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PORTFOLIO COMMITTEE
BRIEFING ON THE AREAS OF AMENDMENTS UNDER THE NATIONAL ENVIRONMENTAL MANAGEMENT LAWS SECOND AMENDMENT BILL, 2013
1.PURPOSE
1.1.To provide the Portfolio Committee with an overview of the areas of amendment under the National Environmental Management Laws Second Amendment Bill, 2013 (Second Amendment Bill), the subsequent changes made to the Bill and the reason therefore.
2.BACKGROUND AND DISCUSSION
2.1.The proposed amendments in the Second Amendment Bill were part of the National Environmental Management Laws Amendment Bill [B 13 – 2012] (NEMLA Bill) before a decision was taken in September 2012 by the Portfolio Committee to split the Bill into two Bills, namely, National Environmental Management Laws First Amendment Bill [biodiversity amendments], and National Environmental Management Laws Second Amendment Bill [National Environmental Management Act amendments].
2.2.The NEMLA Bill was tabled in parliament in April 2012. The briefing to the Portfolio Committee on the NEMLA Bill was held on 14 February 2012. Public hearings were held on 21, 22, 28 August 2012. Thereafter, the Portfolio Committee discussed the NEMLA Bill clause by clause on 5, 18 and 19 September 2012.
2.3.On 19 September 2012 the Portfolio Committee took a decision to split the NEMLA Bill into the First Amendment Bill and Second Amendment Bill. The First Amendment Bill deals with the non-controversial biodiversity amendments, and the Second Amendment Bill deals with the non-controversial and controversial amendments to the National Environmental Management Act, 1998 (NEMA). The main reason for the split was that the proposed amendments to biodiversity amendments were urgent to address most of the challenges relating to the permitting system and the implementation of the new Threatened or Protected Species Regulations.
2.4.The Second Amendment Bill proposes amendments to certain provisions under the NEMA, and most of the amendments were identified through the implementation of the Act and some originated from the Department of Cooperative Governance process of identifying legislation that hampers service delivery.
2.5.The Second Amendment Bill contains new additions and amendments proposed by the Department and the Portfolio Committee in order to enable the implementation of the provisions relating to environmental management planning, integrated environmental management and compliance and enforcement.
2.6.The proposed amendments to the NEMA aims to, amongst others, achieve the following:
2.6.1.The Second Amendment Bill seeks to amend and insert certain definitions to provide clarity and remove any ambiguity. Due to two new amendments added to the Bill two new definitions were added, namely definition for “adoption” and “disaster”.
2.6.2.The provisions being amended seeks to change the timeframes for the preparation of environmental implementation plans and environmental management plans from 4 years to 5 years, in order to afford the elected government with a legal mandate to implement its priorities.
2.6.3.The Second Amendment Bill also inserts a new section requiring the Department, provincial departments responsible for environmental affairs and,on a voluntary basis, metropolitan and district municipalities to prepare and publish environment outlook reports. These reports will provide the state of the environment at a national, provincial and local level. A new amendment was added by the Portfolio Committee that will provide the Minister with legal mandate to prescribe by regulation the process for the submission, adoption of and compliance with these reports.
2.6.4.The major amendments to Chapter 5 of NEMA will, amongst others, provide the Minister with legal mandates-
(a)to restrict or prohibit certain developments in certain geographical areas for a certain period of time on certain conditions. A new amendment was proposed by the Department to provide clarity that the competent authority may not accept any further application where the Minister has published a notice prohibiting or restricting the granting of an environmental authorisation within a specified geographical area;
(b)to develop norms or standards for activities, sectors or geographical areas;
(c)to deal with an environmental authorisation application pertaining to any activity relating to a matter that has been declared a national priority by Cabinet. This amendment was proposed by the Department in order to provide the Minister with a legal mandate to issue an environmental authorisation regarding any activity that has been declared a national priority by Cabinet; and
(d)to intervene on written request by the applicant and to take a decision in instances where an MEC fails to take a decision within prescribed timeframes regarding an application for an environmental authorisation. This clause was substantial revised to properly align it with section 125(2)(b) of the Constitution of the Republic of South Africa, 2006 as well as to provide for various steps before the applicant may request Minister’s intervention. The adjustments were on the request of the Portfolio Committee and were necessary in order to ensure that the Minister acts within the ambit of the Constitution.
2.6.5.The Department also revisited the amendment to section 24C(2)(b) on request of the Portfolio Committee and the minor amendment thereto is only to provide legal clarity.
2.6.6Other proposed amendments relating to an environmental authorisation will provide for the transfer of rights and obligations even in situations where there is no change in ownership in the property.
2.6.7.The Second Amendment Bill will also include a new amendment proposed by a Department of Cooperative Governance project on legislation hampering service delivery. The main reason for the proposed amendment is that it is sometimes necessary for national departments or provincial departments to commence with a listed activity in order to prevent, contain or mitigate a disaster. In most cases, these are measures taken to save lives or property. The amendment will allow those departments to commence with a listed activity without an environmental authorisation. However, the disaster must be declared in terms of the Disaster Management Act, 2002.
2.6.8.On request of the Portfolio Committee all the criminal offences is now placed in one place in the Bill. Also the defence in terms of the previous section 24F(3) of the Act (now the new section 49A(2)) has now been qualified as requested by the Portfolio Committee.
2.6.9The proposed amendments were substantially amended to address most of the public comments received during the public hearings. With the suggested amendments the section 24G process will be tighter and vigorous with respect to the process. The proposed amendments are, in the main, meant to deal with the abuses of the section 24G process. The amendment will de-link section 24G process from the commission of a section 24F offence. The commencement of a listed activity without an environmental authorisation is an offence under NEMA, and the de-link approach will provide the Department, after assessing the facts, with options to either pursue criminal prosecution or allow for a rectification. The amendment will also provide the competent authority with a legal mandate to direct the applicant to stop the listed activity pending a decision on the section 24G application.
2.6.10The amendments will also provide the competent authority with options when processing a section 24G environmental authorisation application, namely, refusal to issue an environmental authorisation and direct rehabilitation, issue an environmental authorisation subject to certain conditions or defer a decision to issue an environmental authorisation where there is a criminal investigation. In addition, the amendments will clarify that the submission of a section 24G application does not derogate the Department’s responsibility of initiating and conducting criminal investigation and prosecution in appropriate circumstances. The amendments will also increase the section 24G administrative fine from R1 million to R5 million.
2.6.11.The Portfolio Committee has also suggested a new clause that the Minister must develop regulations relating to the procedure and criteria to be followed in the determination of a section 24G administrative fine. The Portfolio Committee further suggested that all offences and penalties must be contained under one section, and as a result this process resulted in consequential amendments to most sections of NEMA dealing offences and penalties.
2.6.12.The Second Amendment Bill further provides for an amendment de-linking the duty of care requirement on a section 28 directive. The environmental management inspectors have been experiencing a number of challenges with respect to the implementation of the duty of care requirement on section 28 directives. The de-linking approach will ensure easier implementation and enforceability of this provision.
2.6.13.Other compliance and enforcement amendments provides the environmental management inspectors with power to seize, without a warrant, a vehicle, vessel, aircraft or any other transport mechanism which may afford evidence of the commission or suspected commission of an offence. This amendment will enhance the enforcement provisions of NEMA, and will assist the environmental management inspectors in effectively performing their compliance and enforcement function.
2.6.14.The Second Amendment Bill also provides the Minister with a legal mandate to develop regulations to control products that may have a detrimental effect on the environment. A similar provision was contained in the repealed provisions under the Environment Conservation Act, 1989 (ECA). For example, the asbestos regulations were developed in terms of a similar provision under the ECA. This provision will assist in dealing with products that pose a problem to the environment.
2.6.15.The amendments further provide clarity that the Department must table instead of submitting the Environmental Impact Assessment Regulations at Parliament before final implementation. This clause will provide clarity that any amendments to the Environmental Impact Assessment Regulations must be tabled before Parliament before implementation.
2.6.16.The proposed amendments will allow for the use of other mechanisms of delivering documents under the NEMA or other specific environmental management Act, namely by fax, e-mail or ordinary mail. This clause will ensure that the NEMA adapts to modern technology of conducting business.
2.6.17.The amendments will further reiterate that NEMA is applicable to the State without exceptions. However, the Portfolio Committee expressed concerns as to the extent that the State can be held criminally liable as the State and will, through the National Prosecuting Authority, be prosecuting itself. In this regard, the Portfolio Committee requested the Chief State Law Adviser to provide the Committee with a legal opinion on the practical implementation of the proposed amendment. The issue whether this clause must be deleted or retained will be informed by the legal opinion of the Chief State Law Adviser.
2.7.Copies of the draft Second Amendment Bill and Memorandum on Objects are attached hereto for the Portfolio Committee ease of reference.
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