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.
end