Report of the Portfolio Committee on
Mining on the Geosciences Amendment Bill [B
12 – 2010], dated 08 September 2010.
The
Portfolio Committee on Mining, having considered the subject of the Geosciences Amendment Bill [B 12 - 2010] (National Assembly –
Section 75), referred to it and classified by the Joint Tagging Mechanism (JTM)
as a Section 75 Bill, reports as follows:
1. Background
The Geosciences
Amendment Bill, 2010 (“the Bill”), tabled in Parliament on 14 June 2010 and
referred to the Portfolio Committee on Mining for consideration and reporting,
seeks to amend
the Geosciences Act, 1993. The Bill was approved by Cabinet on 02 December 2009
for public consultation and for introduction in Parliament. The Bill effects
certain amendments of a technical nature to the principal Act.
The
main objects of the Bill are the following:
to
mandate the Council for Geosciences (the Council) to be the custodians of
geotechnical information;
to
be a national advisory authority in respect of geo-hazards related to
infrastructure and development;
to
undertake reconnaissance operations, prospecting research and other related
activities in the mineral sector; and
to
add to the functions of the Council.
The
Bill seeks to put mechanisms in place to address problems which are associated
with infrastructure and development on dolomitic land in the Republic. It
empowers the Council to be the custodian of all geotechnical data, for the
purpose of compiling a complete geotechnical risk profile of the country. It
further enables the Council to become the custodian of technical information
relating to reconnaissance operations and mining.
Subsequent
to the briefing by the Department of Mineral Resources, the Committee invited
selected organizations to make written and/or oral submissions and testimonies.
The public hearings were conducted on Wednesday, 01 and Friday, 03 September
2010, where the Committee heard submissions and testimonies from five
organizations, namely:
The South
African
The
Geological Society of
The
National
The
National Housing Builders Registration Council; and
The
Construction Industry Development Board.
The public
hearings process was followed by consideration of the submissions received and
clause by clause deliberations on the Bill.
This report
therefore outlines an overview of key issues arising from the oral submissions
received by the Committee and further provides an account of the Committee’s
deliberations on the Bill.
2. Overview
of submissions received by the Committee
The South African
The South African Institute
of Engineering Geologists (SAIEG) is a voluntary organisation representing the
profession of engineering and environmental geology. Members are required to be
registered natural scientists as prescribed in The Natural Scientific
Profession Act (Act 27 of 2003). The SAIEG represents a profession of
approximately 200 engineering and environmental geologists. Engineering
Geologists investigate and
provide geologic and geotechnical recommendations, analysis, and design
associated with human development since primarily called geological
geoscientists.
According to the SAIEG, the
Council for Geosciences has over the years performed and continues to perform a
vital support role to this industry in the provision of primary information in
the form of map information, data archives and data products that are
indispensible for performing our role to the above mentioned economic sectors.
The SAIEG comments and
concerns on the Geosciences Amendment Bill were the following:
Geohazards definition –
definition added was acknowledged.
Objects of Bill in the preamble:
The Council for Geosciences is defined as being a “mandatory advisory authority”. On the Objects of the Council in
section 2(c), the Council is referred to as a “national advisory authority”, apparently not “mandatory” in this instance. The definition of the Council as
“mandatory” might clash with the role of others as advisors in certain
instances, leading to conflict, particularly when the Council did not have
high-level expertise in certain specialised fields.
Section 1(f)(c): The NHBRC
noted that landslides and slope failure might be described as geohazards.
Although geological investigations for input into the slope stability analyses
were carried out by suitably trained and experienced geoscientists, the design
of remedial measures and the analytical responsibilities pertaining to slope
stability fell directly under the responsibility of professionally registered
geotechnical engineers. A potential conflict between the investigation and
design professions was highly likely if Geosciences professionals became
regulators in this field of expertise.
Section 3: Given that the
Council for Geosciences wished to be mandated a more direct role in the management
and control of geohazards, it would seem pragmatic that the board also had representation
from the geotechnical industry. For the board to exercise its responsibilities
in the control over the performance of this core function of the Council as is
required in section 4 of the Bill, a representative from the geotechnical
fraternity would be surely required to guide the relevance of the geotechnical
responsibilities of the Council and align them with the geotechnical industry
in the country.
Section 4(c): While applauding
the creation of a national databank of geotechnical information, the SAIEG
remained concerned that breaches in confidentiality might occur. In most
databanks the owners of information were allowed to define the extent to which
information was made available. As an example, it might be made known that a
geotechnical investigation had been carried out over an area but the owner of
the data might not wish to release the results for which he had paid, often
large sums, into the public domain. The confidentiality of information and
possible conflict with the copyright act needed to be addressed.
Section 4(eA) - Review and evaluate all geotechnical reports
in respect of geohazards that may affect infrastructure and development at
prescribed tariffs: The scope of engineering geological and geotechnical investigations
meant that volume of reports was produced annually dealing with engineering
geological investigations, not to mention geotechnical engineering
investigations for infrastructure and development. Geotechnical engineering
reports were further subject to the control of Engineering Council of South
Africa (ECSA) Codes of Practice and were engineering in nature and not
geoscientific and could not be adequately evaluated by geoscientists alone. The
SAIEG operated closely with the Council for Geosciences in many areas and thus
had a fair understanding of the level of expertise and staffing levels within
the Council. The organization was of the view that the Council in its current
state would not be able to effectively carry out the mandate as envisaged in
the Bill. The volume of work entailed in review and evaluating of all these
reports could delay approval of development by months if not eventually years
and could therefore cause development and growth to grind to a halt. The
effective evaluation of related geotechnical engineering reports with complex
engineering design inputs could, in the majority of cases, not be carried out
by the majority of the Council staff or in most cases by any person with only a
geological background.
Section 4(g) - Conduct investigation and render specialised
services to public and private institutions: The SAIEG regarded this as
unfair competition. It was apparent from the wording of this clause that the
Council for Geosciences would be mandated to carry out geotechnical
investigations that could place it in competition with an established industry.
The result would be unfair competition by a state institution against the
private sector using state subsidised resources. The SAIEG believed that the
resources of the Council would be better used in research, rendering of
specialised services not available from the geotechnical sector, and
co-operating in the education of all who operated in or were dependant on the
geotechnical professions and that this mandate would detract the Council from
its vital responsibilities in this regard. Furthermore, under the current
wording of the Bill, the Council would be entitled to use data taken from
professionals operating in the private sector at no charge and use it to
compete with the same professionals. A further concern was that, there was a
conflict of interest in that the Council for Geosciences was able to operate as
providers of services in areas which they themselves regulate, making them both
'player' and 'referee'. The SAIEG found this totally unacceptable in any
context.
The Geological Society of
The Geological
Society of South Africa (GSSA) is a “not-for-profit” voluntary association
which is a learned and professional society existing for the benefit of its
members and for the earth science professions.
According
to its constitution, the principle objectives of the society are:
to promote
and advance the earth sciences and earth science professions;
to
encourage and uphold the highest professional and ethical standards among its
members / fellows;
to
represent earth scientists in
to promote
co-operation and synergy between related structures and societies including,
but not limited to
to function
for the benefit of its members and for the public good.
During the
consultation process, there were essentially six issues as documented in the
Department of Mineral Resources' responses to the GSSA’s comments and concerns,
and these were the following:
The GSSA
agreed that for the object of the Bill to be achieved, there would have to be
an expansion of skills and resources in the Council for Geosciences which would
necessitate an increased budget. The GSSA noted that there was an increased
budget in the proposed amendment, however, it felt that it must reiterate that
this must be an ongoing commitment, especially in view of the current financial
difficulties that the Council was facing. In addition, the GSSA noted that
there was no detail in how the increased budget had been calculated nor what
the increased expenses will be targeting.
The GSSA
pointed out that the technical and ethical competence of individuals within the
geoscientific profession was covered by the GSSA, South African Council of
Natural and Scientific Professions and the South African Mining Codes
(SAMCODES).The Department’s response appeared to
be concerned with the use of the Council as a watchdog regarding exploration
hence their term “project expenditure”.
The GSSA expressed its concern regarding the
capacity of the Council to be responsible for the petroleum sector. The GSSA
agreed with the Department’s response to the effect that the Bill would be
amended to remove reference to the petroleum sector.
The GSSA
expressed its concern that the amendment to the Bill excluded the GSSA from
specifically nominating a representative of professional and academic
expertise. The Department’s response was that, the Bill made provision for the
Minister to appoint such an individual and the GSSA still had grave concerns
with this amendment. The GSSA also pointed out that the organization
represented the majority of geoscientists in
The GSSA
expressed its concern regarding the use of what they called a rather ill-defined
term “exploration and prospecting
research” within the bill and was still unclear on what this meant. The Department’s
response showed a misunderstanding. The organization proposed that the words ”geotechnical research” be used.
The GSSA
agreed with the Department’s response in that the amended bill does not allow
the Council to undertake any mining development or activity.
The National
According
to the National Union of Mine Workers (NUM), the South African mining sector
continued to experience unique challenges related to health and safety and
these required appropriate legislative measures that would assist to deter the
situation. The National Union of Mine Workers provided that it continued to
engage other stakeholders on the best acceptable practice that would help to
alleviate the problems associated with health and safety in the mining sector.
In May 2009, in its National Congress, the union resolved the following: “Through the Mine Health and Safety Council
force the mining industry to develop more advanced geophones technology
capacity for earlier signs of possible seismic events”.
The NUM appealed
that the Bill should ensure that the Council for Geosciences was well equipped
and in a position to contribute to safety in mines. The NUM believed that:
The Council
for Geosciences should be in a position to work with related stakeholders such
as Mintek to develop technologies that could detect and give early signals of
seismic events as this would save many lives.
The Bill should
ensure that the Council has a role in ensuring safety in the mines by mandating
the mining industry to develop systems that would assist to detect seismic
activity in the mines.
The Council
should be constituted in a manner that would complement the State-Owned Mining
Company as this would strengthen the role of the State in exploration for
purposes of mining which would not necessarily be conducted by the Council.
The Council
should improve its relations with the Mine Health and Safety Council and Mintek
and establish a working relationship with the yet to be established State-owned
mining company in order to develop technologies that would detect seismic
events in the mining sector.
The NUM
emphasized that adequate funding was central for the effective functioning of
the Council for Geosciences and recommended that the Bill should make proper
and adequate provision for the funding of the Council. The NUM further
recommended that there was a need for an improved coordination between the Council
for Geosciences, the Mine Health and Safety Council, Mintek and the State-owned
mining company. This would ensure safety in mines, strengthen government’s
function to explore minerals and ensure information on technology development
as safety in mines was an important aspect and should be central to the agenda
of the Council for Geosciences.
The National Housing Builders
Registration Council
The National
Housing Builders Registration Council (NHBRC) was established in terms of the
Housing Consumers Protection Measures Act (Act No. 95 of 1998 - as amended).
The NHBRC was primarily established to protect the interests of housing
consumers and to regulate the home building industry. The NHBRC has delivered
valuable services to the South African home building industry since 01 December
1999, commencing with the statutory requirement for registration of all home
builders, as well as compulsory enrolling all residential housing units to be
constructed. This by implication ties registered home builders to a strict code
of conduct firstly, and secondly compliance with prescribed technical
structural requirements that have to be met to ensure structural integrity of
the residential unit.
Right from
the onset, and before the establishment of the legislation that entrenched
NHBRC as a statutory body, the expertise residing in the Council for Geosciences
was recognized. Also the independence of the Council for Geosciences, and its
ability to serve the needs of the built environment, and specifically the
homebuilding industry objectively, was considered paramount to the NHBRC in
delivering on its mandate. The following actions were documented in the NHBRC
Home Building Manuals, and which by Section 12 of the Housing Consumer Protection
measures Act prescribed the technical requirements to be met by both engineers
and home builders. The section reads as follows:
“The Home Builder shall appoint a
Competent Person to investigate any proposed townships or existing township
areas which are underlain by dolomites/limestones. The Competent Person shall
prepare a clearly motivated report in which the township stability is zoned in
terms of Part 1, Section 2, Table 8 in accordance with prevailing professional
practice. The report must detail any precautionary measures which are required
to reduce the risk of sinkhole formation / subsidence and any restrictions on
land usage, layout, erf sizes, density, services, etc. The report shall be
submitted to the Council for Geosciences for their confirmation that the
investigations conducted on the stability of dolomites/limestones and referred
to in the report are, in their opinion, consistent with sound professional
practice and that the investigations meet all legal requirements pertaining to
such stability investigations.”
With regard to the Geosciences Amendment Bill, the NHBRC commented as
follows:
Section 2
of the Memorandum on the Objects of Bill: The NHBRC supported the reference to
the Council for Geosciences as a mandatory national advisory authority. However,
in the Amendment Bill, the wording is not repeated, and it might therefore not
be seen as a mandatory requirement, to have development proposals in areas
identified with geohazards submitted to the Council for Geosciences for review
and comments. This would negate the provisions captured specifically within the
NHBRC technical requirements to ensure safe and durable tenure solutions
especially in the subsidy sector. Also, it was noted that the previous (Geosciences
Act) notation referring to only “infrastructural
development" was used in both the “Objects of Bill,” section 2 and
“Summary of Bill”, section 3. This reference was changed and reflected
correctly in the Amendment Bill to read “Infrastructure
and development”, but it should be ensured that this was correctly reflected
throughout the Bill.
Section
2(c) – Objects of the Council: The Council
is referred to as a “national advisory
authority”. NHBRC believe that the word “mandatory” should be included as per above. This would ensure that
all developments in areas identified as complying with the geohazard definition
will be submitted for review and comments.
Section 3(b)
– Management Board: No provision was
made for any representation from the Department of Human Settlements, or the
NHBRC. The organization therefore believed that this might be an oversight, and
that provision should be made for at least representation from NHBRC who by
virtue of its mandate was operating as a regulating authority in residential
development, and more specifically subsidy housing delivery nationally.
Section 4(5)(1)(eA)
– Functions of Council: NHBRC applauded
the intention of the Council to review all geotechnical reports in respect of
geohazards nationally. The organization also needed to caution the fact that
this provision would demand extensive capacity to be created by Council for Geosciences.
In the absence of capacity, this provision might create an untenable bottleneck
and delay for all infrastructure and development projects nationally.
Section 4(5)(1)(g)
– Functions of the Council: NHBRC saw
this provision as problematic, especially where the Council may be called upon
to do investigations, and then to review and provide comments on same. This
would create a “judge and jury” scenario, and would not be accepted in the built
environment. Also, this would expose the Council for Geosciences to possible
charges of negligence and therefore appropriate insurance would need to be put
in place. Council for Geosciences would also effectively compete with other
professionals. The NHRBC proposed that the Council for Geosciences concentrate
on pre-feasibly investigations for strategic planning, and mapping of same,
rather than involving themselves in detailed Phase 1 and 2 investigations, and
which had the potential of causing an industry outcry.
Section 4
(5)(2)(f) – Functions of the Council:
The word “mandatory” should be added to enforce the Council for Geosciences’ function
as a national mandatory advisory authority.
Section
5(b)(3) – Functions of the Council:
All geotechnical reports, cannot be reviewed and be commented on by the Council
for Geosciences (refer Section 4 (5)(1)(eA) – Functions of Council above). A
similar description and only demanding review and comments on areas to be
developed in identified geohazard conditions should be applicable.
The NHBRC
supported the Bill with the proposed amendments.
Construction Industry Development
Board
The inputs
by the Construction Industry Development Board (CIDB) were based on its mandate
and function. Public and private sector clients, natural scientists and
engineers in the built environment, developers other stakeholders in the
building, civil, commercial and industrial property sector, researchers,
students and academics in the soil and Geosciences field, were presumed to be directly involved with
the work of the Council for Geosciences. Although the work of the Council for Geosciences
was critical for the building and construction industries, it was not possible
for the CIDB to have a direct involvement in the work of the Council.
The
intention of the CIDB’s submission was to support stakeholders that played a
direct role in using geotechnical information/Geosciences in infrastructure
development. The CIDB wished to first and foremost support the intention of the
Bill. The organization also wished to endorse specifically the submission of
the SAIEG and, to some extent, that of the NHBRC. Where the two organizations
disagree, the CIDB would support the SAIEG. The CIBD specifically wished to
draw attention to the following issues in support of their stakeholders:
Capacity
issues: The Bill was ambitious in its mandate in that the Council for Geosciences
was expected to do a lot of work, which might be impractical.
In the
Objects of Bill, the Council for Geosciences is defined as being a “mandatory advisory authority”, but later
on in the Bill, the Council is described in section 3(c) as a “national advisory authority”. It might
serve the affected industries better if the definition was “national advisory authority” rather than
“mandatory advisory authority”.
The mandate
to operate as service providers while also regulating these areas was seen to
create a conflict of interest. It was always good to separate these areas to
avoid this obvious conflict of interest. Other service providers would not take
kindly to this and might actually see the Bill in its totality as being unfair.
The
definition of geohazard might need further expansion and refinement, especially
as it began to differentiate between specific areas like landslides and slope
failures on the one hand and remedial measures on the other versus the
professionals that dealt with these issues. Also, with reference to “Review
and evaluate all geotechnical reports
in respect of geohazards, that might affect infrastructure and development at
prescribed tariffs”, might create both the capacity challenges based on
definition provided and a challenge with the professionals evaluating “all” geotechnical reports.
Key issues emerging from the
consideration of the Bill and public
hearings
Having
considered the Geoscience Amendment Bill [B 12 – 2010], the Portfolio Committee
on Mining welcomed the amendment of the Geoscience Act, 1993. However, having
looked at the submissions received, the Committee felt it necessary to propose
some amendments after taking into account issues raised by the organizations.
4. Recommendation
The
Portfolio Committee on Mining having considered the Geosciences Amendment Bill
[B 12 – 2010] (National Assembly – Section 75) reports the Bill with amendments
[B 12A – 2010].
Report to
be considered.