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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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Proposed amendments to the National Environmental Management Act, 1998 (NEMA):
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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Proposed amendments to the National Environmental Management Act, 1998 (NEMA):
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
7
Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Section 1 of Principal Act (2)
Section New / amended Cabinet approved
Further amendment stemming from SLA certification
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)
Section New / amended Cabinet approved
Further amendment stemming from SLA certification
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)
Section New / amended Cabinet approved
Further amendment stemming from SLA certification
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)
Section New / amended Cabinet approved
Further amendment stemming from SLA certification
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
Further amendment stemming from SLA certification
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)
Section New / amended
Cabinet approved
Further amendment stemming from SLA certification
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)
Section New / amended
Cabinet approved
Further amendment stemming from SLA certification
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)
Section New / amended
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
Section New / amended
Cabinet approved Further amendment stemming from SLA certification
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
Section New / amended
Cabinet approved Further amendment stemming from SLA certification
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
Section New / amended
Cabinet approved Further amendment stemming from SLA certification
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
Section New / amended
Cabinet approved Further amendment stemming from SLA certification
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
Section New / amended
Cabinet approved Further amendment stemming from SLA certification
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
Section New / amended
Cabinet approved Further amendment stemming from SLA certification
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
Section New / amended
Cabinet approved Further amendment stemming from SLA certification
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
Section New / amended
Cabinet approved Further amendment stemming from SLA certification
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
Section New / amended
Cabinet approved Further amendment stemming from SLA certification
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
Section New / amended
Cabinet approved Further amendment stemming from SLA certification
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