ANC, Free State) stated that the Committee should have another meeting on this, where the other provinces clarified, and that they could negotiate after DEAT had supplied the Committee with the document containing the responses.

The Chairperson replied that this seemed like a practical suggestion.

Ms Yawitch replied that the Department had to look at the nine regional mandates and then fine tune the text to accommodate them.

The Chairperson voiced his satisfaction with this. He asked Ms Dlulane to read through the minutes of the previous meeting and see whether she agreed with them.

Ms Dlulane replied that she was satisfied with the Minutes of 9 August 2008, and recommended that they be adopted.

The Members agreed to adopt these Minutes.

The meeting was adjourned.