NATIONAL ENVIRONMENTAL MANAGEMENT SECOND AMENDMENT BILL [B-36-2007]

PORTFOLIO COMMITTEE HEARING

 

SUBMISSION BY BUSINESS UNITY SOUTH AFRICA

 

6 NOVEMBER 2007

 

INTRODUCTION

 

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


Annexure 1

Business Unity South Africa (BUSA) Members

 

1.         African Minerals and Energy Forum (AMEF)

2.         Agri SA

3.         AHI

4.         Association for the Advancement of Black Accountants of Southern Africa (ABASA)

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 South Africa (NAAMSA)

·         Retail Motor Industry Organisation (RMI)

7.         Banking Association

8.         Black Business Executive Circle (BBEC)

9.         Black Information Technology Forum (BITF)

10.        Black Lawyers Association (BLA)

11.        Black Management Forum (BMF)

12.        Business Leadership South Africa

13.        Casino Association of South Africa (CASA)

14.        Chambers of Commerce and Industry South Africa (CHAMSA)

15.        Chamber of Mines of South Africa (COM)

16.        Chemical and Allied Industries’ Association (CAIA)

17.        Confederation of Associations in the Private Employment Sector (CAPES)

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 Southern Africa (FPI)

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 South Africa (NAFU)

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 (SALTA)

35.        South African Petroleum Industry Association (SAPIA)

36.        Steel and Engineering Industries Federation of South Africa (SEIFSA)

37.        United Businesswomen of South Africa (UBSA)

 

BUSAMEM/07