Bills

NATIONAL ENVIRONMENTAL MANAGEMENT BILL

  1. INTRODUCTION

1.1. This report reflects the work of the national environmental management task team of the National Economic Development and Labour Council (Nedlac). The report is divided into five sections.

1.2. Following this introductory section:

1.2.1. Section 2 sets out the Nedlac process and the terms of reference used by the task team on the national environmental management bill process.

1.2.2. Section 3 outlines the agreements on the content, including the actual wording of the agreed clauses, on the bill.

1.2.3. Section 4 reflects disagreements between the Nedlac parties on the content of the bill.

1.2.4. Section 5 concludes the report.

  1. THE NEDLAC PROCESS

2.1. This report constitutes the results of discussions held by a task team constituted in terms of a decision of the Trade and Industry Chamber. The task team functioned on the basis of the following agreed Terms of Reference and agreed principles:

2.2. The bill dated 1 July 1998 was tabled at Nedlac and served as the basis for negotiations. During the course of negotiations government tabled amended versions of this bill dated 12th and 20 August 1998 respectively. Unless otherwise stated all comments and clause references refer to the 1 July 1998 version of the bill.

2.3. Terms of reference for the task team

2.3.1. A task team comprising of five representatives from business, labour and government should meet to discuss the proposed Draft National Environmental Management Bill. The task team met five times. Meetings were held on the following dates:

  • 4 August 1998
  • 6 August 1998
  • 18 August 1998
  • 19 August 1998
  • 21 August 1998

2.3.2. A meaningful discussion should be held by the task team and a Nedlac report which would inform the discussions in Parliament should be developed thereafter.

2.3.3. The aim of the task team is to seek to reach consensus on the contents of the bill as published on 1 July 1998. Due to time constraints the available time should be used productively. Issues on which the parties cannot reach agreement should be captured in the Nedlac report as reservations by the affected party.

2.3.4. The parties will thereafter be free to pursue and raise their reservations through the parliamentary process, except to the extent to which agreement is reached in the Nedlac process.

2.3.5. Given the time constraints, the chamber requested government to allow a reasonable time, such as three sessions, for the parties to discuss the Bill at Nedlac beyond the 29st July 1998, the formal closing date for public comments.

2.4. Agreed principles

2.4.1. The parties agreed that in areas where an agreement has been reached they will also agree on the actual wording of the affected clauses.

2.4.2. The parties will attempt to reach as broad an agreement as possible but in areas where an agreement cannot be reached the parties' concerns will be recorded in the final Nedlac report.

  1. AGREEMENT

The Draft National Environmental Management Bill is supported by Nedlac subject to the following agreed amendments to the bill and reservations recorded in sections 3 and 4 of this report.

3.1. The Preamble and Definitions

It is agreed that this section will be amended as follows:

3.1.1. New clause: " Whereas sustainable development requires the integration of social, economic and environmental factors in planning, implementation and evaluation of decisions to ensure that development serves present and future generations".

3.1.2. The following clause (in the 12 August 1998 bill) will be deleted from the Preamble:

"Whereas development must be economically, socially and environmentally sustainable"

3.1.3. New Clause: "AND WHEREAS it is desirable -

that the law should establish procedures and institutions to promote public participation in environmental governance".

3.1.4. New clause under the Definitions section 1 (1): will read as follows:

"Sustainable development" means the integration of social, economic and environmental factors into planning, implementation and decision making so as to ensure that development serves present and future generations"

3.2. Chapter 1 - Principles (Revised bill of 12 August 1998)

  1. Clause 2 (1) will be amended to read as follows:

(a) Sub-clause (d):" Serve as principles by reference to which a conciliator appointed under this Act shall make recommendations; and

(b) Sub-clause (e): "Guide the interpretation, administration and implementation of this Act, and any other law concerned with the protection or management of the environment".

  1. Clause 3 will be amended as follows:

a. Sub-clause (a) (ii)

"that pollution and degradation of the environment is avoided, or, where it cannot be altogether avoided, is minimised and remedied".

(b) New sub-clause (h):

"Community well-being and empowerment must be promoted through environmental education, the raising of environmental awareness, the sharing of knowledge and experience and other appropriate means"

(c) New sub-clause (i):

"The social, economic and environmental impacts of activities, including disadvantages and benefits, must be considered, assessed and evaluated, and decisions must be appropriate in the light of such consideration and assessment

(d) New sub-clause (o):

"The costs of remedying pollution, environmental degradation and consequent adverse health effects and of preventing, controlling or minimising further pollution, environmental damage or adverse health effects must be paid for by those responsible for harming the environment".

3.3 Chapter 2 - Institutions (revised version)

  1. Clause 3 will be amended to read as follows:

(a) Sub-clause (1): "The National Environmental Advisory Forum is hereby established".

b. Sub-clause (2): "The object of the Forum is to advise the Minister on:

  1. **any matter concerning environmental management and governance and specifically the setting and achievement of objectives and priorities for environmental governance; 
  2. appropriate methods of monitoring compliance with the principles set out in Section 2; 
  3. to inform the Minister of the views of the constituencies regarding the applications of principles in section 2.

(c) The Forum may, on its own initiative and after consultation with the Director-General, draw the Minister's attention to any matter concerning environmental management requiring attention, and the Minister may refer matters for consideration by the Forum.

  1. Composition

The following clauses of this section will be amended to read as follows:

Clause 4 (1): The Forum shall consist of at least twelve but not more than twenty members appointed by the Minister.

(2) Before persons contemplated in subsection (1) are appointed, the Minister will-

  1. invite nominations from the constituencies referred to in subsection (3) for members and alternates by notice in the Gazette and at least two nationally distributed newspapers, specifying a period within which nominations must be submitted;
  2. stipulate in such notice, the procedure to be adopted regarding such nominations."

(3) The Forum consists of :

  1. at least three members nominated by the voting members of Nedlac representing organised labour.
  2. at least three members nominated by the voting members of NEDLAC representing organised business;
  3. at least three members representing community organisations with interest in environmental issues.
  4. at least three members representing environmental organisations."

"Provided that if the total number of members exceeds twelve equal representation between the constituencies referred to in subsections (1) (a), (b), (c) and (d) must be maintained and provided further that for purposes of paragraphs (b) and (c) the Minister may invite nominations from organisations which in his or her opinion:

  1. represent a significant interest nationally, and
  2. are democratically constituted..

( 4): The Minister shall appoint the chairperson of the Forum.

(5) (a): Each constituency referred to in the constitution shall designate alternates to take the place of any of its representatives if any of its representatives are unable to attend a meeting of the Forum or vacate their office.

(b): The Minister may appoint a replacement for a member who vacates his or her office in terms of section 5(3) after inviting nominations from the constituency that nominated such member."

( 6): The replacement shall serve for the balance of the term of the person he or she replaces.

3.3.4. Conditions of appointment to the Forum

 The following clause will read as follows:

Clause 5 (1) "A member of the Forum holds office for a period of two years".

3.3.5. Functioning of the Forum

 The following clauses will be amended to read as follows:

Clause 6 (1): The Minister (by regulation published in the Gazette) may lay down rules for the functioning of the Forum, including:

(a) a constitution for the Forum which may deal with the following matters:

  1. Advice on matters related to Chapter 6.
  2. Participation in meetings relating to international environmental matters..
  3. Sub-committees and working groups of the Forum.
  4. Reports to the Forum by the Director-General.

 (b) the manner and timing of reports by the Forum; and

(c) consultation with the Director-General.

(d) with the concurrence of the Minister of Finance make available funds for the functioning of the Forum for purposes other than the payment of remuneration referred to in section 5(4), from:

  1. money appropriated by Parliament for this purpose; and
  2. funds obtained from donations or grants.

Sub-clause 2: The Director General may-

  1.  designate as many officers and employees as he or she may deem necessary to assist the Forum in the performance of its work.
  2. (b) engage persons on contract to assist the Forum in the performance of its work.

Sub-clause 3: The Minister shall present an annual report to Parliament on the work of the Forum including the following:

  1. the work plan for the next year;
  2. information and recommendations submitted; and
  3. financial report and budget.

Part 2: The Committee for Environmental Co-ordination

Establishment, objects and functions of the Committee

The following clauses will be amended to read as follows:

(a) Clause 7 (2): "The object of the committee is to promote the integration and co-ordination of environmental functions by the relevant organs of state, and in particular to promote the achievement of the purpose and objectives of environmental implementation plans as set out in Section 12.

(3) (d) The functions of the committee shall include the following:

"Making recommendations on mechanisms to co-ordinate the application of integrated environmental management as envisaged in chapter 5, including co-operation in environmental assessment procedures and requirements and making determinations regarding the prevention of duplication of efforts as envisaged in section 24 (4).

  1. But will exclude:

"Commenting on any proposed environmental management co-operation agreements submitted to it in accordance with section 37 (2)"

3.4. Chapter 3 - Procedures for Co-operative Governance

Content of environmental implementation and management plans: Clause 13

It was agreed that guidelines will be developed for the content of the implementation and management plans to avoid delays, setting up of regulations will be discretionary.

3.6. Chapter 6 - International Obligations and Agreements

3.6.1. This chapter will include the following new clauses:

1: "The Minister may make a recommendation to Cabinet and Parliament regarding accession or not to an international environmental instrument, which may deal with the following:

  1.  "(i): The potential impact of the accession on national policies"
  2. "(ii): The Minister may prior to the recommendation to Cabinet as set out in (1):
  1. publish a notice in the gazette:
  1. setting out his or her intention, and
  2. inviting written comments to be submitted.

3.7. Chapter 7 - Compliance and Enforcement

3.7.1. Duty of care and remediation of environmental damage

It was agreed that clause 28(2) will be qualified to read:

(a) any activity or process is or was performed or undertaken; or

(b) any other situation exists, which causes, has caused or is likely to cause significant pollution or degradation of the environment"

3.7.2. It is agreed that the following clause will be amended to read as follows:

 (a) Clause 28 (6) (b): "The Minister may recover from the person for whose benefit the expropriation was effected reasonable costs incurred".

 (b) Clause 28 (10): "The costs claimed under subsections (6), (8), (9) and (11) must be reasonable and may include, without being limited to, labour, administrative and overhead costs."

 3.8. Chapter 9 - Administration of the Act (version of 12 August 1998)

3.8.1. Expropriation of property

 It was agreed that the following clauses will be amended to read as follows:

  1. Clause 36 (1): "The Minister may (purchase?), subject to compensation, expropriate any property for environmental or any other purpose under this Act, if that purpose is a public purpose or is in the public interest: provided that the Minister shall consult the Minister of Minerals and energy before any mineral rights are expropriated."
  2. Clause 36 (3) should read as follows:

"Notwithstanding the provisions of subsection (2) the amount of compensation and the time and manner of payment must be determined in accordance with section 25 (3) of the Constitution, and the owner of the property in question must be given a hearing before any property is expropriated.

4. DISAGREEMENTS

1. The Preamble and Definitions**** 

Government argued that the following statement reflects the intention of the provisions outlined in Chapter 7 to empower civil society to enforce environmental laws in cases where the state fails:

"AND WHEREAS it is desirable -

that the law should be enforced by the state and that the law should facilitate the enforcement of environmental laws by civil society.

Business and labour said that:

  1. The statement was not clearly formulated to communicate government's intention.
  2. The statement which embraced public participation had already been included in the bill.
  3. They preferred the following formulation:
    "that the law should be enforced by the state".

Chapter 1 - Principles

1. Sustainable development 

  1.  Government said that the following principles reflect the integration approach underpinning "sustainable development and the intention of the bill to address environmental aspects of the integrated approach:

"(i) Clause 2 (2): Development must be sustainable and may not harm the health and well-being of present and future generations." (Version of 20 August 1998).

(ii) Clause 2 (3): Sustainable development requires the consideration of all relevant factors including the following……" (version of 20 August 1998).

(b) Business and labour argued that they prefer a formulation which reflects the definition of sustainable development in the bill and said they prefer the following wording:

"Sustainable development requires the integration of social, economic and environmental factors in the planning, implementation and evaluation of decisions to ensure that development serves present and future generations. The environmental factors may include, but not be limited to the following:.."

4.2.2. Clause 2 (2) (n): The public trust clause

(a) Business raised a concern that Clause 2 (2) (n) could be interpreted to infringe on the property rights. Business suggested the following wording:

"The beneficial use of environmental resources must serve the public interest and the environment must be protected as the people's common heritage"

(b) Government said the following formulation will accommodate business' concern:

"The environment is held in public trust for the people and the beneficial use of environmental resources must serve the public interest and the environment must be protected as the people's common heritage". (Version of 24 August 1998)..

4.2.3. Organs of state (under the Definitions section 1 (1): ******

(a) Government said that the definition of the "organs of state" was the one used in the national constitution.

(b) Government explained that "organs of state" were referred to as those statutory institutions which used public funds, provided public service, were subjected to administrative law as well as to the principles in chapter 1. Government said that it had tried to formulate a generic definition which was as precise as possible

(c) Business and labour said that the definition used in the national constitution for "organs of state" was not clear with regard to the institutions which government referred to in the bill, particularly in cases where the "organs of state" had regulatory functions or government was a major share holder.

(d) Business raised a concern that the bill required disclosure of privately held information to government departments. It commercial enterprises, such as para-statals were classified as the organs of state in the bill, business could be obliged to disclose confidential information to their competitors, who enjoyed preferential treatment.

(e) Government said that the definition of the "organs of state" does not intend to, and did not believe that it will prejudice any public or private enterprise. The distinction between disclosure of publicly and privately held information will be addressed in the regulations. Government requested continued engagement on the issue in seeking an acceptable definition.

4.2.3. The right of workers to refuse to work *****

  1. Business proposed that the following clause 2 (3) (I) should be amended as follows:

"The right of workers to refuse to work when circumstances arise that pose a serious threat to the environment must be protected".

  1. Labour required that the principle should reflect the content of the relevant clause.
  2. Government proposed the following formulation:

"The right of workers to refuse work that is harmful to the environment and to be informed of dangers must be respected and protected." (version 20 August 1998)

4.2.3. New clause: The role of women and youth *****

(a) Business had proposed that the following clause be included as a principle:

"The vital role of women and youth have in environmental management and development must be recognised and their full participation promoted."

(b) Government argued that the bill was underpinned by a principle of public participation and it would not be appropriate to include all minority groups.

(c) Business indicated its willingness to withdraw the proposal whereupon labour insisted that it be included. This was supported by business.

 4.3. Chapter 2 - Institutions

 4.3.1 Part 2 : Commission for Sustainable Development (Clause 7 (1) - (3) of the 1 July 1998 version: ****

(a) Business submitted the following proposal and argued that the Minister of Environmental Affairs and Tourism, should develop a national strategy for integrated sustainable development as follows:

"The Minister shall after consultation with the President and any Minister designated by the President, prepare a national sustainable development strategy, which will set out:

  1. Mechanisms to promote integration of environment and development.
  2. Establishment of systems for integrated environmental and economic accounting.
  3. Promotion of the use of environmentally sound technologies.
  4. Promotion of research and development in sustainable development.
  5. Promotion of sustainable consumption patterns.
  6. Encouragement of dissemination of environmentally related product information.
  7. Mechanisms to strengthen international co-operation.
  8. Recommendation on the desirability of establishing an institution provided that at least the following information in respect of the institution is included in the recommendation:
  1. the composition, nomination procedure and appointment of members of the institution.
  2. the functions of the institution.
  3. the manner in which the institution will assist national reporting to the international community on the state of the environment.
  4. meetings and procedures of the institution and the establishment of technical committees.
  5. reporting procedures and requirements including reporting to parliament.
  6. Funding mechanism.

(2) Before finalising the national strategy for sustainable development, the Minister must consult with the Forum and

 (a) publish a notice in the Gazette-

(i) setting out the national strategy for sustainable development; and

(ii) inviting written comments to be submitted on the proposed strategy with in the specified period mentioned in the notice; and

(b) consider all comments received".

(d) Labour supported business.

4.3.2. Part 3: The Committee for Environmental Co-ordination (1 July 1998 version)

(a) Composition of the Committee (Clause 9, 10, 11)

  1. Business and Labour said that although it supports the establishment of the committee the criteria used to determine which departments must be represented on the committee was unclear. Labour said that several departments, such as Labour, Health, Agriculture and Transport, have key regulatory responsibility for aspects of the environment.
  2. Business and labour and argued that this bill should establish criteria for government departments to participate in the committee.
  3. Furthermore, business and labour argued that circumscription of all relevant government departments would:
  • Enhance co-operative governance.
  • Facilitate co-ordination within government.
  • Highlight that the intention of the bill is to protect society at large including human health.
  1. Government indicated that the composition of the committee is set out in the bill was based those departments' desire to participate.
  2. Government said that the issue had been discussed at length within government and it was felt that the following sub-clauses will accommodate those departments which were not specifically assigned in the bill:

"The committee shall be comprised of:

  1. Any other Director-General appointed by the Minister with the concurrence of the Minister under whose portfolio that Department falls.
  2. The committee may co-opt persons to the committee to assist the committee in carrying out its functions.
  3. The committee may invite persons to attend meetings of the committee and to assist the committee in carrying out its functions."

4.4. Chapter 3 - Procedures for Co-operative Governance

  1. Business and labour said that they support the concept of co-operative governance. However, they reiterated their position that criteria for classification of departments into Schedule I and II were not clear.
  2. Business reiterated its position with regard to the "organs of state" as outlined under point 4.2.2. under "Agreements".

4.5. Chapter 4 - Fair decision making and conflict management (12 August 1998 version) ****

4.5.1. Government said that its position has moved from 1 July 1998 which advocated compulsory mediation. Subsequently government has considered that compulsory mediation could cause delays in resolving problems. Government said that the principle and the intention of the clause is to provide a cheap and a peaceful dispute resolution mechanism as accepted by all parties. Government said that various environmental laws, for example the Development Facilitation Act, provided for mediation proceedings to resolve disputes speedily. Government's position provided for a number of mechanisms for mediation. These are:

  1. The decision maker may initiate voluntary private mediation and set the conditions with respect to how it will happen, payment, time-frames etc. The Director General of the Department of Environmental Affairs and Tourism may set conditions under this act. The decision-maker may use a mediation procedure provided for in the act he/she is implementing.
  2. A court may suspend its proceedings and refer the matter to mediation.
  3. Another route is a formal investigation by the Minister (Commission of Inquiry for example) Any person can ask the Minister to intervene and set up mediation.
  4. The act will also allow arbitration. Minister may set up a panel of arbitrators to choose from

4.5.2. Business supported its position by pointing out the following areas of concern:

(a) There are no time limits to finalise the case at each stage of the process.

(b) Lack of clarity on relationship of investigation to conciliation.

(c) No requirement for recommendations to be given due regard by the decisionmaker.

(d) The Conciliation processes seem to be open ended

(e) There is insufficient link with Chapter 7.

4.5.3. Furthermore, business and labour expressed concern that the current approach would not facilitate easy access by ordinary people without the assistance of a lawyer. It was therefore agreed a flow chart would be presented to business and labour to allow them to review their concerns in the light of greater clarity the mechanism. The flow chart would cover:

  1.  How the dispute resolution mechanism could be accessed sequentially.
  2. How emergency interventions could be accessed.
  3. Clearly outline the succession of different stages and clearly outline circumstances which enables the triggering of the following stage.

4.5.3. Reference to conciliation (Clause 17)

The following clauses will be included:

(a) Clause 17 (3): "A court or tribunal hearing a dispute regarding the protection of the environment may order the parties to submit the dispute to a conciliator appointed by the Director-General in terms of this Act and suspend the proceedings pending the outcome of the conciliation.

(b) Clause 18 (4): "A conciliator may keep or cause to be kept, whether in writing or by mechanical or electronic means, a permanent record of all or part of the proceedings relating to the conciliation of a matter."

4.5.4. Arbitration (Clause 19)

" The following sub-clauses will be included in Clause 19:

(1): "A difference or disagreement regarding the protection of the environment may be referred to arbitration in terms of the Arbitration Act, 1965 (Act No. 42 of 1965).

(2): Where a dispute or disagreement referred to in subsection (1) is referred to arbitration the parties thereto may appoint as arbitrator a person from the panel of arbitrators established in terms of section 22."

4.6. Chapter 5 - Integrated Environmental Management

  1.  Business said that the current draft was in conflict with current Environmental Impact Assessment regulations and the draft Integrated Environmental Management Strategy. Business said that it did not believe that chapter 5 would facilitate integrated environmental management and suggested a formulation of the whole chapter as follows:

"1: In order to provide for the effective integration of environmental considerations into activities, the Minister shall develop a National Strategy for Integrated Environmental Management.

2: Before finalising the National Strategy for Integrated Environmental Management referred to in 1, the Minister shall

  1. consult the Forum.
  2. Publish a notice in the gazette:
  1. (i)setting out the draft National Strategy for Integrated Environmental Management, and
  2. inviting written comments to be submitted within the time period specified in the notice, and
  3. consider all the comments received.

3: (i) The National Strategy for integrated Environmental Management referred to in 1 shall comply with the principles in Chapter 1 and provide for the achievement of the following objectives:

  1.  Evaluation of the actual and potential effects which activities are having or may have on the environment;
  2. Evaluation of alternatives and mitigation options which may reasonable be required in order to minimise negative impacts on the environment.
  3. Development of management instruments, mechanisms and standards to be used in the implementation of integrated environmental management, including but not limited to environmental impact assessments, environmental management systems, monitoring auditing, reviewing and reporting procedures.
  4. Establishment of procedures and requirements for the implementation of integrated environmental management, including where other legislative requirements contain environmental obligations which relate to the same activity.
  5. Provision of adequate opportunity for public participation.
  6. Co-operation and co-ordination between all of the organs of state which may have jurisdiction over the activity.

(ii) The Minister may make regulations prescribing:

  1.  The procedures to be adopted in implementing the National Strategy for Integrated Environmental Management.
  2. The monitoring and auditing mechanisms to be used in ensuring that activities comply with the National Strategy for Integrated Environmental Management.
  3. The limits within which environmental impacts will be accepted.
  4. Conditions under which activities may be undertaken.
  5. incentives which may be used to promote compliance with conditions.
  6. The extent of public participation."

4.5.2. **Government said that business' submission in May 1998 had been considered in drafting the bill. Government said that the chapter was intended to bring certainty to integrated environmental management. It will provide a mechanism and a procedure for reporting on impact assessments which are conducted by all relevant departments without taking away their right to develop their own processes. It will also provide for a single report on impact assessment and make provision for impact assessment of existing activities. The proposed Committee for Environmental Co-ordination would be responsible for co-ordinating government activities.

4.5.3. Labour said that clause 24 (7) (d) of the revised bill which read: "conflict resolution, independent review and public participation where appropriate in phases of the environmental assessment process:

eroded the participation rights which were outlined in the bill of 1 July 1998 which read in Clause 26 (7) (d):

"conflict resolution, independent review and public participation in all phases of the environmental assessment process:

4.6. Chapter 7 - Compliance and Enforcement

 4.6.1. Part 2: Access to environmental information and protection of whistle-blowers

  1. Government proposed the following clause in the bill of 12 August 1998 Clause 31 (2):

"Subject to subsection (3), The Minister may make regulations regarding access by members of the public to privately held information relating to the implementation of this Act and any other law concerned with the protection of the environment and may to this end prescribe the manner in which such information shall be kept. Provided that such regulations are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom".

  1. Business opposed the prescription on how private information should be held.

Labour proposed the following clause on "whistle-blowers" which government incorporated in the bill of 12 August 1998 in Clause 31 (4). Labour argued that the intention of the clause was to ensure that persons, including employees who have knowledge of environmental hazards are able to disclose this information so that preventative action can be taken, without fear of retaliation:

(a) "Notwithstanding the provisions of any other law, no person is civilly or criminally liable or may be dismissed, disciplined, prejudiced or harassed on account of having disclosed any information, if the person in good faith reasonably believed at the time of the disclosure that he or she was disclosing evidence of an environmental risk and the disclosure was made in accordance with sub-section (5).

4.6.3. Business said that it supports the principle of a "whistle-blower" but argued that the protection for the whistle blower should be equal to the protection given to the perceived perpetrator. Business argued that disclosing information simultaneously to government's agencies such as Human Rights Commission as well as to the media could impact negatively on employers and could be open to abuse. Business said that a provision should be made for internal procedures to provide an opportunity to establish preventative measures before the "whistle blower discloses the information to outside sources. Business proposed the following amendment:

"Notwithstanding the provisions of any other law, no person is civilly or criminally liable or may be dismissed, disciplined, prejudiced or harassed on account of having disclosed any information, if the person in good faith reasonably believed at the time of the disclosure that he or she was disclosing evidence of a circumstances which had arisen which posed an imminent and serious threat to the environment.

  • Labour did not agree because it felt that the proposed wording did not cover a chronic situation.
  • Government said that outlining a list of who the "whistle-blower" could report to creates an appropriate balance in allowing the "whistle-blower" to exercise his/her fundamental constitutional rights. The intention is to enable reporting a threat to the environment without fear of reprisal.

 4.6.5. Business opposed to disclosing of information to the media.

4.6.6. Duty of Care and remediation of environmental damage (version of 12 August 1998).

 (a) Business felt that this clause put an obligation on the landowner who might have rented land to a tenant and is not responsible for the damage. Business suggested that the following clause should apply with a proviso that the "accused" person who has caused damage as outlined in clause 28 (1) is not available.

"Clause 28 (2): Without limiting the generality of the duty in subsection (1), the persons on whom subsection (1) imposes an obligation to take reasonable measures, includes an owner of land or premises, person in control of land or premises or a person who has a right to use the land or premises on which or in which-

(i) Any activity or process is or was performed or undertaken, or

(ii) Any other situation exists,  which causes, has caused or is likely to cause significant pollution or degradation of the environment."

(b) Labour said that putting obligation on all relevant role-players could facilitate effective obedience and could result in higher level of compliance.

(c) Government said that the issue of liability with regard to cost recovery was fundamental to government but this clause only related to costs referred to in sub-clause 10.

4.6.7. Control of emergency incidents

(a) Government said that clause 30 had been improved to empower government departments to deal with emergency incidents. Government said that the clause will enable government to manage emergencies in industries generally and the Macassar incident informed the formulation of the clause.

(b) Labour noted the inclusion of its proposal in sub-clause 7 but said that the whole clause 30 was not sufficient to effectively coordinate the management of emergencies within government. Labour said that the emphasis of the clause was on managing, rather than preventing, emergencies.

(c) Business said that the clause overlapped with other pieces of legislation and it would lead to duplication. Business argued that the requirements of the clause are beyond the jurisdiction of the Minister. Business reiterated that the clause should clearly define the purpose, the persons responsible to achieve the objective of the clause and procedures for executing such responsibility.

4.6.7. Legal standing to enforce environmental laws (Clause 32)

(a) Business said that the clause goes beyond the locus standi envisaged by the national constitution.

(b) Government said that the intention was precisely to broaden the locus standi outlined in the constitution. Government said the clause has been improved in the version of 20 August 1998 as follows:

(3) Where a person or group of persons secures the relief sought in respect of any breach or threatened breach of any provision of this Act or any other statutory provision concerned with the protection of the environment, a court may on application:

(a) award costs on an appropriate scale to any person or persons entitled to practise as advocate or attorney in the Republic who provided free legal assistance or representation to such person or group in the preparation for or conduct of the proceedings; and

(b) order that the party against whom the relief is granted pay to the person or group concerned any reasonable costs incurred by such person or group in the investigation of the matter and its preparation for the proceedings.

  1. Criminal proceedings

(a) Government said that this clause relates to Schedule 3 which lists the applicable the environmental laws. The clause applies to a convicted person and makes a provision that s/he should pay for the damage caused and for prevention of damage. The clause therefore is intended to cover costs for both rehabilitation and prevention and is also intended to make the law responsive.

(b) Business argued that labour's proposal was intended to recover costs in preventing damage to the environment as a result of an offence such as the manner of transportation of a substance which could cause damage, and a provision was made under the "Duty of care" clause 28. Business said a distinction should be made between payment which is a form of punishment and payment for preventative measures. Business felt that the latter should not apply to a convicted person.

(c) Labour felt that its proposal was covered by clause 28 and felt that clause 34 (1) in its current form in the 12 August 1998, was not necessary.

4.6.9. Private prosecution (Clause 33)

(a) Labour supported government's proposal and intention as outlined in the bill.

(b) Business said that the clause is covered in other legislation, it is unfair because it is not qualified to apply within a scale of different crimes but it applies to general environmental crime.

(c) Government said that the clause has been carefully considered particularly with regard to criminal prosecution in matters which are usually neglected by the criminal justice system. The intention of the clause is to make the justice system more responsive and easily accessible with a view to ensure that the law is complied with.

4.7. Chapter 8 - Environmental Management Co-operation Agreements ***

4.7.1. Business argued that the intention of clause 35 (3) (a) is to encourage performance of high, rather than improving existing, standards in protecting the environment and it suggested the following wording:

"Environmental Co-operation Agreement is developed in includes an undertaking by the parties to improve performance beyond the requirements of any existing standards specified in any laws which are applicable to the parties concerned and are directly relevant to the subject of the agreement."

4.7.2. To ensure public participation, government proposed clause 35 (2) as follows:

"Environmental management co-operation agreements shall:

only be entered into after compliance with such procedures for public participation as may be prescribed by the Minister.

(a) Business and labour felt that the above clause will not suffice in enforcing public participation. They suggested the following wording:

" Environmental Co-operation Agreement is developed in compliance with the requirements for public participation as the Minister may prescribe by regulation."

(b) Furthermore, business and labour argued that the details enabling the Minister to make provisions should be removed from this section and be included under the Regulations clause.

4.8. Chapter 9 - Administration of the Act (version of 12 August 1998)

4.8.1. Procedure for making regulations *******

(a) Labour proposed that clause 47 (2) to (7) be deleted to ensure expeditious process of making regulations. Business supported labour.

(b) Government said that the development of regulations involved executive and legislative powers. The parliamentary process was required to ensure constitutionality of the regulations. ***

4.9. Chapter 10 - General and Transitional Provisions (12 August 1998 version)

(a) Business and labour said the following clause should be deleted because it would create uncertainty and confusion:

Clause 50 (2): "Section 21, 22 and 26 and the notices and regulations issued pursuant to sections 21 and 22 and in force on the commencement date of the Act are repealed with effect from a date to be published by the Minister in the Government Gazette, which date may not be earlier than the date on which regulations made by or with the concurrence of the Minister under section 26 (2) and 26 (4) of this Act are promulgated."

(b) Government said a mechanism has to be developed to clarify the link between the bill and existing impact assessment regulations. Government said that sub-clause 52 (2) should be read in conjunction with chapter 5 which promotes the role of the CEC in co-ordinating a single procedure for reporting.

(c) Business said that it did not believe that the clause achieved the stated intention. 

5. CONCLUSION

This report therefore completes consideration of the issue in Nedlac and the report and the bill are hereby submitted to the Management Committee and the Minister of Labour and the Minister of Environmental Affairs and Tourism in terms of Section 8 of the Nedlac Act, No. 35 of 1994.

 

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