National Association of Conservancies of South Africa (NACSA)

Comment on National Environmental Management Amendment Bill (36-2007)

Written Submission by the National Association of Conservancies of South Africa

Submitted by: Anthony Duigan

Chairman: National Association of Conservancies of

Introduction

The National Association of Conservancies of South Africa (NACSA) is the central body providing leadership and strategic focus to community based conservation in South Africa. Through a nationwide network of registered conservancies and provincial associations, NACSA supports private land owners' efforts to protect and conserve. Some 750 conservancies are affiliated to NACSA.

Summary

NACSA is objecting primarily to the change in definition of "competent authority" in the National Environmental Management Amendment Bill (36-2007». The change will allow the Minister of Minerals and Energy to grant, amend or refuse an environmental authorisation in respect of mining, prospecting, exploration and production.

NACSA contends that the broadening of the definition of "competent authority" opens the way to inequitable evaluation, inconsistency in application and bias in compliance monitoring. In turn, this may compromise the constitutional right of all South Africans to a healthy environment.

Co-operative Governance

The Department of Minerals and Energy (DME) is primarily tasked to promote mining in South Africa, while the Department of Tourism and Environment (DEA T) has a mission to promote the conservation and sustainable utilisation of natural resources to enhance economic growth; and protect and improve the quality and safety of the environment..

Under co-operative governance each Department performs their "functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere". The preamble to NEMA states that "the law should establish procedures and institutions to facilitate and promote cooperative government and intergovernmental relations." The amendment to NEMA will effectively counteract this intent by allowing two organs of state with differing objectives discretionary power over environmental matter. In our opinion this places institutional integrity in jeopardy.

Through the amendment the DME either duplicates the efforts of DEA T or is a poor and compromised substitute: rather than more efficient co-operative government, the amendment brings about duplication in effort, processes and controls. Alternately, should the process and controls not be duplicated by DME there will be a shortfall in meeting the requirements of Sections 23 and 24 of the Act.

Exemptions

The proposed amendment Section24L opens the way to granting exemptions from sections 23 and 24 of the Act, and permits the reliance on a process conducted in terms of another regulatory process to inform environmental authorisations.

NACSA contends that the result may be that environmental issues are secondary, and not equal to other factors in the consideration of an application. Experts in fields other than environment may be determining the "healthy environment" envisioned in the Constitution.

NACSA in unable to discern how or if, the amendment caters for public participation processes when applications are processed by the DME. Through ambiguity or lack of clarity the amendment may further compromise the intent of NEMA as described in the preamble.

Conclusion

The amendment opens the way for discretionary action by DME which may fail to ensure the constitutional right to a healthy environment and curtail the participation of ordinary citizens in exercising their rights.

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