WILDLIFE
AND ENVIRONMENT SOCIETY OF
LOWVELD REGION
November 12, 2007
The Chair
Portfolio Committee for Environmental Affairs and tourism
8000
And to:
The Secretary
Ms. Albertina Kakaza
Portfolio Committee for Environmental Affairs and Tourism
Phone: 021 403 3765
Att; Mr Langa Zita MP and Ms Kakaza
Dear Sir/Madam
RE: NATIONAL
ENVIRONMENTAL MANAGEMENT AMMENDMENT BILL B36-2007
Written comments
for public hearing 6 Nov 2007.
1. This amendment bill B36-2007
is substantially different from the Draft bill which was published for comment
on the 4th of May 2007.
It represents a major shift away from public participation in
environmental governance via the EIA process which is clear, easy to understand
and universally applicable, to other processes and their potential application,
that have not been adequately explained or properly presented to the lay person
for comment, and to which explanations they are still currently entitled.
Many of the amendments are inaccessible, convoluted and obscure, and it
is not easy for the lay person to understand either how the various amendment
clauses relate to each other or how other key environmental legislation will be
affected by the proposed amendments. While the implementation of long awaited
norms and standards will be beneficial in that these will set mandatory
parameters, a variety of other laws have been introduced that the public is not
familiar with, and that would have to be explained together with the conditions
of their application. It appears that Ministers will be able to pick and choose
and specify amongst these various other regulatory options, which will lead to
confusion if no clear parameters are set for these options.
2. Of particular concern in these
amendments is the amendment of section 24(4) of the principal act, in that the
legal standing of Impact Assessments will be removed. It will then be possible
for applicants to obtain authorizations without public participation and
perhaps without even having to do an impact assessment at all ,nor will the
applicant be required to provide interested and affected parties with the
requisite information so that they may fairly participate in environmental
governance.
It is completely unacceptable to remove the legal standing of access to
information and specialist reports that is currently required by law under
NEMA. Applicants will simply refuse to supply this information because the EIA
regulations will no longer be a mandatory requirement of NEMA. If as is envisaged
by the amendments to NEMA, a Minister directs that an EIA is to be done by the
applicant and the applicant refuses to supply an interested and affected party
with the relevant information necessary to make an informed assessment of the
impact to the environment, what legal recourse does the interested and affected
party have?
3. The legal status of rights and
obligations under NEMA will no longer be protected under 24(4) b of the
amendments. The provisions of the Environmental Impact Assessment process lie
at the practical heart of environmental protection and human rights legislation,
and is recognized by international law. It is our contention that to remove the
legal status of these provisions, and place the obligation to protect the
environment at the discretion of ministers, will be unconstitutional and in
contravention of our international commitments. Rights of redress, relief and
appeal will become a matter of ministerial discretion.
We take note that the legal status of these provisions has had to be
removed in order to accommodate amongst others, the “exemptions clause” 24M of
the amendments.
While it is accepted that the EIA process is cumbersome, we do not accept
this to be a sufficient justification to remove every citizen’s legal entitlement
to participate in, and derive environmental justice from, environmental
governance currently protected under the EIA provisions of NEMA, and replace
this with processes that will be largely partisan and governed by ministerial
discretion.
It is clear that it is of utmost necessity for the provisions in this
amendment bill that will allow Ministers discretionary powers, to be explained
in clear unambiguous detail, so that it may be understood how these discretions
would be aligned with the PAJA. This has not at all been made clear from a reading
of this amendment bill.
4. We believe this amendment bill
has made many of these amendments to NEMA, specifically to accommodate the DME,
and that it contains provisions that will allow the DME to have completely
independent legal standing within the amended NEMA should these amendments be
accepted.
Noted examples of this, amongst others, are the following.
24L (3) of the amendments appears to a allow the DME to consider its own
authorization as a competent authority under Chapter 5 as sufficient basis “
for the granting or refusing of an authorization, a permit or a license under a
specific environmental management Act if that specific environmental management
Act is also administered by the competent authority.” Which it will be. Therefore
the DME will constitute its own competent authority. The result of the
implementation of this clause will be complete partiality in the granting of
authorizations, if not complete anarchy.
24L (4) is very obscure but it appears to mean the same thing, which
because the DME is authorized to authorize it may somehow accept any other
authorization in terms of its own authorization as consistent with and
sufficient to its own authorization!!
The implications of this are significant, and if this is true, then the
DME may accept without reference to any other regulatory authorities, any
authorizations granted under any Act, including its own Act as sufficient to
grant an authorization under these amendments if they are accepted.
24M (3) where an applicant can be exempted from doing an EIA. In the case
of; (a)” the granting of the exemption is unlikely to result in significant
detrimental consequences for or impacts on the environment.” Who is to decide
this and how valid will this decision be given that no EIA is being done? (b)”
the provision cannot be implemented in practice in the case of the application
in question.” or (c) the exemption is unlikely to affect the rights of
interested and affected parties.” Depending on how these three clauses are
read, it seems that the Minister or MEC, as the case may be, is able to issue
an exemption simply because an applicant will not be able to comply with one or
any of the EIA requirements of 24(4) b in spite of (a) and (c) as the decision
boils down to the discretion of the minister anyway.
An argument could be made that any discretionary decision taken by a
minister that does not include public participation affects my rights under the
constitution. Any applicants will be able to apply for exemptions, and may be
granted them, for any averred inability to comply with 24(4) b whether this
would be the case or not, and this ability would not be subject to any
investigation beyond what the minister would deem sufficient to determine the
applicants ability to comply.
It is not clear but it seems that if read together, 24K (3), 24L (3), and
24M will allow a minister to declare blanket exceptions from 24(4) b.
Given all of the above it is clear that DME will be granted extraordinary
discretionary and executive powers in terms of these and other amendments, and
whose special entitlement, requires to be examined by the constitution. Other
government departments may wish to claim similar entitlements and this would
lead to chaos.
It appears that the DME has anticipated these changes by amending its own
Act, stating in the amendment to section 4 of the MPRDA, “(3) The provisions of
the National Environmental Management Act 1998 (Act No. 107 of 1998), relating
to environmental authorizations and any other related matters, shall not apply
to activities of holders regulated in terms of this Act.”
The MPRDA amendment bills 10A-2007 and 10B- 2007 also differ significantly.
The changes made between the draft NEMA amendments bill and the amendments currently
before you, appear to be related, and concurrent with the changes made between
the first and second bills of the amendments of the MPRDA. The relationship
between the NEMA amendments and the MPRDA amendments in the first and second
instances needs clarification, and the public and the justice system, needs the
requisite time to consider both sets of changes and their implications.
These amendments to NEMA if implemented will have far reaching legal
implications for all other environmental and regulatory Acts, affecting the
jurisdiction of departments and provinces, as well as our international
obligations.
The widespread discretionary powers that ministers will have under these
amendments are very worrying and require careful scrutiny to ensure that they
are in line with the constitution and other legislation.
We are of the opinion that other mechanisms must be found to accommodate
the DME outside of NEMA that are consistent with NEMA and the constitution.
Fundamental principles of NEMA will be compromised to accommodate the DME whose
mandate and interests are largely in conflict with the general principles of
NEMA.
Because of the proposed fundamental changes to NEMA, and the unilateral
and widespread discretionary of powers that ministers will be able to exercise
individually or in concert under the new amended act should it be approved, and
the granting of extraordinary powers to the DME, we request that this portfolio
committee resolve to set these amendments aside until the public has been afforded
a reasonable opportunity to consider these amendments from a sufficiently
informed perspective. We further request that the committee put in place
procedures to inform and explain how these amendments may affect the rights the
rights duties and obligations of all citizens.
The amendments as they stand are convoluted and obscure and apt to be
misinterpreted. It is our opinion that they should be re written so that their
meaning and intent is made clear, before the public can be expected to deliver
sensible comment on them.
Much is positive in these amendments that could be incorporated into the
current act without affecting the rights of citizens to environmental justice.
Many years of research has been devoted to various aspects of environmental work
which can now be incorporated into the principle act, and which must not be
undermined by the short term vested interests and expedient solutions of the
DME, nor any financial argument that will bring short term gains for long term
losses.
Sincerely,
Marina Caird.
WESSA Lowveld.