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BRIEFING OF THE SELECT COMMITTEE - NEMA AMENDMENT BILL – BILL 36B OF 2007

Detailed review of NEMA Amendment Bill focusing on efficiency improvements, regulatory alignment, spatial management tools, and public participation. Legislative process overview and agreement on environmental management in mining.

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BRIEFING OF THE SELECT COMMITTEE - NEMA AMENDMENT BILL – BILL 36B OF 2007

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  1. BRIEFING OF THE SELECT COMMITTEE - NEMA AMENDMENT BILL – BILL 36B OF 2007 Joanne Yawitch July 2008

  2. Background

  3. Acronyms and abbreviations used in presentation • DEAT – Department of Environmental Affairs and Tourism • DME – Department of Minerals and Energy • EA – Environmental Authorisation • EAP – Environmental Assessment Practitioner • EIA – Environmental Impact Assessment • EMF – Environmental Management Framework • MPRDA – Minerals and Petroleum Resources Development Act • NEMA – National Environmental Management Act • SEMA – Specific Environmental Management Act • PAJA – Promotion of Administrative Justice Act • RMDEC – Regional Mine Development and Environmental Committee

  4. Overview of amendments • Following documents provided / attached • Bill 36 as Certified and published in August 2007 • Bill 36A – containing amendments affected to Bill 36 by the Portfolio Committee • Bill 36B – Amendment Bill as approved by the National Assembly and referred to the NCOP for concurrence

  5. Overview of amendments • Amendments can be summarised as follows: • In order to improve efficiency and effectiveness of environmental impact management system, main areas targeted in amendment are: • Increased clarity through amendments of and additions to definitions of terminology (section 1 of NEMA) • Provision for tools other than EIA

  6. Overview of amendments (2) • Summary (cont): • Improved provisions for cooperative governance • New provisions for integration and alignment of regulatory (authorisation) processes • Strengthening provisions to use spatial tools in environmental impact management • New provisions for management, including exclusions, based on norms or standards. And provisions on the development of new or adoption of existing norms or standards

  7. Overview of amendments (3) • Exemption provisions and “checks and balances” in this regard • Alignment with PAJA • As NEMA is enabling for the EIA Regulations, these amendments are necessary before similar provisions in regulations can come into force.

  8. Overview of process thus far • Prior to introducing Bill in Parliament, Department conducted extensive public consultation, including: • Publication for comments • 6 Open days • 3 Reference Group meetings • The amendment Bill was introduced in Parliament in July 2007 • The Bill was certified in August 2007 by the Chief State Law Advisor • The Portfolio Committee (PC) conducted public hearings in September 2007 • After the public hearings, the department briefed the PC on the amendments, including a “clause by clause” briefing early November 2007.

  9. Overview of process thus far (2) • During the latter briefing in principle support was obtained for the bulk of the proposed amendments, subject to some minor amendments, including: • Editorial corrections • Moving public participation from discretionary to compulsory requirements [24(4)(b)(iii) to be moved to 24(4)(a) as 24(4)(a)(iv)

  10. Overview of process thus far (3) • Amending wording of 24(4)(b) – (discretionary requirements) to be more prescriptive (applicability must be considered before requirement is dismissed) • Including provision to address period not covered by rectification clause (Section 24G) • The area where agreement could not be reached related to environmental management of mining and the department and State Law Advisors were tasked to do some more work in this regard.

  11. Environmental management and mining

  12. Problem statement leading to the agreement • Ministers agreed that it is not desirable that there are different environmental managements systems for different activities. It has accordingly been agreed that there should be one system and that this system should be prescribed by the environmental authority. • The Minister of M&E has an existing mandate in terms of environmental management for mining and this must be retained • The Minister of EA&T is the custodian of the environment, and must be enabled to fulfil this function, also in terms of mining

  13. Agreement (1) • In principles agreement by ministers: • One system – prescribed by NEMA • Minister of M&E retain mandate as designated competent authority to implement system related to mining • Minister of EA&T instated as appeal authority in mining environmental management process – enable him to exercise function as custodian • Transition of a Minerals and Petroleum Resources Development Act (MPRDA) managed system to NEMA managed system within 18 Months of enactment of amendment Bill (Bill 36 of 2007) or MPRDA amendment Bill (Bill 10 of 2006)

  14. Agreement (2) • During March & April 2008 the agreement was negotiated in various political fora before submitted to a joint meeting of the EA&T and M&E portfolio committees. • The agreement was adopted on political level with the following addition to the agreement: • After 18 months of implementation, the environmental management function related to mining will in its entirety be transferred to the environmental authority

  15. Agreement (3) In order to give effect to the agreement, the following must happen: • In terms of “one system” • MPRDA amended by: • Repealing all provisions related to environmental management • Making granting of prospecting / mining / reconnaissance subject to environmental authorisations (one of the granting conditions)

  16. Agreement (4) • In terms of “one system” (cont) • NEMA amended by: • Inclusion of environmental management provisions of the MPRDA currently not adequately covered by NEMA (e.g. financial provisions for rehabilitation; closure; etc.) • Allowing for combination of applications • Accommodating stricter time frames for mining related processes • Result – environmental management regulated by NEMA only

  17. Agreement (5) • In terms of competent authority • NEMA amended by: • Assigning competence to the Minister of minerals and energy for the implementation of environmental management system (in other words, Minister of M&E cannot regulate environmental management, develop policy or guidelines or norms & standards in this regard, but must implement these) • Result – environmental management regulated by NEMA only but, for mining, implemented by DME

  18. Agreement (6) • In terms of appeal authority • NEMA amended by: • Assigning the Minister of environmental affairs and tourism as the appeal authority for all environmental authorisations issued for mining related activities by the Minister of minerals and energy

  19. Agreement (7) • In terms of transition • NEMA and MPRDA amended with inclusion of transitional arrangements to include the 18 month period • Clause included in NEMA to revoke Minister of M&E’s environmental management powers and instate Minister of EA&T for this purpose

  20. Agreement (8) • Time line for implementation of full agreement:

  21. Conclusion of NA process • On conclusion of proposed amendments to give effect to agreement, briefing and presentation to the Portfolio Committee resulting in Bill 36A and Bill 36B (May 2008). Through Bill 36A, following amendments were made to Bill 36 (summarised): • Edits • Tightening up discretion of Minister (may, replace with must where applicable) • Instate public consultation as a mandatory requirement in EA process • Increased oversight of parliament by requirement that regulations on EA tools must be referred to Parliament • Amendments as required by the agreement on environmental management of mining • Bill 36B adopted by the National Assembly and referred to the NCOP (June 2008)

  22. Detailed briefing – Bill 36B

  23. Explanatory notes • NEMA Bill 36B contain all the amendments to be considered, that is, the original amendment Bill and all amendments and additions to it introduced by the Portfolio Committee and adopted by the National Assembly • In the text: • [xxx] – (bold in square brackets) - indicate deletion from the principal Act • Xxx or a vertical line next to a paragraph – indicate insertion to the Principal Act • Substitutions are also underlined

  24. Clause 1: Section 1 of the Principal Act – definitions and general provisions • Reason for amendments: • Clarifying terminology used • Widening the scope of the act for tools other than EIA • Aligning definitions with other statutes (MPRDA, Waste Bill, etc) • Providing for integration and alignment of permitting processes and improved coordination and cooperation in this regard. • Adding definitions related to environmental management of mining • Giving effect to agreement on mining • Aligning administrative justice requirements with the Promotion of Administration Justice Act (PAJA) of 2000

  25. Clause 1: Section 1 of the Principal Act – definitions and general provisions • Definitions:

  26. Clause 1: Section 1 of the Principal Act – definitions and general provisions • Definitions (2):

  27. Clause 1: Section 1 of the Principal Act – definitions and general provisions • Definitions (3):

  28. Clause 1: Section 1 of the Principal Act – definitions and general provisions • Definitions (4):

  29. Clause 1: Section 1 of the Principal Act – definitions and general provisions • Definitions (5):

  30. Clause 1: Section 1 of the Principal Act – definitions and general provisions • Definitions (6):

  31. Clause 1: Section 1 of the Principal Act – definitions and general provisions • Definitions (7):

  32. Clause 1: Section 1 of the Principal Act – definitions and general provisions • General provision of Section 1

  33. Clause 2: Section 24(1) to 24(10) of the Principal Act – Environmental Authorisations • Section 24(1) • This section introduce the requirement of an environmental authorisation to give effect to the objectives of integrated environmental management

  34. Section 24(2) • Section 24.2 of the Principal Act enable the Minister to identify activities and geographical areas where investigation and authorisation requirements will apply. • Amendments to Section 24.2 are necessary for the following reasons: • Allow for exclusions from the need to undergo investigation and obtain authorisation based on: • Wide range of spatial tools • Norms or standards • Allow for the management of activities through norms or standards

  35. Section 24(2)

  36. Section 24(4) • Section 24.4 of the Principal Act prescribe the minimum requirements for investigation of environmental impacts and consequences associated with listed activities. • Amendments to Section 24.4 are necessary for the following reasons: • The current requirements restrict the use of tools other than EIA • By making all the requirements compulsory for all tools and under all circumstances, process is very rigid and flexibility and variation to meet circumstances not possible • It is not possible to exempt an applicant from any aspect of a compulsory minimum requirement • Amendment accordingly split minimum requirements to “musts” and “must where applicable” • Discretion of minister /MEC is qualified – must demonstrate applicability • Giving effect to the agreement – had to include requirements stemming from the MPRDA

  37. Section 24(4)

  38. Section 24(4) (Cont)

  39. Section 24(5) • This section enable the making of regulations related to environmental authorisations • Amendments to this section is required to: • ensure alignment with the MPRDA and to implement the agreement • Enable use of tools other than EIA

  40. Section 24(5) (Cont)

  41. Section 24(5) (Cont)

  42. Section 24(7) • This section specify the relation between an authorisation obtained in terms of NEMA and authorisations obtained in terms of other acts • Amendments to this section is required to: • improve grammar to clarify requirements

  43. Section 24(8) • This section specify the relation between an obtained in terms of another Act and how it relates to the requirement to obtain an authorisation in terms of NEMA • Amendments to this section is required to: • clarify requirements • Provide for minimisation of duplication by references to new Section 24L

  44. Section 24(9) • This section specify the division of mandates between the Minister and MEC’s with regard to the making of regulations • Amendments to this section is required to: • clarify mandates in terms of cross boundary activities

  45. Section 24(10) • This is a new section enabling the development, adoption and use of norms and standards in environmental impact management

  46. Section 24(10) (cont)

  47. Clause 3: Section 24C of the Principal Act – Competent Authority • Section 24C • This section provide the requirements to establish whether the Minister or a MEC would be the competent authority • Amendments to this section is required to provide clarity and certainty

  48. Section 24C (cont)

  49. Clause 4: Section 24D of the Principal Act – Publication of lists • Section 24D • This section prescribe the manner in which lists of activities and geographical areas must be published • Amendments to this section is required to address omissions / effect editorial corrections

  50. Clause 5: Section 24F of the Principal Act – Offences • Section 24F • This section describe offences in terms of environmental authorisations • Amendments to this section is required to: • Align it with norms & standards provisions • Differentiate between “commencement” and “continuation” of activities • Enable rectification clause

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