28 February 2008
- Speech - SPEECH BY MARTHINUS VAN SCHALKWYK,
MINISTER OF ENVIRONMENTAL AFFAIRS AND TOURISM
IN THE NATIONAL ASSEMBLY INTRODUCING THE
NATIONAL ENVIRONMENTAL LAWS AMENDMENT BILL
[B35-2007], THURSDAY 28 FEBRUARY 2008
Overview of the Amendment
Bill
Madam Speaker, I am
pleased to introduce the National Environmental
Laws Amendment Bill to you. This Bill proposes
brief, yet critical amendments that will
ensure more effective enforcement of national
environmental legislation.
This Amendment Bill
follows in the footsteps of the National
Environmental Management Amendment Act 46
of 2003, which provided for the designation
of Environmental Management Inspectors (EMIs),
commonly known as the Green Scorpions. These
are officials designated to monitor and
enforce compliance with the provisions of
the National Environmental Management Act
and various specific national environmental
laws.
The Amendment Bill is
aimed at improving the EMIs’ effectiveness
at compliance monitoring and enforcement.
Amendments proposed
by the Bill and practical consequences
The first part of the
amendment bill relates to expanding the
mandate for EMIs to include older pollution
and waste legislation.
EMIs can currently only
enforce three pieces of environmental legislation,
the National Environmental
Management Act, including the so-called
4x4 regulations and the environmental impact
assessment regulations,
the National Environmental Management: Biodiversity
Act and
the National Environmental Management: Protected
Areas Act.
The current mandate of the EMIs therefore
covers “green” issues, biodiversity and
protected areas, and environmental impact
assessments, but excludes “brown” issues
such as pollution and waste.
This is due to the fact
that:
the new national legislation
regulating pollution and waste matters is
not yet fully in effect, or not yet promulgated:
the National Environmental Management: Air
Quality Act is expected to come into effect
in late 2009;
the National Environmental Management: Waste
Bill is currently before Parliament, but
will also take some time after promulgation
to be implemented fully.
Until these pieces of new legislation are
fully in effect, it is crucial that EMIs
are given the mandate to monitor compliance
with and enforce existing legislation, namely:
the Environment Conservation
Act, 1989, until the Waste Bill has been
promulgated and is fully in effect,
the Atmospheric Pollution Prevention Act,
1965, until the Air Quality Act is fully
in effect, and
those provisions of the new Air Quality
Act that are already in effect.
The proposed amendment
will allow EMIs immediately to exercise
their extensive NEMA powers, not only in
respect of national parks, nature reserves
and threatened and protected species, but
also for non-compliances related to pollution
and waste, including the illegal operation
of waste disposal sites, the illegal dumping
of waste or the release of noxious or offensive
gases.
By way of example, right
now EMIs cannot issue compliance notices
for contraventions with the old acts; this
amendment will make it possible for them
to do so.
The second part of the
amendment Bill relates to confirming the
status of EMIs as peace officers.
Although NEMA confers
on EMIs powers of search, seizure and arrest
under the Criminal Procedure Act, 1977,
it does not expressly provide for an EMI
to be a peace officer. Due to concern that
this may cause interpretation difficulties
in our courts, it is proposed that section
31H(5) of NEMA be substituted to confirm
that EMIs must be regarded as peace officers
for the purposes of enforcing national environmental
acts.
The need for legal certainty
of the peace officer status of EMIs is particularly
important in the carrying out of key enforcement
activities, such as the arrest of a person
without a warrant, and the issuing of admission
of guilt fines for minor environmental offences,
like picking flowers in a protected area.
The third part of the
amendment Bill provides a penalty for the
criminal offence of failing to comply with
a compliance notice.
The Amendment Bill provides
for a suitable penalty in the event that
a person is found guilty of the offence
of failing to comply with a compliance notice
in terms of section 31N of NEMA. Currently,
NEMA states that a person who fails to comply
with a compliance notice commits an offence,
but it does not provide for an accompanying
penalty, either in the form of a fine or
imprisonment, in the event of a conviction
of this offence by a court of law. Without
stipulating a penalty for this offence,
the court may find itself incompetent to
impose a sentence, even though the person
has been convicted of the offence.
The proposed penalty
of R5 million and/or 10 years’ imprisonment
for the criminal offence of failing to comply
with a compliance notice sets out a maximum
which the judicial officer can sentence
someone found guilty of this offence. The
judiciary retains the ultimate discretion
to set the fine or imprisonment based on
the circumstances of each individual case.
The penalty of R5 million
and/or 10 years - a penalty that is in line
with other penalties in NEMA - takes into
account that the damage to the environment
and the financial advantage gained by the
offender by committing non-compliance, can
easily amount to millions of rands.
For example, a polluting
facility may have been dumping hazardous
waste on an unlined site for decades, thereby
causing serious groundwater contamination.
When an EMI now issues a compliance notice
to instruct the company to stop and to rehabilitate
the contaminated groundwater, and the facility
fails to do so - This amendment Bill places
the court in a position to punish the offender
with a serious penalty, and thereby creates
a proper disincentive for offenders to ignore
compliance notices.
Similarly, an unscrupulous
developer who starts a luxury development
too close to a river, without first obtaining
an EIA authorisation, may cause erosion
that have far-reaching impacts for those
relying on the river for drinking water
or irrigation, or even put lives in danger.
The last section of
the amendment Bill rectifies incorrect cross-references
in the Environment Conservation Act.
The Environment Conservation
Amendment Act of 2003, inter alia, substituted
section 20 of that act to provide for the
transfer of the administration of waste
disposal sites from the Department of Water
Affairs and Forestry to the Department of
Environmental Affairs and Tourism. However,
section 29(4) of ECA, which sets out criminal
offences in terms of the Act, was not updated
to reflect the correct cross-references
to the subsections of the new Section 20.
The practical implications of this oversight
are that the disposal of waste at an unpermitted
site - i.e. waste dumping - while still
prohibited conduct, is not a criminal offence.
The proposed amendment seeks to rectify
this.
Successes of the Environmental
Management Inspectorate
Madam Speaker, since
we first announced the establishment of
the Environmental Management Inspectorate
in this house in April 2005, there has been
a fundamental shift in the enforcement of
environmental legislation in this country.
As at today, there are 887 designated Environmental
Management Inspectors across the country,
and this number continues to grow as more
officials complete the tough EMI Basic Training
Course. Soon, we hope to see the first local
government Green Scorpions designated alongside
their national and provincial colleagues.
On the pollution and
waste side, in 2007 the Green Scorpions
started the first series of pro-active,
comprehensive compliance inspections in
the refineries, iron and steel and ferroalloy
sectors (known as Operation Ferro). This
campaign not only fulfilled its primary
objective of determining levels of compliance
at facilities in these sectors known for
its significant environmental impacts, but
was also a major capacity-building exercise
involving both provincial Green Scorpions
and municipal officials. Enforcement action
has already been taken against a number
of these facilities, and we are starting
to see radical improvement in environmental
management through major capital expenditure
by companies like ArcelorMittal and Assmang.
In 2008, compliance inspections will be
expanded to two further industry sectors,
namely the paper and pulp and cement sectors.
Madam Speaker, right
now, there are 664 criminal cases being
investigated by the Green Scorpions across
the country. In the beginning of February
2008, Mpumalanga Green Scorpions obtained
the first direct imprisonment of 10 years
for four individuals convicted of the theft
of cycads.
Although there is still
a long road ahead, only three years after
their establishment, the Green Scorpions
have achieved a fundamental change in the
public perception that environmental laws
can simply be ignored: right now, it is
far more likely than ever before that environmental
non-compliance will be detected and punished.
This amendment Bill
will go a long way to increase the effectiveness
of the Green Scorpions.
Riaan Aucamp (Minister's Spokesperson)
