National Environmental Management Laws Amendment Bill: Negotiating Mandates

NCOP Land Reform, Environment, Mineral Resources and Energy

24 August 2021
Chairperson: Ms T Modise (ANC, North West)
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Meeting Summary

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In a virtual meeting, the Committee met to continue its consideration of provinces' negotiating mandates on the National Environmental Management Laws Amendment Bill [B14D-2017](s76).

The Eastern Cape, Mpumalanga and the Free State were not present for voting in the meeting. The Gauteng provincial legislature presented its own additions to the amendments, but the Committee agreed that these were substantial and could not be engaged on until a legal opinion had been received on them. The Committee would finalise its voting the following week.

Meeting report

The Chairperson welcomed all present in the meeting, and apologies were conveyed.

Western Cape negotiating mandate

Mr Kobus Jooste, Committee Content Adviser, read out the Western Cape mandate to the Committee and proposed several amendments. The mandate would be finalised in the meeting.

Point 31 raised by the Western Cape negotiating mandate was a proposed new clause to deal with an appeal against directives issued in terms of the National Environmental Laws Act (NEMA), and four consequential amendments.

Gauteng, Limpopo, KwaZulu-Natal, Northern Cape and the North-West abstained from voting. The Western Cape was in support of the Bill

Point 32 focused on Clause 35, the amendment of Section 49 (a) (1) (P) of NEMA.

Gauteng, Limpopo, KwaZulu-Natal, Northern Cape and the North-West abstained from voting. The Western Cape was in support of the Bill

Point 33 of the mandate focused on Clause 41, Section 1 of National Environmental Management, Biodiversity Act of 2004. This focused on the definition of ‘’Control”.

Gauteng and the Western Cape supported the Bill. KwaZulu-Natal, Limpopo, Northern Cape and North-West abstained.

Point 34 looked at Clause 49 (b) Section 99 (2), focusing on the wording proposed by the national Department. It was submitted that the Section could be improved by 2 A,B and C underlined in Section 34.

Gauteng, KwaZulu-Natal, Limpopo, Northern Cape and the North-West abstained from voting. The Western Cape supported the amendment.

Point 35 was a proposed amendment focusing on Section 12 (a) and the norms and standards for equality activities and Section 32 of the National Environmental Management Air Quality Act 39 of 2004 NEM-AQA.

Gauteng, KwaZulu-Natal, Limpopo, Northern Cape and the North-West abstained from voting. The Western Cape supported the amendment.

Point 36 from the Western Cape negotiating mandate considered Section 13 of NEM-AQA, and it was proposed that the word “must” should be changed on page 27, line 20.

Gauteng, KwaZulu-Natal and the Western Cape supported the amendment. Limpopo, Northern Cape and North-West abstained from voting.

Point 37 looked at Clause 30, Section 22 (a) (4) (b) on NEM-AQA, and focused on the words “or not found guilty of the prosecution”. This was tautologist, and should not be deleted.

Gauteng, KwaZulu-Natal did not support the amendment. Limpopo, Northern Cape and North-West abstained from voting. The Western Cape supported the amendment.

Point 38, Clause 53 (a) considered section 36 (2) (a) of NEM-AQA. The Clause provides that a provisional organ of state must be regarded as the licensing authority if a listed activity falls within the boundaries of more than one metropolitan municipality or within the boundaries of more than one district municipality, and the relative municipalities agree thereto in writing.

Gauteng, KwaZulu-Natal, Limpopo, Northern Cape and the North-West abstained from voting. The Western Cape supported the amendment.

Clause 5.39 focused on Clause 53 (c), Sections 36 (5) and (8) of NEM-AQA, and requested that 35 (C) of NEM-AQA to be deleted, as it was an unconstitutional function of the powers of municipalities.

Gauteng, KwaZulu-Natal, Limpopo, Northern Cape and North-West abstained from voting. The Western Cape supported the amendment.

Point 40 of the Western Cape negotiating mandate proposed a new Clause in Section 46 of NEM-AQA. The proposed amendment was Section 46 (1) (d) of NEM-AQA, with the proposed insertion that was captured in the negotiating mandate.

Gauteng, KwaZulu-Natal, Limpopo, Northern Cape and North-West abstained from voting. The Western Cape supported the amendment.

Point 41 of the mandate proposed a new Clause in Section 41 of NEM-AQA, and required the amendment of Section 41 (3) of NEM-AQA by the substitution of a Sub-section 3.

Gauteng, KwaZulu-Natal, Limpopo, Northern Cape and North-West abstained from voting. The Western Cape supported the amendment.

Point 42 looked at Clause 62 and proposed a new Section 34 (j) (3) of the National Environmental Management Waste Act (2008) (NEMWA), Act 59 of 2008.

Gauteng, KwaZulu-Natal, Limpopo, Northern Cape and North-West abstained from voting. The Western Cape supported the amendment.

Point 43 of the proposed negotiating mandate focused on Clause 64, Section 36 (5) of NEMWA, and required the deletion and insertion as captured on the mandate.

Gauteng, KwaZulu-Natal, Limpopo, Northern Cape and North-West abstained from voting. The Western Cape supported the amendment.

Point 44 of the mandate focused on Clause 65, Sections 37 (1) and (2) of NEMWA. It was submitted that the substitution of the word “cause” with the word “require” on page 37, line 37, was supported, but further clarity was proposed.

Gauteng, KwaZulu-Natal, Limpopo, Northern Cape abstained from voting. The North-West did not support the amendment and the Western Cape supported the amendment.

Point 45 of the negotiating mandate focused on Clause 81, the repeal of schedule 3 of NEMWA. It was submitted that all consequential amendments had been checked and effected for the impact of reference made to schedule 3 to be in sections of the Act. This should be looked into.

Gauteng and KwaZulu-Natal, did not support the amendment. Limpopo, Northern Cape and North-West abstained from voting. The Western Cape supported the amendment.

Point 46. In Clause 82, Section 12 of the National Environmental Management Act 62 of 2008 (NEMA) there was concern about the lack of clarity provided by the proposed clause, and it should be sent back to the National Department for redrafting.

Gauteng did not support the amendment. KwaZulu-Natal, Limpopo, Northern Cape and the North-West abstained from voting. The Western Cape supported the amendment.

Voting on the negotiating mandate was concluded.

Gauteng negotiating mandate

The Chairperson asked if the provinces had a mandate to add or subtract.

Ms Fasiha Hassan (ANC, Gauteng Provincial Legislature) read out the proposed negotiating mandate from the Gauteng Provincial Legislature.

The Chairperson said this would be added, as there was no amendment.

Ms Hassan said the mandate had to be resubmitted by the Gauteng Provincial Legislature, as it had not submitted earlier because of issues with public participation comments.

The Chairperson asked if Members agreed to continue with the mandate.

Mr T Matibe (ANC, Limpopo) said Legal Services needed to be consulted before the additions could be made, as the legal implications needed to be considered first.

Ms Linda Garlipp, Chief Director: Law Reform and Appeals, Department of Forestry and Fisheries and the Environment (DFFE), said responses had been prepared based on the mandate it had received the previous day, but that mandate had not included the waste definition. The previous Gauteng mandate had simply stated the waste definition required amendment, but had not included this in the detail set out in the current mandate.

Ms Amanda van Reenen, Director: Legal Support (NEMA), DFFE, said a response had not been prepared for point six of Gauteng’s mandate. This point referred to the definition of waste which had resulted in a consensus that the definition should be simple and unambiguous. It was currently far too complex and was causing different interpretations, challenges, uncertainty and court cases. If a substance, material and object etc was unwanted, it should be regarded as waste. Given the proposed amendments to the definition of waste in Schedule 3, there would be no value in retaining Schedule 3 of the NEMWA, and it should be removed in its entirety. The recent outcome of a legal challenge on the definition of waste pointed to the need for a definition to allow for rational, risk-based beneficiation, without the need for any waste management licence or compliance with the NEMWA, as the material in question would not be considered waste.

Ms Van Reenen said this was similar to what had been presented in the previous negotiating mandate from Gauteng. Improvements to the definition were supported by the Department.

Referring to point 7, she said there was always a need for additional awareness and training.

Some terms in point 8 needed to be defined. Consequential amendments had to be considered.

The Department was unsure which section or bill point 9 related to.

The Department did not support any amendment to Clause 27, Section 31 (O) of NEMA, relating to enforcement powers, as there were constitutional issues. NEMA had excluded from the scope of its mandate non-criminal investigation type of powers. Section 31 (0) (2) did provide for these specific powers to be assigned to a South African Police Services (SAPS) member, should two ministers agree that it was necessary.

Clause 38 was related to the Protected Areas Act. Permission should be denied for mining in conservation areas, but there was also a need for government to ensure job opportunities were available for the community. Conservation areas were not mentioned or defined. There were already means to ensure certain areas were protected. The Department did not believe any amendments should be added to this.

Points 12, 13 and 14 were all related to biodiversity matters and the concept of animal well-being. This concept was noted, but the Department did not believe it was really part of the scope of the Bill at the moment. This was an area of controversy. Amendments had been proposed for Clause 41.

There was a proposal to change the definition of "well-being" to mean that there were holistic circumstances for an animal conducive to its physical, physiological and mental health and quality of life, and its ability to cope with its environment.

Point 14 on animal utilisation would include species not native to South Africa.

Clause 42 required amendment, and the Department proposed the deletion sub-paragraph 2 and the insertion of a new sub-paragraph 2 (a) on the use of indigenous biological resources in a sustainable manner. 2(a) referred to the consideration and well-being of animals in management and conservation, and the sustainable use thereof.

Point 15 relating to Section 24 (g) proposed amendments to remove its discretionary nature. The Department’s response was that the proposed penalty increase, from R5 million to R10 million, emanated directly from amendments by the Portfolio Committee inserted in the Bill. The Department did not consider it appropriate to support any amendments that were not aligned with the Portfolio Committee’s insertions.

Point 16 was related to the flexibility that must be maintained for the level of risk for environmental degradation when such decisions were made, as there may have been no environmental impact from the commencement of the activity. The amendment of Section 24 (g) was specifically to curb some developers who knowingly planned for this commencement of activity with obtaining authorisation.

In general, the Portfolio Committee had been of the view that public participation for Section 24 (g) was not currently a mandatory legislative requirement. This had to be specifically provided for and as a result, Clause 5 had been amended for inclusion in the National Environmental Management Laws Amendment (NEMLA) Bill, based on the views of the Portfolio Committee.

Sections 28 and 43 were related to the duty of care provision on appeals in the NEMA. The Department deem not deem any amendments to these two sections were required. The Constitution allocates certain powers to municipalities specifically to undertake compliance and enforcement in respective functional areas set out in Schedule 4 and 5 of the Constitution. The proposed amendment to provide a Municipal Manager with the power to issue Section 28 directives was to enable them to execute the original Constitution competence which could not be changed in any specific national legislation. This was also to align with enforcement mechanisms available to the national and provincial functionaries, such as the director-generals or heads of departments.

The amendment did not propose to increase the compliance powers given to the functionaries, but merely to recognise that local government was also constitutionally mandated to regulate the NEMA.

Members of the public could submit complaints of non-compliance and obtain general progress from the organ of state that was responsible for responding to their complaint. Relevant case officers must facilitate follow-ups.

Section 31 (m) of NEMA, Clause 26, states that a whistle blower should be allowed to object, and notice of an inspection should be given. Compliance notices were there to minimise harm to the environment. The Department did not believe any amendments should be supported here. Point 19 deals with Section 31 (a) to 31 (q), such as environmental inspectors and the cooperation of SAPS, and the relationship between the two entities. No amendment was required, as the two entities had already entered into a standard working relationship.

Section 34 (e) dealt with live specimens and keeping them in spaces. The concern was about the fate of live specimens prior to and after the finalisation of a criminal procedure. A seized live specimen may not be able to survive in captivity.

The Chairperson requested a legal opinion, but no legal representatives were present.

Mr Matibe (said the inputs on the amendments from Gauteng had been substantial, and the Committee could not engage on them yet.

Ms L Bebee (ANC, KZN) agreed with Mr Matibe.

The Chairperson said after the Committee received legal advice, it would vote again the following week.

Committee matters

The Committee considered and adopted meeting minutes.

The Chairperson made brief closing remarks, and thanked all those present in the meeting.

The meeting was adjourned. 

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