National Environmental Laws Amendment Bill [B35-2007]Clause by clause analysis – Portfolio Committee on Environmental Affairs and Tourism: 10 October 2007

ACRONYMS• APPA - Atmospheric Pollution Prevention Act, 1965 (Act No.

45 of 1965)• CPA - Criminal Procedure Act, 1977 (Act No. 51 of 1977);• DEAT – Department of Environmental Affairs and Tourism• ECA - Environment Conservation Act, 1989 (Act No. 73 of

1989);• EMI – Environmental Management Inspector• NEMA - National Environmental Management Act, 1998 (Act

No. 107 of 1998)• NEM:AQA: - National Environmental Management Act: Air

Quality Act, 2004 (Act No. 39 of 2004)• NEM: WB - National Environmental Management: Waste Bill• SEMA – specific environmental management Act

Context – DEAT Law Reform Programme

• Outdated pieces of national environmental legislation are being repealed by new suite of sub-sectoral Acts under the framework of the National Environmental Management Act 107 of 1998;

• Covers legislation on environmental impact assessment, biodiversity and protected areas, air quality and waste management, and integrated coastal management.

“Grey”

(Environmental Impact Assessment)

“Green” (Biodiversity and Conservation)

“Brown” (Pollution and Waste)

Blue

(Coastal Management)

Part 5 of the Environment Conservation Act, 1989 and EIA Regulations (repealed)

National Parks Act, 1976 (repealed)

Atmospheric Pollution Prevention Act, 1965

Part 4 of the Environment Conservation Act, 1989

Sea and Shore Act, 1935

Chapter 5 of National Environmental Management Act, 1998 and EIA Regulations

National Environmental Management:

Protected Areas Act 57 of 2003 and

Biodiversity Act 10 of 2004

National Environmental Management: Air Quality Act 39 of 2004

National Environmental Management: Waste Bill

National Environmental Management: Integrated Coastal Management Bill

Compliance and Enforcement Capacity - EMIs

• Instead of inserting compliance and enforcement provisions under each of the new Acts, it was decided to centralise enforcement powers in NEMA that would apply to all;

• In May 2005, the NEMA First Amendment Act came into effect and provided for the Minister or MEC to designate EMIs;

• The functions of EMIs are to enforce and monitor compliance with pieces of national environmental legislation within their mandate.

National Environmental Laws Amendment Bill [B35-2007]

The amendments proposed by the National Environmental Laws Amendment Bill are:

• critical to provide EMIs with clear and comprehensive mandates, powers and legal tools to enable them to carry out their functions;

• minor, technical amendments that are aimed at rectifying oversights in the drafting of provisions.

Objectives of the Bill1.Ensuring a comprehensive legislative mandate

for Environmental Management Inspectors (EMIs);2.Clarifying the status of EMIs as peace officers for

the purposes of enforcing NEMA and specific environmental management Acts (SEMAs);

3.Adding a penalty for the criminal offence of failing to comply with a compliance notice; and

4.Rectifying certain incorrect cross-references in the Environmental Conservation Act (ECA) relating to the illegal discarding/disposal of waste.

CLAUSE 1Purpose: to bring the APPA within the

mandate of EMIs as an interim measure, until NEM:AQA is fully in effect

(1)Subject to subsection (2), the Atmospheric Pollution Prevention Act, 1965 (Act No. 45 of 1965), must be regarded as being a specific environmental management Act for the purposes of the National Environmental Management Act, 1998 (Act No. 107 of 1998).

(2)This section lapses when section 60 of the National Environmental Management Act: Air Quality Act, 2004 (Act No. 39 of 2004), takes effect.

No amend-mentof existing provisionrequired

CLAUSE 2Purpose: to correct the deletion of the

criminal offences of failing to comply with a Minister’s direction and the illegal dumping of waste.

“29(4)Any person who contravenes a provision of section 20(1), [20(6)] 20(9), 22(1) or 23(2) or a direction issued under section [20(5)] 20(8) or fails to comply with a condition of a permit, permission, authorisation or direction issued or granted under the said provisions shall be guilty of an offence and liable on conviction to a fine not exceeding R100 000 or to imprisonment for a period not exceeding 10 years or to both such fine and such imprisonment, and to a fine not exceeding three times the commercial value of any thing in respect of which the offence was committed.”.

Delete: sub-sections 20 (6) and 20(5)

Insert: sub-sections 20(9) and 20(8)

CLAUSE 3Purpose: to include ECA and NEM:AQA in

the definition of a “specific environmental management Act”, in order to bring them within the mandate of EMIs.

(a) the deletion in subsection (1) of the definition of "specific environmental management Acts"; and(b) the substitution in subsection (1) for the definition of "specific environmental management Act" of the following definition:“ 'specific environmental management Act' means―(a) the Environment Conservation Act, 1989 (Act No. 73 of 1989);(b) the National Environmental Management: Protected Areas Act, 2003 (Act No. 57 of 2003);(c) the National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004); or(d) the National Environmental Management: Air Quality Act, 2004 (Act No. 39 of 2004),and includes any regulations made in terms of any of those Acts;”.

ECA added to existing definition

NEM:AQA added to existing definition

CLAUSE 4

Purpose: to clarify the peace officer status of EMIs for the purposes of enforcing NEMA or a SEMA

“(5) In addition to the powers set out in this Part, an environmental management inspector must be regarded as being a peace officer and may exercise all the powers assigned to a peace officer, or to a police official who is not a commissioned officer, in terms of Chapters 2, 5, 7 and 8 of the Criminal Procedure Act, 1977−(a) to comply with his or her mandate in terms of section 31D; and(b) within the area of jurisdiction for which he or she has been designated.”.

New sub-clause5 replaces existingsub-clause 5:change in wording

CLAUSE 5

Purpose: to provide for a penalty for the criminal offence of failing to comply with a compliance notice issued in terms of section 31N of NEMA

"(3) A person convicted of an offence in terms of subsection (1) is liable to a fine not exceeding five million rand or to imprisonment for a period not exceeding 10 years or to both such fine and such imprisonment.".

New sub-clause3 added to 31N

CLAUSE 6Purpose: to include NEM:AQA in the mandate of EMIs

without having to wait for section 60 of the Act to come into effect.

No. and year of Act

Short title Extent of repeal or amendment

Act No. 45 of 1965

Atmospheric Pollution Prevention Act, 1965

The whole

Act No. 17 of 1973

Atmospheric Pollution Prevention Amendment Act, 1973

The whole

Act No. 21 of 1981

Atmospheric Pollution Prevention Amendment Act, 1981

The whole

Act No. 15 of 1985

Atmospheric Pollution Prevention Amendment Act, 1985

The whole

Act No. 107 of 1998

National Environmental Management Act, 1998

The amendment of section 1 by the substitution for the definitions of “specific environmental management Act” and “specific environmental management Acts” of the following definition:

“‘specific environmental management Act’ means -(i) the National Environmental Management: Biodiversity Act, 2003;(ii) the National Environmental Management: Protected Areas Act, 2003; or(iii) the National Environmental Management: Air Quality Act, 2004, and includes any regulations or other subordinate legislation made in terms of any of

those Acts;”.

New schedule excludesthis section