NATIONAL ENVIRONMENTAL MANAGEMENT LAWS AMENDMENT BILL ONE ENVIRONMENTAL SYSTEM WRITTEN RESPONSES

Agri SA Clause Comment/Proposal Response 4 Agri SA is not in support of the One Environmental System, and submit that One Environmental System creates an untoward and unfairly biased environmental governance dispensation for the mining sector alone. In this regard, Agri SA argue that section 50A of NEMA is constitutionally flawed with respect to the concurrence between the Ministers of Environmental Affairs, Water and Sanitation and Mineral Resources. The provisions in the current Bill relating to the current dispensation regarding mining should be omitted from the Bill. Agri SA further recommend that the Department should embark on a total revision of the NEMA and NEMWA and bring the environmental authorization regarding mining into line with the environmental authorization dispensation applicable to all other sectors of the society. Mining activities were previously excluded from the scope of NEMA. Environmental management provisions in relation to mining activities were contained in the MPRDA. In addition, these activities require approval from the MPRDA, water use licence from NWA, environmental authorisation under NEMA as well waste management licence under NEMWA. These processes were not integrated, and the One Environmental System, anchored under NEMA, is intended to integrate processes with minimal disruptions to the regulated community in the transition from MPRDA regime to NEMA regime.

Agri SA Clause Comment/Proposal Response 75-76 Agri SA is of the view that an environmental management plan or programme approved in respect of any mining activity or activity directly related to mining does not equate to an environmental authorisation in terms of NEMA. Department agrees in principle that an EMPR is not equal to an EA. However, this was the only “environmental type of authorisation”, with environmental conditions, that was previously issued under the MPRDA. The current provision in the Bill is aligned with the section 38B in the 2008 MPRDA Amendment Act (not in effect) and the amendment to section 38B in the MPRDA Bill currently in Parliament. However, clarity is provided that the intention is not to legalise illegal activities.

Centre for Environmental Rights Clause Comment/ Proposal Response 4(e) Proposed insertion of subsections (11), (12) and (13) is supported, with the addition of the following phrase at the end of subsection (11): “, indicating in each application, all other licences, authorisations and permits applied for, or which will be applied for the intended development or related activity.” The proposal is accepted.

Centre for Environmental Rights Clause Comment/ proposal Response 75(a) & (b) We object to the amendment of section 12(4) and the insertion of subsection (4A). The proposed amendments will result in entrenching old order EMPs and EMPRs that do not comply with the provisions of NEMA and inappropriately blurring the distinction between environmental impact assessment and environmental management. A proposal to insert the following wording in section 12(4) and subsection (4A): “[and an environmental authorisation issued], provided that within 18 months of the coming into force of this Act, the holder of the environmental management plan or environmental management programme has submitted an application for an environmental authorisation in which such holder has upgraded its environmental management plan or environmental management programme to address any deficiencies in such environmental management plan or environmental management programme to meet the requirements in Chapter 5 of the National Environmental Management Act, 1998.” Not supported. This proposal will create a costly administrative burden for both the mining companies and DMR.

Centre for Environmental Rights Clause Comment/Proposal Response 76(1), (2), (3) & (4) Clauses 76(1) and (2) appear to be a duplication of the proposed section 12(4) and (4A). Similar comments and proposals for section 12(4) and subsection (4A) are also submitted here. Clause 76(3) places an indirect, vague and likely unenforceable obligation on the Minister. We submit that the onus should be on the holder of the EMPR or EMP to ensure that it is upgraded and brought in line with the requirements of Chapter 5 of NEMA – within a defined and reasonable transitional period. We propose 18 months from the coming into effect of the Bill. Not supported. The proposal will place a costly administrative burden on both the mining companies and DMR.

Chamber of Mines Clause Comment/Proposal Response 4(e) Proposed s24C(12) in the context of environmental authorisations required for mineral or petroleum activities, which contemplates simultaneous application for licences or permits should uniformly refer to environmental authorisations. While the wording in s24C(12) refers to an environmental authorisation under the NEMA; and permits and licences in respect of SEMAs, the definition of “environmental authorisation” in section 1 of the NEMA includes “…a similar authorisation contemplated in a specific environmental management Act.” Clarity is sought on the use of environmental authorisation as well as licences and permits with reference to the definition of environmental authorisation under NEMA. If the terminology “environmental authorisation” as defined would be used in the proposed text, there is a risk that the intention of the clause may be misinterpreted. For the sake of clarity the terminology used to describe the permits, authorisations and licences as they appear in the NEMA and SEMAs, respectively are used. The intention is that all these various permits, authorisations and licences should be applied for simultaneously.

Chamber of Mines Clause Comment/Proposal Response 75-78 These transitional arrangements should be transformed so as to constitute new sections under NEMA and NEMWA respectively. This in order to ensure readily accessibility of these transitional arrangements to members of the public.It is recommended that the Bill provides for repeal of section 12 of NEMAA, and insert into NEMA and NEMWA a consolidated version of the transitional provisions as it appear in clauses 75 to 78, since this approach will make for clarity, certainty, and accessibility for all the applicable transitional provisions. The Department agrees in principle that the transitional provisions can be comprehensively deaIt with in the main NEMA and NEMWA, should the State Law Adviser agree to such an approach, but one should be mindful that NEMLA 2014 also deal with major amendments to sections 12, 13 and 14 of the 2008 NEMAA. 75(a) The last line should be clarified to read “1998, and shall be deemed to be an environmental authorisation issued in terms of the National Environmental Management Act, 1998.”. This amendment is not supported. The Department has amended the Environmental Impact Assessment Regulations in 2017 to clarify the transitional position. Perhaps the wording could be considered as it is much clearer.

Chamber of Mines Clause Comment/Proposal Response 75(b) The wording of section 12(4A) must be clarified to read as follows: “4A. An environmental management plan or programme approved in terms of the Mineral and Petroleum Resources Development Act, 2002 after 8 December 2014 in terms of an application in terms of that Act shall be deemed to have been approved in terms of the National Environmental Management Act, 1998 and shall be deemed to be an environmental authorisation issued in terms of the National Environmental Management Act, 1998.” Suggest that the wording currently included in the 2017 EIA Regulations be considered as the wording conveys the intention of the transitional provision much better.

Chamber of Mines Clause Comment/Proposal Response The problem with the 4B is that it does not resolve the problem of mining companies with approved EMPs and EMPRs which may not specify or have specified each and every listed activity directly associated with the mining in the same way as the terminology used in the various listing notices. The wording of 4B does not accord with section 38B(1) of the MPRDA Amendment Act, 2008 which deemed an EMP and EMPR approved in terms of the MPRDA as approved, and an environmental authorisation issued in terms of the NEMA, without qualification as to the types of activities included or excluded in such approval. The proposed 4B also does not take into account the historical fact that environmental regulations in mining operations was exclusively undertaken under Minerals Act and MPRDA as well as uncertainty of the applicability of listed activities under ECA and NEMA to mining operations. The 2008 MPRDAA and NEMAA and 2014 NEMLA were not intended to legalise any activity that was not assessed and approved under NEMA or the MPRDA, as the case may be. Any activity undertaken illegally remains illegal and subject to the penalties under NEMA. The proposed section 12(4B) is therefore intended to provide that clarity.

Chamber of Mines Clause Comment/Proposal Response 75(c) In s12(6), last line, “has” should be “had”. The proposal is accepted. 76 This clause duplicates s12 of NEMAA, 2008 hence the suggestion for consolidation (and therefore harmonisation) of these provisions. This clause provides for a transitional provisions regarding mining application approved on or before and pending after 8 December 2014 under the MPRDA regime. Any merger or consolidation may cause some issues to be lost through cracks. In clause 76(3), third line, “is” should be “are”. A new clause 76(3A) should reflect the content of s12(5)(b) of NEMAA, 2008. The 2008 NEMAA dealt with the transition from the MPRDA regime, including the holders of old order rights under the MPRDA, to NEMA regime based on the 2008 Ministers Agreement. The 2014 NEMLAA amended the 2008 NEMAA in order to strengthen the NEMA regime and to give effect to the 2012 Ministers Agreement.

Chamber of Mines Clause Comment/Proposal Response 76 The wording of clause 76(4) should also be put into section 12(4A) of NEMAA, 2008. The 2008 NEMAA do not contain a section 12(4A), nor do the 2014 NEMLAA inserted a section 12(4A). In this regard, the 2008 NEMAA only contains section 12(4). In clause 76(5), second line, after “residue” remove the word “and” between residue and “stockpiles”. The proposal is accepted. In clause 76(6)(a), third line, after “mining” insert, “exploration”. In clause 76(6)(b), third last line, it is suggested that reference be made to the actual notices, gazettes and dates which pertain to the relevant new regulations.

Chamber of Mines Clause Comment/Proposal Response 77 Clarity is sought on the wording of this clause. Taking into consideration that a waste management licence issued under NEMWA is an environmental authorisation in terms of the definition of an environmental authorisation under NEMA. The intention of this transitional arrangements are to ensure that waste management licences relating to residue deposits and residue stockpiles that were issued while the residue deposits and stockpiles were regulated under the NEMWA remains valid under the provisions of NEMA. For purposes of consistency and clarity we are using the wording of the NEMWA.

Chamber of Mines Clause Comment/Proposal Response 78(1) Clarity is sought on the wording of this clause. Due to the uncertainty as to whether the ostensibly repealed ss38, 39, 41 and 42 of the MPRDA, the associated definitions in s1 of the MPRDA and the associated regulations made in terms of the MPRDA, nevertheless survive their ostensible repeal with effect from 7 June 2013 by virtue of the MPRDA Amendment Act, 2008 until 8 December 2014 when the corresponding provisions in NEMA took effect. It is suggested that a further transitional provision be inserted in terms of a further clause in the Bill into NEMA to that effect . This clause provides for transitional provisions regarding the Waste Management Bureau. This Bill intends to change the legal status of the Bureau to a public entity governed by a Board of Directors as the accounting authority. This clause is not intended to deal with the repeal of sections 38, 39, 41 and 42 of the MPRDA. These sections were repealed by the 2008 NEMAA, and that Amendment Act inserted in NEMA the following sections 24N, 24O, 24P, 24Q and 24R.

Western Cape Government Clause Comment/Proposal Response 75(a) We do not support the principle that an environmental management plan or programme can be equated to an environmental authorisation. An EMPr is not an EA and the two have different roles and functions. There is a marked difference between an EA issued in terms of the NEMA and an EMPr issued in terms of the MPRDA. The requirements for the assessment of the environmental impacts of a listed activity in terms of the NEMA are far more stringent than the requirements which were provided for in the MPRDA. An EA evaluates the significance of impacts and identifies mitigation measures, whereas an EMPr is an implementation tool for such mitigation measures. Whilst we do not support the principle of converting an EMPr into an EA, we will support the proposed amendment, only if the crucial qualification mentioned in section 12(4B), is retained. Department agrees in principle that an EMPR is not equal to an EA. However, this was the only type of authorisation, with environmental conditions, that was previously issued under the MPRDA. The current provision in the Bill is aligned with the section 38B in the 2008 MPRDA Amendment Act (not in effect) and the amendment to section 38B in the MPRDA Bill currently in Parliament, but it also provides clarity that the intention is not to legalise illegal activities.

Transition from MPRDA to NEMA The transitional provisions (2008 NEMA, 2014 NEMA, EIA Regulations and the current NEMLA) intend to reflect, amongst others, the following: Applications for exploration, prospecting and mining activities applied for before 8 December 2014 under the MPRDA must be finalised in terms of the MPRDA and will be regarded as lawful under NEMA regardless when the right was issued. Appeals will be dealt with under the MPRDA. Ancillary listed activities under NEMA, such as roads, power lines, etc. must be applied for in terms of NEMA regardless whether applied for before 8 December 2014, if the activities were listed under NEMA at the time. Appeals will be dealt with under NEMA