BRIEFING OF THE SELECT COMMITTEE - NEMA AMENDMENT BILL – BILL 36B OF 2007 Joanne Yawitch July 2008.

BRIEFING OF THE SELECT COMMITTEE - NEMA AMENDMENT BILL – BILL 36B OF 2007
Joanne Yawitch July 2008

Background

Acronyms and abbreviations used in presentation
DEAT – Department of Environmental Affairs and Tourism DME – Department of Minerals and Energy EA – Environmental Authorisation EAP – Environmental Assessment Practitioner EIA – Environmental Impact Assessment EMF – Environmental Management Framework MPRDA – Minerals and Petroleum Resources Development Act NEMA – National Environmental Management Act SEMA – Specific Environmental Management Act PAJA – Promotion of Administrative Justice Act RMDEC – Regional Mine Development and Environmental Committee

Overview of amendments
Following documents provided / attached Bill 36 as Certified and published in August 2007 Bill 36A – containing amendments affected to Bill 36 by the Portfolio Committee Bill 36B – Amendment Bill as approved by the National Assembly and referred to the NCOP for concurrence

Overview of amendments
Amendments can be summarised as follows: In order to improve efficiency and effectiveness of environmental impact management system, main areas targeted in amendment are: Increased clarity through amendments of and additions to definitions of terminology (section 1 of NEMA) Provision for tools other than EIA

Overview of amendments (2)
Summary (cont): Improved provisions for cooperative governance New provisions for integration and alignment of regulatory (authorisation) processes Strengthening provisions to use spatial tools in environmental impact management New provisions for management, including exclusions, based on norms or standards. And provisions on the development of new or adoption of existing norms or standards

Overview of amendments (3)
Exemption provisions and “checks and balances” in this regard Alignment with PAJA As NEMA is enabling for the EIA Regulations, these amendments are necessary before similar provisions in regulations can come into force.

Overview of process thus far
Prior to introducing Bill in Parliament, Department conducted extensive public consultation, including: Publication for comments 6 Open days 3 Reference Group meetings The amendment Bill was introduced in Parliament in July 2007 The Bill was certified in August 2007 by the Chief State Law Advisor The Portfolio Committee (PC) conducted public hearings in September 2007 After the public hearings, the department briefed the PC on the amendments, including a “clause by clause” briefing early November 2007.

Overview of process thus far (2)
During the latter briefing in principle support was obtained for the bulk of the proposed amendments, subject to some minor amendments, including: Editorial corrections Moving public participation from discretionary to compulsory requirements [24(4)(b)(iii) to be moved to 24(4)(a) as 24(4)(a)(iv)

Overview of process thus far (3)
Amending wording of 24(4)(b) – (discretionary requirements) to be more prescriptive (applicability must be considered before requirement is dismissed) Including provision to address period not covered by rectification clause (Section 24G) The area where agreement could not be reached related to environmental management of mining and the department and State Law Advisors were tasked to do some more work in this regard.

Environmental management and mining

Problem statement leading to the agreement
Ministers agreed that it is not desirable that there are different environmental managements systems for different activities. It has accordingly been agreed that there should be one system and that this system should be prescribed by the environmental authority. The Minister of M&E has an existing mandate in terms of environmental management for mining and this must be retained The Minister of EA&T is the custodian of the environment, and must be enabled to fulfil this function, also in terms of mining

Agreement (1) In principles agreement by ministers:
One system – prescribed by NEMA Minister of M&E retain mandate as designated competent authority to implement system related to mining Minister of EA&T instated as appeal authority in mining environmental management process – enable him to exercise function as custodian Transition of a Minerals and Petroleum Resources Development Act (MPRDA) managed system to NEMA managed system within 18 Months of enactment of amendment Bill (Bill 36 of 2007) or MPRDA amendment Bill (Bill 10 of 2006)

Agreement (2) During March & April 2008 the agreement was negotiated in various political fora before submitted to a joint meeting of the EA&T and M&E portfolio committees. The agreement was adopted on political level with the following addition to the agreement: After 18 months of implementation, the environmental management function related to mining will in its entirety be transferred to the environmental authority

Agreement (3) In order to give effect to the agreement, the following must happen: In terms of “one system” MPRDA amended by: Repealing all provisions related to environmental management Making granting of prospecting / mining / reconnaissance subject to environmental authorisations (one of the granting conditions)

Agreement (4) In terms of “one system” (cont) NEMA amended by:
Inclusion of environmental management provisions of the MPRDA currently not adequately covered by NEMA (e.g. financial provisions for rehabilitation; closure; etc.) Allowing for combination of applications Accommodating stricter time frames for mining related processes Result – environmental management regulated by NEMA only

Agreement (5) In terms of competent authority NEMA amended by:
Assigning competence to the Minister of minerals and energy for the implementation of environmental management system (in other words, Minister of M&E cannot regulate environmental management, develop policy or guidelines or norms & standards in this regard, but must implement these) Result – environmental management regulated by NEMA only but, for mining, implemented by DME

Agreement (6) In terms of appeal authority NEMA amended by:
Assigning the Minister of environmental affairs and tourism as the appeal authority for all environmental authorisations issued for mining related activities by the Minister of minerals and energy

Agreement (7) In terms of transition
NEMA and MPRDA amended with inclusion of transitional arrangements to include the 18 month period Clause included in NEMA to revoke Minister of M&E’s environmental management powers and instate Minister of EA&T for this purpose

Agreement (8) Time line for implementation of full agreement:
Time frame Act managing environmental management of mining Authority responsible for implementation of Act Period 1: Date of enactment of Bill months MPRDA DME Period 2: End of period months NEMA as amended through Bill 36 (apart from appeals – DEAT) Period 3: End of period 2 onwards NEMA DEAT

Conclusion of NA process
On conclusion of proposed amendments to give effect to agreement, briefing and presentation to the Portfolio Committee resulting in Bill 36A and Bill 36B (May 2008). Through Bill 36A, following amendments were made to Bill 36 (summarised): Edits Tightening up discretion of Minister (may, replace with must where applicable) Instate public consultation as a mandatory requirement in EA process Increased oversight of parliament by requirement that regulations on EA tools must be referred to Parliament Amendments as required by the agreement on environmental management of mining Bill 36B adopted by the National Assembly and referred to the NCOP (June 2008)

Detailed briefing – Bill 36B

Explanatory notes NEMA Bill 36B contain all the amendments to be considered, that is, the original amendment Bill and all amendments and additions to it introduced by the Portfolio Committee and adopted by the National Assembly In the text: [xxx] – (bold in square brackets) - indicate deletion from the principal Act Xxx or a vertical line next to a paragraph – indicate insertion to the Principal Act Substitutions are also underlined

Clause 1: Section 1 of the Principal Act – definitions and general provisions
Reason for amendments: Clarifying terminology used Widening the scope of the act for tools other than EIA Aligning definitions with other statutes (MPRDA, Waste Bill, etc) Providing for integration and alignment of permitting processes and improved coordination and cooperation in this regard. Adding definitions related to environmental management of mining Giving effect to agreement on mining Aligning administrative justice requirements with the Promotion of Administration Justice Act (PAJA) of 2000

TERM AMENDMENT REASON / EXAMPLE “Activity” Added “processes” Alignment with other SEMA – e.g. waste bill where an EA ,might be required for processes (e.g. biological treatment) “Applicant” Added provision on combined applications with MPRDA Give effect to agreement “Commence” Added clarification regarding scientific work done in informing EA process Clarity – (Example: drilling for geotech studies not included but digging foundations is)

TERM AMENDMENT REASON / EXAMPLE “Community” Expand to include definition related to mining Give effect to agreement “Development footprint” New definition The terms is used in text and clarity was requested by stakeholders “Environmental authorisation” Expanded to include authorisations in terms of SEMA Standardisation and enabling integrated / streamlined authorisation process (e.g.: Waste Permit in terms of Waste Bill)

TERM AMENDMENT REASON / EXAMPLE “Environmental management programme” Changed “plan” to “programme” and align with MPRDA Give effect to agreement “Exploration area” New definition taken from MPRDA “Holder” “Holder of old order right”

TERM AMENDMENT REASON / EXAMPLE “Integrated environmental authorisation” New definition Required as result of introduction of the term in the amendment Bill (see amendments to S24) “Interested and affected party” Included on request of stakeholders. To provide clarity “mine”; “Minerals & Petroleum Resources Development Act”; “Mining area” New definitions Give effect to agreement

TERM AMENDMENT REASON / EXAMPLE “Minister” Refined to demonstrate responsibilities in terms of mining Give effect to agreement “Minister of Minerals & Energy” New definition demonstrating Minister of M&E’s responsibilities in terms of NEMA “Norms & standards” New definition Required as result of introduction of the term in the amendment Bill (see amendments to S24)

TERM AMENDMENT REASON / EXAMPLE “owner of works”; “production area”; “prospecting area” New definitions Give effect to agreement “Public Participation Process” New definition Included on request of stakeholders. To provide clarity “Regional Mine Development & Environmental Committee”

TERM AMENDMENT REASON / EXAMPLE “residue deposit”; “residue stockpile” New definitions Give effect to agreement “Spatial development tool” New definition Required as result of introduction of the term in the amendment Bill (see amendments to S24)

General provision of Section 1 AMENDMENT REASON / EXAMPLE New sub-section added – 1(5) – Link act with PAJA Correcting prior misalignment with PAJA

Clause 2: Section 24(1) to 24(10) of the Principal Act – Environmental Authorisations
This section introduce the requirement of an environmental authorisation to give effect to the objectives of integrated environmental management AMENDMENT REASON / EXAMPLE Refinement of section 24(1) to include “consequences”, “specified activities” and to indicate role o Minister of M&E The be aligned with widening of scope to tools other than EIA and link to SEMA Inclusion of new provision 24(1A) to strengthen requirements related to the obligations of applicant These provisions were previously in the EIA Regulations but in the MPRDA it was in the Act. This provision is strengthened when it is in the Act.

Section 24(2) Section 24.2 of the Principal Act enable the Minister to identify activities and geographical areas where investigation and authorisation requirements will apply. Amendments to Section 24.2 are necessary for the following reasons: Allow for exclusions from the need to undergo investigation and obtain authorisation based on: Wide range of spatial tools Norms or standards Allow for the management of activities through norms or standards

Section 24(2) AMENDMENT REASON / EXAMPLE
Expansion of 24(2)(b) to include the use of spatial tools Enable use of existing planning tools such as Spatial Development Frameworks, bio-regional plans, etc. for environmental management purposes Expansion of 24(2)(c) to expand the use of other spatial tools to exclude activities from EA requirements Adding a new provision – 24(2)(d) to allow for norms & standards Enable use of norms and standards to manage activities and to exclude such activities from the need to obtain an EA

Section 24(4) Section 24.4 of the Principal Act prescribe the minimum requirements for investigation of environmental impacts and consequences associated with listed activities. Amendments to Section 24.4 are necessary for the following reasons: The current requirements restrict the use of tools other than EIA By making all the requirements compulsory for all tools and under all circumstances, process is very rigid and flexibility and variation to meet circumstances not possible It is not possible to exempt an applicant from any aspect of a compulsory minimum requirement Amendment accordingly split minimum requirements to “musts” and “must where applicable” Discretion of minister /MEC is qualified – must demonstrate applicability Giving effect to the agreement – had to include requirements stemming from the MPRDA

Section 24(4) AMENDMENT REASON / EXAMPLE
Split 24(4) in “must” -24(4)(a)- and “must, where applicable” – 24(4)(b) The requirements in 24(4)(a) must always be adhered to regardless of what tool is utilised for the assessment of activities. The requirements in 24(4)(b) must be adhered to when applicable. NB: This is not on a case by case basis – what 24(4) say is when the Minister make regulations regarding an EA for a list of activities, he must is such regulations always prescribe 24(4)(a) and always where applicable prescribe 24(4)(b). Examples: EIA as tool 24(4)(a) and everything in 24(4)(b) are always applicable and therefore required Life Cycle Assessment as Tool – 24(4)(b)(i) & 24(4)(b)(iv) will not be applicable

Section 24(4) (Cont) AMENDMENT REASON / EXAMPLE
Add new provision regarding heritage resources – 24(4)(b)(iii) Alignment with MPRDA and with National Heritages Resources Act of 1999. Add new provision regarding compliance with SEMA’s – 24(4)(b)(vii) Standardisation of EAs in all environmental acts and allowing for integrated permits. Example: Mining in protected areas, coastal activities, etc.

AMENDMENT REASON / EXAMPLE Section 24(5)
This section enable the making of regulations related to environmental authorisations Amendments to this section is required to: ensure alignment with the MPRDA and to implement the agreement Enable use of tools other than EIA AMENDMENT REASON / EXAMPLE New provision to allow making regulations on management and control of residue stockpiles - 24(5)(b)(vi) Giving effect to agreement – bringing mining and related environmental management consideration into the ambit of NEMA New provision to allow making regulations on consultation of land owners - 24(5)(b)(vii)

New provision to allow making regulations on mine closure - 24(5)(b)(viii) Giving effect to agreement – bringing mining and related environmental management consideration into the ambit of NEMA New provision to allow making regulations on financial provisions - 24(5)(b)(ix) Giving effect to agreement – bringing mining and related environmental management consideration into the ambit of NEMA. This also strengthens NEMA with enabling provisions for activities other than mining New provision to allow making regulations monitoring of environmental management programmes and performance assessments -24(5)(b)(x)

New provision to allow making regulations on tools other than EIA – 24(5)(bA) Expanding the toolkit beyond EIA and allow for tools such as: Risk Assessment Norms & Standards Spatial development Tools Cost benefit Analysis Life Cycle Assessment EMPs and EMPRs Amend provisions to ensure fees and fines are developed in consultation with Minister of Finance – 24(5)(c) and24(5)(d) Alignment with constitutional mandates

This section specify the relation between an authorisation obtained in terms of NEMA and authorisations obtained in terms of other acts Amendments to this section is required to: improve grammar to clarify requirements AMENDMENT REASON / EXAMPLE Section 24(7) is reworded Improving grammar and provide clarity

This section specify the relation between an obtained in terms of another Act and how it relates to the requirement to obtain an authorisation in terms of NEMA Amendments to this section is required to: clarify requirements Provide for minimisation of duplication by references to new Section 24L AMENDMENT REASON / EXAMPLE Section 24(8) is reworded to obtain a link to 24L Enabling provision to eliminate duplication of regulatory requirements – see 24L

This section specify the division of mandates between the Minister and MEC’s with regard to the making of regulations Amendments to this section is required to: clarify mandates in terms of cross boundary activities AMENDMENT REASON / EXAMPLE Section 24(9)(a) is amended to refer to development footprint Previous provision was confusing and open to interpretation – the amendment provide clarity

Section 24(10) This is a new section enabling the development, adoption and use of norms and standards in environmental impact management PROVISION REASON / EXAMPLE Section 24(10)(a)(i) enable the development and adoption of norms & standards, Improvement of efficiency and effectiveness of the EA system Section 24(10)(a)(ii) enable the prescription of the use of norms & standards Section 24(10)(a)(iii) enable prescription related to reporting in terms of norms & standards Section 24(10)(a)(iv) enable prescription related to compliance monitoring in terms of norms & standards

Section 24(10) (cont) PROVISION REASON / EXAMPLE
Section 24(10)(b) prescribe the minimum requirements for norms & standards Improvement of efficiency and effectiveness of the EA system Section 24(10)(c) prescribe the process for developing norms & standards Improvement of efficiency and effectiveness of the EA system – this is where new norms & standards are developed Section 24(10)(d) prescribe the process for adopting Improvement of efficiency and effectiveness of the EA system – this is where existing norms & standards (e.g. SANS Codes) are adopted for the purposes of this Act

Clause 3: Section 24C of the Principal Act – Competent Authority
This section provide the requirements to establish whether the Minister or a MEC would be the competent authority Amendments to this section is required to provide clarity and certainty AMENDMENT REASON / EXAMPLE Section 24C(2)(b) has been refined to be more specific in terms of international obligations Previously very vague and open to interpretation. Minister’s jurisdiction now limited to an area protected through international instruments. Provided clarity in terms of inter alia: Sea shore Biosphere reserve World heritage sites

Section 24C (cont) AMENDMENT REASON / EXAMPLE Section 24C(2)(c) has been refined to be more specific in terms of cross boundary activities Previously very vague and open to interpretation. Minister’s jurisdiction now limited to where an activity has a development footprint extending across provincial boundaries Section 24C(2)(d)(ii) has been expanded to give Minister jurisdiction regarding activities undertaken by an organ of state reporting to the relevant provincial MEC As MEC is appeal authority, this amendment was made to ensure that conflict of interests are avoided

Clause 4: Section 24D of the Principal Act – Publication of lists
This section prescribe the manner in which lists of activities and geographical areas must be published Amendments to this section is required to address omissions / effect editorial corrections AMENDMENT REASON / EXAMPLE Section 24D has been amended by effecting editorial changes Editorial correction

Clause 5: Section 24F of the Principal Act – Offences
This section describe offences in terms of environmental authorisations Amendments to this section is required to: Align it with norms & standards provisions Differentiate between “commencement” and “continuation” of activities Enable rectification clause AMENDMENT REASON / EXAMPLE Section 24F(1) has been amended including reference to norms & standards -24F(1)(a) This makes it an offence to not comply with a prescribed norm& standard Section 24F(2) has been amended to differentiate between “commence” and “continue” of activities without EA This enables rectification of commencement of activity without authorisation – see 24G

AMENDMENT REASON / EXAMPLE Section 24F(2) has further been amended to add the following offences: Non compliance with norm & standard Non compliance with conditions of an EA Non compliance with an approved EMPR Non compliance with a condition of an Exemption This enables stricter enforcement of EAs. Also, alignment with MPRDA as per agreement

Clause 6: Section 24G of the Principal Act – Rectification
Section 24G of the Principal Act provides for the rectification of unlawful activities Amendments to Section 24G are necessary for the following reasons: The process prescribed in 24G stipulates that the Minister / MEC may only consider an application after a fine has been paid. This is not logical as the consideration of the application and information submitted in this regard, inform what fine should be issued Requirements for contents of reports to be submitted to the Minister was very rigid. The section has been amended to: change the chronology of events to a more logical order Make contents of reports more flexible to suite circumstances

AMENDMENT REASON / EXAMPLE Section 24G has been amended through various edits to prescribe a more logical process Improved efficiency & effectiveness of EA system Section 24G(2A) – a new provision – has been added to clarify requirements of the administrative fine and to cap the amount to R1Million Alignment with fines and penalty provisions in section 28 of the Act

Clause 7: Section 24H of the Principal Act – Registration of EAPs
Section 24H of the Principal Act provides for the establishment of a registration authority for EAPs Amendment of Section 24H is necessary in order to enable the minister to restrict the number of registration authorities AMENDMENT REASON / EXAMPLE Section 24H has been amended to enable the minister to limit the number of registration authorities The Minister need to limit the number of registration authorities to ensure standardisation and consistency in terms of standards, code of conduct, etc. within the EAP industry

Clause 8: New provisions
Section 24J is a new provision enabling the development and use of guidelines in the administration of environmental authorisation applications The insertion of Section 24J is necessary for the following reasons: It provides enabling provision for activity related and procedural guidelines to inform applications and decision-makers - these provisions in the 2006 EIA Regulations are currently not anchored in the Act. AMENDMENT REASON / EXAMPLE Section 24J(a) enable the Minister and/ or a MEC to publish guidelines on listed and specified activities Improved efficiency & effectiveness of the EA system Section 24J(b) enable the Minister and/ or a MEC to publish guidelines implementation and administration of processes and EAs

Section 24K is a new provision enabling cooperation and coordination between organs of state in the implementation and administration of environmental authorisation applications The insertion of Section 24K is necessary for the following reasons: It provides enabling provision for agreements between departments on implementation of EIAs and other tools It enables the Minister / MEC to in part or in full rely on other regulatory processes in reaching decisions on environmental authorisation applications PROVISION REASON / EXAMPLE 24K(1) Introduce enabling provisions for Minister / MEC to consult with other organs of state holding jurisdiction in terms of activity or geographical area Improved efficiency & effectiveness of the EA system Improved cooperation & coordination Minimise duplication of regulatory effort Example: Intent to toll process, nuclear safety issues, etc 24K(2) Introduce enabling provisions for entering into written agreements on the exercising of mandates in terms of activities 24K(3) Allow Minister /MEC to rely on other processes in reaching decisions on EAs

The insertion of Section 24L is necessary for the following reasons:
Section 24L is a new provision enabling alignment and integration of different types of environmental authorisations and authorisations issued in terms of other legislation for activities that also require environmental authorisation The insertion of Section 24L is necessary for the following reasons: It provides enabling provision integrated environmental authorisations PROVISION REASON / EXAMPLE 24L(1) Introduce enabling provisions two or more authorities to follow a joint process resulting in either an integrated environmental authorisation or separate authorisations Improved efficiency & effectiveness of the EA system Improved cooperation & coordination Minimise duplication of regulatory effort Enable integrated environmental authorisations Example: Waste Permit & EA; Emission licence and EA; Planning and EIA, etc.

Section 24L (cont) PROVISION REASON / EXAMPLE 24L(2) Prescribe that an integrated EA may only be issued if the requirements of the Act in terms of an EA have been met. It also specify what must be contained in such integrated EA Improved efficiency & effectiveness of the EA system Improved cooperation & coordination Minimise duplication of regulatory effort Enable integrated environmental authorisations Example: Waste Permit & EA; Emission licence and EA; Planning and EIA, etc. 24L(3) Allow for an authorisation issued in terms of another Act to be considered an EA provided that the requirements of the Act has been substantially met

Section 24M is a new provision enabling exemptions from provisions that are discretionary (minimum requirements discussed in 24(4)). The insertion of Section 24M is necessary for the following reasons: Section 24(5) of principal Act state that Minister may make regulations regarding process to follow for exemptions but does not enable the Minister / MEC to grant exemptions from provisions contained in the Act. The exemption provisions in the EIA Regulations are thus limited to requirements of the regulations not stemming from minimum requirements in the Act. The new provision provides enabling provision for the competent authority to grant exemptions from meeting some requirements of the Act, whilst providing checks and balances to ensure that this provision is not abused PROVISION REASON / EXAMPLE 24M(1) Stipulate the powers of the Minister and MECs with regard to exemptions Improved efficiency & effectiveness of the EA system 24M(2) Stipulate the limited powers of the Minister of Minerals & Energy with regard to exemptions (restricted to provisions of 24(4)(b)

Section 24M (cont) PROVISION REASON / EXAMPLE 24M(3) Enable the Minister / MEC to prescribe the process to be followed for exemption applications Improved efficiency & effectiveness of the EA system 24M(4) provide the checks and balances to ensure that exemption provisions are not abused by stipulating criteria for exemptions

Section 24N is a new provision prescribing the requirements, use and status of Environmental Management Programmes The insertion of Section 24N is necessary for the following reasons: It gives effect to the agreement on mining It strengthens the act in terms of management and mitigation of environmental impacts associated with an EA PROVISION REASON / EXAMPLE 24N(1) Stipulate the powers of the Minister and MECs with regard to the requirement of an EMPR Improved efficiency & effectiveness of the EA system; Giving effect to mining related agreement. 24N(2) (a) to (g) stipulate the content requirements of an EMPR – compulsory requirements in all instances (large scale activities) 24N(3)(a) to (c) prescribe further content requirements that must be required when applicable (small scale activities)

Section 24N (cont) PROVISION REASON / EXAMPLE 24N(4) Stipulate that, in the case of mining and where applicable, an EA may not be issued without considering the recommendations of the RMDEC Improved efficiency & effectiveness of the EA system; Giving effect to mining related agreement. 24N(5) Enables the minister / MEC to request additional information before approving an EMPR 24N(6) Enables the Minister / MEC to approve amendments to an EMPR 24N(7) (a) – (f) stipulate the obligations of a holder of a mining right of permit in terms of the EA issued to him /her and the environment in general

Section 24O is a new provision prescribing the criteria to be consider by the competent authority in reaching a decision on an EA The insertion of Section 24O is necessary for the following reasons: It qualifies the discretion of the competent authority It provide a measure to hold the competent authority accountable against Escalation of provisions from regulations to Act to be applicable not only to EIA but all new tools to be introduced PROVISION REASON / EXAMPLE 24O(1)(a) Stipulate that in making a decision the competent authority must comply with the Act Improved efficiency & effectiveness of the EA system; Giving effect to mining related agreement. 24O(1)(b) (i) to (viii) stipulate the relevant factors that the competent authority must take into consideration in reaching a decision 24O(1)(c) stipulate that the comments of organs of state must be considered 24O(2) places an obligation on the Minister / MEC to consult all state departments fulfilling an environmental function

Section 24O (cont) PROVISION REASON / EXAMPLE 24O(3) places an obligation on a state department consulted to provide input within a prescribed time frame Improved efficiency & effectiveness of the EA system; Giving effect to mining related agreement. 24O(4) places an obligation on the Minister to, in the case of mining applications, refer an objection received from a state department to RMDEC 24O(5) Places an obligation on a RMDEC to provide the Minister with advise regarding an objection within 45 days of receipt

Section 24P is a new provision enabling financial provisions for remediation of environmental damage
The insertion of Section 24O is necessary for the following reasons: It strengthens the Act by including “polluter pay” provisions from the MPRDA into NEMA –already in place for mining and this inclusion now enables making such provisions mandatory for other activities as well Giving effect to the mining agreement PROVISION REASON / EXAMPLE 24P(1) – Adopt existing MPRDA provisions for payment of financial provisions related to mining applications Improved efficiency & effectiveness of the EA system; Giving effect to mining related agreement. 24P(2) – This provision enable the Minister to use the financial provision to rehabilitate environmental damage stemming from mining activities 24P(3) – This provision requires the annual assessment and amendment (if necessary) of adequacy of financial provisions

Section 24P (cont) PROVISION REASON / EXAMPLE 24P(4)(a) & (b) – Allow the Minister to disagree with findings of adequacy assessments and to call for an independent assessment at the cost of the holder Improved efficiency & effectiveness of the EA system; Giving effect to mining related agreement. 24P(5) – Stipulates the that retaining of the financial provision only falls away when Minister issue a closure certificate to such holder, and that a portion could still be retained 24P(6) – Stipulates that the Insolvency Act does not apply to financial provisions for mine rehabilitation 24P(7) – provides an enabling mechanism for subjecting other activities to the financial provision clauses

Section 24Q is a new provision stipulating requirements on monitoring and performance assessment of environmental management pertaining to mining The insertion of Section 24Q is necessary for the following reasons: It strengthens the Act by including “compliance and performance monitoring” provisions from the MPRDA into NEMA Necessary in order to retain good environmental management practices already in place for mining Giving effect to the mining agreement PROVISION REASON / EXAMPLE 24Q(1)(a) and (b) – Stipulate the requirement to conduct monitoring and performance assessments against conditions of EA and requirements of EMPR Improved efficiency & effectiveness of the EA system; Giving effect to mining related agreement.

Section 24R is a new provision stipulating requirements on environmental management of mine closure
The insertion of Section 24R is necessary for the following reasons: It strengthens the Act by including “cradle to grave” provisions from the MPRDA into NEMA Necessary in order to retain good environmental management practices already in place for mining Giving effect to the mining agreement PROVISION REASON / EXAMPLE 24R(1) stipulates the responsibilities of the holder of an Mining permit and EA in terms the environment, pumping and treatment of water, management and closure until a closure certificate is issued Improved efficiency & effectiveness of the EA system; Giving effect to mining related agreement. 24R(2) stipulates that on issuing a closure certificate, a portion of the financial provision must be returned to the holder 24R(3) stipulate requirements working towards closure of a mine

Section 24R (cont) PROVISION REASON / EXAMPLE 24R(4) Enables the Minister to identify areas where interlinked or integrated mines result in cumulative impacts Improved efficiency & effectiveness of the EA system; Giving effect to mining related agreement. 24R(5) enables the Minister to derive at strategies for mine closure of interconnected / integrated mines

Clause 9: Amendment of Section 42 of NEMA -Delegations
Section 42B is a new provision enabling the Minister of Minerals & Energy to delegate certain powers to officials / agencies of that Department The insertion of Section 42B is necessary for practical administration of the agreement on mining. AMENDMENT REASON / EXAMPLE Section 42B(1)(a) & (b) enable the Minister of Minerals & Energy to delegate the functions that he or she has in terms of NEMA to either the DG of DME or an official of DME Practical administration of EA process for mining during interim period Section 42B(2) stipulate the criteria for such delegation and enables the Minister to withdraw such delegation

Clause 10: Amendment of Section 43 of NEMA -Appeals
Section 43 is amended to institute the Minister of EA&T as appeal authority for EA’s issued by the Minister of Minerals & Energy. The amendment of Section 43 is necessary to give effect to the agreement. AMENDMENT REASON / EXAMPLE Section 43(1A) is a new provision instating the Minister of EA&T as appeal authority for an EA issued by the Minister of Minerals & Energy Implementation of the agreement Section 43(1B) provide for appeals on decisions leading to an EA (administrative decisions) to be considered by the Minister of M&E Amendments to other subsections of 43 is subsequent edits or editorial Practical administration of EA process for mining during interim period –any administrative act can be appealed, for example, acceptance of a report – it is not practical for Minister of EA&T to decide on such appeals.

Clause 11: Amendment of Section 47 of NEMA –Procedure for making regulations
Section 47 is amended to mandate submission of regulations of new tools to Parliament. The amendment of Section 47 is necessary to assist the oversight role of Parliament. AMENDMENT REASON / EXAMPLE Section 47(3) is a new provision requiring that Regulations made on new tools be submitted to Parliament prior to publication Requirement of the Portfolio Committee – assistance to parliament in oversight role

Clause 12: Transitional arrangements
Clause 12 stipulate the transitional arrangements pertaining to matters affected by the amendment and include: Status and validity of actions taken under provisions of the Principal Act amended through this Act Status and way forward of pending applications Extending rectification provisions (24G) to period not covered due to delayed implementation of the NEMA EIA Regulations The Status of EMPs and EMPRs approved in terms of the MPRDA Amendment of approved EMPs and EMPRs

Clause 14: Short title and commencement
Clause 13: Future amendment of the Act to transfer powers related to Environmental Management of mining to the Minister of EA&T Clause 13 refer to a schedule to the Bill (when enacted) stipulating further amendments after a period of 18 months of implementation of the amendment Bill. The Schedule then transfer all environmental management powers given through this Act (Bill 36 when enacted) to the Minister of Minerals & Energy to the Minister of E&A Clause 14: Short title and commencement Clause 14 provide the short title of the Act and stipulate that: It comes into effect on date stipulated by President in Givt Gazette In terms of provisions related to env management of mining, 1. above will not apply – those provisions will come into effect within 18 Months of 1 or the coming into effect of MPRDA (amended through Bill 10 of 2006) which ever occur last

Thank you!

BRIEFING OF THE SELECT COMMITTEE - NEMA AMENDMENT BILL – BILL 36B OF 2007 Joanne Yawitch July 2008.

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