National Environmental Management Amendment Bill & Biodiversity Bill: Negotiating Mandates
NCOP Land Reform, Environment, Mineral Resources and Energy
20 August 2003
Meeting Summary
A summary of this committee meeting is not yet available.
Meeting report
LAND AND ENVIRONMENTAL AFFAIRS SELECT COMMITTEE
20 August 2003
NATIONAL ENVIRONMENTAL MANAGEMENT AMENDMENT BILL AND BIODIVERSITY BILL: NEGOTIATING MANDATES
Chairperson:
Documents handed out:
Guateng Legislature (Appendix 1)
Free State Legislature (Appendix 2)
Limpopo Legislature (no proposals or amendments presented)
National Environmental Management Bill Amendment Bill [B29-2003]
National Environmental Management: Biodiversity Bill [B30-2003]
The following negotiated mandates are included in the text:
Eastern Cape Provincial Legislature
North West Provincial Legislature
Western Cape Provincial Legislature
Northern Cape Provincial Legislature
Mpumalanga Provincial Legislature
Kwazulu-Natal Legislature
SUMMARY
The Committee discussed the National Environmental Management Amendment Bill and National Environmental Management: Biodiversity Bills. Some amendments were presented by Eastern Cape, Guateng, Free State, Mpumalanga and Northern Cape. The other provinces supported both Bills fully.
MINUTES
NATIONAL ENVIRONMENTAL MANAGEMENT AMENDMENT BILL [B29-2003]
Eastern Cape submission
Mr Andre de Wet (Chairperson of Economic Affairs: Eastern Cape Legislature) briefed the Committee on the Bill.
Mr Conroy (NNP) expressed his understanding that the environmental management was a concurrent process between the provinces and the national government and as such should conform with the principle of co-operative governance as enshrined in the constitution.
He stated that NEMA as a whole is riddled as it purports to legislate in detail. The problem is that the detail includes functional areas, which were concurrent between national Department and the provinces. NEMA should be amended so that it provided for norms and standards including institutions charged with the enforcement thereof, and left the detail relating to management to the provinces. Furthermore, Section 47B should be amended such that the requirement of consultation is in conformity with the principles of co-operative governance enshrined in the Constitution.
Discussion
The Chairperson asked how did the National Department handle their staff within the legislation (Section 31D)?
Ms Pam Yako (Department of Environmental Affairs and Tourism) said that there had been a consultative process between provinces and the Department in this regard. Consensus was reached in the majority of areas. But there were other areas which were coming to the attention of the Department for the fist time. This particular provision around consultation and on the applicability of the act (Section 31D) came to the Department for the first time from the province. There was room for the province to give a new view. However, sometimes new ideas came to the light of provinces before these matters had been discussed. In principle issues should be resolved before coming to the parliamentary meetings.
Ms Belinda Francis Scott (Kwazulu-Natal) said that their provincial authorities had workshops on the legislation by the National Department. If it took place in Kwazulu-Natal she could not understand why it did not take place in other provinces.
Mr de Wet said that the input received came directly from MEC. He stated that he was at the MEC meetings and that was not the first time that that particular issue had been raised. The impression that he received from his MEC was that this debate had not been concluded in the amendment meetings. They took note of what the MEC said and they agreed that to communicate with the provinces and to say that if there was no response within a reasonable time it should be assumed that the minister would continue to take power over situations. It was suggested that there should be a better form of negotiation. This was a concurrent process and as such, the method of communication within the minister and the MEC should be more than just saying if there was no response they would continue.
Mr Windvoel (Mpumalanga) said that his province was supporting the Bill without knowledge that there might be a new amendment. It would depend on the Department's response whether they agreed or not.
Ms Yako said that the main issue concerned administration and enforcement. It was important to understand that the areas in which the MEC or the minister would be acting on in order to be stipulated on in terms of that particular environmental act.
In the submission by the Eastern Cape there was a query on Section 31D. The question was in what circumstances would an MEC or minister designate an environmental management officer. She gave an example of national parks, which was an exclusive national competence. The minister should be empowered without consulting provinces to appoint environmental management inspectors.
She differed with the East Cape position in terms of concurrent function. The issue was cooperative governance as opposed to not being able to follow the minister to appoint environmental management inspectors. There was a distinction between what a minister and the MEC does. So the matter of appointing people was either with the MEC or the minister depending on the situation. She asked for a clarification of the Eastern Cape's position on the issue of obligation of both MEC and the minister.
Mr de Wet agreed that what was applicable to the minister must also be applicable to the MEC. They wanted to see an improvement in the method of cooperation between the two offices. It must work both ways. The powers of a minister and the MEC should be defined more clearly.
Ms B Scott (Kwazulu-Natual) commented on Section 47B, that there was in fact a reasonable time allowed for receiving a response from a person or organ of state.
The Chairperson asked what provinces supported the submission by the Eastern Cape?
There was none.
Gauteng submission on National Environmental Management Bill by Mr Dr E Conroy
Negotiating mandate available shortly.
Guateng supported the principle of the Bill but proposed to review of the aspects listed on item 5 regarding the National Environmental Management Amendment Bill [B29-2003].
The Free State supported the Bill without amendments.
Kwazulu-Natal supported the Bill in full.
Mpumalanga supported the Bill.
Northern Cape supported the Bill.
North West supported the Bill.
Western Cape supported the Bill.
The Chairperson summarized by saying that in essence all provinces accepted the Bill B29-2003, except for the Eastern Cape with few reservations.
NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY BILL [B30-2003]
Eastern Cape submission on Biodiversity Bill
Mr de Wet briefed the Committee on the submission on the Biodiversity Bill.
The power to determine bioregions should be left to the provinces in respect of normal environmental issues, subject to consultation with the relevant municipalities as contemplated in Section 41 of the Constitution. Such determination by the province should be subject to norms and standards prescribed by the Minister.
Mr de Wet said that they supported both bill but have reservations in specific areas.
Discussion
Ms Yako referred to the amendment to Section 40(2) that the determination of bioregions should be left to provinces. She said that according to S41 the Minister OR an MEC had the right to determine geographic region. There are ecosystems that go beyond the boundaries of the province. It could not be left to an MEC to determine where those boundaries would be beyond the provincial boundary. It then became a national issue and the Minister would make the decision. In essence it was an issue of cooperation.
Free State
Please refer to Appendix 2 for Free State Negotiating Mandate.
Ms Scott said that the amendment to include the word "councillor" needed to be taken into consideration (clause 14). She however disagreed with the amendment to clause 26 and 86.
Ms Yako said that in principle there were no objections to the proposed amendment in clause 14(1). On the issue of councillors she said that the amendment allowed a wider range of people to apply for membership. The Department left the decision on that matter up to the Committee.
Mr Glazewski (Department Advisor) commented that the Forest Act repealed the old 1984 Act, but left the provisions regarding the current NBI unrepealed. So, it was not the whole Act that was being repealed but just the remittance.
The amendment of the Free State was supported by all.
Gauteng
Please refer to Appendix 1 for Negotiating Mandate on National Environmental Management Amendment Bill [B30-2003]: Section 76
Ms Yako (on the issue of composition of SANBI Board) said the current National Parks Act allows for a Committee of eighteen members, nine of which were nominated by the premiers. It was difficult to get the provinces to nominate. She raised the issue of the size of the Board. Current number of NBI members (fifteen) was to be reduced to between nine and twelve members because of the costs involved. The goal was to have smaller and more functional Boards as mechanisms of cooperative governance between the provincial and national level. The cooperation between the national Minister and a provincial MEC would still be there.
The functions of the Scientific Authority (SA) would mostly deal with sightings in the country. It was too early to say what the proposed composition of it would be.
The issuing authority in terms of the Bill did not only deal with permits relating to sightings. The Gauteng submission was correct that the management authority would become one of the subsections of the issuing authority. But the issuing authority also related to authority that would issue permits relating to alien and invasive species.
The proposition of the Gauteng province was accepted.
Kwazulu-Natal supported the Bill.
Mpumalanga supported the Bill but asked to consider the following recommendation:
The province suggested that the clause 69 of the Bill should confer to the MEC the same power conferred on as the Minister in the same way as clause 51 accords the Minister and MEC power to publish the list of endangered ecosystems.
Ms Scott disagreed with the recommendation.
Northern Cape supported the Bill but asked to consider the following recommendation:
The amendment suggested to insert after clause 80(2)(b) the following sub-clause "(c) shall be reviewed every 5 years".
The amendment was agreed to.
North West supported the Bill
Western Cape supported the Bill
The Biodiversity Bill B30-2003 was supported.
The meeting was adjourned.
Appendix 1
Gauteng Legislature
Negotiating Mandate on National Environmental Management Amendment Bill: Biodiversity [B30-2003] Section 76
5. ISSUES RAISED DURING PUBLIC HEARINGS
· Composition of Scientific Authority (Clause 59 (1))
The Scientific Authority has a key role to play in the management of the wildlife trade. It is an institution that is required for compliance with CITES. The Bill is silent on the composition of the Scientific Authority. It is the Province's view that each Provincial Nature Conservation Authority should be recognised as a Scientific Authority. It is furthermore the Province's view that the Bill should define the composition of the National Scientific Authority and that each province that is identified as an issuing authority (Management Authority) to issue the permits specified in the Bill, should be represented on the Scientific Authority.
This would facilitate coherence in the implementation of the legislation and administrative efficiency', as well as ensuring that the scientific capacity based in the Provinces and that is used to assist in decision making around permits, is integrated into the envisaged national system being established.
It is further the Province's view that the definition of "issuing authority" should be amended to reflect that the issuing authority" is recognised as a "Management Authority" as set out and in order to be consistent with the requirements of CITES where the permit authority is defined as a "Management Authority" and not an issuing authority".
· Composition of SANBI Board
The role and mandate of SANBI is much wider than the current NBI. Many of the functions assigned to it in the Bill will impact on provinces and it would facilitate national integration and co-ordination to have provincial representative on the Board, particularly in view of the fact that Nature Conservation is a concurrent function.
· Omissions of key elements Of wildlife management from the Bill
Clause 55 of the Bill provides for the listing of species that are threatened or in need of national protection and Clause 56 requires that permits be issued prior to carrying out a "restricted activity" in relation to a threatened or protected species. These clauses establish the basis of the permitting system set out in Chapter 7. However, there are a host of activities related to the wildlife trade, including regulation of professional hunting, registering exemption farms, and regulation of non-threatened indigenous species that may not be covered by the Bill as it is presently The effect this has will be that the issues dealt with in provincial ordinances will not be addressed in the national legislation and that provincial legislation will therefore remain necessary. The implication of this is that the present fragmented regulatory framework in regard to wildlife may remain and a key reason for the introduction of national legislation may not be achieved.
· Appeals against Permitting Decisions
Part 2 of Chapter 7 establishes an appeal process around permitting decisions. Clause 91 provides that all appeals must be directed to the Minister who then decides how it is to be managed. The Gauteng Province, feels strongly that the first line of appeal should be to the political head of the
authority that issued the permit. This will streamline the process and ensure that only appeals that cannot be resolved at that level. are taken to the Minister.
· Functions allocated to municipalities in term Of the Bill
The Bill provides that municipalities may be identified as competent authorities for the purposes of Chapter 5 of the Bill and may also be identified an issuing authorities for the purposes of Chapter 7 of the Bill. The Gauteng Province has a concern that the functions in the Bill are not functions that are allocated to municipalities in terms of the Constitution and that this identification would therefore be an unfounded mandate for this sphere of government.
· Financial, personnel and other implications of chapter on Alien and Invasive Species
Chapter 5 sets Out a system for the management of alien and invasive species in the country. This system is a much-needed element in South Africa Jaw. However, Part 2 of Chapter 5, dealing with invasive species establishes procedures for the management of invasive species that may have substantial capacity implications for government. This should be quantified and factored into the analysis of the financial implications of implementing the Bill.
6. FINANCIAL IMPLICATIONS OF THE BILL FOR THE PROVINCE
The memorandum accompanying the Rill estimates the financial implication of implementing the Bill to be an amount of R20million for DEAT. No assessment is made of the implications at provincial level. There are specific sections of the Bill that contain measures that will entail an increase in financial and personnel resources required at a provincial level. In particular, the measures in Chapter 5 may result in new functions being Carried out by provincial government
7. NEGOTIATING POSITION ADOPTED BY THE COMMITTEE
The Committee supports the principle and propose a review of the aspects listed on item 5 regarding the National Environmental Management Bill: Biodiversity [B30 - 2003].
Appendix 2
Free State Legislature
Portfolio committee on Tourism Environmental and Economic Affairs and Agriculture
Report on Negotiating Mandate on the National Environmental Management: Biodiversity Bill [B30-2003]
Clause 14
Page 13, Line 43, "qualifications and" to insert "/or"
Motivation: Persons with experience alone should also be considered for appointment to the Board.
Page 13, after paragraph (b) of clause 14(1), to insert the following new subsection (2) "Persons appointed to the Board must be persons who, when viewed collectively, are representative of a broad cross-section of the population of the Republic".
The present sub-clause (2) becoming sub-clause (3).
Motivation: Whilst the proposed amendment would ensure diverse representation on the Board consequential amendment would follow with regard to numbering of the clause.
Page 13, in line 46, after "Parliament" to delete "or" and to insert a comma and after "legislature" to insert "or a councillor"
Motivation: Councillors should also be disqualified for the same reason as Members of Parliament and provincial legislatures are disqualified.
Clause 26
Page 16, in line 9, after 'the Board is' to delete "not" and afer paragraph (a) of sub-clause to delete paragraph (b)
Motivation: It is proposed that members of the Committee or Committees be appointed only from members of the Board to safeguard interests of the institute.
Clause 86
Page 32, from line 19, after 'writing' to delete 'require the applicant to furnish it' and to substitute 'obtain' and before 'such' to delete 'with'. The new clause should read as follows-
'Before issuing a permit, the issuing authority may in writing obtain, at the applicant's expense, such independent risk assessment or expert evidence as the issuing authority may determine.'
Motivation: Applicants would have influence in the outcome of risk assessment and expert evidence if the clause is retained in its present form.
Clause 100
To delete the whole clause.
Motivation: The Forest Act, 1984 (Act No 122 of 1984) appears to have been repealed by the National Forests Act No 84 of 1998. Whilst the Schedule to the National Forests Act No 84 of 1998 indicates that the Forest Act of 1984 is repealed as a whole except for sections 7, 8 and 9 and the provisions referred to in section 73(2) of this Act, sections 7,8, and 9 were repealed in 1998 and section 73 of the Forest Act does not have subsection (3). Forest Amendment, 1995 (Act No 63 of 1995), the remaining amendments to the Forest Act of 1984, was repealed as a whole as indicated in the Schedule to the National Forests Act of 1998.
Clause 101
To delete the whole clause.
Motivation: Clause 101 is consequential to clause 100.
C Mokitlane
Chairperson: Tourism, Environmental and Economic Affairs Committee
19 August 2003
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