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NATIONAL ENVIRONMENTAL MANAGEMENT:1st AMENDMENT BILL

NATIONAL ENVIRONMENTAL MANAGEMENT:1st AMENDMENT BILL. AMENDMENTS TO CHP 7 ON COMPLIANCE, ENFORCEMENT & PROTECTION AND AMENDMENTS TO CHP 9 ON ADMINISTRATION AND DELEGATION OF POWERS. PROCESS FOLLOWED. Published for public comments Published as Chapter 9 (A)

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NATIONAL ENVIRONMENTAL MANAGEMENT:1st AMENDMENT BILL

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

  2. 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

  3. 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

  4. 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)

  5. 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

  6. 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

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

  8. 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

  9. 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

  10. 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

  11. 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

  12. 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

  13. 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

  14. 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

  15. 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

  16. 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

  17. 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 KEY ISSUES RAISED & HOW ADRESSED

  18. 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

  19. 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 KEY ISSUES

  20. 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 KEY ISSUES

  21. 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 KEY ISSUES

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