NATIONAL ENVIRONMENTAL MANAGEMENT:1st AMENDMENT BILL AMENDMENTS TO CHP 7 ON COMPLIANCE, ENFORCEMENT & PROTECTION AMENDMENTS TO CHP 7 ON COMPLIANCE, ENFORCEMENT & PROTECTIONAND AMENDMENTS TO CHP 9 ON ADMINISTRATION AND DELEGATION OF POWERS AMENDMENTS TO CHP 9 ON ADMINISTRATION AND DELEGATION OF POWERS

PROCESS FOLLOWED Published for public comments Published for public comments Published as Chapter 9 (A) Published as Chapter 9 (A) Due to inputs received – it became necessary to incorporate some of the provisions into Chp 7 dealing with enforcement and compliance monitoring & Chp 9 dealing with general administration Due to inputs received – it became necessary to incorporate some of the provisions into Chp 7 dealing with enforcement and compliance monitoring & Chp 9 dealing with general administration

Why this Bill Generally the Bill seeks to fill-in the gaps caused by the following: Generally the Bill seeks to fill-in the gaps caused by the following: –Inadequate law enforcement instruments –Inadequate compliance monitoring mechanisms –Inadequate sanctions

Purpose of bill The Bill aims to: The Bill aims to: Address the current lack of effective enforcement & implementation of environmental laws Address the current lack of effective enforcement & implementation of environmental laws Standardize & strengthen the current legislative regime for the enforcement environmental legislation Standardize & strengthen the current legislative regime for the enforcement environmental legislation Provide a coherent legal framework for the administration & enforcement of environmental legislation Provide a coherent legal framework for the administration & enforcement of environmental legislation Rationalize & streamline the administration & enforcement provisions in NEMA & sectoral legislation Rationalize & streamline the administration & enforcement provisions in NEMA & sectoral legislation Provides the necessary supporting legal framework for the new sectoral legislation on Bio and Pas Provides the necessary supporting legal framework for the new sectoral legislation on Bio and Pas Strehnthens or fills the gaps in NEMA (gives it teeth) Strehnthens or fills the gaps in NEMA (gives it teeth)

Overview of Amendments These amendments provide for the: These amendments provide for the: –administration & enforcement of NEMA & other specific / sectoral environmental management Act –designation of Environmental Management Inspectors (EMIs) –Powers & functions of EMIs –Criminal sanctions & remedies –Administrative remedies & procedures

ADVANTAGES Legal certainty for the administration & enforcement of environmental laws Legal certainty for the administration & enforcement of environmental laws Prosecution & punishment of environmental crimes Prosecution & punishment of environmental crimes Enable government to promote & protect environmental rights in accordance with the Constitution Enable government to promote & protect environmental rights in accordance with the Constitution Reduced environmental crimes Reduced environmental crimes Reduced environmental degradation Reduced environmental degradation

ADVANTAGES Continued Ability to monitor compliance with environmental legislation Ability to monitor compliance with environmental legislation Improved compliance with environmental legislation Improved compliance with environmental legislation Improved protection of the country’s biological diversity Improved protection of the country’s biological diversity Criminalization of environmental offences Criminalization of environmental offences Rationalizes & beef-up existing enforcement frameworks e.g. National Parks Act Rationalizes & beef-up existing enforcement frameworks e.g. National Parks Act

Amendments to Chp 7 of NEMA Definitions: addition of “specific environmental management Acts” Definitions: addition of “specific environmental management Acts” Chp 7 which deals with compliance, enforcement & protection has been restructured to accommodate new enforcement provisions Chp 7 which deals with compliance, enforcement & protection has been restructured to accommodate new enforcement provisions Addition of Part 2: enforcement of this Act & specific environmental management Acts Addition of Part 2: enforcement of this Act & specific environmental management Acts

Chp 7: Part 2 Provides for the designation of EMIs by the Minister or MEC Provides for the designation of EMIs by the Minister or MEC –This is aimed at establishing the necessary & easily available capacity to enforce environmental legislation EMIs may be designated to enforce NEMA or specific environmental management Acts in part or in whole EMIs may be designated to enforce NEMA or specific environmental management Acts in part or in whole EMIs must first comply with certain prescribed criteria & prescribed training EMIs must first comply with certain prescribed criteria & prescribed training –These will be set in Regulations by the Minister

Chap 7: Part 2 Members of SAPS will have most of the powers assigned to EMIs Members of SAPS will have most of the powers assigned to EMIs Powers assigned to EMIs serve dual purpose, viz: Powers assigned to EMIs serve dual purpose, viz: –Ensuring that offences committed ito specified environmental legislation are investigated & prosecuted –Ensuring that there is compliance with specified environmental legislation & with terms & conditions of permits & other authorisations ito that legislation EMIs are given police powers as set out in the Criminal Procedure Act in so far as those powers are required to investigate & prosecute an offence EMIs are given police powers as set out in the Criminal Procedure Act in so far as those powers are required to investigate & prosecute an offence

Chp 7: Part 2 EMIs will play a complimentary role to SAPS which still has a crucial role to play in all circumstances amounting to an offence EMIs will play a complimentary role to SAPS which still has a crucial role to play in all circumstances amounting to an offence Shared powers between EMIs & SAPS include powers to: Shared powers between EMIs & SAPS include powers to: search, search, seizure, seizure, question, and question, and arrest as set out in the Criminal Procedure Act arrest as set out in the Criminal Procedure Act

Chp 7: Part 2 Powers assigned to EMIs only and not shared with SAPS include powers to: Powers assigned to EMIs only and not shared with SAPS include powers to: –conduct routine inspections –issue compliance notices –Issue environmental authorisations, permits etc –Issue abatement and remedial notices e.g. rehabilitation notices –Prevent significant pollution or degradation of the environment

Chp 7: Part 3: Judicial Matters Combination of existing judicial provision in NEMA & new judicial provisions that are consequent to the promulgation of specific environmental management Act Combination of existing judicial provision in NEMA & new judicial provisions that are consequent to the promulgation of specific environmental management Act Provides for offences relating to: Provides for offences relating to: –Environmental management inspectors –Forfeiture, handling & disposal of items seized in judicial proceedings –The cancellation of permits & other authorisations –Issuing of notices & admission of guilt fines

Amendments to Chap 9 New heading “Administration of this Act & specific environmental management Acts” New heading “Administration of this Act & specific environmental management Acts” Primary purpose of amendment is the expansion of the existing delegation clause to explicitly provide for provincial delegation of any power, function or duty Primary purpose of amendment is the expansion of the existing delegation clause to explicitly provide for provincial delegation of any power, function or duty Additions deal with matters of: Additions deal with matters of:consultation, Extension of time periods Validity of documents & procedures Delivery of documents

Chapter 9 Limitation of liability provision is also extended to include the exercise of any power or performance of any duty under the provisions of specific environmental management Acts Limitation of liability provision is also extended to include the exercise of any power or performance of any duty under the provisions of specific environmental management Acts

Impact on Provinces & Local Government Their staff members may be designated as EMIs to enforce the provisions of national environmental management legislation Their staff members may be designated as EMIs to enforce the provisions of national environmental management legislation If the designation emanates from outside that particular Dept consensus between the Minister or MEC & the other Dept is required If the designation emanates from outside that particular Dept consensus between the Minister or MEC & the other Dept is required This does not derogate from the provinces and local governments competence to appoint staff members to enforce provincial or municipal legislation This does not derogate from the provinces and local governments competence to appoint staff members to enforce provincial or municipal legislation

KEY ISSUES RAISED & HOW ADRESSED Relationship between the powers of EMIs & powers of the SAPS Relationship between the powers of EMIs & powers of the SAPS Relationship between this Bill and the Criminal Procedure Act Relationship between this Bill and the Criminal Procedure Act EMIs complement SAPS – some powers are shared & some not Bill aligned with the Criminal Procedure Act Shared powers will be largely regulated by the Criminal Procedure Act

KEY ISSUES S31 on environmental information to be dealt with ito the Promotion of Access to Information Act S31 on environmental information to be dealt with ito the Promotion of Access to Information Act Following comments that this will unduly limit access to environmental info – S31 was not amended to allow for further investigation into the issue

KEY ISSUES Provisions on national and provincial supervision Provisions on national and provincial supervision Provision to regulate delegation of functions to municipalities Provision to regulate delegation of functions to municipalities These were removed since these are adequately regulated by s100 and s139 of the Constitution Not incorporated – adequately regulated by the Municipal Systems Act

KEY ISSUES Prescribed qualification and training criteria of EMIs be set out in the Bill Prescribed qualification and training criteria of EMIs be set out in the Bill Constitutionality of the powers given to EMIs was questioned Constitutionality of the powers given to EMIs was questioned Not incorporated – this will be dealt with in Regulations Number of provisions deleted & cross referencing to the CPA was adopted

KEY ISSUES Provision too reactive & did not allow for proactive monitoring & enforcement Provision too reactive & did not allow for proactive monitoring & enforcement Consultation with Minister of safety & security on prescribed qualification & training criteria of EMIs Consultation with Minister of safety & security on prescribed qualification & training criteria of EMIs Provision on routine inspections have been inserted Incorporated