UPDATE ON NEMA AMENDMENT BILL – BILL 36 OF 2007

1. UPDATE ON NEMA AMENDMENT BILL – BILL 36 OF 2007 Joanne Yawitch March 2008

2. Background

3. Overview of amendments • Detailed presentation delivered and discussed in November 2007 (Annexure A) as well as certified Amendment Bill (Annexure B) are attached for ease of reference • 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

4. 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

5. 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.

6. Overview of process thus far • 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.

7. 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 (see document detailing these amendments – Marked Annexure C) • 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)

8. 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)

9. Environmental management and mining

10. Current legal context - MPRDA • With the enactment of the Minerals and Petroleum Resources (MPRDA) and Development Act in 2002, parliament assigned the mandate for inter alia environmental management associated with mining to the Minister of Minerals and Energy. • Environmental impact management (and EIAs) for mining activities are accordingly, within the current legal framework regulated through the MPRDA whilst other activities are managed through the National Environmental Management Act • The MPRDA prescribe an Environmental Impact Assessment (EIA) process that must be followed before prospecting, mining and reconnaissance related authorisations are granted

11. Current legal context - NEMA • Listing of activities to be subjected to EIA can only be done “in consultation” with ministers that hold jurisdiction in terms of that activity • After a long negotiating process Minister of M&E agreed to the listing of mining in NEMA EIA – subject to conditions. (including, retaining mandates given by MPRDA and prevention of duplication of regulatory requirements) • These conditions cannot be met in current legislative framework (MPRDA include EIA provisions) – and accordingly mining related activities listed in the NEMA EIA Regulations could not come into effect yet

12. Current legal context – NEMA (2) • MPRDA (and its regulations) provisions related to EIA contain many similarities with the NEMA system, key differences are: • An Env Authorisation is not required / reports are approved and conditions included in mining right / permit / permission • Public participation is lacking in rigour • Appeal linked to mining right / permit / permission

13. EIA and mining – current administration • Current situation: EIAs for mining • Mining subject to EIA in terms of MPRDA and DME is the competent authority – IT IS NOT PART OF THE NEMA EIA REGIME and DEAT has no powers apart from mining proposed in areas protected by the National Environmental Management Protected Areas Act (NEMPA) • DEAT and provinces are commenting authority only and must formally object if an application is opposed • Minister of M&E can over rule or upheld DEAT / Province objection

14. Problem statement leading to proposed amendment • 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

15. Proposed solution (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

16. Proposed solution (2) Proposals to give effect to the “in principle” agreement: • In terms of “one system” • MPRDA to be amended by: • Repealing all provisions related to environmental management • Making granting of prospecting / mining / reconnaissance subject to environmental authorisations (one of the granting conditions)

17. Proposed solution (3) Proposals to give effect to the “in principle” agreement: • In terms of “one system” (cont) • NEMA to be further 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

18. Proposed solution (4) Proposals to give effect to the “in principle” agreement: • In terms of competent authority • NEMA to be further 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

19. Proposed solution (5) Proposals to give effect to the “in principle” agreement: • In terms of appeal authority • NEMA to be further 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

20. Proposed solution (6) Proposals to give effect to the “in principle” agreement: • In terms of transition • It has been proposed that the transition from the MPRDA environmental management system to the NEMA environmental management system takes place within 18 months of the enactment of either the MPRDA amendment or NEMA amendment, depending on which is enacted last

21. Further amendments to Bill 36 as result of agreement as well as earlier decisions / requirements of the PC

22. Impact of proposed agreement on NEMA B36 of 2007 • Effect of the agreement – • existing provisions in the MPRDA related to environmental impact assessments need to be repealed and included in NEMA – therefore the volume of amendments. It must however be emphasized that this is not “new law”, but rather movement of law from one Act (MPRDA) to another (NEMA) and contextualising the MPRDA provisions within the structure and approach followed in NEMA • Had to move some of provisions previously in EIA regulations to Act due to difference in approach between MPRDA and NEMA – this however strengthens NEMA (move to be more prescriptive in terms of requirements for environmental management rather than just enabling regulations)

23. Further amendments proposed – Long Title and Clause 1 • Amended the long title to reflect the content of amended NEMA • Provide definitions for – • “applicant” – a person who has submitted or intends to submit an EA application or simultaneous applying for EA and mining right • “chief inspector” – as defined in the MPRDA, this is required as the inspector will have functions to exercise in terms of NEMA • “community” – as defined in the MPRDA amendment Bill, this is required in relation to community consultation and negotiation

24. Further amendments proposed – Long Title and Clause 1 (2) • “environmental management programme” – the previous concept used by EIA regulations was “environmental management plan”. Standardised on the use of EMP – concept previously used in the MPRDA as well as eliminating confusion emanating from EMP used in chapter 3 of NEMA that refers to something entirely different

25. Further amendments proposed – Long Title and Clause 1 (3) • “exploration area” ; “holder of any right granted or permit issued” and “holder or previous owner of old order rights” are as defined in section 1 of the Mineral and Petroleum Resource Development Act, 2002 • “interested and affected party' (a) any person, group of persons or organisation interested in or affected by such operation or activity; and (b) any organ of state that may have jurisdiction over any aspect of the operation or activity

26. Further amendments proposed – Long Title and Clause 1 (4) • “mine”, “mining area”, “production area”,“prospecting area”, “production area”,“prospecting area” & “Regional Mining Development and Environmental Committee” is as defined in section 1 of the Mineral and Petroleum Resource Development Act, 2002

27. Further amendments proposed – Long Title and Clause 1 (5) • “Minister” in relation to all environmental matters, excluding environmental matters related to prospecting, mining, exploration, production and related activities means the Minister of Environmental Affairs and Tourism, unless otherwise indicated in the text; • “Minister of Minerals and Energy” means the Minister responsible for the implementation of environmental matters in terms of this Act, as it relates to prospecting, mining, exploration, production and related activities within a mining area, prospecting area, exploration and production area.

28. Further amendments proposed – Long Title and Clause 1 (6) • “Production area” and “prospecting area” is as defined in section 1 of the MPRDA • A definition is provided for “public participation” – NEMA did not previously define the term but it was defined in the MPRDA and is relevant to the EA process. • “’Regional Mining Development and Environmental Committee”; “residue deposit” ; “’residue stockpile” and “owner of works” are as defined in section 1 of the Mineral and Petroleum Resources Development Act, 2002;”.

29. Further amendments proposed – Long Title and Clause 2 (1) • Section 24(1) – new provisions 24(1A) prescribing requirements / obligations of applicant applying for EA – this is currently prescribe in Regulations but as this was in the MPRDA, it is proposed that it also be elevated to the Act (NEMA) – this strengthen the provisions. • Section 24(4)(a) – compulsory requirements for environmental authorisation processes – public participation included as per PC decision of November 2007 • Section 24(4)(b) – amended to place onus on authority to demonstrate applicability of requirements as per PC decision of November 2007

30. Further amendments proposed – Long Title and Clause 2 (2) • Section 24(4)(b) – addition of sub-section requiring assessment of impact on heritage resources. This clause was adopted from the MPRDA/ • Section 24(4)(b) – addition of subsections requiring: • Management of stockpiles and mine residues • Management of Mine closure • Financial provisions • Monitoring of compliance These provisions will be repealed from the MPRDA and have accordingly been adopted into NEMA.

31. Further amendments proposed –Clause 3 • Section 24C(2A) • The Minister of Minerals and Energy must be identified as the competent authority for prospecting, mining, exploration, production and related activities within a mining area, a prospecting area, an exploration area and a production area – regardless of where such area is located. This stem from the agreement that stipulates that the Minister of M&E must retain all existing implementation manadates.

32. Further amendments proposed –Clause 5 • References to environmental management plan replaced or supplemented with references to environmental management programme (EMPR) • Amendment of Section 24F to make non-compliance with an approved EMPR an offence

33. Further amendments proposed –Clause 6 & Clause 8 • In terms of rectification of unlawful activities (Section 24G): • Editorial amendments to correct mistakes • Provision for EMPR in stead of EMP • In terms of guidelines (Section 24J) and on recommendation of the PC (November 2007) a new sub-section have been added to allow for sector guidelines (activity guidelines and not only guidelines on procedures) • In terms of exemptions (Section 24M): • As per the decision of the PC in this regard, exemptions from provisions of 24(4)(a) (compulsory requirements) – prohibited • Minister of M&E exemption powers defined (limited to 24(4)(b)).

34. Further amendments proposed – Clause 8 (2) • Insertion of new section (24O) to provide for Environmental Management Programmes (adopted and adapted from the MPRDA) • Insertion of provisions from MPRDA describing relation between regional mining development and environmental committee and the granting of environmental authorisations • Insertion of provisions from the MPRDA prescribing obligations of holder of mining right or permit holder in terms of environmental management

35. Further amendments proposed – Clause 8 (2) • Insertion of new section (24O) to provide for Environmental Management Programmes (adopted and adapted from the MPRDA): • Detailed provisions for environmental management programmes • Term will be used for all applications, but not limited to mining applications • Content requirements for EMPRs contained in subsections 24O(2)&(3) • Approval of EMPR possible as per section 24O(6)

36. Further amendments proposed – Clause 8 (3) • Insertion of new section (24P) setting requirements for the competent authority in granting environmental authorisations (adopted and adapted from the MPRDA and EIA Regulations) • Insertion of provisions to allow amendment of EAs and EMPRs • Insertion of provisions stipulating obligations of holder of environmental authorisation (adopted and adapted from MPRDA and EIA Regulations) • Insertion of provisions from the MPRDA prescribing obligations of holder of mining right or permit holder in terms of environmental management (adopted and adapted from MPRDA)

37. Further amendments proposed – Clause 8 (4) • New provisions (Section 24Q): Financial provision for remediation of environmental damage (adopted and adapted from MPRDA) • An applicant must make the prescribed financial provision for the rehabilitation and management of any environmental impact • Minister of Minerals & Energy may use the financial provision to rehabilitate or manage the environmental impact in question • Annual assessment of financial provision • May be made applicable to other applications in future

38. Further amendments proposed – Clause 8 (5) • New provision (Section 24R): Monitoring and performance assessment (adopted and adapted from MPRDA) • Enable requirement to monitor and report on performance and for EMPR and EA to be amended to improve environmental performance.

39. Further amendments proposed – Clause 8 (6) • New provisions (Section 24S): Issuing of closure certificate (adopted and adapted from MPRDA) • The holder remains responsible for any environmental liability, pollution or ecological degradation and the management of such liability, pollution or degradation until the Minister of Minerals and Energy has issued a closure certificate to the holder concerned • May transfer responsibility on written application • Holder must apply for closure certification in certain circumstances • Chief Inspector and DWAF’s agreement necessary to issue closure certificate

40. Further amendments proposed – New Clause • Insert new section (Section 42B): Delegation by Minister of Mineral and Energy to allow for practical implementation of the Bill. Similar delegation powers than those of Minister E&AT but limited to mandate of Minister of M&E: • May delegate functions to DG or any other officer of DME • must be in writing • may be • subject to conditions • withdrawn • Does not prevent Minister from exercising power him-/herself

41. Further amendments proposed – Clause 9 • Addition of Section 43(1A) and (1B) to clarify appeal mandates of Minister of EA&T and M&E • Assigning Minister of environmental affairs and tourism as appeal authority for mining Environmental Authorisations • Minister of M&E to be appeal authority for process related issues

42. Further amendments proposed – Clause 10 • As per instruction from PC (November 2007) period not covered by rectification clause (Section 24G) have now been addressed.

43. Further amendments proposed – Clause 11 • Clause 11 have been amended to include transitional arrangements for transition from MPRDA to NEMA environmental management regime – especially sunset clause (18 months)

44. Thank you!