National Environmental Management Laws Amendment Bill [B26-2013]: deliberations continued

Meeting report

Opening Remarks by Chairperson
The Chairperson said that the Department of Water Affairs (DWA) would inform the Committee on its proposed amendments to the National Environmental Management Laws Amendment Bill (NEMLA 3).  At the end of the meeting, if there were a quorum, the Committee would pass the NEMLA second amendments.  The Department had drafted a Bill that the Committee would be proposing as a Committee Bill, because there was no time to process it through all the other Cabinet processes; and the Committee Bill dealt with only one issue, and that was appeals.
 
It was known that appeals in the water sector were done through the Water Tribunal. There had been problems, and the process was not operating at the moment. Therefore, to make the agreement work, it had to be ensured that the appeals procedure was given to the Minister, who did not have such a procedure at present.

National Water Act Amendment Bill, 2013: briefing by DWA
Mr Anil Singh, Deputy Director-General, Regulation: DWA tendered an apology from the Acting Director-General, Mr Trevor Balzer, who had to chair another meeting.  Mr Ndangi Musekene, Deputy Manager: DWA, supported Mr Singh.
 
Mr Singh said that the Department was bringing an expansive and comprehensive National Water Act Amendment Bill. In the sections that dealt with licensing, provision was being made for the process of integrating the water use license process with the time frames applicable to the other legislation. The second part was the amendment to Section 148 of Act 36 of 1998. All appeals were currently being considered by the Water Tribunal, which was an independent body but appointed by the Minister.

The Chairperson interjected, and said that Mr Singh had not integrated these into the Act as it existed now, and as he had asked him to do yesterday as a separate document. This was the practice in the Committee when an amended bill was being considered. The proposed amendments were colour-coded and integrated into the Act.  This was what had been explained to Mr Singh, and what the Chairperson wanted. Mr Singh had not done that.

After being admonished by the Chairperson, Mr Singh apologised but said there were some essential insertions.

The Chairperson interjected and said that Mr Singh should not just apologise, because he had taken time to explain what had to be done and he had not done it.  If Mr Singh did not understand, then he should have asked. It was a bit useless now, because questions could not be asked if one did not know how the amendments fitted into the Act.

Mr Singh asked if he could explain that the section which dealt with licences, was Section 41 of the Act.

The Chairperson said that he was not interested in that, he was interested in a procedure that he had asked Mr Singh to follow and he had not done it.

Mr Singh said that it was a Committee Bill, and essentially the Department had added sections.

The Chairperson raised his voice angrily, and after again admonishing him for not following the standard practice, as requested, asked him to proceed.

Mr Singh apologised again, and said that the National Water Bill was a separate Bill that the Department was bringing. The provisions that had been brought were those that the Department was adding to make provision for this process.

The Chairperson interjected, and said that the amendments should be discussed because what Mr Singh was saying did not make sense.

Mr Singh said the first amendment to Section 41 was basically making provision for a new Section 41(5). In the sections dealing with the water use license, the Department had the two insertions which made provision for this process, which it was trying to do now.

The Chairperson said that Section 41 was the section that dealt with water-use licenses, and then the two little sections provided the explanation.

Mr Singh said that the second one was the amendment that dealt with the Water Tribunal. The amendment would simply mean that all appeals would go to the Water Tribunal, except those appeals that emanated from the mining authorisation process. The Department, as discussed previously, had basically got the regulations in terms of 26(1K), which set out the procedure for the internal appeal, and also the other operational aspects of the regulations.
 
He said that in the future, he would ensure that the practice of the Committee was adhered to in terms of the actual insertions into the Act.

The Chairperson interjected again and said that colour-coding should have been used to show how the amendments fitted in, as it was difficult for Members to ask questions, because they did not know the surrounding clauses. He wanted Mr Ishaam Abader, Deputy Director-General Department of Environmental Affairs, to meet with the Department of Water to make sure that they followed the same procedure when drafting legislation. There had to be uniformity among the amendments, also in terms of the terminology used. The Department of Environmental Affairs (DEA) should work with the DWA on the amendments, because ultimately it was going to be a Committee Bill.       

Mr F Rodgers (DA) asked for clarity about whether all appeals would go through the Minister, or only those related to Mining.

The Chairperson said that the whole issue of the Water Tribunal was a policy process. No inputs had been made into that policy process yet, so the intention was to make it work. For it to work – given that the Tribunal was not operating at the moment - as far as the mining applications were concerned, those appeals would be given to the Minister. They would then go ahead with their policy review. This policy review was now available to the public, and if there was a chance in January next year, it would be desirable to have public hearings. He asked Ms Shereen Dawood, Content Advisor: Parliament, to remind him to make a press statement.

Mr S Huang (ANC) said that the word ‘be’ had been left out in the last line of the second paragraph, before the word “published.”

The Chairperson said that Bills were not normally worded in an over-elaborate way like this. The words that were used were: ‘as prescribed’. The processing of this Bill had to start, and the wording had to be tightened up.

The second issue was that of the regulations. The document titled “Department of Water Affairs, National Water Act, 1998 (ACT No. 36 of 1998): Water Use Authorisation Regulations”, could be found in the pack.  It had an appeal procedure on page 15. He asked the Department where it had obtained it, and how it worked

Mr Singh said that the Department had found that the most prudent thing to do was to take the appeal process from the NEMA, and try to rework it.

The Chairperson said that this was good, because this meant there was harmony. He asked if there was anything that the Committee needed to know about this.

Mr Singh said that the parts highlighted in colour basically reflected what had been missing from the earlier version of it. The time lines were on pages 4, 5, and 6.

The Chairperson asked if it should be made very clear that this related to an appeal procedure.  

This Section of the regulations enables the Minister to be the internal appeal authority to adjudicate appeals against certain decisions made by the delegated authority, catchment management agency or water management institution under NWA (Act 36 of 1998). Any person that is dissatisfied with a decision of the Minister may approach a High Court for appropriate relief.
(National Water Act, 1998 (ACT No. 36 of 1998) Water Use Authorisation Regulations)                    
He said that the underlined words were “far too wide”, and this part should be reworded.  There was a need to create a link back to the Act indicating that this section provided for an internal appeal mechanism for the Minister to be able to deal with appeals that flowed from the section of the NWA Act which deals with water licenses in Mineral Resources,and so on.  The first part should be amended.

Mr Mosekene explained the time frames for the processing of water use licence applications, as well as the time frame for water use licence applications, which could follow the BAS process, according to NEMA.

The Chairperson asked if there had been consultations over this process, and if they had been successful.

Mr Mosekene said they had been successful.

The Chairperson said that the Act had to be revised and the Departments had to work together to do this. The appeal process had to be amended and a copy of the Act had to be sent to the Committee. These amendments had to be put into the Act in colour. Only the important parts should be included.

On Wednesday next week, whatever was available should be presented to the Committee. The Minister had been told that the Bill could not be passed this year.

The Chairperson asked Mr Singh to report on the Waste and Water Research Commission (WWRC).

Mr Singh said that previously, the Committee had asked for the linkages with the Amendment Bill to be spelt out clearly, in the form of a strategy. The WWRC had not presented its strategy as yet.
The Committee would to try to arrange that the Waste and Water Research Commission be allowed to present its strategy. This could happen if the public hearings were cancelled.

The Chairperson asked if the Commission was ready. If it  then the Public Hearings on NEMLA 3 on Wednesday next week could be cancelled. The WWRC could make a presentation then.

There were two amendments to the Air Quality Act.  The Department of Environmental Affairs had been told to get the wording right then all the amendments would be completed. The one amendment that had been added dealt with a situation where an application was taken to the MEC, and had not been successful. If the MEC did not comply, the Minister would follow-up on the activity.

The Centre for Environmental Research (CER) had raised the other amendment.  They had indicated that Section 22A was already covered by 24G, which had been passed in NEMA. However, after reviewing the situation, the uses of the two clauses had been clarified. If there was emission, and it was done unlawfully, and there was no Environmental Impact Assessment (EIA), then 24G would apply. But when there was emission and no emission licence, only 22A would apply to that. These two clauses would be ready by lunch time today.

The Chairperson said that he had prepared the report for his caucus meeting. This report was available to share with other party members.  The amended reports from the Department would also be sent to other Members. The next meeting was on Wednesday, to discuss NEMLA.

The Chairperson asked if everyone had had a chance to look at NEMLA 2 and the amendments. All that had been done was in Clause 5, on page 5 from line 33,  to omit the words ‘not commence without’ and to add the words ‘be excluded from the requirement to obtain.’  Then, in Clause 9, the word ‘special’ had been changed to ‘specific’. He asked if everyone was happy with the amendments.

NEMLA 2 was voted on. The Chairperson read the reports.   Their adoption was moved and seconded, and was unanimously accepted with 9 votes.

The meeting was adjourned.