NEMA: AMENDMENT BILL

1. NEMA: AMENDMENT BILL AMENDMENT TO THE NATIONAL ENVIRONMENTAL MANAGEMENT ACT, NO. 107 OF 1998 PRESENTED BY: DEPARTMENT OF ENVIRONMENTAL AFFAIRS & TOURISM (2003)

2. Purpose of bill The Bill aims to: • Provide a coherent legal framework for the administration, enforcement & monitoring of environmental legislation • Rationalize, standardize & streamline the administration & enforcement provisions in NEMA & sectoral legislation • Strengthen sectoral legislation and fill the gaps in NEMA

3. Synopsis of Amendments • These amendments provide for the: • administration & enforcement of NEMA & other specific / sectoral environmental management legislation • designation of Environmental Management Inspectors (EMIs) • Powers & functions of EMIs • Criminal sanctions & remedies • Administrative remedies & procedures

4. ADVANTAGES • Legal certainty for the administration & enforcement of environmental laws • Prosecution & punishment of environmental crimes • Protection of environmental rights in accordance with the Constitution • Reduced environmental crimes and environmental degradation

5. Chp 7: Part 1 • Definitions: addition of “specific environmental management Acts” • Addition of Part 2: enforcement of this Act & specific environmental management Acts

6. Chp 7: Part 2 • Provides for the designation of EMIs by the Minister or MEC • This is aimed at establishing the necessary & easily available capacity to enforce environmental legislation • EMIs may be designated to enforce NEMA or specific environmental management Acts in part or in whole • EMIs must first comply with certain prescribed criteria & prescribed training • These will be set in Regulations by the Minister

7. Chap 7: Part 2 • Members of SAPS will have most of the powers assigned to EMIs • Powers assigned to EMIs serve dual purpose, viz: • Ensuring that offences committed ito specified environmental legislation are investigated & prosecuted • Ensuring that there is compliance with specified environmental legislation & with terms & conditions of permits & other authorizations ito that legislation • EMIs are given police powers as set out in the Criminal Procedure Act in so far as those powers are required to investigate & prosecute an offence

8. Chp 7: Part 2 • EMIs will play a complimentary role to SAPS which still has a crucial role to play in all circumstances amounting to an offence • Shared powers between EMIs & SAPS include powers to: • search, • seizure, • question, and • arrest as set out in the Criminal Procedure Act

9. Chp 7: Part 2 • Powers assigned to EMIs only and not shared with SAPS include powers to: • conduct routine inspections • issue compliance notices • Issue environmental authorizations, permits etc • Issue abatement and remedial notices e.g. rehabilitation notices • Prevent significant pollution or degradation of the environment

10. Chp 7: Part 3: Judicial Matters • Combination of existing judicial provision in NEMA & new judicial provisions that are consequent to the promulgation of specific environmental management Act • Provides for offences relating to: • Environmental management inspectors • Forfeiture, handling & disposal of items seized in judicial proceedings • The cancellation of permits & other authorizations • Issuing of notices & admission of guilt fines

11. Amendments to Chap 9 • New heading “Administration of this Act & specific environmental management Acts” • Primary purpose of amendment is the expansion of the existing delegation clause to explicitly provide for provincial delegation of any power, function or duty • Additions deal with matters of: consultation, Extension of time periods Validity of documents & procedures Delivery of documents

12. Chapter 9 • Limitation of liability provision is also extended to include the exercise of any power or performance of any duty under the provisions of specific environmental management Acts

13. Relationship between the powers of EMIs & powers of the SAPS Relationship between this Bill and the Criminal Procedure Act EMIs complement SAPS – some powers are shared & some not Bill aligned with the Criminal Procedure Act Shared powers will be largely regulated by the Criminal Procedure Act KEY ISSUES RAISED & HOW ADRESSED

14. S31 on environmental information to be dealt with ito the Promotion of Access to Information Act Following comments that this will unduly limit access to environmental info – S31 was not amended to allow for further investigation into the issue KEY ISSUES

15. Provisions on national and provincial supervision Provision to regulate delegation of functions to municipalities These were removed since these are adequately regulated by s100 and s139 of the Constitution Not incorporated – adequately regulated by the Municipal Systems Act KEY ISSUES

16. Prescribed qualification and training criteria of EMIs be set out in the Bill Constitutionality of the powers given to EMIs was questioned Not incorporated – this will be dealt with in Regulations Number of provisions deleted & cross referencing to the CPA was adopted KEY ISSUES

17. Provision too reactive & did not allow for proactive monitoring & enforcement Consultation with Minister of safety & security on prescribed qualification & training criteria of EMIs Provision on routine inspections have been inserted Incorporated KEY ISSUES

18. END THANK YOU