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

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Proposed amendments to the National Environmental Management

Act, 1998 (NEMA)July 2007

Presentation by Joanne Yawitch

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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

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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

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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

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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.

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Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Section 1 of Principal

Act

Section New / amended Cabinet approved

Further amendment stemming from SLA certification

Definition: “activities”

Amended Include “processes’

n/a

Definition: “commence”

Amended Clarify what is included and excluded

n/a

Definition: “competent authority”

Amended Include Minister DME for mining activities

Changed format

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Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Section 1 of Principal Act (2)



Definition: “Development footprint”

New - Included

Definition: “environmental authorisation”

Amended Expand to include SEMA authorisations

n/a

Definition: “integrated environmental authorisation”

New Allow for integration of permitting processes

n/a

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Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Section 1 of Principal

Act (3)



Definitions: “norms or standards”

New Lengthy definition provided

Definition shortened by reference to text

Definitions: “spatial development tool”

New Definition provided n/a

1(5) New - Provide link to PAJA in terms of administrative justice

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Proposed amendments to the NEMA, 1998: Sections 24(1) and (2)



24(1) – adding “consequences”

Amended Added to expand scope of chapter to tools other than EIA

n/a

24(1) – adding “specified activities”

Amended Alignment with section 24(2)(c) of Principal Act

n/a

24(2)(b) – including spatial development tools (not only EMF)

Amended Utilisation of spatial development tools to identify activities

n/a

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Proposed amendments to the NEMA, 1998: Sections 24(1) and (2) – (2)



24(2)(b) – including spatial development tools

Amended Utilisation of spatial development tools to exclude activities from environmental authorisation

n/a

24(2)(d) – exclusion based on norms or standards

New Provision made for exclusion

Provision refined

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Proposed amendments to the NEMA, 1998: Sections 24(4)

Section New / amended

Cabinet approved


24(4)(a) – Minimum criteria for env. authorisation – compulsory: Constitution, NEMA principles, investigation and reporting

Amended Split 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.

Amended As above – Regulations on specific tools to regulate optional requirements as appropriate

n/a

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Proposed amendments to the NEMA, 1998: Sections 24(5) and 24 (7)


Cabinet approved


24(5)(bA) – Provision for tools other than EIA

New Procedure to regulate other tools

Slightly refined

24(5)(c) & (d) – adding consultation with Minister of Finance in financial related provisions

Amended Insertion of requirement to consult Minister of Finance

n/a

24(7) – need to obtain authorisation from other authorities

Amended Clarified confusing provision

n/a

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Proposed amendments to the NEMA, 1998: Sections 24(8)


Cabinet approved


24(8)(a) – Relation between authorisations obtained in terms of other legislation and NEMA authorisations

Amended Absolved 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

New Provision added n/a

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Proposed amendments to the NEMA, 1998: Sections 24(9) and 24(10)


Cabinet approved Further amendment stemming from SLA certification

24(9) – Clarification of regulatory powers

Amended Clarified role of Minister as opposed to MEC

n/a

24(10)(a) – Norms or standards

New Adoption of existing or development of new norms or standards

Refined

24(10)(b) & (c) – process to adopt or develop norms or standards

New Prescribe the process Refined

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Proposed amendments to the NEMA, 1998: Sections 24C and D



24C(2) Role of MEC vs Minister

Amended Roles clarified – specify when Minister must be deemed as competent authority

Refined

24D(1) Publication of lists (activities, sensitive areas etc.)

Amended Clarified what must be published in gazette

n/a

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Proposed amendments to the NEMA, 1998: Sections 24F and 24G



24F(1)(b) Contraventions

New Non-compliance with prescribed norm or standard included as an offence

Refined

24F(2) Amended For purposes of 24G (rectification) – split commencement without authorisation and non-compliance with conditions

n/a

24G – Rectification of unlawful activities

Amended Improved sequence of steps to be logical

n/a

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Proposed amendments to the NEMA, 1998: Sections 24H and 24J



24H – Registration body for EAPs

Amended Provision to limit number of registration bodies

n/a

24J – Enabling provision for guidelines

New Guidelines for implementation, administration and institutional arrangements related to regulations

n/a

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Proposed amendments to the NEMA, 1998: Sections 24K



24K(1) and (2) Cooperative governance

New Provisions related to consultation and cooperative agreements related to implementation of environmental authorisation processes

Refined

24K(3) New Based 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

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Proposed amendments to the NEMA, 1998: Section 24L



24L(1) and (2) Alignment and integration of authorisations: NEMA and SEMA

New Provide for:

(a) Integrated authorisations

(b) One process – multiple authorisations

(same authority)

Refined

24L(3) Environmental authorisation as basis for subsequent authorisations

New Provide for sequential permitting process (NEMA & SEMA but different authorities)

Refined

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Proposed amendments to the NEMA, 1998: Section 24L



24L(4) – Relation between other authorisation processes and NEMA/SEMA

New Authorisation issued in terms of other legislation but requirements of NEMA substantially met may constitute and env. authorisation

Refined

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Proposed amendments to the NEMA, 1998: Section 24M



24M(1) Enabling provision to grant exemption from provisions

New Previously 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

New Enabling provision for prescribing process for exemptions

Refined

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Proposed amendments to the NEMA, 1998: Sections 24M and 24N



24M(3) New Provision for Minister to prescribe criteria

Amended to include criteria to guide decisions on exemptions

24N – administrative notices

New Provision to communicate via administrative notices

Deleted. Provided for in PAJA and guidelines (24J)

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Proposed amendments to the NEMA, 1998: Section 43



43(3) of Principal Act

Deleted Deleted as is not-aligned with PAJA

n/a

43(8) to (13) New Alignment with PAJA in terms of appeals and review applications

Deleted and replaced with general provision in section 1 (new 1(5))

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Proposed amendments to the NEMA, 1998: Transitional provisions



Standard transitional provisions

New Provide clarity on status of applications and processes

n/a

24G rectification period extended to “gap” – July 2005 to July 2006

New Included to allow for rectification of activities unlawfully commenced with in said period

Deleted. Deemed unconstitutional in light of retrospective nature

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