CHAMBER OF MINES

COMMENTS ON THE NATIONAL ENVIRONMENTAL MANAGEMENT: AMENDMENT BILL [B29-2003]

 

The Chamber of Mines welcomes this opportunity to comment on the proposed amendments to the National Environmental Management Act, 107 of 1998, proposed in terms of the National Environmental Management Amendment Bill [B29-2003] and requests an opportunity to make an oral presentation to the Portfolio Committee.

We consider that the Bill is an improvement on the draft Bill that was published in January 2003 in the Government Gazette for public comment, and note that several of our comments on that draft have been incorporated into the new version. However, we still have several important concerns with the Bill. These are set out below.

GENERAL COMMENTS

  1. The references to the National Environmental Management: Biodiversity Act and Protected Areas Act, which currently exist only as Bills, is a disturbing feature of the various national environmental management Bills and draft Bills that are in circulation at the moment. It is of course impossible to properly comment on the Amendment Bill’s references to these Acts when one cannot be certain of the final nature of those Acts. We commend the Department of Environmental Affairs and Tourism’s zeal in producing so much draft legislation but we consider that it would be to the nation’s longer term benefit to consider bills one after the other.

SPECIFIC COMMENTS

  1. It is pivotal that the actions and powers of the "environmental management inspectors", provided for in this Bill, are subject to and are guided by the provisions of the South African Police Service Act, 1995 and the Criminal Procedure Act, 1977. However for all offences committed in terms of this Bill to be deemed to be Schedule 1 offences under the Criminal Procedure Act (clause 31A(3)) is not supported. Littering and treason cannot fall in the same category of offences. Environmental offences should be classified and differentiated in such a manner that the punishment fits the crime.
  2. The designation of an environmental management inspector must be subject to prescribed criteria (clause 31E says that the Minister "may" prescribe criteria). In view of their considerable powers, it is essential that the inspectors should possess the necessary skills. It is recommended that in clauses 31B(1)(a) and 31C(1)(a), the phrase "who complies with the prescribed criteria" should be inserted after the words "staff member".
  3. Provision is made in clause 31D for environmental management inspectors to exercise their responsibilities according to a specific mandate. This clause should state that the mandate must be clearly formulated by the designator and that the reporting structure is clear with regard to the exercise of the mandate.
  4. The responsibilities and functions of environmental management inspectors, provided for in clauses 31G and 31H, coincide with similar responsibilities provided for in other legislation overseen by other regulatory authorities, such as the Departments of Water Affairs and Forestry and of Minerals and Energy. It is essential that alignment be ensured with the requirements of the different pieces of legislation.

Conclusion

We look forward to making an oral presentation to the Portfolio Committee to support our written comments.

C H A M B E R O F M I N E S O F S O U T H A F R I C A

COMMENTS ON THE NATIONAL ENVIRONMENTAL MANAGEMENT: PROTECTED AREAS BILL [B39-2003]

 

The Chamber of Mines welcomes this opportunity to comment on the Bill and requests an opportunity to make an oral presentation to the Portfolio Committee. We consider that the Bill is an improvement on the draft Bill that was published in December 2002 in the Government Gazette for public comment, and note that several of our comments on that draft have been incorporated into the new version. However, we still have several important concerns with the Bill. These are set out below.

GENERAL COMMENTS

  1. The fact that two versions of the Bill are in circulation complicates matters unnecessarily. One is the "complete" version that was published in Government Gazette 25052 on 3 June 2003 and the other is B39-2003, which excludes the "section 75" elements. Our comments concern only this latter version. It would have been preferable to have considered and commented on only one consolidated version. It seems to be an unnecessary waste of resources to have to consider at a later date an amendment Bill that includes those aspects which have been deleted from the "complete" version.
  2. The many references to the National Environmental Management: Biodiversity Act, which currently exists only as a Bill, is a disturbing feature of the various national environmental management Bills and draft Bills that are in circulation at the moment. It is of course impossible to properly comment on the Protected Areas Bill’s references to the Biodiversity Act when one cannot be certain of the final nature of that Act. We commend the Department of Environmental Affairs and Tourism’s zeal in producing so much draft legislation but we consider that it would be to the nation’s longer term benefit to consider bills one after the other.
  3. SPECIFIC COMMENTS

    Chapter 1

  4. Clause 7(1): The proposed legislation should not be applied retrospectively by overriding other legislation. The Chamber of Mines supports the principle of specific legislation overriding general legislation in regard to the specific issues with which it is concerned. However, the Bill’s effects will be far-reaching, if enacted, and it is concerned principally with environmental protection and management of protected areas. Other pieces of legislation, which take a sustainable development view and which are concerned with development in the sense of economic growth and provision of infrastructure and services, should not be overridden in this way. Additional criteria, such as a cost/benefit analysis, the national interest, etc., should be used to determine which legislation should prevail. A specific scenario which concerns us is the possibility of a protected area being proclaimed adjacent to or incorporating a mine.
  5. Chapter 3

  6. We are concerned that there are insufficient checks and balances in the process leading to a decision with regard to proclamation of a protected areas. A new clause is required in chapter 3 setting out the process to be followed which will lead to the case being made for a particular area to be declared a protected area. This must include the consideration of alternative land uses (on a cost/benefit analysis or national interest basis) and an investigation of the geological resources in a proposed site so that an informed decision can be taken concerning the economic benefits from mining that might be foregone by the country. We consider that the cross-reference to the National Environmental Management Act, 1998 in clause 5(1)(b) is insufficient and will not necessarily lead to the required studies being carried out.
  7. We consider that the intention of clauses 18(3) and 23(3) is that "A notice under subsection (1)(a) may be issued in respect of private land only if the owner has consented to the declaration by way of a written agreement with the Minister (or the MEC)". The word "only" should therefore be added to remove any ambiguity. It should be noted that this comment refers to the process of declaring a protected area and does not limit the government’s abilities to acquire land in terms of clause 80.
  8. Further to the previous comment, the corresponding paragraph in Part 4, which deals with protected environments, clause 28(3), read with clause 33(1)(b) provides, wrongly in our view, for private land to be declared as a protected environment or as part of an existing protected environment merely following upon notification to the land owner and the applicable process of consultation required under part 5. It should be necessary for a proper written agreement to be reached between the landowner and the Minister or MEC when declaring a protected environment, as is the case for special nature reserves and nature reserves. The wording of clause 28(3) should therefore be changed to that of clauses 18(3) and 23(3).
  9. Clauses 31 and 32 should include a requirement to ascertain whether any international treaties to which the state might be party might be affected and to act accordingly.
  10. Clause 33(3) correctly requires the Minister or MEC to allow oral representations or objections by local communities whose rights or interests will be affected by the declaration of a protected area. However, there are other people whose rights might also be affected, including owners of property and mining rights, and these people equally deserve a hearing. Thus the clause should be edited to allow anyone whose rights or interests will be affected to automatically be granted a hearing.
  11. Clause 33(1)(a): The Minister or MEC should not only give notice in the Gazette and two local newspapers, but must also give notice in a national newspaper. Many people do not receive the Government Gazette and it often takes two weeks or more to arrive by post to those that do. Thus it is inadequate as a means of national communication when short time frames are given for responses and when it is necessary to reach many stakeholders.
  12. Clause 33(1)(b): Landowners should be communicated with in the case of all types of protected area, and not just protected environments, though we recognise that, in the latter case, special measures are necessary if our comment 6 is not heeded. Replacement of "environment" by "area" would neatly address this issue.
  13. Chapter 4

  14. Clause 48(1): We note that mining and prospecting are the only industrial activities specifically forbidden in protected areas.
  15. In addition to our concerns expressed above regarding the decision-making processes carried out when declaring new protected areas, we also consider that caution should be exercised when prohibiting mining from taking place in existing protected areas, which will automatically be covered by the new Act. Many of South Africa’s national and provincial parks were declared in the apartheid and pre-apartheid eras, following principles contrary to those of our current democracy. Furthermore, new scientific information and methods are now available and will continue to become available as time passes.

    Therefore the Chamber of Mines proposes that there should not be a blanket prohibition of mining in protected areas, and that any decisions taken regarding mining in protected areas be reviewed occasionally, possibly every twenty or fifty years. A refinement of this proposal could be to allow remote sensing or non-invasive prospecting to take place in some categories of protected areas under carefully controlled conditions.

    In making this comment, we are very aware that we might be understood to mean that we want all protected areas to be reviewed. This is most definitely not the case. We have a principle concern, not a desire to plunder the nation’s precious heritage.

    The concern underlying our comment is that prohibiting mining for all time from some areas will mean that any mineral resources found there will never be available to benefit the nation, irrespective of advances in mining and extraction technologies, not to mention new uses for minerals that might be discovered in future. To use an extreme example: what if a mineral that could cure AIDS were to be discovered in a protected area? Would it be preferable to allow millions of people to die rather than mine it under carefully controlled conditions? Locking away such unknown resources in perpetuity is an extreme action to take and is against the principles of sustainable development.

  16. Clause 48(1)(c): The prohibition of mining and prospecting in forest areas (as defined in clause 9(d)) was not included in the draft Bill and it is not clear to us why it should be included now. Mining in such areas is not prohibited by the National Forests Act, 1998. These forest areas include both natural forests and plantations. We consider that the legal permitting processes, which include environmental considerations, should be followed when making a decision with regard to mining in forest areas.
  17. We understand clause 48(2) to mean that existing mining in a protected area can continue. However, this is not what the clause actually says. In order to better capture what we understand to be the drafters’ intention, we propose that the following wording be substituted: "Subsection (1) does not affect prospecting or mining activities lawfully conducted in accordance with any valid right to prospect or mine contemplated in Schedule II to the Mineral and Petroleum Resources Development Act, 2002, Act No. 28 of 2002".
  18. Chapter 6

  19. Clause 84: According to our understanding, it is not possible to cancel a mineral right.