CLEARING THE AIR | Major changes expected to South Africa’s Environmental Legal Regime stemming from NEMLA4 - #2of8

Once the National Environmental Management Laws Amendment Act 2 of 2022 (NEMLA4) kicks in, it’ll result in amendments to certain provisions under the National Environmental Management Act 107 of 1998 (NEMA).

It’s going to affect a fair number of sections; in fact, get ready for a list only marginally smaller than the one experienced by these unfortunate seafaring folk back in 2019:??https://www.youtube.com/watch?v=At8ELk1wMw8&ab_channel=FullAvante

The following sections will be amended: 1, 2, 24, 24C, 24G, 24N, 24O, 24P, 24PA, 24R, 24S, 28, 31B, 31BA, 31BB, 31C, 31D, 31E, 31F, 31G, 31H, 31I, 31, 31K, 31L, 31M, 31N, 31O, 31P, 31Q, 34E, 34G, 42B, 42C, 43, 49A, 49B, 50A and Schedule 3.

What’s more, NEMLA4 is going to see a number of changes made to the definitions in section 1 of NEMA – most notably, definitions for ‘latent environmental impact’, ‘mining activity’, ‘mitigate’ and ‘rehabilitate’ will be included. Here’s what they’re going to mean:

• ‘latent environmental impact’, when used in sections 24P and 24PA, will mean impacts which are existing and defined, but not yet developed and will manifest post-closure;
• 'mining activity' means an activity which requires a permission, right, permit or consent in terms of the Mineral and Petroleum Resources Development Act, 2002, including hydraulic fracturing and reclamation;
• 'mitigate', when used in section 24P and 24PA, means to alleviate, reduce or make less severe; and
• ‘rehabilitate', when used in sections 24P and 24PA, means to restore to the approved end use of land.

Over in America, “recession” will still mean what it’s always meant, despite the Biden administration wishing that it didn’t. / ‘Libertine’ and ‘libertarian’ will continue to mean what they’ve always meant, despite being deceptively similar-sounding. / “I’m so happy for you” will continue to mean the exact opposite when coming from someone who was vying for the promotion you received.

A new principle introduced into section 2 of NEMA by NEMLA4 will be the full participation of previously disadvantaged professionals, with specific emphasis on black professionals and indigenous knowledge practitioners in the environmental management sector.

NEMLA4 makes extensive amendments to section 24 of NEMA. Some of the most salient include:

• Clarification that the Minister of Mineral Resources and Energy will be the competent authority where the listed or specified activity is a ‘mining activity’, as will be defined in section 1 of NEMA.
• Simultaneous submission of applications will be required where an environmental authorisation involves an activity that requires a licence or permit in terms of any of the specific environmental management acts (SEMAs), and such must be indicate in each application all other licences, authorisations and permits applied for.
• When applying for a mining activity which also involves an activity that requires a licence, permit or authorisation in terms of any of the SEMAs, one must simultaneously apply for an environmental authorisation after the acceptance, where such acceptance is applicable, of the application in terms of the Mineral and Petroleum Resources Development Act, 2002.
• If the competent authority or licensing authority is the same authority to consider and decide the application for an environmental authorisation and the application under a SEMA, an integrated decision must be issued.
• A section 24G application for “rectification” may be made for undertaking or conducting a waste management activity without a waste management licence.
• A section 24G application for “rectification” may be made by a person in control of land or a successor in title to land, even if the person was not the one who unlawfully undertook the listed activity and/or waste management activity.
• The administrative fine associated with the section 24G application has been increased to a maximum of R10 million.
• Entire replacement of section 24P on financial provision for remediation of environmental damage in order to align with the Financial Provision Regulations.
• The addition of specific provision related to the financial provision for mining, to include for amongst other things; retention of liability and intervals for the review of liability and rehabilitation mitigations measures.
• The Minister responsible for mineral resources and the Minister responsible for water affairs may use all or part of the financial provision to rehabilitate or manage the environmental impact.
• Section 24S that indicated management of residue stockpiles and deposits must be in accordance with the National Environmental Management: Waste Act, 2008 (Act No. 59 of 2008) will be deleted, thus confirming that management of residue stockpiles and deposits will now be done in terms of the provisions of NEMA.

There are some noteworthy changes to the duty of care provision in section 28 of NEMA too, including that a municipal manager of a municipality is now empowered in terms of section 28(4)(2) to direct a polluter or person causing degradation to the environment to stop, collaborate and listen, cease the activity, investigate the impact thereof and implement measures in relation thereto.

Section 31 of the NEMA will be amended to provide for further clarification of the regulatory functions, mandates, and cooperation between the various competent authorities.

Section 42 will be amended to provide for further clarification on the delegation of functions between the various competent authorities.

The most significant change to section 43 includes for specific provisions relating to appeals for the SEMAs.

NEMLA4 further makes amendments to the offences and penalties sections of NEMA, chief of which is the increase to the maximum fines that could be imposed for the offences listed in section 49A of the NEMA.

Section 50A will also be amended by the NEMLA4, adding further clarification on the relationship between the Minister of Forestry, Fisheries and the Environment, the Minister of Water and Sanitation and the Minister of Mineral Resources and Energy and their respective agreements including the?One Environmental System.

We understand that that’s a fair amount of information to take in, but those of you who’ve followed closely will have noticed that we haven’t used the phrase?inter alia?yet. There’s a largely unspoken rule within legal circles that demands we try to use it at least twice in any document we release due,?inter alia, to the debt the system still owes to the Common Law of Rome.

Legal etiquette compliance: check.