On 24 June 2022, the much-anticipated National Environmental Laws Amendment Act 2 of 2022 (“NEMLAA”) was enacted after more than 5 years since it was introduced as a Bill to the National Assembly. Although the NEMLAA had been published, the date of commencement was still to be proclaimed and many legal practitioners were left wondering when or if the provisions would come into effect.
On 30 June 2023, the answer to those questions finally came to light as the majority of the provisions contained in the NEMLAA were proclaimed and came into effect.
The NEMLAA has made significant changes to the National Environmental Management Act 107 of 1998 (“NEMA”) and some of the specific environmental management Acts, including the National Environment Management: Air Quality Act 39 of 2004 (“NEMAQA”), the National Environmental Management: Waste Act 59 of 2008 (“NEMWA”), the National Environmental Management: Protected Areas Act 31 of 2004 (“NEMPAA”) and the National Environmental Management: Biodiversity Act 10 of 2004 (“NEMBA”).
The changes introduced by the NEMLAA should help to bolster South Africa’s environmental enforcement provisions and discourage non-compliance with environmental laws.
We have outlined some of the key changes below:
1. Amplified rectification provisions
In instances where a person has commenced with a listed or specified activity without an environmental authorisation (“EA”) in terms of NEMA or commenced, undertaken or conducted a waste management activity without a waste management licence (“WML”) in terms of NEMWA, that person may submit an application to the competent authority in terms of section 24G of NEMA which, if successful, will allow that person to continue lawfully with the particular activity. This is why section 24G of NEMA is often referred to as the “rectification provision.
Prior to the NEMLAA, competent authorities were given an option to decide whether or not to direct an applicant of a section 24G application to take certain steps, including ceasing the activity. This meant that applicants could carry on performing the particular activity even though they had unlawfully commenced with such activity.
Under the NEMLAA, however, competent authorities now have an obligation to direct an applicant to take certain measures, including to:
- immediately cease the activity (except if there are reasonable grounds to believe the cessation will result in serious harm to the environment),
- investigate, evaluate and assess the impact of the activity on the environment,
- remedy any adverse effects of the activity on the environment,
- cease, modify or control any act, activity, process or omission causing pollution or environmental degradation,
- contain or prevent the movement of pollution or degradation of the environment, and
- eliminate any source of pollution or degradation.
The measures listed above will accordingly no longer be at the discretion of the competent authority.
The competent authorities will also be required to direct such a person to undertake public participation which is appropriate to bring the unlawful commencement, undertaking or conducting of a listed, specified or waste management activity to the attention of interested and affected parties, and to provide them with a reasonable opportunity to comment on the application.
NEMLAA has also widened the categories of people that may submit section 24G rectification applications to allow successors in title and persons in control of land on which a person has unlawfully commenced with an activity without an EA or a WML to submit a section 24G rectification application.
Another important change brought about by the NEMLAA has been to increase the maximum administrative fine from R5 million to R10 million. This should help to deter people from commencing listed activities without the necessary EA or WML.
Similar changes have also been made to the section 22A rectification provision in NEMAQA.
2. Financial provision for remediation of environmental damage
One of the most notable changes brought about the NEMLAA is the introduction of the requirement to provide financial provision for remediation of environmental damage. Up until now, this requirement only applied to applicants for an EA relating to prospecting, exploration, mining or production. The NEMLAA, however, has extended the financial provision requirement to specific instances prescribed by the Minister of Forestry, Fisheries and the Environment (the “Minister”), or an MEC in concurrence with the Minister.
If the Minister, or an MEC in concurrence with the Minister, has prescribed specific activities that require financial provision, an applicant must, before the competent authority issues an EA for such an activity, determine the financial provision which is required for undertaking progressive rehabilitation, decommissioning, closure and post-closure activities, including the pumping and treatment of extraneous and polluted water.
The financial provision requirements do not only apply to applicants for new EAs, but may, where so prescribed by the Minister, or an MEC in concurrence with the Minister, also be applicable to holders of EAs or old order rights (i.e. an old order mining right, old order prospecting right or unused old order right as defined in the Mineral and Petroleum Resources Development Act 28 of 2002). The holders of EAs or old order rights, where prescribed, may accordingly be required to provide financial provision for progressive rehabilitation, mitigation, decommissioning, closure and post-closure activities, including the pumping and treatment of extraneous and polluted water, where relevant, to ensure the mitigation and rehabilitation of adverse environmental impacts, including latent environmental impacts.
This provision will have a major impact on other extractive or industrial operations as companies will now be required to provide sufficient financial provision for activities other than mining-related activities.
The financial provisioning vehicles which must be used when providing the financial provision now include a closure rehabilitation company, a parent company guarantee and an affiliate company guarantee in addition to the following financial provisioning vehicles already recognised by NEMA: insurance, a financial guarantee, a trust fund or cash deposited into the relevant financial provision account.
It is also important to note that if a person fails to comply with the financial provisioning requirements for the remediation of environmental damage or mining activities, it will now be regarded as an offence under NEMA and if convicted, the person will be liable to a maximum fine of R10 million or imprisonment for a maximum period of 10 years or to both such fine and such imprisonment.
3. Municipal managers may issue section 28 duty of care directives
The “duty of care” provision under section 28 of NEMA provides that every person who causes, has caused or may cause significant pollution or degradation of the environment must take reasonable measures to prevent such pollution or degradation from occurring, continuing or recurring, or, in so far as such harm to the environment is authorised by law or cannot reasonably be avoided or stopped, to minimise and rectify such pollution or degradation of the environment.
If a person breaches the duty of care provision set out in section 28 of NEMA, the provincial and national authorities may issue a directive instructing the person to take certain actions including ceasing the activity, evaluating and reporting on the impact and taking specific measures. These enforcement powers have been expanded under NEMLAA as municipal managers of municipalities may now also issue section 28 directives and have been empowered to delegate this enforcement power to municipal officials. This will hopefully result in increased environmental administrative enforcement action.
4. Prospecting and mining activities in protected environments
Prior to the NEMLAA coming into effect, section 48 of the NEMPAA provided that although commercial prospecting, mining, exploration, production or related activities are prohibited in special nature reserves, national parks and nature reserves; such activities were permitted in a protected environment provided that the written permission of the Minister and the Cabinet member responsible for minerals and energy affairs had been obtained.
The NEMLAA has changed this controversial provision so that now only the written permission of the Minister is required.
5. Recognition of the well-being of animals
The NEMLAA has amended the NEMBA by including a provision that provides that the Minister may, by notice in the Government Gazette and subject to such conditions as the Minister may specify in the notice, prohibit any activity that may negatively impact on the well-being of an animal. “Well-being” is defined as “the holistic circumstances and conditions of an animal, which are conducive to its physical, physiological and mental health and quality of life, including the ability to cope with its environment”.
The objectives of NEMBA will also now include the consideration of the well-being of animals in the management, conservation, and sustainable use thereof.
Although the majority of the provisions in the NEMLAA came into effect on 30 June 2023, the following provisions were excluded from the proclamation: sections 11, 35(a), 57, 60, 61(c), 61(j), 61(k), 62, 63, 64, 65, 66, 72, 76, 77, 86, 87 and 88.
This means that until the abovementioned currently excluded sections come into effect:
- licensing authorities under the NEMAQA will not yet be authorised to revoke or suspend an atmospheric emission licence if the licensing authority has evidence that the licence holder has contravened a provision of NEMAQA or a condition of the licence and such contravention may have, or is having, a significant detrimental effect on the environment, including health impacts;
- a person may not yet appeal a decision made by the licensing authority contemplated in sections 36(1) of 47A of NEMAQA, in the case of municipalities, to the municipal council;
- Chapter 9 of the National Environmental Management: Integrated Coastal Management Act 24 of 2008 which deals with appeals still remains in force;
- the definition of “waste” in NEMWA still remains unchanged;
- residue stockpiles and deposits will not yet be regulated by NEMA but will continue to be regulated under the NEMWA which means that they are still regarded as waste and require a WML; and
- the changes proposed to the provisions regarding the Waste Management Bureau and the Board responsible for governing the Waste Management Bureau will not yet be made to NEMWA.
Read the original publication at Fasken.