Business Unity
South Africa (BUSA) is a confederation of chambers of commerce and industry,
professional associations, corporate associations and unisectoral
organizations. In that role it represents South African business on
macro-economic issues that affect it at the national and international levels
(Annexure A sets out the member organizations affiliated to BUSA). BUSA’s function is to ensure that business
plays a constructive role in the country’s economic growth, development and
transformation and thereby create an environment in which businesses of all
sizes and in all sectors can thrive, expand and be competitive.
BUSA submitted
extensive comments both on the Amendment Bill and the draft amendments to the regulations
on environmental impact assessments published for
public comment and welcomes the opportunity to make a submission to the
Portfolio Committee on the remaining areas of concern.
In making this
submission BUSA wishes to emphasize that the need for legislation dealing with
environmental impact assessments is not disputed. However delays in obtaining authorisation
continue to have a negative impact on investment.
ASGISA
recognises the importance of streamlining environmental authorisations and the
attempts by Government to achieve a more streamlined approach while not
compromising environmental objectives is appreciated.
Although this
final version of the Bill takes into account a number of concerns raised during
the public comment process and is a step in the right direction in terms of
streamlining the process, a number of serious concerns still remain. These will be the subject of this submission.
DETAILED COMMENTS
Definitions and
interpretation
1.
The definition of “competent authority” should also
include reference to the fact that the competent authority is responsible for
the granting of the exemption applications, so as to be consistent with Chapter
5 of the EIA regulations (2006) and the draft 2007 amendments to the
regulations, which both refer to the “competent authority” in this regard. (See also section 24M) It is proposed therefore that the definition of
“competent authority” should be amended accordingly.
2.
A new section in the Bill 1(5) provides that any
administrative process or decision taken in terms of the Act must be “conducted
or taken in accordance with the Promotion of Administrative Justice Act, (3 of
2000) (PAJA), unless otherwise provided for in this Act.” This amendment is
welcomed since earlier versions of the Bill made no specific reference to PAJA
and prescribed procedures that were similar to PAJA but partially inconsistent
with it, resulting in potential confusion about the extent to which PAJA
applied.
Section 24
3.
Section 24(1) introduces the concept of
“consequences for” in addition to “impacts on” the environment. Since both consequences and impacts can be
negative or positive, and are generally understood as such, this does not
amount to a significant change to the obligations on an applicant or competent
authority. The addition of the further terminology does not add anything to the
section and is more likely simply to create more uncertainty. We therefore suggest that that proposed
references to “consequences for or impacts on” be removed unless there is a
cogent reason for including this wording. It is not apparent from the new Bill
what that reason is.
4.
Section 24(2) (d) provides for the identification
of activities that may commence without an environmental authorisation, but
that must comply with prescribed norms and standards. See Commencement or
continuation of those activities other than in accordance with prescribed applicable
norms and standards is made an offence.
The inclusion of this power in the Bill is welcomed. However unless the Minister exercises the
power, the intended positive effect on streamlining the process will not
materialise. One of the greatest areas
of concern for the process industry for example is the extremely onerous
requirements in respect of storage of dangerous goods like petrol and diesel
and some chemicals. In this regard
comprehensive national standards against which performance could be measured to
ensure that adverse effects on the environment are minimised, already exist and
are in use by industry.
While it is
recognised that the power cannot be exercised until the amendments to the Act
are enacted, the draft 2007 amendments to the regulations also do not include
any reference to the list of activities contemplated in this section. We propose that the Department be requested
to commence the process of identification of activities that could be listed in
this way as a matter of urgency.
5.
In the new Bill, an applicant is required to
investigate, assess and report on and a competent authority to consider the
“consequences for” the environment of a listed or specified activity as well as
the “impacts on” the environment. See
comments under 24(1).
6.
As it is currently drafted Section 24(4) (b) (vii)
appears to be allowing for compliance with other Acts, but this is not
clear. We propose that the following
wording could be included which would allow a competent authority to impose a
condition or conditions on an authorisation that the holder comply with the
requirements of a specific environmental management Act:
“(vii) the
imposition of conditions that require compliance with the provisions of a
specific environmental management Act that applies to the listed activity or
specified activity”
7.
It is suggested that the section 24(5) (b) should
include provision for regulations to be made on the efficient administration
and processing of exemption applications under section 24M.
8.
The amendment to section 24(5) (e) makes the
subsection clumsy (because of the use, twice in three words, of “specify”) and
does not make a significant difference to the sense of the subsection. It is proposed that the drafting be reviewed.
9.
The amendment to Section 24(8) to take into account
the new section 24L that provides for the alignment of environmental
authorisations, is welcomed. However the
purpose of section 24(8) (b) is not at all clear. It may be interpreted to mean
that an exemption authorisation granted in terms of section 24M, may suffice as
an authorisation under section 24 of NEMA and that an environmental
authorisation may not be required in addition. If this is the intention, the
drafting should reflect that in order to eliminate confusion.
10.
The introduction of Section 24(10), relating to
norms and standards, is welcomed. See
also 24(d). However the provision in respect of the adoption of standards
requires review. It is assumed that the
reference to adoption of norms and standards includes the possibility of adopting
a South African National Standard. In
this regard the requirements in respect of publication may be in contravention
of the Standards Act. It is therefore
proposed that subsection 24(10) (d) be discussed with the Minister of Trade and
Industry prior to finalisation.
In addition, it
is not clear why specific provision for procedures to be developed to enforce
compliance with the norms and standards (in s24 (10) (a) (iii)) is required
since section 31 of NEMA provides for the enforcement of the provisions of NEMA
by environmental management inspectors designated under that section.
Section 24C
11.
The amendment to section 24C(2)(d) has the effect
of precluding the possibility that an MEC may make a decision on an application
for an environmental authorisation by an organ of state which reports to the
MEC, which is clearly undesirable, and the amendment is therefore supported.
Section 24G
12.
The amendment to section 24G(1)(a) is presumably to
correct a drafting error in the Bill and allows the MEC or Minister a
discretion with regard to the extent of information that he or she may require
the applicant to provide in an application in terms of section 24G. However, the provision should be better
aligned with section 28(3) of NEMA. In BUSA’s
view, the addition of “consequences for” adds nothing to this subsection. Furthermore, it remains a concern that no
time-frames are prescribed in respect of section 24G applications as they are
for applications for environmental authorisation. However, this could also be the subject of
regulations, as it is for applications for authorisation.
Section 24K
13.
It is not clear why the Minister or MEC may take
account of a process authorised under other legislation and deem it adequate
for meeting the requirements of chapter 5 of the Act when the process was not
concluded (section 24K(3)(b)). Despite
the latest amendment, section 24K(2) still conflicts with the co-operative
government requirements of the Constitution of the Republic of South Africa,
1996, with regulation 6 of the 2006 EIA regulations and with section
24(4)(a)(g) of NEMA: both of the latter make
such consultation mandatory and not discretionary.
Section 24L
14.
This new proposed provision, which makes it clear
that where the carrying out of a listed or specified activity is also regulated
in terms of another law the competent authority for that other law has the
option of issuing an “integrated environmental authorisation” with the
competent authority under section 24 of NEMA, is intended to enhance
co-operative governance and is welcomed.
As is the provision that if the competent authority in terms of chapter
5 is also a competent authority in respect of another specific environmental
management Act, an authorisation issued under chapter 5 may be regarded as “sufficient
basis for the granting or refusing of an authorisation, permit or licence” under
that other specific environmental management Act. ”
However it seems unlikely that an authorisation issued in
terms of any other legislation could ever meet meets “all the requirements of the processes
contemplated in this Chapter 5” in order to be deemed to be an environmental
authorisation in terms of this chapter. It
is suggested that the provision would be more useful if the word
“substantially” were inserted before the words “all the requirements”.
Section 24M
15.
The NEMA Second Amendment Bill made provision for
exemption from the provisions of section 24(4) of NEMA. The new Bill further amends this provision,
most importantly by specifying the circumstances in which the Minister or MEC
may grant exemption. These include where
the exemption is unlikely to result in significant detrimental consequences for
or impacts on the environment; where the provision cannot be implemented in
practice in the case of the application in question or the exemption is
unlikely to adversely affect the rights of interested and affected parties.
16.
The ability of the Minister and/or MEC to grant an
exemption has therefore been considerably narrowed from that originally proposed
in the Second Amendment Bill. This is to
be welcomed as it appears to eliminate the possibility that an exemption can be
obtained from investigating the potential consequences of all impacts of the
activity and assessing the significance of those potential consequences or
impacts.
17.
However, the fact that section 24(4) (b) is not
peremptory may cause confusion. It is,
for example, not clear whether section 24(4) (b) must be complied with unless
an exemption is obtained in terms of section 24M, although this appears to be
the effect of reading the two provisions together. It is therefore suggested that the drafting
be reviewed with a view to further clarification.
18.
In terms of section 24M only the Minister or MEC may
grant an exemption, while applications for exemption under the EIA regulations,
(2006) and the 2007 amendments are made to the competent authority. For example, it is not clear whether a person
could make application for exemption under the EIA regulations, (2006) or the 2007 amendments, from the provisions of
the regulations dealing with public participation, without also making
application under section 24M for exemption from the provisions of section
24(4)(b)(iii), as amended by the new Bill.
It is therefore proposed that, in order to eliminate any confusion,
section 24 M should refer to the competent authority rather than the Minister
or MEC.
Section 43
19.
The deletion of the word “affected” from
subsections (1) and (2) potentially allows a person who has not participated in
the process to submit an appeal. In our
view, the section is now too widely drafted and may be open to abuse by parties
that have no direct interest in the outcome of the appeal or have not
participated in the EIA process but who can use the appeal process to delay the
implementation of a listed activity. It
is requested that these subsections be revised accordingly.
Transitional provisions
20.
The Cabinet version of the Bill inserted a new
subsection to section 11(4) of NEMA, the effect of which was to make rectification
possible in respect of offences committed under the Environment Conservation
Act, 73 of 1989. This provision has been
deleted in this version of the Bill. It
is requested that the provision should be reinstated, since it is more
consistent to allow rectification in respect of offences committed under the
previous EIA regime as well as the current regime, and as matters currently
stand, there is no way of doing that.
Consequential amendments to regulations
21.
It is suggested that suitable amendments will have
to be made to the EIA regulations, 2006 to reflect the proposed changes to this
section.
Conclusions
22.
In conclusion, BUSA would like to reiterate its
commitment to working with Government in ensuring that implementation of the
amendments to the Act and the regulations in fact achieve the necessary
streamlining of environmental authorisations in order to promote investments,
that will contribute to the ASGISA targets of economic growth, alleviation of
poverty and reduction of unemployment, while at the same time minimising
adverse effects on the environment.
D213/sa/07
1. African Minerals and
Energy Forum (AMEF)
2. Agri SA
3. AHI
4. Association for the
Advancement of Black Accountants of
5. Association of Black
Securities and Investment Professionals (ABSIP)
6. Automotive Sector
·
Automobile Manufacturers Employers’ Organisation
(AMEO)
·
National Association of Automotive Component and
Allied Manufacturers (NAACAM)
·
National Association of Automobile Manufacturers of
·
Retail Motor Industry
Organisation (RMI)
7. Banking Association
9. Black Information
Technology Forum (BITF)
10. Black Lawyers
Association (BLA)
11. Black Management Forum
(BMF)
12. Business Leadership
13. Casino Association of
14. Chambers of Commerce and
Industry
15. Chamber of Mines of
16. Chemical and Allied
Industries’ Association (CAIA)
17. Confederation of
Associations in the Private Employment Sector (
18. Congress of Business and
Economics (CBE)
19. Construction Sector
·
Master Builders South Africa (MBSA)
·
South African Federation of Civil Engineering
Contractors (SAFCEC)
20. Financial Planning
Institute of
21. Life Offices Association
(LOA)
22. National African
Federated Chamber of Commerce and Industry (NAFCOC)
23 NAFCOC Construction
(formerly NAFBI)
24. National African Farmers
Union of
25. National Black Business
Caucus (NBBC)
26 National Industrial
Chamber (NIC)
27. Retailers’ Association
(RA)
28. Road Freight Employers
Association (RFEA)
29. South African Black
Technical and Allied Careers Organisation (SABTACO)
30. South African Chamber of
Business (SACOB)
31. South African
Communications Forum (SACF)
32. South African Institute
of Black Property Practitioners (SAIBPP)
33. South African Insurance
Association (SAIA)
34. South African Leisure
& Tourism Association (
35. South African Petroleum
Industry Association (SAPIA)
36. Steel and Engineering
Industries Federation of
37. United Businesswomen of