Transcript National Environmental Management Laws Amendment Bill

NATIONAL ENVIRONMENTAL
MANAGEMENT LAWS AMENDMENT BILL
Presentation to the
Portfolio Committee on Water and Environmental Affairs,
14 August 2012, Parliament, Cape Town
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
2
ACRONYMS
• NEM:WA - National Environmental
Management: Waste Act, 2008
• NEM:ICM - National Environmental
Management: Integrated Coastal Management
Act, 2008
3
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
4
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.
5
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.
6
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.
7
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.
8
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
9
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.
10
PROPOSED AMENDMENTS TO
NEMA
11
DEFINITIONS
• Amendments to the following definitions:
- “Department”
- “Director-General”
- “environmental assessment practitioner”
- “Minister”
- “Minister of Minerals and Energy”
- “specific environmental management Act”
12
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) .
13
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.
14
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.
15
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.
16
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.
17
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.
18
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.
19
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.
20
PROPOSED AMENDMENTS TO
NEMBA
21
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.
22
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.
23
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).
24
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.
25
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).
26
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.
27
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).
28
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.
29
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.
30
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.
31
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.
32
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.
33
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.
34
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.
35
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.
36
PROPOSED AMENDMENTS TO
NEM:AQA
37
Penalties
• Aligned
penalties
for
contravening
regulations under NEM:AQA in line with
other specific environmental management
Acts.
38
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).
39
THANK YOU
40