According to the explanatory memorandum, the bill seeks to

• provide for a list of activities requiring authorisation
• provide for offences when activities are undertaken without permission
• provide for environmental impact assessors to be registered
• provide for authorities to recover costs for services rendered

A large section of the bill appears to tidy up existing provisions, rewording of sentences and cutting pieces of the legislation and adding it back in word for word but under a different heading.

The bill is supported overall but there are a number of key issues relating to the aims of the bill which must be addressed.

• The list of activities:

• Registration of EIA consultants

• Cost recovery:

The numbering of the version of the Bill we have been given to comment on is quite confusing and we would ask the drafters to please contact us should they need clarity regarding the numbering referred to in our submission.

The change proposed to 24(1) implies that unless an activity is listed, it will not be required to be assessed for its potential harm to the environment. Provision must also be made for activities which may significantly affect the environment but which are not on any list. Possible wording would include the addition after listed activities in 24(1) "activities, as well as those activities which may potentially significantly affect the environment".

Section 24(2)(c) This section should be amended as follows: ...competent authority for consideration, assessment, evaluation and reporting".

There is also no requirement that any investigations, assessments etc should be completed prior to implementation. Provision needs to be made to ensure that all investigations are completed prior to any activity being implemented. A clause to this effect should be added.

Section 24

In several instances in this Bill, the national minister or the MEC's have discretionary powers. We feel strongly that in these cases, the actions of the Minister and MEC should be mandatory. This includes but is not limited to section 24(2)(a), 24(4), 24(4A), 24(6), 24H.

There is a discretionary provision for an MEC or Minister to make regulations regarding section 24. The implications of this are that every province can now produce its own regulations. This may lead to disputes and confusion especially where proposed developments impact on two provinces. For example, a large industrial plant which crosses a provincial border might find that it has to comply with two sets of regulations and conduct two different EIA processes. There would also be disputes between province and national sets of regulations.

It would be more useful if the minister "must" make regulations but the MEC's "may". This would allow the national minister to lay down minimum national regulations which the provinces must comply with and might improve on.

The regulations which govern the environmental aspects of developments are a source of debate and even court battles. These regulations need revision and need to be improved upon. However given their importance, it cannot be left to the minister's discretion, nor can the public participation process be limited to a 30 day type notice in the Government Gazette.

We would once again emphasise the NEMA chapter 1, section 2 principles which emphasise the right to meaningful participation. It would be appropriate under 24(4) to insert a clause which specifically requires the Minister to lay down the procedure for public participation so as to give effect to NEMA chapter 1, section 2.

We would urge the drafter to re-look at the Bill particularly with regard to duplication or inconsistency. We give 2 examples:

Section 24(2) and 24A should be drafted so as to ensure consistency. The MEC should in all relevant cases act "with the concurrence of the Minister".

Section 24(2)(b) and 24(2A) appear to cover the same issue.

A serious concern with the EIA process in general is that approvals are given subject to long lists of conditions, many of which are then not enforced. Section 24(3)(f) should be strengthened to ensure that any conditions given as part of an approval are adequately enforced.

Section 24A This section should be amended to ensure that reasons are given for listing an activity or area, and that verbal or written comments should be accepted.

"Interested" parties is the term used in this section, whereas the term "interested and affected" parties is the more common term in useage. Section 24B should also be amended to ensure reasons are given for the delisting and that there is opportunities for public consultation. There should always be a mechanism for both written and verbal comment (e.g. section 24A(b))

Section 24D - the publication of the list in the government gazette is not an adequate means of informing interested and affected parties. Community orientated means of publicising this list must be identified in order to fulfil the principles of NEMA section 2.

Section 24D should specifically refer to other means of communication appropriate to ensuring meaningful public participation

Section 24E is welcomed. However, the word independent should be inserted to ensure that the monitoring is not merely lip service or a PR function to cover up bad practice. It would also be preferable if the environmental monitoring officer reported directly to the authorities and not to the proponent. These costs should be part of the proponent's development fees. The terms "assessment of the effectiveness of such arrangements" should be inserted here.

Provision should also be made to ensure that poorly resourced community or NGO representatives can participate equitablly.

Section 24F is clear and unambiguous and is supported.

Section 24F(2) - (5) are provisions which should enable authorities to address transgressors in a serious manner and we are hopeful and supportive of such measures. It is also important that the penalties are not absolute values which would lose meaning with increasing inflation but are related to the value of the activity. It is also important that jail sentences are permissible to discourage those for whom money is no object!

We would suggest that 24F(4) be amended to read "A fine imposed in terms of this section shall not be less than three times the value of the activity on completion".

Section 24F(5) The fine mentioned in this section should be more than that in the previous subsection.

This is welcomed. However, section 24G(e) needs to include mechanisms for monitoring compliance with the code of conduct, as well as a mechanism for removing associations or members of associations if they fail to comply with the law.

This section concerns an area where environmental organisations have seen most abuse and we would welcome particularly strict provisions here.

In the past and despite the current legislation, consultants continue to favour the proponent and accusations of bias are a common theme throughout EIA processes. It is impossible to address this without addressing the problem of the proponent paying the consultant directly. One recommendation is that each province have controlling panel to whom the consultants would be accountable and to whom the developers would apply for funding for Environmental Impact Assessments.

Section 24H is a little disappointing. It allows for the authorisation of activities which have commenced illegally. While it is understood that there may be certain activities which were not covered under the regulations and which need to be dealt with, this provision provides a loophole that the unscrupulous could continue to exploit.

Section 24H should not be discretionary and should only apply for a limited time period - one year from the promulgation of the amendment.

The fines should be increased to between 10% and 100%, and can only be decreased upon successful appeal by the affected person.

Section 43(7) as proposed seems to imply that any person who has authorisation for an activity should be allowed to continue even if there is an appeal against the decision. This does not make sense as irreparable harm could be done to the environment in the time it takes for the appeal to be adjudicated. No activity should be allowed to continue until the appeal has been decided.

There is no detail on the process for deciding appeals, merely some vague reference to the possibility of an appeal panel.

The notion of an appeal panel might be useful but the provision is inadequate. There is no detail of how the panel might be constituted or how it might carry out its work. The bill should provide for compulsory regulations in this regard and such regulations should be tabled in parliament for discussion.

In sections of the bill relating to fees, we would argue that the application of cost recovery mechanisms is a contravention of public participation principles (NEMA Chapter 1 section 2). Poor people cannot participate meaningfully if they are unable to afford the costs associated with participation. For example: section 43(4) relates to the appeal process fee. It implies that unless a poor person pays a fee, their rights to fair administrative justice will be lost. This is unacceptable.

It is therefore important that the word " reasonable" be inserted. It might also be important that something which ensures that due regard is had to the rights of the poor is inserted. Recent experience has shown that authorities are using cost recovery as a mechanism to exclude the public from participating in decisions that affect them. We do not want to see a similar occurrence here.

Regulations should be referred to parliament for approval prior to being promulgated, rather than afterwards. This is administratively less cumbersome, and avoids "shutting the stable door after the horse has bolted". Referring the regulations to parliament after they come into force means that if the regulations are amended or disproved, provision must then be made for those cases which have already been approved or disproved under these newly promulgated regulations. That would be a bureaucratic nightmare.

One improvement could be to ensure that parliament has 30 days to give input into the regulations before being promulgated.

Section 24(8) This section lists a schedule of national legislation. The SA National Parks Board Act has been removed from the list. Is this an oversight?

Provided our concerns are addressed, the provisions of the bill will definitely add value to the EIA processes.

From our reading of the proposed legislation, it appears that many of our concerns arise due to ambiguous or confusing wording rather than a fundamental difference with regard to the substantive issues.