National Environment Laws Amendment Bill [B66-2008]

1. National Environment Laws Amendment Bill [B66-2008] Submission by BUSA August 2008

2. BUSA • Confederation of business associations • Need for Environmental law recognised • Need to continuously update laws appreciated

3. BUSA (2) • Concern that very short public comment period was allowed • Request for extension was refused • Almost immediately in parliament • Ongoing efforts to maintain constructive engagement with department

4. Amendments • Lack of opportunity to engage with department • Not clear why some of the amendments are required

5. Section 1 and 2 • Provisions for penalties not opposed • Alignment proposed • NEMA: R10 million == 10 years imprisonment • Bill: R5 million ==5 years imprisonment ?

6. Section 6 • NEAF disbanded • BUSA agrees did not work as anticipated • No reason to disband • Lack of internal coherence in implementation of environmental legislation • Proposal: • Withdraw section • Undertake investigation into reasons for non performance

7. Section 6 (2) • Address problems • Discretionary provision provides no guarantee to stakeholders on establishment • Experience in other legislation • Eg Occupational Health and Safety

8. Section 12 • Welcome the deletion from the Bill of the provision of future behaviour to be an offence • If to be reintroduced, consultation imperative • 12 (b) and 12(c)

9. Section 12 (b) • “anticipatory costs” must be defined • Absence of definition may lead to disputes • Claims for damages must be reasonable and based on evidence that costs will be reasonably incurred • “reasonable expenses to be incurred for purposes of reasonable measures under section 28(7)

10. Section 12 (b) (2) • Section 28(7) requires DG to act reasonably • Cannot recover costs before acting in terms of (7) • Claims from successors in title?

11. Section 12 (c) • Criminal offences: unlawful intentional acts or omissions • Must lead to significant pollution or degradation of the environment • Criminal provisions and offence must be aligned i.e failure in duty of care • Certain tests required for criminal sanction

12. Section 12 (c) (2) • Review approach to ensure constitutionality • Align criminal sanction with significant pollution • Non compliances can also be managed through directives • Alignment with section 28: • Insert significant and • Delete (b)

13. Section 13 • Failure to comply with section 30 of NEMA criminal offence • May not always be appropriate • Examples: road transport incidents • R100 000 ==10 years?

14. Section 30 (3) Reporting (4) Remedy effects of incident (5) Reporting (6) Directive from authority

15. Section 14 • Deletion supported • Promotion of Access to Information Act in force • Assume compliance intended

16. Section 15 • Not onerous for Environmental Management Inspector to carry the notice issued to him to outline scope of duties • Proposal in draft Bill to delete provision is opposed

17. Section 19 • BUSA does not support amendment that undermines consistent approach to access to information held by the state • Extra powers of inspectors sufficient for access to information • Challenge is that information requirements go beyond provisions in legislation

18. Section 20 (b) • Court orders for remedial measures not opposed in principle • Provision must be made for relevant information essential to making of a reasonable order to be provided • Section must be aligned with Criminal Procedure Act

19. Section 22 • Creation of new offences under existing statutes unfair and unreasonable in absence of the full context of the relevant statute

20. Conclusion • BUSA remains committed to promoting compliance with environmental legislation • Cost to business of provisions must be taken into account • Trusts concerns can be addressed before finalisation