NEMLA Bill: deliberations; Minamata Convention on Mercury

Meeting report

Department of Environmental Affairs: Response to Chairperson’s letter

Mr Mark Gordon, Deputy Director General: Chemicals and Waste Management, Department of Environmental Affairs (DEA) outlined the Department’s response to the Chairperson’s letter. He informed the Members that the reason that the various processes were lengthy, was to deal with the various administrative processes in an effort to avoid litigation against the Government. Only the Minister and Member of the Executive Council (MEC) had the power to revoke a licence or permit, and the process of non-compliance was an administrative process.

Mr Gordon said that there had been no request by the Committee for the DEA to engage further with the stakeholders, and therefore no further meetings had taken place with them. He clarified that the licensing authorities were the municipalities, and not the provinces. There had been instances where companies would apply for the renewal of licences, only for the process to take too long at the licensing authority (the relevant municipality). This would lead to a company’s licence expiring as they awaited the possible renewal. The company would then be fined for operating without a licence when they had in fact already applied for its renewal, which was unfair to the company. This injustice was what the Department hoped to remedy through its proposals.

Discussion

The Chairperson commented that the municipality could issue the licences and permits, but the Act was not expressly clear that the municipality could also withdraw or revoke the licences. It should state that where one issued the licences and permits, they should also have the power to withdraw and revoke them in the case of a breach of terms or non-compliance. This should be clarified in the amended Bill.

Mr R Purdon (DA) asked whether the Department’s response to the Chairperson’s letter had been communicated to the Centre for Environmental Rights (CER). He added that it was not entirely clear what the CER was recommending.

The Chairperson commented that the purpose of the letter had been to request the Department to respond to a stakeholder’s concerns, and that it would not be fair to invite only one of the stakeholders to address the Committee, yet there were many others. He added that in any case, the stage for community engagement on the amendments had already passed.

Dr Z Luyenge (ANC) commented that he was not happy about the correspondences going to the Chairperson of the Committee from stakeholders, because the Department was not listening to the stakeholders and there were diverging perspectives. It seemed evident that there had been no engagement between the Department and the stakeholders, which could lead to litigation in the near future. He conceded that there were competing views on the various issues at hand and that one day, when the Bill was enacted, the letters sent to the Chairperson would come up in litigation in court. He added that the letters were being sent directly to the Chairperson of the Committee because there had been no engagement with the DEA.

Mr S Makhubele (ANC) said some of the metros may lack capacity, and would require support from the Department.

NEMLA Bill: Discussion on well-being of wild animals

Ms Judy Beaumont, Deputy Director General: Oceans and Coasts, DEA took the Members through the presentation from the Department on the National Environmental Management Laws Amendment (NEMLA) Bill.

Ministerial mandates

The mandates of the Minister for Environmental Affairs were set out in Section 2 of NEMBA (National Environmental Management: Biodiversity Act No. 10 of 2004). The specific objectives of the Act were as follows:

(a) Within the framework of the National Environmental Management Act, to provide for:

• the management and conservation of biological diversity within the Republic, and of the components of such biological diversity;

• the need to protect the ecosystem as a whole, including species which were not targeted for exploitation;

• the use of indigenous biological resources in a sustainable manner; and

• the fair and equitable sharing among stakeholders of the benefits arising from bioprospecting involving indigenous biological resources;

(b) To give effect to ratified international agreements relating to biodiversity which were binding on the Republic;

(c) To provide for cooperative governance in biodiversity management and conservation; and

(d) To provide for a South African National Biodiversity Institute to assist in achieving the objectives of this Act.

The Animals Protection Act (APA), 1962 (Act No. 71 of 1962) related to the prevention of cruelty to animals, and provided that the Minister may make regulations relating to;

• poisoning of animals without reasonable cause;

• confinement, chaining, or tethering (tying an animal with a rope or chain to confine its movement) of animals in certain circumstances;

• ill-treatment, neglect or torturing of animals;

• denying food or water to an animal, or abandoning an animal;

• animal fights; and

• confinement and accommodation of animals, whether travelling or stationary.

Section 2(3) of the APA provided that the Minister may by notice in the Gazette, prohibit the killing of an animal specified in the notice with the intention of using the skin or meat or any other part of such animal for commercial purposes. The implication of this provision was that the Minister of Agriculture, Forestry, and Fisheries would be able to prohibit the killing of lions for the harvesting of the bones, in terms of the APA.

Lion court case judgment

In 2007, the then South African Predator Breeders' Association (SAPBA) had initiated a court action against the then Minister of Environmental Affairs and Tourism, to request the setting aside of the implementation of the Threatened or Protected Species (TOPS) regulations altogether, or alternatively the definition for "put and take animal" and the provisions of Regulation 24(1) and (2), which deal with prohibited activities involving listed large predators, white rhinoceros and black rhinoceros. The High Court of South Africa, Free State Division, in its judgment that was delivered on 11 June 2009, found that the “put and take” prohibition was rational, and that it was undisputed that the hunting of lion that were bred in captivity, had "damaged the reputation of South Africa immensely". The High Court set aside the application with costs. The SAPBA then applied to the Supreme Court of Appeal of South Africa (SCA) for leave to appeal the High Court's judgment. This application succeeded, and the SCA, in its judgment that was delivered on 29 November 2010, set aside the High Court's judgment.

The decision of the Minister to ban the "put and take" hunting of listed large predators had no legislative basis, as ethical issues could not be regulated in terms of legislation that was designed to conserve and protect biodiversity, especially in relation to captive-bred lions where there was no intention to release them into the wild. Pending the outcome of the court case, the definition for "listed large predator" was amended by the deletion of “lion”, in order for the prohibitions in Regulation 24 to still apply to the other listed large predator species and rhinoceros, but not to lions.

Goals of the amendments

The amendments aim to regulate the exhibition and training of performing animals and the use of dogs for safeguarding, which included the method and form of confinement and accommodation of any animal in respect of which a magistrate had issued a licence, whether travelling, or being transported, or stationary. The Performing Animal Protection Act (PAPA) provisions, however, did not apply to the confinement of animals in public zoological gardens.

Among the practices to be addressed were the following:

• Premature removal of cubs from their mothers;

• Overcrowding;

• The condition of holding facilities;

• Rotten food remains;

• Hand-raising of cubs;

• Cub petting.

Future provisions, and amendments to the provisions, seek to do the following:

• Prohibit the introduction of specimens of critically endangered species or listed large predators (which includes lion) from the wild into captive breeding facilities, except where it is necessary for the conservation of the species;

• Prohibit the breeding of listed large predators (which would include lion) and rhinoceros species, unless the applicant can demonstrate how the breeding in captivity of such specimens would contribute to the conservation of the particular species (phase-in period of 12 months provided);

• Appointment of organs of state as Environmental Management Inspectors (EMIs) in terms of NEMA (organ of state, in terms of section 239 of the Constitution of the Republic of South Africa (RSA) and established in terms of an act of Parliament (SPCA Act) and performs a public function);

• Compulsory membership of associations to enforce their Codes of Ethical conduct (can also apply this provision in the hunting sector).

Discussion

The Chairperson asked why lions were excluded from the large predator group of animals.

Ms Beaumont responded that they were excluded because of the pending court case.

The Chairperson commented that Ms Beaumont had not addressed the issues raised by the Supreme Court on the lack of a legislative basis.

Mr Makhubele wondered why the definition in the Bill of “scientific institution” did not include those that were privately run.

Ms Beaumont said that they were currently not unregulated, so their regulation would continue as it was currently. She added that it had not been necessary to regulate them to the same extent until now, but that it would be looked into in the future.

NEMLA Bill: Discussion on “well-being”

Ms Amanda Dana, Deputy Director, Protected Areas Unit, DEA said that in the amendment to Clause 38 Section 2 of NEMBA, Afriforum had been of the view that despite the section being better aligned with Section 24 of the Constitution, it was not certain what was meant by “faunal wellbeing,” especially when considered against the difficulties encountered with determining wellbeing within humans. The Department agreed, and proposed a new definition of “wellbeing” to mean the state where the living conditions of a faunal biological resource were conducive for its health.

Another stakeholder, the EMS Foundation, had wanted the language in Section 2(a) (ii) changed to reflect a more caring position, and references to “wellbeing” being replaced with “welfare” and “protection”. The Centre for Environmental Rights (CER) had wanted “wellbeing”, “faunal biological resources”, and “taking into account” to be defined to provide clarity on how it would be measured in terms of having clear, identifiable, and acceptable parameters. The Department disagreed with these proposals, and said that the detail of the measures and parameters would be prescribed in the regulations.

The entire Schedule 3 had been removed because Clause 74 would be rejected. Clause 76 was omitted because some of its provisions fell away as they were included in other Sections and Clauses of the Bill.

Discussion

The Chairperson asked whether a private area could be designated as a natural park.

Ms Dana responded that agreements could be entered into with private individuals by incentivising them and having the area become a formally protected area.

Mr Ishaam Abader, Deputy Director General: Legal, Authorisation, Compliance and Enforcement, DEA, added that such arrangements had been entered into in the Kruger National Park. He added that there had been consultations to have mountain water catchment areas included in protected areas. He disagreed with the Chairperson on mining in protected areas, saying it was too restrictive.

The Chairperson suggested that either mining in protected areas was banned completely, or the Department had to come up with strict procedures to be adhered to.

Mr Purdon said that they had been told that the Department of Mining Resources (DMR) and DEA mining application procedures in terms of licences and authorisations would run concurrently.

Mr Abader confirmed that this was the case, unlike previously when one had to apply for one and use it to apply for the other.

Mr Alf Wills, Deputy Director General: Environmental Advisory Services, DEA, agreed with this sentiment and reinforced it.

The Chairperson clarified that the DEA Minister was not involved in the approval and licensing processes, and got involved only where an appeal application was lodged. He added that the matter boiled down to ensuring it was not easy for mining to occur within protected environments.

Mr Makhubele said the procedure to allow mining in protected areas needed to be very vigorous.

The Chairperson commented that they were more inclined to believe what the CER was saying, because they had the practical experience. The Department should not be so rigid and reluctant to change the wording of the Bill.

Mr Makhubele added that there was a need to consider the scientific basis, even though the local communities would not consider it.

The Chairperson narrated the experience from a recent site visit the Committee had undertaken, and their interaction with local farmers. It had been clear to the Members that the area should have been a protected area. There had been threats, intimidation and abuse from the mining companies to the farmers -- and all of this had occurred right in front of the Members. There had been a mobilisation of people to protest against the Members’ presence with songs and placards, and the Members had not even been given a chance to address the crowd. The Committee had therefore resolved to conduct a follow-up visit to the area. He also said that the Committee would ask the state law office for advice on the issues raised by the CER.

Mr Makhubele asked what happened when a species was unlisted, because Clause 42 specified that it related to “listed invasive species”.

Mr Mungameli responded that when a species was determined to be invasive, it was then listed and classified as such.

The Chairperson said that South Africa was the only country in the world that still bred lions to be killed. This issue was isolating the country on the international stage, just as apartheid had done during its time.

Mr Makhubele asked, why not ban the hunting of bred lions altogether, but continue having the normal hunting that occurred in the wild?

The response from the delegation was that the practice prevented the hunting of other lions, apart from those bred for that specific purpose.

Mr Abader added that that was the reason for the healthy population of lions in protected areas. He conceded that it was indeed a delicate balancing act, but that it was better than the situation going in the direction of what had been happening to rhinos.

The Chairperson announced that a planned colloquium in August to tackle that particular controversial topic was on the agenda, and it would be a chance to hear both sides of the argument. The breeding and hunting of these lions were to cater for the demand from Asia of their bones. “Shady people and firms were involved in this,” he said, “but many of them still participate in poaching as well. The previous Minister had attempted to ban the practice, but after a lot of litigation, the effort had failed”. He added that there was no empirical evidence supporting the argument that breeding lions for hunting saved the ones in the wild. He asked the Members whether there were any objections to meeting for a day the following week during the recess period to finalise the Bill, and have a final vote on it.

Mr Makhubele said there would be a need to consult with the other Members not present at the session before a final meeting date was set.

The Chairperson concurred with Mr Makhubele, and commented that the Bill was already 98% done.

MINAMATA Convention on Mercury

Mr Mark Gordon, Deputy Director General: Chemicals and Waste Management, DEA briefed the Members on South Africa’s ratification of the MINAMATA Convention on Mercury. This was in an effort to request Parliament to approve South Africa’s proposed ratification of the Convention

Background to MINAMATA Convention

Mercury was a naturally occurring heavy metal, which can cause toxic effects on humans and the environment. It was released through natural processes like volcanic and geothermal activities, or through human processes. Man-made mercury emissions came primarily from gold mines using mercury, and the combustion of coal, especially coal-fired power stations. Human activities continue to increase the mercury in the air, oceans, freshwater and soil, creating a global threat to human and environmental health. Mercury can travel globally through the oceans and the atmosphere, and cycles through these processes for years, or even decades. It accumulates in ecosystems and food chains, particularly fish, and is passed on to larger animals and humans who eat those foods. Health effects include significant damage to the nervous, immune and digestive systems, lungs, and kidneys. Chronic or acute exposure can cause neurological and behavioural disorders and can be fatal.

The Mercury MINAMATA Convention text was finalised in January 2013, and adopted in October 2013. The Convention came into force on 16 August 2017 and aimed to reduce mercury anthropogenic emissions and releases. South Africa had signed the Convention in October 2013 and intended to ratify it. In 2012, the DEA had undertaken a mercury inventory using the United Nations Environment Programme (UNEP) Toolkit Level 1, which showed several sectors emitted huge volumes of mercury, including coal combustion, cement production, oil and gas production, waste incineration, dental amalgam, and primary metal production. In 2016, the DEA had embarked on developing a detailed inventory using UNEP Toolkit Level 2, which had the cost-benefit analysis and the socioeconomic implications of SA ratifying the Convention.

Reasons for ratification

The advantages of ratifying the Convention outweighed the disadvantages. These advantages include the following:

• Financial assistance: Global Environment Facility (GEF)-financial mechanism for developing countries to implement obligations.

• Technical assistance, capacity building, and technology transfer: The Convention provides for the provision of technical assistance to developing countries; South Africa would be eligible as a developing country.

• Phasing out products: By 2020, the import, export and manufacture of listed mercury-added products would stop in order to decrease mercury in the waste stream and to prevent dumping when other countries phased such products out.

• Voluntary implementation of the MINAMATA Convention: All private healthcare hospitals and private clinics, and some public ones, had voluntarily started implementing the MINAMATA Convention by proactively replacing mercury-based thermometers with electronic mercury- free ones.

• Alignment with other domestic and international environmental agreements: Internationally, it complemented South Africa's obligations under the Montreal Protocol, and the Basel, Rotterdam and Stockholm Conventions. Domestically, the Convention would complement the Air Quality Act, the Waste Act and the National Environmental Management Act. It would also strengthen the capacity to manage mercury.

• Withdrawal or denunciation provision in the Treaty: Article 33 sets out withdrawal from the Convention. Any Party may withdraw by giving written notification to the Secretary-General at any time after three years after the Convention entered into force for them. Either withdrawal would take effect one year from the date of that notification, or any later date specified. Should South Africa wish to withdraw, it may use this article to withdraw.

• Exemptions: The Convention had provisions for 10-year exemptions upon request by a party (Article 6), and South Africa may apply for an exemption if needed.

• Promoting healthy food: Mercury levels in South Africa fish are beyond recommended levels and are increasing yearly. Ratifying and subsequent reduction measures on mercury emissions and releases would reverse this dangerous trend. This would protect people consuming the fish and South Africa's fish export market.

• An opportunity to address legacy issues to improve the health of the people: Populations mostly affected by mercury and thus expected to have compromised intelligence quotients (IQs) due to mercury exposure, were previously disadvantaged South Africans staying around coal-fired power plants, cement kilns, smelters, waste incinerators, contaminated sites, and those involved in artisanal and small-scale gold mining (ASGM).

• South Africa cannot afford to significantly reduce emissions on its own: There is a need to develop a National Implementation Plan (NIP) to reduce emissions. An indicative amount of R12.6 billion would be needed to retrofit only the coal-fired power plants to reduce mercury emissions by 98%. The DEA proposes that the sector consider mercury concerns when retrofitting to reduce emissions to meet set air quality standards. This would reduce costs and avoid having to retrofit twice; abatement techniques for emission reduction were not specifically for mercury reduction. Mercury emission reduction targets were to be set by the country, taking into account its national circumstances, the economic, technical feasibility and affordability of the measures.

• Healthcare: The Convention expects green procurement for new medical equipment from year 2020. Electronic medical thermometers were 2.5-3 times more expensive than mercury ones. It was better to buy electronic thermometers, as they were cost-effective, environmentally friendly, did not need to be disposed of as hazardous waste once broken, safer for human health, and last longer -- around 3 years more -- while being more durable.

On the flip side, however, there were two potential disadvantages, both of which were low risk. The Convention required countries to phase out the import, export and manufacture of certain non-essential mercury products by 2020. These listed products include certain forms of batteries, lamps and measuring devices. South Africa did not manufacture any of the listed products, and had started phasing out most of their use already. The listed products were largely older technology, and were being internationally phased out in favour of lower, or mercury-free, alternatives. Any exemptions to postpone phase-out dates in the Convention would be recorded in SA'S ratification documents. There was also a very low risk of binding guidance being developed by the Conference of the Parties (COP) requiring higher environmental emission controls for new facilities in an agreed list of facilities. The first COP would decide on best alternative technologies (BAT) and best environmental practices (BEP) guidance, but it was considered very unlikely to exceed South Africa's existing environmental requirements.

Discussion

The Chairperson asked for information about what happened in illegal “zama-zama” mines.

Mr Gordon’s response was that illegal miners were using mercury to extract gold, which was damaging the environment and people’s health.

Mr Purdon commented that based on the research he had done, the benefits of the Convention far outweighed the costs. He wondered, since the document had been signed in 2013, why it was only now coming to the Committee, which was after five years.

Mr Makhubele questioned the statement on the second page of the presentation on the opportunity to address the legacy issues, saying that the claim on that page contradicted earlier statements from the DEA delegation.

Dr Luyenge asked how much mercury emissions had affected communities around the power stations, and whether there was sufficient capacity to measure the effects of the emissions.

DEA’s response

Mr Gordon responded that mercury was a metal and was heavier than most other emitted substances such as carbon dioxide (CO²), and therefore it did not travel as far as the other emissions. He added that South Africa would need financial assistance to clean up some of the impacts of mercury. He contended that the Department of Justice (DoJ) and the Justice Committee supported the Convention.

On the question of why there had been delays since 2013 in ratifying the Convention, he said it was because the Department was doing studies to identify all the sources of the material, evaluating inventories, sampling rivers -- for example, in KwaZulu-Natal -- and understanding the commitments in the Convention. Models and toolkits were being used to calculate the impacts on the communities.

Mr Purdon requested that the various documents be emailed to the Members when available, even if it was during the Member’s recess.

The Chairperson reiterated his earlier statement from the previous meeting, that there was no future for coal simply because the cost of extracting energy from it was too high, as well as its costs to the environment. He proposed approving the Convention, but also having further engagements with stakeholders in August after Parliament’s recess.

Mr Makhubele formally made the proposal ,and Mr Purdon seconded it. The proposal was passed unanimously.

The meeting was adjourned.