(John McCann/M&G)
The decision to allow mining in a protected environment is now the exclusive competence of the minister of forestry, fisheries and the environment.
According to law firm Webber Wentzel, section 48 of the National Environmental Management: Protected Areas Act previously prohibited commercial prospecting, mining, exploration or production from being undertaken in a protected environment without the permission of both the environment minister and the minister of mineral resources and energy.
But under the long-awaited National Environmental Management Laws Amendment Act (Nemla), written permission is no longer required from the minerals minister.
“This is something that we applaud,” said Mariette Liefferink, chief executive of the Federation for a Sustainable Environment. “The department of mineral resources and energy and its minister are mandated by the Mineral and Petroleum Resources Development Act to promote mining. We are more comfortable that mining in protected areas should now be authorised only by the environment minister, and not by the mineral resources minister, because there is a conflict of interest.”
The final signing into law of Nemla on 24 June has introduced a major shift in South Africa’s environmental legislation, Webber Wentzel said, adding: “Overall, it is clear the changes imposed by the Act aim to deter non-compliance with environmental laws by, among other things, introducing new offences, increasing the quantum of fines and administrative penalties where laws or licences have been contravened, and extending enforcement powers to enable more widespread enforcement of environmental laws.”
Heftier fines
The Act has introduced changes to the rectification process detailed in section 24G of the National Environmental Management Act (Nema) and section 22A of the Air Quality Act. Section 24G has been criticised for providing a loophole in the environmental authorisation process, allowing those who have broken the law to admit guilt, rehabilitate the area and pay a fine.
Under Nemla, “successors in title” and “persons in control” of land on which a listed activity under Nema or the National Environmental Management: Waste Act has been unlawfully commenced may now submit a rectification application.
“Previously, only the guilty person who carried out the unlawful activity without the required environmental authorisation or waste management licence, as the case may be, could apply,” Webber Wentzel said.
It has also become mandatory for the competent authority to direct the applicant to, among others, cease the unlawful activity pending a decision on the rectification application.
“This is significant, because applicants were not often required to cease activities pending the outcome of the rectification application,” said the law firm.
The maximum administrative fine that must be paid for a section 24G application to be processed has been raised from R5-million to R10-million while enforcement powers have been expanded.
“Municipal managers are now also empowered to issue Nema section 28(4) directives for contravention of the duty of care obligations. Designated environmental mineral and petroleum inspectors will also be able to issue section 31L compliance notices. These changes are likely to see an increase in administrative enforcement action,” Webber Wentzel said.
Strengthening environmental legal regime
The Centre for Environmental Rights (CER) it pleased that its comments on various amendments to Nema and some of its sectoral environmental laws have been incorporated to strengthen the environmental legal regime, attorney Michelle Koyama said.
“While we maintain that section 24G should not be utilised as a provision to excuse those that have not obtained a proper environmental authorisation, we are pleased to see that the fine for the unlawful commencement of listed activities has increased from R5-million to R10-million and that public participation should take place in respect of the unlawful commencement of activities listed under Nema,” she said.
That authority is now being granted to municipal managers to direct polluters to cease such activities, as well as take measures to investigate and prevent such activities from occurring, and to inform affected persons before issuing such directives.
“This will ensure that more enforcement powers are given to municipalities, and also, the affected communities are adequately informed,” Koyama said.
In terms of the Air Quality Act, section 47A has been inserted, giving powers to the licensing authority to suspend or revoke an air emission licence, where there is evidence of non-compliance with the licence conditions and where the contravention is having significant detrimental effects, including on health.
For decades, Koyama said, people have experienced harm as a result of air pollution, particularly in the priority areas where coal-fired power stations exist.
“This provision for the revocation of licences of significant polluters is a welcome reprieve for those that are living near non-compliant industries and coal-fired power stations, which are exceeding their air emission pollution limits in their air emission licences,” she said.
The recent successful judgment in the Deadly Air court case has confirmed the dire negative health effects, and resultant constitutional rights infringements, of unabated air pollution, Koyama added.
Prejudicial practices
An amendment of concern is with the provisions dealing with appeals under Nema, she said. Although it remains the case that an appeal of an environmental authorisation or decision taken under the Act or Specific Environmental Management Act suspends such authorisation and decision while an appeal is pending, “provision is now made for such decisions not to be suspended pending appeals where an application is made to the competent authority and good cause is shown”, she noted.
“In our experience this opens the door to very harmful and prejudicial practices where project proponents apply for and are granted the upliftment of suspensions while appeals are pending — this means that they can commence activities despite the risks of harm and prejudice to the environment and communities affected,” said Koyama.
The CER’s experience with the water use licence regime shows that applications for upliftments of suspensions are seldom refused, despite the risks posed.
“Community members then have no option but to go to court should they wish to stop the activities taking place while the appeal is pending. We have vehemently opposed the addition of this amendment to Nema and are dismayed to see that it has been included in the final version of the amendment,” Koyama said.
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