Thursday, February 19, 2009

The South African government, through the Department of Environmental Affairs and Tourism (“DEAT”) has made efforts to amend existing environmental legislation and enact new legislation for better environmental management. In 2008, parliament approved amendments to the following legislation:

Atmospheric Pollution Prevention Act [1] (“APPA”)
Environment Conservation Act [2]  (“ECA”)
National Environmental Management: Air Quality Act [3] (“the Air Quality Act”)

National Environmental Management Act [4] (“NEMA”)

Parliament also approved the enactment of the following legislation:

National Environmental Management: Integrated Coastal Management Bill [5]
National Environmental Management: Waste Bill [6]

While legislative efforts to improve the regulatory system relating to environmental management in South Africa has been welcomed, there has been considerable debate about some of the changes that parliament intends effect. This article provides a general discussion of the changes to the environmental legislation in South Africa in 2008.
General Environmental Management
Parliament has effected changes to APPA, ECA, the Air Quality Act and NEMA in terms of the National Environment Laws Amendment Act, 40 of 2008 (“the Amendment Act”) which was signed into law on 5 December 2008, but has not yet come into effect.  The amendments approved by parliament were aimed at:
·         rectifying incorrect references
·         clarifying uncertainties concerning certain definitions
·         providing for environmental management inspectors under NEMA to be regarded as peace officers with the powers assigned to peace officers or police officials who are not commissioned officers in terms of the Criminal Procedure Act [7]
·         creating certain offences for non-compliance with NEMA and the ECA, and setting penalties for such offences
The amendments effected in terms of the Amendment Act do not present any significant difficulties.
Environmental Management and the Mining Industry
Further amendments to NEMA were also effected in terms of the National Environmental Management Amendment Bill. [8] The bill was approved by Parliament on 19 November 2008 and is awaiting the signature of the president before it can be implemented into law. The proposed amendments to NEMA will:

enable environmental management instruments, other than environmental impact assessments, to be introduced onto the South African regulatory scene for environmental authorisations
provide for agreements between organs of state to enable them to align regulatory processes
create the possibility of allowing a process conducted in terms of another regulatory system to be used as the basis for the granting environmental authorisations in terms of NEMA
provide for one integrated environmental authorisation to be issued where different statutes regulate the same activity or where multiple authorisations require a similar process. 

Of particular interest is the proposal that environmental authorisations for prospecting and mining be granted by the Minister of Minerals and Energy under NEMA. Section 24C (2A) of the bill provides specifically that:
“The Minister of Minerals and Energy must be identified as the competent authority [for granting environmental authorisations] in terms of subsection (1) where the activity constitutes prospecting, mining, exploration, production or related activity occurring within a prospecting, mining, exploration or production area.”
Section 24F (1) provides further that:
“Notwithstanding the provisions of any other Act, no person may commence an activity listed or specified in terms of section 24(2)(a) or (b) unless the competent authority or the Minister of Minerals and Energy as the case may be, has granted an environmental authorisation for the activity.”
The fact that the Minister of Minerals and Energy is designated as the competent authority in relation to the implementation of environmental legislation, regulations, policies, strategies and guidelines relating to prospecting, mining, exploration or production area, including the granting of environmental authuthorisations raises the following concerns:

the DME is not concerned primarily with the protection of the environment, but with the advancement of the mining industry
the DME does not have the same expertise regarding environmental legislation as DEAT
the amendment leaves little room for cooperation an coordination between the DME and DEAT

It is important to note the DME is required to give effect to the environmental management principles set out in NEMA in granting environmental authorisations. This is aimed at ensuring that there is only one environmental management system for all activties that may impact on the environment, and ensuring that the DME retains its mandate relating to the environmental management of mining related activities. It is also important to note that in terms of section 43(1B), the Minister of Environmental Affairs remains the appeal authority for mining related environmental management processes. 
The amendment comes about as a result of an agreement between the Department of Environmental Affairs and Tourism and the Department of Minerals and Energy. However, the amendment does not consider the possibility of DEAT assisting the DME with the environmental authorisations even for a transitional period. It remains to be seen how the amendment will be effected in practice.
New Coastal Management Provisions
The Coastal Management bill was approved by parliament on 23 October 2008 and is still awaiting the signature of the president before it can be enacted into law. The bill sets out an integrated approach to managing South Africa’s coastal resources aimed at promoting social equity, making the best economic use of coastal resources while protecting the natural environment. 
Concerns have been raised in respect of the power of the Minister of Minerals and Energy to declare any private property as coastal public property in terms of section 9(1), which provides that:
“The Minister, acting with the concurrence of the Minister of Land Affairs, may acquire private land for the purpose of declaring that land as coastal public property, by-
(a)   purchasing the land
(b)   exchanging the land for other land
(c)   if no agreement is reached with the owner, by expropriating the land in accordance with the Expropriation Act, 1975 (Act No. 63 of 1975)”
Section 9(2) provides further that:
“Land may be acquired in terms of this section only if it is being expropriated for a purpose set out in section 8(1).”
Section 8 provides that:
(1)        The Minister may by notice in the Gazette, declare in the manner contemplated in subsection (2) any state owned land as coastal public property in order –
(a)   to improve public access to the seashore
(b)   to protect sensitive coastal systems
(c)   to secure the natural functioning of dynamic coastal processes
(d)   facilitate the achievement of any of the objects of the Act
(e)   protect people, property and economic activities from risks arising from dynamic coastal processes, including the risk of sea-level rise.
(2)        Before declaring state-owned land as coastal public property in terms of subsection (1), the Minister must:
(a)   consult with interested and affected parties
(b)   obtain concurrence of the Minister or MEC [Member of the Executive Council] of the province, responsible for managing the state owned land.
There have been concerns that the power of the Minister in section 9 of the bill is very wide. This has been a considerable concern amongst owners of property along the coast.
There is a further concern raised by section 71 of the bill which allows the Minister to grant dumping permits for certain types of waste. Although the bill provides guidelines for dumping at sea and analysing the types of waste that can be dumped at sea, there is no oversight mechanism to ensure that only permitted waste is dumped at sea. This could give rise to considerable abuses by permit holders, and lead to considerable environmental damage should the non-compliance be significant.
New Waste Management Provisions
Parliament approved the Waste Management Bill [9] on 23 October 2008. The bill is still awaiting the signature of the president before it can be enacted into law. The bill aims to reform the law relating to waste management and pollution control by providing reasonable measures for integrated pollution and waste management, providing for compliance to those measures and generally giving effect to the constitutional right to an environment that is not harmful to health or well-being, or have the environment protected for present an future generations, through reasonable legislative and other measures.
The main raised in relation to the bill is the retrospective application of the contaminated land provisions in the bill. We do not discuss this extensively here as this is discussed in detail in our earlier article titled: “The Waste Management Bill: Implications for Land Owners and Sales of Businesses”, published on 1 December 2008. 
For further information on this topic please contact Claire Tucker or Twaambo Muleza at Bowman Gilfillan Inc by telephone (+27 11 669 9000) or by fax (+27 11 669 9001) or by email ([email protected] or [email protected]).

[1] 45 of 1965

[2] 73 of 1989

[3] 39 of 2004

[4] 107 of 1989

[5] B40D-2007

[6] B39D-2007

[7] 57 of 1997

[8] B36D-2007

[9] B39B-2007.