Proposed amendments to the
National Environmental Management
Act, 1998 (NEMA)
Presentation by
Joanne Yawitch
DDG EQP
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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 :
– Streamlining processes
– Introducing strategic tools
– Introducing integration of processes
• NEMA as enabling law needs to be amended to fully include 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 3
Bill into parliament
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 5
provisions in regulations can come into force.
Proposed amendments to the National Environmental
Management Act, 1998 (NEMA): Section 1 of Principal
Act
• Section 1 of the Principal Act contain the definition of terminology
used in the Act and therefore also define the scope of the Act
• Amendments to Section 1 are necessary for the following reasons:
– Clarification of terminology used (“commence”)
– Widening scope of the Act for tools other than EIA to manage
environmental impacts (“activity”; “environmental authorisation”; “norms
or standards” and “spatial development tool”)
– Providing for alignment and integration of licensing processes and
improved inter-departmental coordination (“competent authority”;
“integrated environmental authorisation”)
– Link to Promotion of Administrative Justice Act in order to prevent court
reviews prior to exhausting appeal process
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Proposed amendments to the National Environmental
Management Act, 1998 (NEMA): Section 24 of Principal
Act
•
Section 23 and 24 (Chapter 5) of the Principal Act contain the objectives
and enabling provisions for regulatory processes in terms of Integrated
Environmental Authorisations – in other words investigation processes and
the permitting / licensing / authorisations that this investigation result in
•
Amendments to Section 24 are necessary for the following reasons
(detailed for sub-sections provided in following slides):
– Improved efficiency and effectiveness of the system
– Allow for tools other than EIA
– Allow for improved cooperation and coordination between government
departments
– Allow for integration and alignment of permitting processes
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Proposed amendments to the National Environmental
Management Act, 1998 (NEMA): Section 24.2 of
Principal Act
• Section 24.2 of the Principal Act enable the Minister to identify
activities and geographical areas where investigation and
authorisation requirements will apply.
• Amendments to Section 24.2 are necessary for the following
reasons:
– Allow for exclusions from the need to undergo investigation and obtain
authorisation based on:
• Wide range of spatial tools
• Norms or standards
– Allow for the management of activities through norms or standards
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Proposed amendments to the National Environmental
Management Act, 1998 (NEMA): Section 24.4 of
Principal Act
• Section 24.4 of the Principal Act prescribes the minimum
requirements for investigation of environmental impacts and
consequences associated with listed activities.
• Amendments to Section 24.4 are necessary for the following
reasons:
– The requirements restrict the use of tools other than EIA
– By making all the requirements compulsory, process is very rigid and
flexibility and variation to meet circumstances not possible
– It is not possible to exempt an applicant from any aspect of a
compulsory minimum requirement
– Amendment accordingly split minimum requirements to “musts” and
“may’s”
– Exemptions are limited to “may” provisions
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Proposed amendments to the National Environmental
Management Act, 1998 (NEMA): Section 24.5 of
Principal Act
• Section 24.5 of the Principal Act allow the Minister or
MEC to make regulations regarding procedures and
content of related to administration of environmental
authorisations and identification of sensitive areas
• Amendments to Section 24.5 are necessary for the
following reasons:
– The current provision only provides for EIA as tool for issuing
environmental authorisations
– Amendment accordingly provide for regulations on other tools,
and prescribing of procedures to adopt norms or standards
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Proposed amendments to the National Environmental
Management Act, 1998 (NEMA): Section 24.8 of
Principal Act
• Section 24.8 of the Principal Act state that
authorisation in terms of NEMA is always still
required even if the activity is authorised in
terms of other legislation.
• Amendments to Section 24.8 are necessary
for the following reasons:
– To allow for authorisations issued in terms of other
legislation to be deemed as an environmental
authorisation under certain circumstances
– These circumstances are provided for in new
provisions (24K & 24L)
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Proposed amendments to the National Environmental
Management Act, 1998 (NEMA): Section 24C of
Principal Act
• Section 24C of the Principal Act prescribe when
the Minister must be the competent authority in
terms of Environmental Authorisations.
• The amendments to Section 24C are necessary
for the following reasons:
– Confusion exists in terms of whether the Minister or
MEC would be the competent authority in relation to
activities taking place in:
• The sea
• Buffer zones of protected areas
• Buffer and Transitional Zones of heritage sites
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Proposed amendments to the National Environmental
Management Act, 1998 (NEMA): Section 24C of
Principal Act (continue)
– Clarity was also required in terms of activities affecting more than
one province
– Integration and alignment of permitting processes are hindered
where the Minister is the competent authority for licensing in terms
of a specific environmental management act (such as the Air
Quality Act) and the MEC the competent authority for
environmental authorisations for the same activity
– The amendments stipulate in detail when the Minister will be the
competent authority and clarify cross boundary activities,
– A new provision included in S24C stipulates that where the Minister
is the competent authority for issuing a licence or permit in terms of
a SEMA, he/she will also be the competent authority to issue an
environmental authorisation
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Proposed amendments to the National Environmental
Management Act, 1998 (NEMA): Section 24F of
Principal Act
• Section 24F of the Principal Act deals with
offences – it stipulates when action related to
integrated environmental management would
constitute an offence
• Amendments to Section 24F are necessary for
the following reasons:
– To provide for non-compliance with prescribed norms
or standards to be an offence
– To provide for non-compliance with conditions of
exemptions issued to be an offence
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Proposed amendments to the National Environmental
Management Act, 1998 (NEMA): Section 24Gof
Principal Act
• Section 24G of the Principal Act provides for the
rectification of unlawful activities
• Amendments to Section 24G are necessary for the
following reasons:
– The process prescribed in 24G stipulates that the Minister / MEC
may only consider an application after a fine has been paid. This
is not logical as the consideration of the application and
information submitted in this regard, inform what fine should be
issued
– Requirements for contents of reports to be submitted to the
Minister was very rigid.
– The section has been amended to:
• change the chronology of events to a more logical order
• Make contents of reports more flexible to suit specific circumstances
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Proposed amendments to the National Environmental
Management Act, 1998 (NEMA): Section 24J of
Principal Act
• Section 24J is a new provision enabling the
development and use of guidelines in the
administration of environmental authorisation
applications
• The insertion of Section 24J is necessary for
the following reasons:
– It provides enabling provision for activity related and
procedural guidelines to inform applications and
decision-makers - these provisions in the 2006 EIA
Regulations are currently not anchored in the Act.
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Proposed amendments to the National Environmental
Management Act, 1998 (NEMA): Section 24K of
Principal Act
• Section 24K is a new provision enabling cooperation and
coordination between organs of state in the
implementation and administration of environmental
authorisation applications
• The insertion of Section 24K is necessary for the
following reasons:
– It provides enabling provision for agreements between
departments on implementation of EIAs and other tools
– It enables the Minister / MEC to in part or in full rely on other
regulatory processes in reaching decisions on environmental
authorisation applications (this prevent duplication in regulatory
requirements) – examples would be: tolling of roads (rely on
“intent to toll” process), radiation and radiological safety (rely on
National Nuclear Regulator’s Nuclear Safety Licensing process);
etc.
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Proposed amendments to the National Environmental
Management Act, 1998 (NEMA): Section 24L of
Principal Act
• Section 24L is a new provision enabling
alignment and integration of different types of
environmental authorisations and authorisations
issued in terms of other legislation for activities
that also require environmental authorisation
• The insertion of Section 24K is necessary for
the following reasons:
– It provides enabling provision integrated environmental
authorisations (that is, one process is followed that
result in one authorisation that include conditions etc of
other environmental legislation)
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Proposed amendments to the National Environmental
Management Act, 1998 (NEMA): Section 24L of
Principal Act (continue)
– It provides enabling provisions for sequential authorisations (that is
where one authorisation informs another – in other words one
process is followed but more than one authorisation is issued but in
a specific sequence – example: Environmental Authorisation
informs the Emission Licence issued in terms of NEMAQA
– It provides enabling provisions so that one process can lead to
multiple authorisations in terms of different legislation
– It provides for an authorisation issued in terms of other legislation
to be deemed an environmental authorisation
– It provides for an environmental authorisation to be deemed as an
authorisation issued in terms of other legislation
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Proposed amendments to the National Environmental
Management Act, 1998 (NEMA): Section 24M of the
Principal Act
• Section 24M is a new provision enabling exemptions from provisions
that are discretionary (minimum requirements discussed in 24(4)).
• The insertion of Section 24M is necessary for the following reasons:
– Section 24(5) of principal Act state that Minister may make regulations
regarding process to follow for exemptions but does not enable the Minister
/ MEC to grant exemptions from provisions contained in the Act. The
exemption provisions in the EIA Regulations are thus limited to
requirements of the regulations not stemming from minimum requirements
in the Act.
– The new provision provides enabling provision for the competent authority
to grant exemptions from meeting some requirements of the Act, whilst
providing checks and balances to ensure that this provision is not abused
– It does not allow for “blanket” exemptions – just exemptions from some
procedural or content requirements
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THANK YOU !!
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