1. Western Cape Government Comments The National Environmental Management Laws Amendment Bill [B ]
A Rossouw and P Hardcastle
24 April 2018

2. Background and Introduction
Western Cape Government (“WCG”) submitted comments on the National Environment Management Laws Amendment Bill published for public comment in 2015.
WCG subsequently engaged with national and the various provincial departments of environment affairs at relevant intergovernmental structures, i.e. the various Mintech Working Groups on the Bill.
WCG comments submitted on the current version of the Bill includes –
comments supporting proposed provisions included in the Bill
comments not supporting proposed provisions included in the Bill
comments proposing additional amendments, not included in the Bill
Presentation aims to highlight the WCG’s key comments on the Bill.
NEMLA4 Public Hearings April 2018

3. Key Comments - summary
Key comments - National Environmental Management Act, 1998 (“NEMA”)
Definition of “financial provision” should 1) not be limited to mining activities and 2) should make adequate provision for all impacts.
The inclusion of latent impacts in the scope of financial provisioning must be ensured.
The Minister of environmental affairs should be afforded the power to act ito section 31D(8), without concurrence from the Minister of mineral resources.
The competent authority for activities related to national priorities should be reconsidered.
Key comments – National Environmental Management Air Quality Act, (“NEMAQA”)
The licencing authority for air quality activities related to national priorities should be reconsidered.
Key comments related to the National Environmental Management Amendment Act, 2008 (“NEMAA”)
Whilst we do not support the principle of converting an environmental management programme (“EMPr”) into an environmental authorisation (“EA”), we will support the proposed amendment, only if the crucial qualifications included are retained.
NEMLA4 Public Hearings April 2018

4. NEMA – Definition of “financial provision”
Included in the Bill – proposed amendment to definition of financial provision should not be limited to mining related development
Definition should create an enabling context that can be applied to all listed and specified activities as is intended by s24P(7) of the NEMA.
Paragraph of the Memorandum on the Objects of the Bill states that the draft definition of ‘financial provision’ is amended to clarify that –
“…the definition applies to an applicant for environmental authorisation, a holder of an environmental authorisation or a holder of a right or permit granted in terms of the Mineral and Petroleum Resources Development Act, 2002”.
This rationale, i.e. not limited to mining, is supported - it is however not evident in the proposed wording of the draft definition.
The definition must be clarified to clearly include applicants for or holders of environmental authorisations for all listed or specified activities, as well as holders of old order mining rights.
For example, polluting industries have environmental implications that are similar to the mining sector.
NEMLA4 Public Hearings April 2018

5. NEMA – Definition of “financial provision”
Not included in the Bill – definition of financial provision should be amended to ensure adequate provision is made for all impacts
It is not apparent from the current definition that adequate provision is being made for post closure impacts of, for example, those in respect of shale gas.
The following is proposed in this regard:
It is proposed that paragraph (d) of the current definition is amended as follows:
“(d) monitoring, mitigation and remediation of latent or residual environmental impacts which become known in the future during post closure monitoring”
Also, paragraphs (a) to (f) in the definition lists certain aspects for which the availability of sufficient funds is required, for example, decommissioning and closure of operations.
Paragraph (e) should therefore refer to “and” as opposed to “or” which would mean that sufficient funds must be provided to possibly undertake all, and not only one of the activities listed in paragraphs (a) to (f).
This is consistent with the Environmental Right contained in our Constitution that sets an imperative for intergenerational sustainability and ecologically sustainable development whilst supporting justifiable social and economic development – mining impacts should not become societal burdens.
NEMLA4 Public Hearings April 2018

6. NEMA – Inclusion of latent impacts in scope of financial provisioning
Included in the Bill – proposed amendment to s24P must ensure that latent impacts are included in financial provisioning
Bill proposes the deletion of the word “latent” in s24P(5)(b), i.e.
“…must retain such portion of the financial provision as may be required to rehabilitate the closed mining or prospecting operation in respect of [latent,] residual or any other environmental impacts…”
NEMA does not provide a definition for “latent” or for “residual”.
It is not clear what impact the deletion of “latent” will have.
The objects of the Bill does not provide any clarity and only refers to “…the portion of financial provision as may be required to rehabilitate residual or any other environmental impacts of the closed mine…”
The legislation is not clear that latent impacts are included and must be addressed as part of financial provisioning to manage such impacts.
If the word latent is removed, residual impacts must be clearly defined to also include latent impacts
This clarity is especially needed in light of the definition of latent environmental impacts as per the MPRDA Regulations, i.e. “…any environmental impact that may result from natural events or disasters after a closure certificate has been issued”.
NEMLA4 Public Hearings April 2018

7. NEMA – Power to act ito section 31D(8)
Not included in Bill – s31D(8) should be amended to allow Minister of environmental affairs power to act where DMR failed to
S31D(4)-(9) of NEMA sets out detailed requirements and procedures for when DMR officials fail to perform their functions related to compliance monitoring and enforcement.
Ito s31D(8) the Minister of environmental affairs may, in concurrence with the Minister responsible for mineral resources, may, where appropriate take reasonable steps to -
Assist and support the Minister responsible for mineral resources to fulfil his/her compliance monitoring and enforcement obligations
Direct the environmental management inspectors to undertake compliance monitoring and enforcement functions
To ensure that from a practical perspective, when the steps in sub-sections 31D(4)-(7) have failed to address the complaint, the Minister of environmental affairs will have the power to act in terms of subsection 31D(8), the requirement for concurrence should be deleted.
NEMLA4 Public Hearings April 2018

8. NEMA – Competent Authority for activities related to national priorities
Provision included in the Bill to expand the scope of the s24C(3) agreement is supported, but additional amendment to s24C preferred option
S24C of NEMA identifies the relevant competent authority for applications for environmental authorisation for listed/specified activities.
Generally, the MEC is identified as the competent authority, unless –
The activity has implications for international environmental commitments or relations (e.g. renewable energy)
Has a development footprint that falls within the boundaries of more than one province, or traverse international boundaries
Is proposed by a national department, provincial department responsible for environmental affairs, statutory body performing exclusive competence of national sphere
S24C(2B) further provides that the Minister must be identified as the competent authority where a Cabinet decision stipulates that the Minister must be the competent authority for activities related to a matter declared as a national priority.
S24C(3) allows the Minister and a MEC to agree that applications for environmental authorisations wrt any activity or class of activity may be dealt with by the Minister or MEC.
NEMLA4 Public Hearings April 2018

9. NEMA – Competent Authority for activities related to national priorities
S24C(3) does however not allow the Minister and a MEC to agree that applications for activities contemplated in s24C(2B), i.e. activities related to matters declared as a national priority, may be dealt with by a MEC.
This is problematic in the following respects:
We support the principle of national priorities, but practical application of criteria determining these must be specific, transparent and reasonable.
The notion that only national government is competent to make decisions on matters declared national priorities, is flawed.
In terms of Schedule 4 of the Constitution, “environment” is a concurrent national and provincial competence.
NEMLA4 Public Hearings April 2018

10. NEMA – Competent Authority for activities related to national priorities
Proposed amendment to at least allow for a potential agreement in terms of s24C(3) in instances where the Minister is the competent authority for activities related to a national priority is supported, but not the preferred option.
Preferred option is to
Delete s24C(2B) of NEMA
Use the existing s24C together with an agreed set of criteria to reach an agreement between the Minister and a MEC in order for the Minister to become the competent authority in certain instances.
This is a more appropriate and transparent mechanism to allocate national priority matters to the national Minister in specific cases.
This is consistent with the principles of differentiation and subsidiarity.
NEMLA4 Public Hearings April 2018

11. NEMAQA – Air quality activities related to national priorities
Provision included in the Bill to expand scope of s36(8) supported, but additional amendment to s36 preferred option
In terms of s36(5) of NEMAQA the Minister is identified as the licensing authority for “national priorities”.
S36(8) provides for a possible agreement between the Minister and the licencing authority, or the MEC and the licencing authority regarding identification of the licencing authority.
Possible agreement does not apply matters where the Minister is identified as the licencing authority for national priorities.
The challenge with this is:
We support the concept of national priorities, the practical application thereof must be specific, transparent and reasonable.
The notion that only national government is competent to make decisions on such national priorities, is flawed.
Ito Schedule 4 of the Constitution “air pollution” is a municipal competence.
NEMLA4 Public Hearings April 2018

12. NEMAQA – Air quality activities related to national priorities
The Bill proposes that s36(8) of NEMAQA be expanded to also allow for agreements between the Minister and MEC/Municipalities for matters of national priority.
This is supported as a second option and is not preferred solution as it does not adequately acknowledge the constitutional allocation of “air pollution” as a municipal function.
Preferred option is the deletion of s36(5)(c) of NEMAQA.
This will allow district and metropolitan municipalities to be the licensing authorities, even for matters of national priority, but still allow the Minister and licensing authority to reach an agreement based on the facts of a specific application for the Minister to become the licensing authority.
NEMLA4 Public Hearings April 2018

13. NEMAA – EMP or EMPr issued ito the MPRDA deemed to be an EA
Included in the Bill – principle of EMPr and EMP being deemed to be an EA not supported, but proviso attached thereto is supported
Clause 75 provides a proposed amendment to s12(4), i.e. –
“An environmental management plan or programme approved in terms of the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002) on or before 8 December 2014, … after 8 December 2014… shall be deemed to have been approved in terms of the National Environmental Management Act, 1998, and an environmental authorisation issued.”.
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.
NEMLA4 Public Hearings April 2018

14. NEMAA – EMP or EMPr issued ito the MPRDA deemed to be an EA
The recent Western Cape High Court decision of Mineral Sands Resources (Pty) raised questions about the relationship between an environmental impact assessment and an environmental management programme. The court held that there must be a -
“…. proper appreciation of the function of an EMP and of the reason for the more rigorous processes required for environmental authorisations. In terms of s 24N, the main function of an EMP is to provide information on the proposed management, mitigation, protection and remedial measures that will be undertaken to address the environmental impacts of the activities to be undertaken. Although the EMP would identify the activities to be undertaken in order to provide the context for the measures proposed, it is not the function of the EMP to determine the activities which the applicant is authorised to undertake.” (Par 170 0f the judgment)
In summary, an EA evaluates the significance of impacts and identifies mitigation measures, whereas an EMPr is an implementation tool for such mitigation measures.
The proposed new s12(4B) provides for a crucial qualification that s2(4) and the proposed new s12(4A)
“….do not apply in the instances where an application for an environmental authorisation in relation to activities ancillary to exploration, prospecting, mining, or primary processing was not obtained, was refused or there was failure to obtain an environmental authorisation”.
Whilst we do not support the principle of converting an EMPr into and EA, we will support the proposed amendment, only if the crucial qualification mentioned above, is retained.
NEMLA4 Public Hearings April 2018

16. Anique Rossouw Policy and Planning Coordination +27 (0)21 483 2900
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