1. 1 Proposed amendments to the National Environmental Management Act, 1998 (NEMA) July 2007 Presentation by Joanne Yawitch

2. 2 Acronyms used in presentation DEAT – Department of Environmental Affairs and Tourism DME – Department of Minerals and Energy EAP – Environmental Assessment Practitioner EIA – Environmental Impact Assessment EMF – Environmental Management Framework NEMA – National Environmental Management Act SEMA – Specific Environmental Management Act PAJA – Promotion of Administrative Justice Act

3. 3 Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Introduction The introduction of NEMA EIA regulations in 2006 was linked to an approach to rationalise EIA by inter alia: –Streamlining processes –Introducing strategic tools –Introducing integration of processes NEMA as enabling law should be amended to address this approach Enabling provisions of chapter 5 of NEMA to move away from focus on EIA as only tool that ensures proper environmental management of development activities required to further improve efficiency and effectiveness of EIM system 24 July 2007 - Cabinet approved the introduction of the amendment Bill into parliament

4. 4 Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Introduction (2) 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 –Improved provisions for cooperative governance –New provisions for integration and alignment of regulatory (authorisation) processes

5. 5 Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Introduction (3) –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 standard –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.

6. 6 Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Section 1 of Principal Act SectionNew / amendedCabinet approved Further amendment stemming from SLA certification Definition: “activities” AmendedInclude “processes’ n/a Definition: “commence” AmendedClarify what is included and excluded n/a Definition: “competent authority” AmendedInclude Minister DME for mining activities Changed format

7. 7 Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Section 1 of Principal Act (2) SectionNew / amendedCabinet approved Further amendment stemming from SLA certification Definition: “Development footprint” New-Included Definition: “environmental authorisation” AmendedExpand to include SEMA authorisations n/a Definition: “integrated environmental authorisation” NewAllow for integration of permitting processes n/a

8. 8 Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Section 1 of Principal Act (3) SectionNew / amendedCabinet approved Further amendment stemming from SLA certification Definitions: “norms or standards” NewLengthy definition provided Definition shortened by reference to text Definitions: “spatial development tool” NewDefinition providedn/a 1(5)New-Provide link to PAJA in terms of administrative justice

9. 9 Proposed amendments to the NEMA, 1998: Sections 24(1) and (2) SectionNew / amendedCabinet approved Further amendment stemming from SLA certification 24(1) – adding “consequences” AmendedAdded to expand scope of chapter to tools other than EIA n/a 24(1) – adding “specified activities” AmendedAlignment with section 24(2)(c) of Principal Act n/a 24(2)(b) – including spatial development tools (not only EMF) AmendedUtilisation of spatial development tools to identify activities n/a

10. 10 Proposed amendments to the NEMA, 1998: Sections 24(1) and (2) – (2) SectionNew / amendedCabinet approved Further amendment stemming from SLA certification 24(2)(b) – including spatial development tools AmendedUtilisation of spatial development tools to exclude activities from environmental authorisation n/a 24(2)(d) – exclusion based on norms or standards NewProvision made for exclusion Provision refined

11. 11 Proposed amendments to the NEMA, 1998: Sections 24(4) SectionNew / amended Cabinet approved Further amendment stemming from SLA certification 24(4)(a) – Minimum criteria for env. authorisation – compulsory: Constitution, NEMA principles, investigation and reporting AmendedSplit between compulsory and discretionary requirements to expand scope to tools other than EIA n/a 24(4)(b) – Minimum criteria – optional: Mitigation measures, alternative investigation, level of public participation, monitoring meausres, etc. AmendedAs above – Regulations on specific tools to regulate optional requirements as appropriate n/a

12. 12 Proposed amendments to the NEMA, 1998: Sections 24(5) and 24 (7) SectionNew / amended Cabinet approved Further amendment stemming from SLA certification 24(5)(bA) – Provision for tools other than EIA NewProcedure to regulate other tools Slightly refined 24(5)(c) & (d) – adding consultation with Minister of Finance in financial related provisions AmendedInsertion of requirement to consult Minister of Finance n/a 24(7) – need to obtain authorisation from other authorities AmendedClarified confusing provision n/a

13. 13 Proposed amendments to the NEMA, 1998: Sections 24(8) SectionNew / amended Cabinet approved Further amendment stemming from SLA certification 24(8)(a) – Relation between authorisations obtained in terms of other legislation and NEMA authorisations AmendedAbsolved from need to obtain env. authorisation if 24L(1) applies n/a 24(8)(b) – Provisions for processes followed in terms of other legislation to be sufficient for purposes of issuing env. Authorisation NewProvision addedn/a

14. 14 Proposed amendments to the NEMA, 1998: Sections 24(9) and 24(10) SectionNew / amended Cabinet approvedFurther amendment stemming from SLA certification 24(9) – Clarification of regulatory powers AmendedClarified role of Minister as opposed to MEC n/a 24(10)(a) – Norms or standards NewAdoption of existing or development of new norms or standards Refined 24(10)(b) & (c) – process to adopt or develop norms or standards NewPrescribe the processRefined

15. 15 Proposed amendments to the NEMA, 1998: Sections 24C and D SectionNew / amended Cabinet approvedFurther amendment stemming from SLA certification 24C(2) Role of MEC vs Minister AmendedRoles clarified – specify when Minister must be deemed as competent authority Refined 24D(1) Publication of lists (activities, sensitive areas etc.) AmendedClarified what must be published in gazette n/a

16. 16 Proposed amendments to the NEMA, 1998: Sections 24F and 24G SectionNew / amended Cabinet approvedFurther amendment stemming from SLA certification 24F(1)(b) Contraventions NewNon-compliance with prescribed norm or standard included as an offence Refined 24F(2)AmendedFor purposes of 24G (rectification) – split commencement without authorisation and non- compliance with conditions n/a 24G – Rectification of unlawful activities AmendedImproved sequence of steps to be logical n/a

17. 17 Proposed amendments to the NEMA, 1998: Sections 24H and 24J SectionNew / amended Cabinet approvedFurther amendment stemming from SLA certification 24H – Registration body for EAPs AmendedProvision to limit number of registration bodies n/a 24J – Enabling provision for guidelines NewGuidelines for implementation, administration and institutional arrangements related to regulations n/a

18. 18 Proposed amendments to the NEMA, 1998: Sections 24K SectionNew / amended Cabinet approvedFurther amendment stemming from SLA certification 24K(1) and (2) Cooperative governance NewProvisions related to consultation and cooperative agreements related to implementation of environmental authorisation processes Refined 24K(3)NewBased on cooperative agreement, Minister / MEC may rely on other processes (in terms of areas of expertise) to inform a decision on an application for environmental author Refine

19. 19 Proposed amendments to the NEMA, 1998: Section 24L SectionNew / amended Cabinet approvedFurther amendment stemming from SLA certification 24L(1) and (2) Alignment and integration of authorisations: NEMA and SEMA NewProvide for: (a)Integrated authorisations (b)One process – multiple authorisations (same authority) Refined 24L(3) Environmental authorisation as basis for subsequent authorisations NewProvide for sequential permitting process (NEMA & SEMA but different authorities) Refined

20. 20 Proposed amendments to the NEMA, 1998: Section 24L SectionNew / amended Cabinet approvedFurther amendment stemming from SLA certification 24L(4) – Relation between other authorisation processes and NEMA/SEMA NewAuthorisation issued in terms of other legislation but requirements of NEMA substantially met may constitute and env. authorisation Refined

21. 21 Proposed amendments to the NEMA, 1998: Section 24M SectionNew / amended Cabinet approvedFurther amendment stemming from SLA certification 24M(1) Enabling provision to grant exemption from provisions NewPreviously provided for regulation of exemption without enabling provision or setting limitations. Exemptions restricted to optional requirements included in 24(4)(b) Refined 24M(2) Exemptions – process NewEnabling provision for prescribing process for exemptions Refined

22. 22 Proposed amendments to the NEMA, 1998: Sections 24M and 24N SectionNew / amended Cabinet approvedFurther amendment stemming from SLA certification 24M(3)NewProvision for Minister to prescribe criteria Amended to include criteria to guide decisions on exemptions 24N – administrative notices NewProvision to communicate via administrative notices Deleted. Provided for in PAJA and guidelines (24J)

23. 23 Proposed amendments to the NEMA, 1998: Section 43 SectionNew / amended Cabinet approvedFurther amendment stemming from SLA certification 43(3) of Principal Act DeletedDeleted as is not-aligned with PAJA n/a 43(8) to (13)NewAlignment with PAJA in terms of appeals and review applications Deleted and replaced with general provision in section 1 (new 1(5))

24. 24 Proposed amendments to the NEMA, 1998: Transitional provisions SectionNew / amended Cabinet approvedFurther amendment stemming from SLA certification Standard transitional provisions NewProvide clarity on status of applications and processes n/a 24G rectification period extended to “gap” – July 2005 to July 2006 NewIncluded to allow for rectification of activities unlawfully commenced with in said period Deleted. Deemed unconstitutional in light of retrospective nature

25. 25 THANK YOU !!