Integrated Coastal Management Act: Ratification of exclusion of areas; Protected Areas Amendment Bill: Rejection of amendments proposed by NCOP; National Environmental Laws Amendment Bill: adoption of NCOP amendments

Meeting report

National Environmental legislation: Department of Environmental Affairs and Tourism (DEAT) briefings
Integrated Coastal Management Act, 2008
Mr G Morgan (DA) informed the Chairperson that nothing appeared to have changed in regard to this legislation from the previous meetings that he had attended.

Advocate Radia Razack, Director: Legal Services, Department of Environmental Affairs and Tourism, said that the presentation remained unchanged from the previous briefing, although the status of the Bill had changed, having been signed into law by the President, therefore becoming an Act.

The Chairperson asked Members if they thought that another presentation was necessary before considering the exclusion of certain areas from coastal public property

Mr Morgan replied that the matter had been interrogated thoroughly, and he thought that Members could proceed straight to the main issues.

Mr Zita agreed that the Committee had heard the request for ratification by Parliament of exclusion of areas from coastal public property in terms of Section 27 of the Integrated Coastal Management Act.

Members agreed to recommend the ratification.

National Environmental Management: Protected Areas Amendment Bill B67B of 2008 (the Bill): NCOP amendments
Advocate Linda Garlipp, Chief Director, Legal Services, Department of Environmental Affairs and Tourism,  presented the proposed Select Committee amendments, and noted that the Select Committee had instructed the Department to negotiate  with the Department of Transport on the issues and to revert with a report.

Clause 4
Ms Garlipp read out the amendments proposed by the National Council of Provinces (NCOP) to this clause, relating to the height at which aircraft could fly over parks and protected areas. These were as follows:

a)  On page 3, in line 25, to omit “2500 feet above its highest point” and to substitute:
“such level as may be determined by the Minister, in concurrence with the Cabinet member responsible for Transport, by notice in the Gazette in relation to that special nature reserve, national park or world heritage site or for a specific area therein”.

b)  On page 3, in line 28, after “authority” to insert “in concurrence with the South African Civil Aviation Authority”.

c)  On page 3, in line 28, to omit “provide for flight corridors”, and to substitute “allow or restrict air routes”.

d)  On page 3, in line 31, after “interest”, to insert “or for the execution of the National Airspace Master Plan”.

e)  On page 3, from line 45, to omit “the provision of any flight corridor in paragraph (a) and area in paragraph (c) is”, and to substitute “Paragraph (c) is”.

New Clause
The NCOP had also proposed the insertion of a new clause to deal with transitional matters.
This read as follows:
“ Transitional provision

9. Section 47(3) of the principal Act continues to exist as if that subsection has not been amended until such time as the Minister publishes a notice in the Gazette as contemplated therein.”

Ms Garlipp noted that the Department of Transport (DOT) had recently passed the Civil Aviation Bill, and wanted to align the roles of different Ministers in determining minimum flight height. The DEAT and the DOT had attempted to align the proposed amendments regarding air routes with the Civil Aviation Bill.

Discussion
Mr Morgan noted that the amendment had contemplated that Section 24 of the National Environmental Management Act (NEMA) was to be included. He asked if Section 24 still did apply to allowing restriction of air routes over parks.

Advocate Garlipp replied in the negative. The DOT had felt that there was a National Airspace Master Plan in place. There were approvals in terms of the Civil Aviation Act that would apply. Environmental authorisation would not be needed.

Ms M Ntuli (ANC) asked if the Cabinet Member responsible for Transport,would have the same status as the Minister for Environmental Affairs in determining flight levels. She pointed out that other Ministers could fall foul of the environmental legislation if the functions of their own departments were to impact on the environment. She questioned whether it was correct that the Minister for Environmental Affairs should have to consult with the Cabinet Member responsible for Transport.

Mr Morgan deplored the fact that the entire amendment that the Portfolio Committee had added to the Bill, had been removed by the Select Committee. This meant that the Minister of Defence were being given authority, whereas in fact the defence and aviation authorities were properly subject to environmental authority, as the latter covered everything else in a park. He said that the implication was that the national parks had no control over what happened above them, and this was disheartening.

Ms J Chalmers (ANC) remarked that the 2500 feet minimum flight level had provided a simple yardstick. With the amendment now being proposed, anyone who wanted to fly over a park would have to consult a Government Gazette to see what height the Environmental Minister and the Minister of Transport had agreed upon.

Mr D Maluleke (ANC) enquired if permission from the Environmental Minister would have to be obtained for Defence Force exercises.

Advocate Garlipp responded that this was a Section 75 Bill, and that this Committee therefore had the power to decide whether or not it wished to accept the amendments proposed by the Select Committee. The matter concerned Ministers with overlapping mandates. The DOT had a mandate over airspace above 2500 feet. There had to be consultation. The amendment could provide more flexibility, in that different flight heights for different parks could be determined, but in the final result, the two Ministers had to agree. If the Ministers of the Environment and of Transport did not agree, then whatever was presently in force would remain.

In response to Ms Chalmer’s comment, she noted that if the DOT had a stake in the issue, there would be more information about it.

In response to Mr Mauleleke, she noted that if the Defence Forces wanted to test aircraft and fly lower, once-off permission could be sought, and whether or not it was granted would depend on the particular circumstances.

Mr Maluleke asked how far the jurisdiction of the Environmental Minister extended.

Advocate Garlipp answered that in terms of Section 47, this extended to 2500 feet above the highest point in the park. 

The Chairperson commented that there were ecological concerns. He was worried that if flexibility was allowed, it could cater to special interests of, for instance, the Defence Minister, and he wondered if it was not possible to set an agreed ecologically-sound minimum.

Advocate Garlipp replied that it was ultimately an administrative decision. These matters, because they affected both Ministers, had to be decided by consultation. In terms of Section 3A, an appeal could be lodged with the Environmental Minister against any decision, and the rules of administrative justice would be observed and would afford protection.

The Chairperson asked if there could be certainty that a 2500 feet minimum level would protect the environment against harm. He was concerned that the amendments proposed were not strong enough.

Ms Chalmers asked why even that minimum level requirement had been removed. She reiterated that a person piloting a small plane over the Addo elephant park would not necessarily know how high to fly, and questioned what the situation would be if the Ministers concurred on a lower height of 1800 feet?

Mr Morgan remarked that he had no problem with imposing different heights for different parks. The Civil Aviation Authority had excellent IT capacities, and therefore pilots could remain informed. The question was what was good for the ecology of parks. The Committee was facing a problem of competencies. Legislators had to create good law, irrespective of special interests of other Ministers or groups. He agreed that these amended clauses did not afford sufficient protection to the environment.

Ms Ntuli reiterated that she too was not happy with the amendments. Both Ministers were supposed to concur on flight heights, but she pointed out that if the issue was left open to negotiation, and if there were insufficient knowledge of environmental interests, this could be problematic. There should not be loopholes that could allow for Ministers to be pressurised.

Advocate Garlipp responded that, in regard to the environmental protection, the Minister had to have due regard to the Environmental Management Act when making a decision. If the Minister had not considered the principles contained in that Act, then the decision would be subject to challenge.

The Chairperson referred to the subsection of Section 3A that required the concurrence of the management authority of a nature reserve or park. He found that unfortunate. Environmental management would have to cope with competing mandates. Civil Aviation had its own mandate. He stated that he had serious reservations about the whole matter. He suggested that it might be best to revert to the original formulation, and not accept the amendments proposed by the NCOP.

Mr Morgan added that these amendments had only come in during the previous week. Civil Aviation had made a submission to the NCOP, but not to the Portfolio Committee, and he would be interested to know what their thinking was, and why they were now included in certain of the clauses. He pointed out that the Civil Aviation Authority might have legitimate concerns. However, he wondered if this Bill should be held back. 

Advocate Garlipp replied that the Department was not in favour of holding the Bill back. It was only Clause 4 that was affected by the amendment, and although the Select Committee had been asked to withdraw this amendment, it had not been in favour of doing so.

The Chairperson pointed out that this was a Section 75 Bill, which meant that the Portfolio Committee had the final decision whether or not to accept the NCOP amendments.

Members resolved not to accept the amendments proposed by the NCOP.


National Environment Laws Amendment Bill, B66D of 2008: Amendments proposed by NCOP: Briefing by DEAT 
Advocate Garlipp noted that the National Environmental Laws Amendment Bill (the NEMA Bill) was a Section 76 Bill. If this Committee could not accept the NCOP amendments, there would have to be mediation.

Amendment of Protected Areas Act
Adv Garlipp noted that the Select Committee amendments were mostly concerned with the further alignment of penalties and fines. However, there was a substantive change being proposed to Clause 26 of the Protected Areas Act, relating to animals that had escaped from protected areas. The NCOP had proposed that this clause be deleted, because of objections emanating from Mpumalanga and KwaZulu Natal provincial legislatures. More consideration was needed on what had already proved to be a controversial issue. 

Amendment of Section 46 of the Atmospheric Pollution Act, 1965
Adv  Garlipp noted that, in order to align all penalties across other legislation, the Select Committee had proposed that the fine of R500 for a first conviction be increased to R5 million, and the six month imprisonment term be increased to five years. Subsequent conviction fines and penalties were raised to R10 million rand or ten years imprisonment.

This amendment was aimed at alignment with penalties for this kind of offence.

Amendment of Section 29 of the Environment Conservation Act, 1989
The fine for a second or subsequent conviction was raised to a fine not exceeding R10 million or imprisonment for a period not exceeding 10 years.

The fine for conviction for any other offence for which no penalty was expressly provided elsewhere, was amended to R500 000, or imprisonment not exceeding six months, or both.

The fine per day for persisting in an offence, was amended from R10 000 to R1 000 per day.

Amendment of Section 32 of the Environment Conservation Act, 1989
Adv Garlipp noted that KwaZulu Natal legislature had raised the issue that certain functions which were referred to as resting with the Minister of Water Affairs and Forestry  in fact related to functions later assigned to the DEAT. She had suggested that the NCOP Committee could either omit the amendment from the Bill or delete the references to the “Minister of Water Affairs” from the text of the principal Act. Eventually, the NCOP had decided, and the DEAT concurred, to omit the amendment, and to reconsider removing the references to the Minister of Water Affairs from the text of the principal Act, if this point were to come up in the future in relation to later amendments.

Amendment of Section 31N of the National Environmental Management Act, 1998
The section was intended to regulate the reporting of non-compliance, which could be reported to the Director General or Provincial Head of Department of Environmental Affairs. Mpumalanga Provincial Legislature had raised that there were unintended consequences of this amendment, namely that the Director General or Provincial Head of Department could now revoke authorisations issued by the Minister or MEC. The NCOP had suggested, and DEAT agreed, that this amendment be omitted.

Amendment of Section 52 of the National Environmental Management: Air Quality Act, 2004
Adv Garlipp noted that the NCOP had suggested that the fine for conviction of an offence referred to in Section 51 was changed from R10 million to R5 million, the imprisonment term was changed from ten to five years.

A subsequent conviction fine of R10 million, or 10 years imprisonment, or both, was inserted.

The reason for the amendment was to align this with the rest of the amendments made in the Bills in relation to offences. DEAT agreed with the amendment.

Discussion
The Chairperson said that he found the amendents straightforward. It was a question now of refining the text and tightening up the weaker areas.

Members agreed that the proposed amendments outlined by Adv Garlipp, as contained in the D version of the Bill, should be accepted.

Conclusion
The Chairperson thanked everyone who had worked with him on the Committee.

Mr Morganthanked Mr Zita, and commended his rigour and spirit of openness.

Ms Chalmers expressed appreciation for the way in which the Committee had interacted with the public.

Advocate Garlipp thanked Members for their willingness to sit late to accommodate the DEAT.

The meeting was adjourned.