NATIONAL ENVIRONMENTAL MANAGEMENT LAWS AMENDMENT BILL

1. NATIONAL ENVIRONMENTAL MANAGEMENT LAWS AMENDMENT BILL Presentation to the Portfolio Committee on Water and Environmental Affairs, 14 August 2012, Parliament, Cape Town

2. ACRONYMS DEA – Department of Environmental Affairs NEMA – National Environmental Management Act, 1998 NEM:BA -National Environmental Management: Biodiversity Act, 2004 NEM:PAA- National Environmental Management: Protected Areas Act, 2003 NEM:AQA - National Environmental Management: Air Quality Act, 2004

3. ACRONYMS • NEM:WA - National Environmental Management: Waste Act, 2008 • NEM:ICM - National Environmental Management: Integrated Coastal Management Act, 2008

4. Presentation Overview • Background • Reasons for Amendments • Process followed • Proposed Amendments to Nema • Definitions • Environmental Plans and Reports • Environmental Impact management • Enforcement • General • Proposed amendments to NEMBA • Bioprospecting • Species • Proposed amendments to NEM:AQA • General

5. Background • NEMA is the umbrella Act. • Other specific environmental management Acts promulgated to address specific environment mediums. • Amongst others include NEM:PAA, NEM:BA, NEM:AQA, NEM:ICM and NEM:WA. • Most amendments were identified during implementation of these legislation and are therefore intended to close regulatory gaps. • Some amendments raised through Department of Cooperative Governance’s Process.

6. Reason for amendments • To enhance the implementation and enforcement of the various Acts • To clarify the interpretation of text • To provide for further alignment of the Acts • To provide for flexibility and clarity pertaining to the mandate of the Minister • To make some consequential amendments and corrections to the text.

7. Reasons for the amendments • To close regulatory gaps identified during implementation of National Environmental Management Act, 1998, National Environmental Management: Biodiversity Act, 2004 and National Environmental Management: Air Quality Act, 2004. • To accommodate some of the proposed amendments from the Department of Cooperative Governance’s Process.

8. Process followed • Legal drafting commenced in July 2010. • DEA internal consultation process finalised in March 2011. • Consultation with provinces, through MINTECH WGs and MINMEC, undertaken in April – July 2011. • Presentation to Cabinet Cluster for the Social Protection Community and Human Development (SPCHD) on 22 June, Cabinet Committee 19 July and Cabinet Decision (public comment) on 26 July 2011. • Cabinet approved the Bill subject to two conditions to be addressed before publication for public comment. • Published for public comment on 26 August 2011.

9. Process followed • Comments were received from a total of 20 organisations, including businesses, individuals, national and provincial departments and municipalities. • Final draft presented to Cabinet with a Cabinet Decision (Tabling in Parliament) on 23 November 2011. • Revised Bill was submitted to OCSLA for certification in December 2011 and explanatory summary of the Bill published in December 2011. • Certification obtained from OCSLA in March 2012. • Table in Parliament

10. Process followed • In the main, the comments resulted in minor amendments to the Bill. • Most of the substantive comments received were not addressed in the Bill but deferred to the proposed major amendments to the NEM:BA and NEM:AQA.

11. PROPOSED AMENDMENTS TO NEMA

12. DEFINITIONS • Amendments to the following definitions: - “Department” - “Director-General” - “environmental assessment practitioner” - “Minister” - “Minister of Minerals and Energy” - “specific environmental management Act”

13. ENVIRONMENTAL PLANS AND REPORTS • Change of timeframes from 4 years to every 5 years for preparation of environmental implementation plans and environmental management plans. • Proposed new section on the preparation and publication of environment outlook reports every 4 years by National Department, Provinces and for Metropolitan and District Municipalities (optional) .

14. ENVIRONMENTAL IMPACT MANAGEMENT • To provide Minister with mandate to restrict or prohibit certain development in certain geographical areas for period of time on certain conditions. • To provide legal clarity on which environmental authorisation applications must be considered by the National Department. • To provide the Minister with legal power to develop norms or standards for activities, listed activities, sectors or geographical areas. Non-compliance with a norm or a standard is an offence.

15. Environmental impact management • To provide the Minister with legal power to take a decision on an application for an environmental authorisation in instances where the MEC responsible for environmental affairs fails to take a decision within the prescribed timeframes and the applicant approaches the Minister to take the decision.

16. Environmental impact management • To ensure that an environmental authorisation make provision for if there is a transfer of rights and obligations even when there is no change of ownership in the property. • To allow a competent authority to take into account any adopted environmental management instruments when considering an application for environmental authorisation.

17. Environmental Impact Management (24G) • De-link from criminal offence requirement. • Increase section 24G administrative fine from R1 million (maximum) to R5 million (maximum). • Clarify the applicability of 24G to waste management activities and activities undertaken in an emergency response situation. • To provide for an exemption from section 24G administrative fine for a person undertaking listed activity in emergency response situations.

18. ENFORCEMENT • To de-link the duty of care provision from the power to issue a directive. • To separate the offences provision from section 28 and to increase the penalties. • To create an offence for non-compliance with section 30 directive.

19. ENFORCEMENT • To provide environmental management inspectors with additional powers to seize a vehicle, aircraft, and any other transport mechanisms used in the commissioning of offence.

20. General • To provide Minister with legal mandate to control products having detrimental effect on environment. • To provide legal clarity on the submission of Environmental Impact Assessment Regulations to Parliament before final gazetting. • To provide for other delivery mechanisms of documents. • To provide clarity that the provisions of NEMA are binding on the State, without exception.

21. PROPOSED AMENDMENTS TO NEMBA

22. Bioprospecting • Amendments to “bioprospecting”, “commercial exploitation” and “commercialisation” definitions to ensure proper regulation of biotraders. • Amendments to “derivative” and “genetic resource” definitions to include genetic information in line with Nagoya Protocol.

23. Bioprospecting • To provide the Department with the legal mandate to ensure proper regulation of bioprospecting involving indigenous genetic and/or biological resources as well as to ensure the application of Chapter 6 to genetic resources. • To also support socio-economic development where indigenous plants, animals and associated traditional knowledge is accessed and utilised for bioprospecting.

24. Bioprospecting • Changing the current provisions to allow the Department to keep all moneys arising from bioprospecting agreements in a separate Bioprospecting Fund for the benefit of communities. • To also allow communities with bank accounts to receive the moneys directly from the permit holder (bioprospector). • To also provide Minister with a legal mandate to exempt certain categories of commercial or industrial exploitation of indigenous biological resources from the provisions of sections 82 and 84 (Benefit-sharing and Material transfer agreements).

25. Species • To provide clarity that the intention of Chapter 4 is also to ensure that the threatened or protected species are sustainable utilised. • To provide the Minister with a legal mandate to regulate species that are not of high conservation value in order to ensure that their utilisation in the ecosystem is sustainable. • To provide clarity that permits are required for species to which an international agreement regulating international trade applies.

26. Species • To ensure that specimens in transit through the Republic are always accompanied by the necessary documentation. • To allow the Minister to exempt any person from the permit requirements subject to certain conditions. • To also provide the Minister with a flexible legal mandate to further categorize, in respect of the threatened or protected species, when publishing notices in terms of sections 57(2) or 57(4).

27. Species • To provide the Minister with a legal mandate to prescribe a system for the registration of the professional hunters, outfitters and trainers in the hunting industry. • To provide the scientific authority with a legal mandate to assist the Department on the scientific work regarding the regulation of species to which an international trade agreement is applicable.

28. Species • To clarify that the legal mandate of the scientific authority is to make recommendations to the Minister on non-detrimental findings. • To provide the Minister with a legal mandate to publish the non-detrimental findings in the Gazette on recommendations from the scientific authority. • To require the Minister to follow a public participation process when amending or repealing an exemption notice in terms of section 57(4).

29. Species • To ensure that permits are required for species to which an international trade agreement is applicable. • To provide the issuing authority with a legal mandate to defer a decision to issue a permit if the applicant is under investigation for contravening the NEM:BA in relation to a similar restricted activity. • To provide the issuing authority with a legal mandate to cancel a permit issued in terms of the NEM:BA if the permit holder is found guilty of committing an offence.

30. species • To provide the issuing authority with a legal mandate to suspend a permit issued in terms of the NEM:BA if the suspension will assist in the sustainable use of the species or if the permit holder is under investigation for contravening any provisions of the NEM:BA or conditions of the permit. • To repeal the appeals provision under the NEM:BA and appeals under the NEM:BA will in future be processed in terms of section 43 of NEMA.

31. Species • To provide the Minister with a legal mandate to develop regulations on self-administration within the wildlife industry; to control and eradicate invasive species; and on system for the registration of institutions, ranching operations, nurseries, captive breeding operations and other facilities. • To provide the Minister with a legal mandate to differentiate between the penalties for the contravention of the different provisions in the regulations made in terms of section 97 of NEMBA.

32. Species • To allow the Minister to exempt any person from a permit or risk assessment requirements with respect to alien species (section 65(1) and (2)). • To provide the Minister with a legal mandate to categorise according to persons, areas or species when publishing the exemption notice in the Gazette. • To provide the Minister or MEC for environmental affairs in a province with a legal mandate to categorise according to areas, persons or species when publishing the national or provincial list of invasive species.

33. Species • To provide the Minister with a legal mandate to exempt a person subject to certain conditions from a permit or risk assessment requirements with respect to invasive species (section 71(1) or (2)). • To allow the Minister to categorise according to areas, persons or species when publishing the exemption notice in the Gazette. • To provide the Minister with a legal mandate to prohibit the carrying out of certain restricted activities involving certain listed invasive species.

34. Species • To allow the Minister to categorise according to areas, persons or species when publishing a notice in the Gazette. • To require notices to exempt or prohibit invasive species to be published for public comments before final publication in the Gazette.

35. Species • To insert a new section providing the Minister with a legal mandate to declare an emergency intervention for the control or eradication of alien species or listed invasive species, if the Minister is satisfied that species constitutes a significant threat to the environment. • To insert a new section providing the Minister with a legal mandate to declare amnesty from prosecution for the purposes of facilitating compliance with the provisions of NEMBA.

36. OFFENCES • To create offences for any person to engage in bioprospecting discovery phase without proper notification to the Minister, for any person to carry out a restricted activity, which has been prohibited, involving a listed invasive species as well as for any person who is involved in an illegal restricted activity but who does not physically carry out the restricted activity. • To ensure that heavy penalties are imposed against large national and multi-national industries found guilty of bioprospecting related offences as well as to ensure the imposition of a fine equivalent to the recovery costs associated with the control and eradication of invasive species.

37. PROPOSED AMENDMENTS TO NEM:AQA

38. Penalties • Aligned penalties for contravening regulations under NEM:AQA in line with other specific environmental management Acts.

39. GENERAL AMENDMENTS • The amendment will rectify the incorrect citation of the National Environmental Management Laws Amendment Act, 2009 (Act No. 14 of 2009). • The amendment will rectify the incorrect citation of the National Environment Management Laws Amendment Act, 2009 (Act No. 15 of 2009).

40. THANK YOU