NATIONAL ENVIRONMENTAL MANAGEMENT:1st AMENDMENT BILL

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NATIONAL ENVIRONMENTAL MANAGEMENT1st AMENDMENT
BILL

• AMENDMENTS TO CHP 7 ON COMPLIANCE, ENFORCEMENT
  PROTECTION
• AND
• AMENDMENTS TO CHP 9 ON ADMINISTRATION AND
  DELEGATION OF POWERS

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PROCESS FOLLOWED

• Published for public comments
• 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

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Why this Bill

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

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Purpose of bill

• The Bill aims to
• Address the current lack of effective enforcement
  implementation of environmental laws
• Standardize strengthen the current legislative
  regime for the enforcement environmental
  legislation
• Provide a coherent legal framework for the
  administration enforcement of environmental
  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
• Strehnthens or fills the gaps in NEMA (gives it
  teeth)

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Overview of Amendments

• 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

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ADVANTAGES

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

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ADVANTAGES Continued

• Ability to monitor compliance with environmental
  legislation
• Improved compliance with environmental
  legislation
• Improved protection of the countrys biological
  diversity
• Criminalization of environmental offences
• Rationalizes beef-up existing enforcement
  frameworks e.g. National Parks Act

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Amendments to Chp 7 of NEMA

• Definitions addition of specific environmental
  management Acts
• 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

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Chp 7 Part 2

• 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 must first comply with certain prescribed
  criteria prescribed training
• These will be set in Regulations by the Minister

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Chap 7 Part 2

• Members of SAPS will have most of the powers
  assigned to EMIs
• 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

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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
• Shared powers between EMIs SAPS include powers
  to
• search,
• seizure,
• question, and
• arrest as set out in the Criminal Procedure Act

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Chp 7 Part 2

• 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

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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
• 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

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Amendments to Chap 9

• 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
• Additions deal with matters of
• consultation,
• Extension of time periods
• Validity of documents procedures
• Delivery of documents

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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

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Impact on Provinces Local Government

• 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
• This does not derogate from the provinces and
  local governments competence to appoint staff
  members to enforce provincial or municipal
  legislation

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KEY ISSUES RAISED HOW ADRESSED

• Relationship between the powers of EMIs powers
  of the SAPS
• 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

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KEY ISSUES

• 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

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KEY ISSUES

• Provisions on national and provincial supervision
• 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

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KEY ISSUES

• Prescribed qualification and training criteria of
  EMIs be set out in the Bill
• 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

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KEY ISSUES

• Provision too reactive did not allow for
  proactive monitoring enforcement
• Consultation with Minister of safety security
  on prescribed qualification training criteria
  of EMIs

• Provision on routine inspections have been
  inserted
• Incorporated