1. National Environment Laws Amendment Bill [B66- 2008] Submission by BUSA August 2008

2. BUSA Confederation of business associationsConfederation of business associations Need for Environmental law recognisedNeed for Environmental law recognised Need to continuously update laws appreciatedNeed to continuously update laws appreciated

3. BUSA (2) Concern that very short public comment period was allowedConcern that very short public comment period was allowed Request for extension was refusedRequest for extension was refused Almost immediately in parliamentAlmost immediately in parliament Ongoing efforts to maintain constructive engagement with departmentOngoing efforts to maintain constructive engagement with department

4. Amendments Lack of opportunity to engage with departmentLack of opportunity to engage with department Not clear why some of the amendments are requiredNot clear why some of the amendments are required

5. Section 1 and 2 Provisions for penalties not opposed Provisions for penalties not opposed Alignment proposedAlignment proposed NEMA: R10 million == 10 years imprisonmentNEMA: R10 million == 10 years imprisonment Bill: R5 million ==5 years imprisonment ?Bill: R5 million ==5 years imprisonment ?

6. Section 6 NEAF disbanded NEAF disbanded BUSA agrees did not work as anticipatedBUSA agrees did not work as anticipated No reason to disbandNo reason to disband Lack of internal coherence in implementation of environmental legislationLack of internal coherence in implementation of environmental legislation Proposal:Proposal: –Withdraw section –Undertake investigation into reasons for non performance

7. Section 6 (2) Address problems Address problems Discretionary provision provides no guarantee to stakeholders on establishmentDiscretionary provision provides no guarantee to stakeholders on establishment Experience in other legislationExperience in other legislation –Eg Occupational Health and Safety

8. Section 12 Welcome the deletion from the Bill of the provision of future behaviour to be an offenceWelcome the deletion from the Bill of the provision of future behaviour to be an offence If to be reintroduced, consultation imperativeIf to be reintroduced, consultation imperative 12 (b) and 12(c)12 (b) and 12(c)

9. Section 12 (b) “anticipatory costs” must be defined“anticipatory costs” must be defined Absence of definition may lead to disputesAbsence of definition may lead to disputes Claims for damages must be reasonable and based on evidence that costs will be reasonably incurredClaims for damages must be reasonable and based on evidence that costs will be reasonably incurred “reasonable expenses to be incurred for purposes of reasonable measures under section 28(7)“reasonable expenses to be incurred for purposes of reasonable measures under section 28(7)

10. Section 12 (b) (2) Section 28(7) requires DG to act reasonablySection 28(7) requires DG to act reasonably Cannot recover costs before acting in terms of (7)Cannot recover costs before acting in terms of (7) Claims from successors in title?Claims from successors in title?

11. Section 12 (c) Criminal offences: unlawful intentional acts or omissionsCriminal offences: unlawful intentional acts or omissions Must lead to significant pollution or degradation of the environmentMust lead to significant pollution or degradation of the environment Criminal provisions and offence must be aligned i.e failure in duty of careCriminal provisions and offence must be aligned i.e failure in duty of care Certain tests required for criminal sanctionCertain tests required for criminal sanction

12. Section 12 (c) (2) Review approach to ensure constitutionalityReview approach to ensure constitutionality Align criminal sanction with significant pollutionAlign criminal sanction with significant pollution Non compliances can also be managed through directivesNon compliances can also be managed through directives Alignment with section 28:Alignment with section 28: –Insert significant and –Delete (b)

13. Section 13 Failure to comply with section 30 of NEMA criminal offenceFailure to comply with section 30 of NEMA criminal offence May not always be appropriateMay not always be appropriate Examples: road transport incidentsExamples: road transport incidents R100 000 ==10 years?R100 000 ==10 years?

14. Section 30 (3) Reporting (4) Remedy effects of incident (5) Reporting (6) Directive from authority

15. Section 14 Deletion supportedDeletion supported Promotion of Access to Information Act in forcePromotion of Access to Information Act in force Assume compliance intendedAssume compliance intended

16. Section 15 Not onerous for Environmental Management Inspector to carry the notice issued to him to outline scope of dutiesNot onerous for Environmental Management Inspector to carry the notice issued to him to outline scope of duties Proposal in draft Bill to delete provision is opposedProposal in draft Bill to delete provision is opposed

17. Section 19 BUSA does not support amendment that undermines consistent approach to access to information held by the stateBUSA does not support amendment that undermines consistent approach to access to information held by the state Extra powers of inspectors sufficient for access to informationExtra powers of inspectors sufficient for access to information Challenge is that information requirements go beyond provisions in legislationChallenge is that information requirements go beyond provisions in legislation

18. Section 20 (b) Court orders for remedial measures not opposed in principleCourt orders for remedial measures not opposed in principle Provision must be made for relevant information essential to making of a reasonable order to be providedProvision must be made for relevant information essential to making of a reasonable order to be provided Section must be aligned with Criminal Procedure ActSection must be aligned with Criminal Procedure Act

19. Section 22 Creation of new offences under existing statutes unfair and unreasonable in absence of the full context of the relevant statuteCreation of new offences under existing statutes unfair and unreasonable in absence of the full context of the relevant statute

20. Conclusion BUSA remains committed to promoting compliance with environmental legislationBUSA remains committed to promoting compliance with environmental legislation Cost to business of provisions must be taken into accountCost to business of provisions must be taken into account Trusts concerns can be addressed before finalisationTrusts concerns can be addressed before finalisation