Hon House Chairperson, hon Ministers, hon Deputy Minister, hon members, esteemed members of the environmental sector, ladies and gentlemen, on this occasion I rise on behalf of the ANC and, hopefully, the Portfolio Committee on Water and Environmental Affairs, to support and recommend the adoption of the National Environmental Management Laws Second Amendment Bill.
The National Environmental Management Act of 1998, also known as Nema, is the umbrella environmental framework legislation which provides the bedrock for environmental management in South Africa. Other specific environmental management Acts were promulgated thereafter to deal with specific mediums of the environment, namely the National Environmental Management: Protected Areas Act of 2003, the National Environmental Management Biodiversity Act of 2004, the National Environmental Management: Air Quality Act of 2004, the National Environmental Management: Integrated Coastal Management Act of 2008 and the National Environmental Management: Waste Act of 2008.
On 6 May 2012, the National Environmental Management Laws Amendment Bill was introduced and referred to the portfolio committee. The Bill is a composite amendment Bill which seeks to amend five of the six pieces of environmental legislation mentioned above, as well as the National Environmental Management Laws Amendment Act of 2008.
After public hearings and deliberations, the portfolio committee proposed that the Bill be split into two, as well as the immediate passing of the National Environmental Management Laws First Amendment Bill, in order to amend the following Acts: The National Environmental Management: Biodiversity Act; the National Environmental Management: Air Quality Act; the National Environmental Management: Waste Act; the National Environmental Management: Protected Areas Act; and the National Environmental Management Laws Amendment Act, Nemla, of 2008.
The first amending Bill was adopted by the National Assembly on 14 November 2012, and was adopted with amendments by the Select Committee on Land and Environmental Affairs in the National Council of Provinces on 7 May 2013. The portfolio committee further agreed that the proposed amendments in the Bill to the centrepiece legislation, the National Environmental Management Act, required further deliberation as they raised serious constitutional and political challenges, in respect of which the portfolio committee required further information, legal advice and proposed amendments. These amendments would then be processed in a separate Bill as a National Environmental Management Laws Second Amendment Bill. The second amendment Bill, after the said information and advice was placed before the committee, has now been processed and unanimously adopted by the portfolio committee. The portfolio committee also agrees with the tagging of the Bill as a section 76 Bill, and is of the view that the second amendment Bill should also be tagged as a section 76 Bill.
The second amendment Bill makes many substantive and innovative amendments to the present environmental legislative framework contained in the National Environmental Management Act, but within the time constraints I will highlight but a few.
Clause 5 of the second amendment Act amends section 24 of the Act. Mindful of the urgent need for sustainable development in our country, the need to monitor the environmental sustainability of development, the need to mainstream plans and processes implemented by national and provincial departments into our environmental management systems and the need to facilitate the selection and use of the most appropriate and effective environmental management instruments and spatial tools in developmental decision-making, amendments to section 24, the centrepiece of the National Environmental Management Act, have been made that will give effect to these intentions.
Clause 5 enables, when appropriate, the use of spatial tools, norms and standards, and environmental management instruments in decision-making, as an alternative to environmental authorisation procedures where: firstly, specified activities in certain geographical areas based on environmental attributes and specified and adopted spatial tools on environmental management instruments may be excluded from the requirement to obtain an environmental authorisation; secondly, listed activities may be excluded from the requirement to obtain an environmental authorisation, as long as they comply with adopted norms and standards; thirdly, listed activities based on adopted environmental management instruments may be excluded from the requirement to obtain an environmental authorisation, and fourthly, the Minister may prohibit the granting of environmental authorisation in a particular geographical area if it is necessary to ensure the protection of the environment.
Clause 5(d) was inserted to allow the relevant competent authority to lay down the procedure for the preparation, evaluation and adoption of the instruments referred to in section 24(2)(c)(d) and (e), including criteria or conditions to be included in such instruments. The amendments to section 24(10)(a) now allow for the development and adoption of norms or standards for sectors, geographical areas, parts of listed or specified activities or a combination of activities, sectors and geographical areas.
Clause 6 of the second amendment Bill amends section 24(c) of the Act. There are differing views in relation to the environmental authorisation applications which have an international impact, for which the Minister is the competent authority. The amendment seeks to provide the necessary clarity.
Furthermore, over the years, Cabinet took a number of decisions declaring certain projects as a national priority, for example the renewable energy plan projects. Such decisions create a challenge, with respect to the competent authority, to process the environmental authorisation applications for those priority projects. This amendment will provide clarity that an activity relating to a matter that has been declared a national priority by Cabinet must be processed by the national department.
However, the portfolio committee was mindful that this power may encroach on the powers of other competent authorities. Therefore, a process was inserted to alert other competent authorities to the possibility that Cabinet may take such a decision. The decision must be published in the Gazette in order to notify the public and other competent authorities of such decision. Further amendments are proposed in instances where MECs who are responsible for environmental affairs fail to take decisions within prescribed timeframes. An applicant may then request the Minister to take the decision. When considering these subsections, the portfolio committee was mindful of section 125(2)(b) of the Constitution of 1996, which provides that the Premier, together with other members of the executive, has the power to implement all national legislation within the functional areas listed in Schedule 405 of the Constitution, except where the Constitution or an Act of Parliament provides otherwise. Therefore, the intention of this amendment is to make provision for this exceptional circumstance in instances where the MEC, either unreasonably or due to capacity challenges, fails to make a decision within the prescribed timeframes. Then the Minister will become the competent authority after strictly complying with the process and procedure now being provided for.
The portfolio committee was also mindful of section 125(3) of the Constitution, which obliges the national government, by legislation or other measures, to develop the administrative capacity required for the effective exercise of their powers and the performance of their functions. The Minister is obliged to report annually to Parliament on the exercise of this power.
Clause 9 of the second amendment Bill amends section 24(g) of the Act. Over the years, a trend in the abuse of the section 24(g) authorisation process has been noticed and is a source of major complaint. Many people knowingly tend to commence with a listed activity without an environmental authorisation, and later apply for a section 24(g) environmental authorisation to rectify the unlawful commencement. These challenges, amongst others, pose serious dangers to the credibility of the environmental impact assessment process. Therefore, in an effort to deal with these challenges, clause 9 makes substantive amendments to address the mentioned abuse of section 24(g), in that applicants proceed with illegal activities on the assumption that their section 24(g) applications will be successful, and furthermore, that competent authorities have experienced reluctance from the National Prosecuting Authority to institute prosecution once a person has applied for, or has received, an environmental authorisation in terms of section 24(g). The relevant competent authorities are now given substantive powers to issue directives for a variety of reasons to enforce stricter adherence to this clause. The requirements for a report to be compiled by the applicant have been tightened and the administrative fine has been increased considerably.
The section is amended to make it clear that criminal prosecution may still be instituted, despite the fact that a person has applied for environmental authorisation in terms of section 24(g). The amendment also allows for the relevant competent authority to defer a decision until such time as the criminal investigation has been concluded. The amendment will also provide clarity on the applicability of section 24(g) to the unlawful commencement of waste management activities under the National Environmental Management: Waste Act.
Clause 13 of the second amendment Bill amends section 30 of the Act and clause 14 of the second amendment Bill inserts section 30A into the Act. Clauses 13 and 14 introduce amendments that clarify the distinction between an incident as referred to in section 30 of the Act and an emergency situation which will be regulated in terms of a new section 30A. While section 30 deals with the reporting and remediation duties of a person responsible for the sudden, unexpected and uncontrolled release of hazardous substances, a new section 30A seeks to address a situation where a listed or specified activity is about to commence in response to an emergency situation where the timeframes do not allow for normal assessments or applications for environmental authorisation.
An example of the latter emergency situation is the commencement of flood defence activities by a local authority in response to sudden and inclement weather conditions. In these types of situations the urgent response times would not permit the conducting of the normal environmental assessment and authorisation process but would now be subject to written or verbal directives by the competent authority. The definition of an emergency situation now includes a disaster as defined in the Disaster Management Act of 2002. Therefore, the new section 30A allows the competent authority to issue a directive on own initiative, or on written or oral request, in order to prevent or contain an emergency or disaster, or to prevent, contain or mitigate the effects of the emergency or disaster.
In order for this second amendment Bill, when enacted, to come into effect, the following requires immediate action by the department: section 16(a)(4); section 30(a); and section 44(a)(d). Acknowledging that it would not be possible to bring all the sections of the Act into effect immediately, the schedule to the Bill indicates the dates on which the various sections will come into effect. Therefore, all the clauses of the Bill will come into effect immediately upon the publication of the Bill in the Gazette by the President in terms of section 81 of the Constitution, except for four clauses which will come into effect at a later date. The portfolio committee recommends that the House agree that the second amendment Bill should be tagged as a section 76 Bill, and that the amendments contained in the second amendment Bill be adopted.
Furthermore, the portfolio committee notes that these amendments are part of its ongoing efforts to monitor and improve the environmental management system, both in the immediate and longer terms. In this context, the portfolio committee notes that, to a large extent, the legislation is focused on regulating sustainable production and that there is little emphasis on sustainable consumption issues. To this end, the portfolio committee requests the department to provide it with a report on possible options for a more comprehensive and balanced integrated environmental management system before the end of 2013.
In conclusion, let me thank the department for all its hard work in helping us to fundamentally change many aspects of the Bill, and once again, may I also thank all the parties in the committee for so diligently making sure that we pass this Bill today. I thank you. [Applause.]