National Environmental Laws Amendment Bill [B35-2007]: briefing

ENVIRONMENTAL AFFAIRS AND TOURISM PORTFOLIO COMMITTEE
05 September 2007
NATIONAL ENVIRONMENTAL LAWS AMENDMENT BILL [B35-2007]: BRIEFING

Chairperson: Mr L Zita (ANC)

Relevant documents:
National Environment Laws Amendment Bill [B35-2007]
National Environmental Management Amendment Bill [B 36-2007]
Memorandum of the Objects of the Bill (see Appendix)

Audio recording of meeting

SUMMARY
The initial plan was for the Department to take the Committee through the National Environment Laws Amendment Bill clause by clause, thereafter for it to be finalised and adopted. However soon after the briefing had commenced, members raised concerns about not being clear about what pieces of legislation were being amended and what amendments were being proposed. The Bill itself was very technical and members had difficulty following. Even though the Bill needed to be finalised as a matter of urgency, it was agreed that the Department prepare a briefing document that would be illustrative of what pieces of legislation were being amended and what amendments were being proposed. The Committee agreed to consider and finalise the Bill at a later time.

MINUTES
The Chair asked the Department to take the Committee through the Bill clause by clause explaining what amendments had been effected. Members were encouraged to raise issues as they arose. The delegation comprised of Mr Sonnyboy Bapela, Chief Director: Regulatory Services; Mr Mark Jardine, Deputy Director: Enforcement and Ms Linda Garlipp, Director: Litigation, Policy and Law Reform. Mr Herman Smuts represented the Office of the State Law Advisor.

Clause 1
Mr Mapela noted that this clause was an interim measure allowing for the Atmospheric Pollution Act of 1965 to be regarded as a specific environmental management Act for the purposes of the National Environmental Management Act of 1998. When section 60 of the National Environmental Management Air Quality Act of 2004 took effect, the clause would lapse.

Mr A Mokoena (ANC) asked why the amendment had not been made when the Air Quality Act had been passed.

Mr Mapela responded that only certain portions of the Air Quality Act had been put into effect. The entire act had not yet been put into effect.

Mr G Morgan (DA) noted that it seemed that the Bill aimed to fill gaps. He asked why there had there been such a long delay.

Mr Mapela replied that the Bill had been delayed by the drafting and consultation process. He noted that consultations had also taken place with both the Justice and Safety and Security departments. The Criminal Procedure Act was affected by the amendments contained in the Bill.
Mr Jardine added that the amendments had been effected to allow for the enforcement of certain offences.

Ms J Chalmers (ANC) asked if a framework were lacking to implement the Air Quality Act, how would the Bill be able to solve the problem?

Mr Mapela replied that it was difficult to implement the Air Quality Act before certain conditions were in place.

Mr Mokoena wondered how many other pieces of legislation were there like this Bill. He felt the Bill was being used to patch up gaps in the legislation.

Clause 2
Mr Mapela explained that this was a technical amendment to the Environment Conservation Amendment Act of 2003. Incorrect references were being corrected by the clause.

Mr Mokoena referred to the clause and asked how permission and authorizations were given. It was not a tangible paper document like a permit.

Mr Mapela stated that permits, authorisations and permissions all emanated from legislation. Authorisations were given after an application process. Permits also contained conditions.

Ms Chalmers asked why the amount of the fine in the clause had been changed from R5 million to R100 000.

Mr Mapela replied that the R5 million penalty was in a different clause, not clause 2.

Mr Zita (ANC) stated that the R5 million penalty appeared in the memorandum of the Bill. He asked why the amount of the penalty in clause 2 was only R100 000.

Mr Smuts explained that the R100 000 penalty was in relation to lesser offences whereas the R5 million penalty applied to more serious offences.

Ms Garlipp noted that clause 2 only contained a technical change. The penalties had not been amended. The penalties in section 29 of the principal Act remained unchanged. She explained that many sections of the Environment Conservation Act had been repealed but that the penalty and directive provisions were still in place. The Act would be replaced in the future.

Mr Mokoena pointed out that the Committee was not trained in legal technical matters and that a “working document” was needed to assist members in understanding the amendments that had been made. Only thereafter could the Committee consider the Bill. He felt that the Department often did not take drafting suggestions made by the Committee into consideration. The suggestions would in many instances not find their way into bills. The drafters would stick to their own provisions.

Ms Chalmers agreed that a “working document” would have been useful but that the Bill could not be delayed.

Mr Mapela noted the concerns raised by members. He responded that a document containing extracts from the various acts that were being amended by the Bill had been forwarded to the Committee. Mr Mapela emphasised that the main issue in clause 2 was the correcting of incorrect references.

Mr Mokoena insisted that a “working document” was needed.

Mr Jardine said that the point was taken. He stated that it was difficult to provide the Committee with all the pieces of legislation that were being amended. Hence the document containing extracts from the various acts that were being amended.

The Chair noted that it would have been useful if the Committee could have been provided with a memorandum which clearly showed which pieces of legislation were being removed and what they were being replaced with.

Ms C Zikalala (ANC) said that the Bill was confusing and suggested the Department should be asked to return with a document that was easier to understand.

Ms R Ndzanga (ANC) agreed and suggested that perhaps the Department had not done its homework.

Mr Mokoena suggested that the Department come up with a” working document” which was illustrative of what was being deleted and added in the legislation. He pointed out that if more amendments were in the pipeline, the Committee needed a holistic picture. It was suggested that the Department was in the habit of doing legislative nitpicking. He said that a progressive process was needed given that the National Environmental Management Act was in place.

Ms Chalmers was concerned that if the Department had to draft a simplified, easy to understand document, the Bill would be delayed for a long period of time. The Committee would most probably be able to finalise the Bill only at the end of October or November 2007 as the Committee would be occupied with other commitments until then.

The Chair asked if the Department could come up with a working document to present to the Committee before the end of business that day.

Ms Ngele (ANC) said that the Department had been too relaxed and supported the Chair’s suggestion.

Mr Mokoena disagreed. He felt that 6 or 7 hours was not sufficient time for the Department to draft a proper working document. He stressed that it should not be a rush job or else the process would be a farce. The Department should be given reasonable time within which to draft the working document.

Mr Morgan accepted that the Department could have presented the proposed amendments in a better fashion. However he was concerned that perhaps the Committee expected too many things to be handed to it on a platter. Perhaps the Committee should put in a little extra work. He nevertheless supported the idea of a working document and agreed that the Department be given the opportunity to draft it.

Ms Ntuli (ANC) supported the idea of a working document as well but had concerns over the time it would take to draft it.

Mr I Cachalia (ANC) was concerned whether the Department would be able to complete the drafting of the document by the end of the day and be able to present it to the Committee at that time.

Ms R Ndzanga shared Mr Cachalia’s concern and proposed that the Committee give the Department sufficient time to draft the document and present it to the Committee at a later time. Drafting and presenting it within a couple of hours to the Committee was unlikely to happen.

The Chair noted the concerns of the Committee and agreed that the process should not be rushed. The Committee agreed that the Department be given ample time to draft a working document and present it to the Committee at a later time.

Mr Mapela agreed to fulfill the Committee’s wishes.

The meeting was adjourned.

Appendix:

MEMORANDUM ON THE OBJECTS OF THE NATIONAL

ENVIRONMENT LAWS AMENDMENT BILL, 2007

1. OBJECTS

The objects of this Bill are the following:

(a) To have the Atmospheric Pollution Prevention Act, 1965 (Act No. 45 of 1965)

(‘‘APPA’’), regarded as a specific environmental management Act for the

purposes of the enforcement of the National Environmental Management Act,

1998 (Act No. 107 of 1998) (‘‘NEMA’’), and other specific environmental

management Acts;

(b) to amend the Environment Conservation Act, 1989 (Act No. 73 of 1989)

(‘‘ECA’’), to rectify certain incorrect references to provisions in the Act;

(c) to add APPA, ECAand the National Environmental Management: Air Quality

Act, 2004 (Act No. 39 of 2004) (‘‘NEM: AQA’’), to the list of Acts which

environmental management inspectors (‘‘EMIs’’) are mandated to enforce;

(d) to provide for EMIs to be peace officers as contemplated in the Criminal

Procedure Act, 1977 (Act No. 51 of 1977);

(e) to provide for the imposition of a penalty for the offence of failing to comply

with a compliance notice in terms of section 31N of NEMA; and

(f) to substitute a Schedule to NEM: AQA.

1.1 APPA regarded a specific environmental management Act (Clause 1)

Clause 1 is an interim measure. It seeks to have the APPAregarded as being a specific

environmental management Act. APPA deals to a certain extent with similar matters

contained in the National Environmental Management: Air Quality Act, 2004. The latter

Act is not yet of full force and effect. In terms of the proposed clause it will lapse when

section 60 of NEM: AQA, which repeals APPA, takes effect.

1.2 Amending ECA to rectify certain incorrect references (Clause 2)

The Environment Conservation Amendment Act, 2003 (Act No. 50 of 2003), inter

alia, substituted section 20 of ECA to provide for the transfer of the administration of

waste disposal sites from the Department of Water Affairs and Forestry to the

Department of Environmental Affairs and Tourism. However, section 29(4) of ECA

(which sets out criminal offences in terms of the Act) was not updated to reflect the

correct cross-references to the subsections of the new section 20. The proposed

amendment seeks to rectify this.

1.3 Including national pollution and waste legislation in the mandates of environmental

management inspectors (Clause 3)

The National Environmental Management Amendment Act, 2003 (Act No. 46 of

2003), empowers the Minister or MECs to designate officials in national, provincial and

local government as EMIs. The function of an EMI is to monitor and enforce

compliance with a law for which he or she has been designated. In order to carry out this

function, EMIs have been accorded a range of statutory powers, including inspection,

investigation, enforcement and administrative powers.

There are currently only three pieces of legislation that EMIs may enforce: NEMA,

the National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004),

and the National Environmental Management: Protected Areas Act, 2004 (Act No. 57 of

2004). The current mandate of EMIs therefore covers ‘‘green’’ issues (biodiversity and

protected areas) and environmental impact assessments, but excludes ‘‘brown’’ issues

such as pollution and waste. This is due to the fact that the national legislation regulating

pollution and waste matters, particularly NEM: AQA, is not yet fully in effect, and the

national Waste Bill still has to be tabled in Parliament. Until these two pieces of new

legislation are fully in effect, it is crucial that EMIs are given the mandate to enforce and

monitor compliance with ECA and APPA (until the latter two Acts are repealed), and

compliance with those provisions of NEM: AQA that are already in effect.

It is therefore proposed that ECA, APPAand NEM:AQAbe included in the definition

of ‘‘specific environmental management Act’’ in NEMA. The proposed amendment also

promotes a consistent approach to enforcement of environmental legislation.

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1.4 Clarifying the status of environmental management inspectors as peace officers

(Clause 4)

Section 31H(5) of NEMA, as proposed in clause 4, seeks to clarify the status of EMIs

as peace officers when exercising certain of their powers. Apart from powers of

inspection, investigation and enforcement given to EMIs by Chapter 7 of NEMA, an

EMI has, in terms of section 31H(5) of NEMA, ‘‘all the powers assigned in terms of

Chapters 2, 5, 7 and 8 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) (CPA),

to a police official who is not a commissioned officer’’. Although provisions of Chapters

2, 5, 7 and 8 of the CPArelate to police officials, some provisions in those Chapters refer

to powers of ‘‘peace officers’’. Currently, NEMA does not expressly provide for an

EMI’s status as a peace officer when exercising powers under the CPA. Due to concern

that this may cause interpretation difficulties, it is proposed that section 31H(5) of

NEMA should be substituted to reflect that EMIs must be regarded as peace officers.

1.5 Penalty for failing to comply with a compliance notice (Clause 5)

The Amendment Bill provides for the imposition of a penalty in the event that a

person is found guilty of the offence of failing to comply with a compliance notice in

terms of section 31N of NEMA. Currently, NEMA states that a person who fails to

comply with a compliance notice commits an offence, but it does not provide for an

accompanying penalty (either in the form of a fine or imprisonment) in the event of a

conviction of this offence by a court of law. In order to set a meaningful standard for

maximum penalties that is consistent with other national environmental quality and

protection offences, the proposed maximum penalty for non-compliance with a

compliance notice is equivalent to the maximum penalty currently prescribed in section

24F(4) of NEMA, namely a fine not exceeding R5 million or imprisonment for a period

not exceeding 10 years.

1.6 Substituting Schedule 1 in NEM: AQA (Clause 6)

In terms of Schedule 1 to NEM: AQA the definition of ‘‘specific environmental

management Act’’ was inserted in NEMA. Because of the proposed changes mentioned

in paragraph 1.3 above, the insertion becomes obsolete and can be deleted. The proposed

substitution of Schedule 1, contained in clause 6, seeks to achieve that purpose.

2. PERSONS OR BODIES CONSULTED

The following persons and institutions have been consulted on the contents of this

Bill: