Subject: Report for Environmental Affairs and Tourism
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Date: Mon, 8 Sep 2003 15:50:00 +0200

Portfolio Committee  Environmental Affairs and Tourism
This report is produced by the Contact Trust - Taking People to Parliament, and Parliament to People. Visit our website at www.contacttrust.org.za
Date:   2003/08/26
Title:   Public Hearings on Biodiversity, Protected Areas and NEMA (1st Amendment) Bills. Day 3
Chair:   Ms. Gwen Mahlangu (ANC)
Summary:   As there was a overwhelming public interest on the three bills, the committee had decided that 26 August should be Day 3 of the hearings. Some people who presented on the 19 August were also given another opportunity to make additional presentations to the Portfolio Committee. A number of key issues were identified and discussed. The Portfolio reported that they will be paying their utmost attention to the presentations made by all relevant stakeholders. The Department of Environmental Affairs and Tourism officials were also available to respond to what is directed to the department.
Contact's Staff member at the meeting:   Khaya Magopeni email at: [email-masked]

The following documents are available:
(If you have difficulty in downloading them please email us at contacttrust.org.za)

Presentation by Safeage - Glen Ashton
Available at: www.contacttrust.org.za/parldocs/20030826enviro_safeage.doc

Presentation by Traffic - Markus Burgener
Available at: www.contacttrust.org.za/parldocs/20030826enviro_traffic.ppt

Presentation by Working for Water - Dr. Preston
Available at: www.contacttrust.org.za/parldocs/2000826enviro_preston.doc

Presentation by Environmental Consortium 12 - Dr. Bainbridge
Available at: www.contacttrust.org.za/parldocs/20030826enviro_bainbridge.doc

Introduction by the Chairperson

Ms. Mahlangu told the meeting that the committee was asked to extend the time for submissions. She also reported that in terms of their programme, they were supposed to be getting a briefing on World Parks Congress and they had to defer it.

She indicated that there were organisations that were on the agenda that were given an opportunity to make submissions last week. She explained that the Committee needed to accommodate those presenting for the first time. However, because those that were expected to present first had not arrived yet, she suggested that those present should go ahead while the meeting assessed whether the other presenters were coming later or not.

She called upon Dr. Parsons from the Chamber of Mines to present to the committee.

Presentation by Dr. Parsons (Chamber of Mines)

Dr. Parsons thanked the committee for giving him another opportunity. He told the meeting that the Chamber of Mines had a changed membership. He noted that people associate the Chamber with big mines, but they represent small mines as well, and are focusing on policy and advocacy issues. They were part of the International Council on Mining and Metal and will be part of the World Parks Congress, Dr. Parsons reported. He also told the hearings that they would be part of the Mining and Sustainable Development Conference in November 2003. He said that it was necessary to categorise the representatives in the National Parks Board and to introduce the need for these representatives to report back to the communities.

He applauded the diversity of the membership of the Board but felt it was insufficient. He raised three crucial points for the committee to consider. He proposed that a detailed decision making process should be made. Geological assessment should be conducted. He told the committee that Canada has had a detailed model since 1980. Occasionally, prospecting should be encouraged with stricter monitoring. Powers of environmental management inspectors must be proportionate to the offence. He invited MP’s to visit these mines.

The chairperson thanked the presenter and then welcomed the invitation to visit the mines. The chairperson also gave the opportunity to the department to comment about the presentation

Comments, Questions and Discussion

The DG mentioned that the previous weeks hearings had been useful. He thanked the stakeholders for being proactive. He told the committee that Dr. Parsons’ views were not unknown to them and they appreciate his commitment that the Chamber encourages protection of protected areas. He added that he wished that they could make this statement on national parks as well. He told the committee that the debate was badly blurred by the submission of Chamber. He noted that it is difficult to understand how the fluctuation of the powers of the EMI would work.

On the issue of inspectors, Dr. Parsons raised that they were not calling for different categories. He said that when the inspector exercises powers, these powers should be proportionate to the offence. The South African Police Service is constrained and the Criminal Procedure Act has got schedules. This should happen in the same way as other crime, environmental crimes should be separated. Inspectors should be constrained by having less sweeping powers, he proposed.

The DG took a scenario where one of the inspectors finds someone throwing a tin in the river and they have certain powers not dealing with that. He wanted to know if powers are limited, how the distinction is created. He added that there is a need for a proper policing of environmental crimes.

On the issue of mining in the National Parks, Dr. Parson’s said that their proposal was that there be occasional prospecting, provided there is public consultation process and there has to be a deploclamation of the area. They were not saying mining should generally be allowed.

Mr. Le Roux (DA) agreed with the DG and further raised that mining has protection in terms of common law.

Mr. Arendse (ANC) raised that last week, what struck him was that so many presenters drew their attention to areas of implementation where government cannot implement. The different categories of environmental inspectors made him think about the second day of the hearings. A question was asked about different categories of inspectors and what happens when an inspector looks at the stealing of something different from what he was designated to do.

Mr. September(ANC) told the meeting that mining in the protected areas concerns him, especially on issues relating to the environment. He added that it was important to take into account indigenous interests.He wondered if the Chamber of Mines had thought about sharing with the community.

Dr. Parsons responded that sharing with communities is important. He went further to say that Protected Areas Bill makes a provision for that. The Petroleum Products Development Amendment Bill has made strides on that. Bafokeng has received royalty payments, he said.

Ms. Chalmers (ANC) wanted clarity on the Chambers comment “Functions of the Inspectors are set out in the bill”. What is the rationale, or could there be a clash, she asked.

Dr. Parsons responded that some other departments have environmental inspectors and there has to be an alignment. They need to work together.

Presentation by Thoko Makhanya: Safeage – Ethekwini Branch

Ms. Makhanya told the committee that they are aware that SA is the 3rd most diverse country in the world. SA has acceded to the Biosafety Protocol but there is a glaring absence of GMO’s. Chapter 5 would have been ideal. She went on to say that crop diversity is threatened. Genetic Engineering is a fast worker and Toxic herbicides leads to the destruction of natural species and Biodiversity Act should address this. Pesticides will kill non – target insects and other life species. The GMO Act does not provide for these developments.

She also reported to the hearings that there is a problem with access to information and benefit sharing. Communities have been left behind. The practice of giving seeds undermines indigenous knowledge and the NDA has been part of the confusion. It also undermines respect and this process has been protected by NDA. She also raised that they know that from conventions and protocols, that benefit sharing must be equitable. Benefit sharing will never be realised. Chapter 6 should spell out GMO in this instance. There are alternatives. The African Model Law may be used. Prior informed consent should be happening from affected communities. Both the communities and the government would need to be part of this prior informed consent. The Cartagena Protocol states clearly the issue of prior informed consent. We were hoping the case for GMO’s would be looked at, she said.

Presentation by Glen Ashton: Safeage – Cape Town Branch

**For the full details of the presentation, please find the document attached **

Mr. Ashton told the committee that they commend the concepts in the bill. Through the intervention of the Porfolio Committee and the government we will, when it comes into force on 11 September 2003, be required to adopt the full implications of the Cartagena Biosafety Protocol. Biodiversity Bill is a sub bill of NEMA. The Biodiversity Bill must apply to all living resources, he said.

The DG indicated that there were three issues that the presenters indicated. These are indigenous knowledge, benefit sharing, and genetic engineering and wanted to understand the link.

He also indicated that the issue of indigenous knowledge would be regulated by the Department of Arts, Culture, Science and Technology. There is a debate on indigenous and traditional knowledge. He asked what the implications on intellectual property rights would be if you include associate knowledge.

Mr. Ashton raised that the NDA is not willing to deal with the issue of GMO’s.

The DG responded that to cut to the chase, they (Safeage) were concerned about the Department of Agriculture. They need proper regulation. The issue is how this matter should be regulated which is currently under the GMO Act. The acceding of SA to the Cartagena Protocol would need a review of the legislative framework. It would be unwise to have a parallel law and a piecemeal review will give rise to confusion. He said that the Dept will be watching the review of the GMO Act closely. They have maintained an oversight role in terms of Cartagena Protocol. Part of this is NEMA Chapter 5 (EIA). He added that it was important not to fragment legislation.

Comments, Questions and Discussion

When Ms. Makhanya appealed to the department to look carefully at the issue of prior informed consent, Ms. Sello Lesego (DEAT) responded that the issue of prior informed consent is a matter of elegance. She thought it had been captured under Section 79 (2). If there is a strong feeling that is not adequately addressing the issue, the Dept would look at that.

Mr. September was interested to know about the statement made that seeds were distributed free of charge. He asked whether there is an agent of the company.

Ms. Ndzanga (ANC) also wanted more information when it was raised that the GMO seed was given for free.

Ms. Makhanya responded that they know that in the Eastern Cape, Monsanto and the Department of Agriculture have been giving the seed. The same thing was happening in KwaZulu – Natal.

Mr. September further commented that the issue of GMO’s is delicate. He said it was clear that there are concerns about it.He did not think they had done justice to the issue. Unfortunately,there are powerful forces involved in the area of GMO's. And the government does not have as much control as they would like. If you had the State handling it, it would have been better.

Mr. Arendse said that the issue of GMO’s had taken a lot of time. There was agreement that it has to be regulated tightly. Most research findings are coming from pro side of the GMO issue. He also raised that they would be waiting for the process after NCOP. If there are disagreements, they would have to work more. He further commented that the DG suggested amendment to the GMO Act.

Ms. Ndzanga raised that there was a lot of talk on GMO’s. She added that there are no scientists coming up with something concrete. She had never heard anyone talking about its effects, she added. The seed does not have a stock borer and there have been no complaints. She noted an additional problem - that documents are not given to them earlier so that they can read before the meeting.

The chairperson indicated that she had requested copies of the presentation to be made available.

Ms. Chalmers told the committee that they had heard their colleagues speaking and passionate presentations were made. As far as the GMO Act is concerned, the Department of Agriculture will be dealing with in the context of supporting it. With regard to the omission of GMO's in the Biodiversity Bill, she said, if it is not included, they would not be fulfilling their responsibilities. "I hear suggestions of a review of Chapter 5 but I think the Biodiversity Bill is there to protect Biodiversity. The Biodiversity Bill should take cognisance of this", she proposed.

Mr. Arendse agreed. He further raised that the Working for Water Programme focuses on people. It has a gender bias. More women than men work on the programme. It creates work because of alien and invasive species. "Although I said NDA is in favour of GMO Act, we have imbalances", he said. He added that prevention is necessary now.

Mr. Ashton responded that their main concern was about where these GMO’s are regulated. If we leave under the NDA, we are not fulfilling our responsibilities in a comprehensive way he said. The GMO Act is a deeply flawed legislation with no clear redemption. The issue of GMO belongs to DEAT he emphasised.

Presentation by Ms. Strauss (Biowatch)

Ms. Strauss told the hearings that they have been working for four years on the issue of genetic engineering. She said that science and knowledge are being privatised. Scientists have always been trusted to be objective. However most university researchers rely on industry funding. The industry controls information. It is important to have checks and balances and to know where information is coming from, she said. Environment is about looking at the whole picture and the future. She was concerned about who was really looking after the environmental future. She further raised that the GMO's have been used for six years, but not a single EIA had been done. The Dept of Agriculture does not give out information. She added that she sympathised with the government and international political pressure is unprecedented. Technology is patented. A farmer buying Genetic Engineering seeds would not give it to neighbours or keep them for a year. Canada and the USA have huge problem with invasive canila, she said. She raised that Mexico is the centre of biodiversity for maize. She encouraged DEAT to put principles in place. If issues of interference were raised, this would not hold water. The Department might as well not interfere with mining. This is a golden opportunity to put mandatory risk assessment that happens before permits, she told the hearings.

The chairperson thanked the presenter.

Comments, Questions and Discussion

Ms. Ndzanga argued that presenters told them about indigenous knowledge on preserving seeds. In the previous years, grandmothers knew how to preserve the seed, she said, and now it would be difficult to do that.

Ms. Strauss responded that she had been in Kenya where communities have community seed banks. 90% of farmers in Africa are small-scale farmers. There is an issue of political control over the seed and the impact it would have on the plant.

The DG responded that he did not want to downplay concerns but was worried about misinformation on the current system of dealing with GMO’s. He mentioned that there is a properly functioning council on GMO’s. Risk assessments are done. There is a properly functioning, well-regulated system in place. He agreed that law needs tightening. There is a debate whether risk assessment is the right thing or whether you need EIA. He worried that the Department of Agriculture was not present at the meeting. The use of reversion would need Cabinet approval and consent from the President, he said.

The Chairperson indicated that there was no unity on the issue. She addded that the matter would be raised with the Minister of Environmental Affairs and Tourism and the Department of Agriculture. There had been a promise of the workshop but it had not yet happened. She suggested that they look at drafting something on Biosafety, saying that they want to know whether the country has the capacity to deal with the issue of GMO’s.

The Chairperson also outlined briefly the provisional programme of the PC in dealing with outstanding legislation. She told the hearings that they as the committee had scheduled 2nd September to informally consider protected areas. For the 9th September, there would be no meeting, as most members of the committee would be attending World Parks Congress. As a result of this, there will be no quorum. On the 16th September, the committee is hoping to conclude the Protected Areas Bill. For the 23rd September scheduled meeting, the Portfolio Committee is hoping to postpone the briefing on World Tourism Travel Market and look at two bills that had been with the NCOP. These bills are the Biodiversity Bill and NEMA Second Amendment Bill.

Ms. ML Roux (Environmentalist) commented that the Protected Areas Bill should emphasise the principle that a development application should match with the area being proclaimed. The Bill has positive aspects and improvement in public participation and monitoring. The argument made by the Cape Peninsula Protected Environment was to illustrate how environmental laws are not as strong as planning laws. The only protection is from the Urban Structure Plan.

Dr. Preston raised that there is a movement of species across the globe and as a consequence there is a threat to biodiversity in the world.

With regard to Dr. Preston’s comment, Ms. Yako replied that there was a merit in his comment to look at financial issues. The issue of quantification is important. There is a need to check whether we want to legislate the instruments of control as opposed to the implementation of legislation. The issue of whether the Biodiversity Bill is making NEMA subservient is a matter of debate. But, she reported that the State Law Advisers have certifiedthe Bill. Apart from NEMA, these Bills would take precedence. Generally, the Dept has taken into account the concerns raised about the Bill.

Mr. Wadee raised that technically, NEMA, as an overarching framework does not seem to enjoy that status of being superior. He referred to Sections 6 and 8 of the Biodiversity Bill and Section 8 of the Protected Areas Bill as points of concern. It seemed that NEMA has been made subservient. There seem to be a lack of distinction. These bills would need to be consistent with the intrinsic value of life. He added that it is important to put the “duty of care” as a priority. There should be an adoption of an Ethics Committee, which will look at the Programmes of Care. There remains a need to improve public participation and accountability. There are glaring inconsistencies and the distinction is not clear on regulations and norms and standards. SANParks Board should be broadly representative. He added that they also made suggestions on financial accountability. PFMA applies within government. He said that they recommended a public process of accountability and compliance looking on governance issues and believe they have a role to play in care of species. This legislation provides an opportunity for the constituencies to partake in the mainstream, Mr. Wadee submitted.

Presentation by Mr. Penfold (Lourens River Coservation Society)

Mr. Penfold told the committee that their society members are ordinary citizens whose ongoing mission seeks the conservation of Lourens River as a naturally functioning Eco -system, and a safe attractive natural asset for the whole community and visitors. Through their hard work with riparian owners, their Municipalities, the Department of Nature Conservation and Environment, the whole corridor was declared a Protected Natural Environment. The Declaration required the appointment of a Management Advisory Committee on which their Society was privileged, with other representatives, to serve. This arrangement effectively gives the Helderberg Municipality practical control over development within the river corridor from an ecological and flood control viewpoint, in addition to normal municipal development regulation.

Whilst they value the objectives of the proposed Act, they were concerned that, as currently constructed, the new Act may in certain respects cause or allow the removal of protective status on certain less known Protected Areas. Such areas will have been declared under legilsation, which will be repealed by the proposed new Act. These concerns were specifically described in their comments on the draft bill, delivered in January. In summary their concerns were;

1. Withdrawal of Declaration or Exclusion of Parts

The bill proposes the empowerment of the Minister, the Provincial MEC, or relevant Municipality to withdraw existing declarations, or parts thereof, without any due process and participation by interested and affected parties. Refer to Chapter 3, Part 5, Section 48. They believed that wherever withdrawals may be mooted, there should be broad consultation and public participation, similar to that required for initial declaration, is essential for rational, fair and just decision making and transparent governance.

2. Register of Protected Areas

Their concern as expressed in their initial comments had been addressed. However, another point arose. Nowhere in the new Bill is any reference made to Protected Natural Environments. The Bill does use the similar term, Protected Environments, he said. They were concerned that this subtle difference should not jeopardise in any way inclusion in the required register and therefore continuing Protected Environment status for the Lourens River, under the proposed new Act. They understood that there were at least three other declared Protected Natural Environments in the country.

3. Existing Protected Areas

The bill in its present form allows in Chapter 8, Section 91 for the inclusion of existing parks, nature reserves and protected areas, declared in terms of the National Parks Act 1976 and the Lakes Areas Development Act 1975, under the proposed new Act. There are similar existing protected areas, declared in terms of the Environment Conservation Act, 1989 (Act 73 of 1989) for example, the Lourens River Protected Natural Environment. Therefore this Act should also, they believed, be referred to in Section 91 of the proposed new Act. If this is not done, things will fall through the cracks. They believed that the new Act should necessarily compel the Minister to designate existing protected areas in terms of the new Act.The current wording of the bill allows that the Minister may so designate existing areas. The word "may" should be changed to "must", he proposed. He told the hearings that there is a tremendous educational, recreational, and tourism benefit available to all if the assets are managed sensibly.

Presentation by Markus Burgener (Traffic)

** For the full details of the presentation, please see the document attached **

After lunch Markus Burgener (Traffic) played a video.

Presentation by Adv. Bosch (GTZ)

Advocate Bosch raised that there are a number of proposals to make, in view of what was discussed last week. There is a need for stronger protection of landowning communities. He also emphasised the need for some measures to support and strengthen contract park agreements. The issue of mining rights would need to be carefully considered. The definition of “legal and lawful occupiers” to promote rights of communities would need to be looked at, he said. He raised that there are two elements. Proposal 5 deals with the contract agreement. If somebody makes land available, that protected area must be withdrawn. On the issue of mining rights, he appealed that there should be no prejudice to communities who are part of protected areas.

He raised some concerns with the two routes proposed. The advantage of No. 1, he suggested, would limit old mining companies and new community companies. Route No. 2 does not provide for no go areas. It is not clear about category of paper right holders. The legislation must be clear and unambiguous. Route No. 2 sets out clause 48 (2). He proposed that older order rights need not be converted if protected areas would be undermined. Compensation may be paid under Transition Management Act. Sub clause 4 should address non – discrimination, he said.

He thanked the chairperson for the opportunity given. The chairperson in return indicated that they are listening to a number of people.

Presentation by Dr. Preston (Working for Water)

** For the full details of the presentation, please see the document attached **

Presentation by Dr. Bainbridge (Environmental Consortium 12)

** For the full details of the presentation, please see the document attached **

Comments, Questions and Discussion

Ms. Yako responded that they are working with stakeholders on issues raised. There is a meeting of minds with regard to issues raised.

Dr. Bainbridge raised concerns about Section 9 of the Protected Areas Bill and the height at which the aircraft is supposed to fly.

Mr. Wadee felt there were inadequate principles and co-operative governance structures.

Mr. Penfold told the committee that Lourens River is a tourist attraction and is registered as a protected area.

Ms. Yako responded that there have been a lot of comments. She added that they would not respond to all of them, but would like some clarity.

Ms. Yako wanted to know from Mr. Wadee what they were proposing in relation with the NDA.

Dr. Cowan raised that all international agreements recognise national sovereignty. Biosphere is another example. He commented that the Biosphere Reserve is not a protected area in its own right. He agreed with Ms. ML Roux and that is why they were intending to withdraw Protected Natural Environment. Section 28 (2) (f) talks about protected areas, he said.

About the issue of wilderness area, he replied that they as the department are intending to simplify legal issues. Wilderness is seen as a zone within a national park.

The response to the issue of aircraft was that this is negotiated with civil aviation authority.

Prof. Glezewski raised that the one question that rose in the NCOP was that Section 69 must be applicable to provinces.

Ms. Yako wanted to know if the LRC intend seeing that what may be alien in the Western Cape may be indigenous in Gauteng.

As a result of the presentation by NASA, she said, by including all nurseries, we would be presented with a problem of administration.

She also wanted to know if Dr. Preston was suggesting that the Department consider exemption of activity.

Dr. Preston responded on the first question saying that he would not support provincial list because that would be too bureaucratic and unwise. There is no correlation between provinces and invasive species.

On the second question, he responded that species at NASA are not invasive. They are not showing invasive property at the moment. The concern is about people bringing in more plants to South Africa.

Ms. Yako responded that Dr. Preston’s response covered plants, she asked if the same response would apply to animals. She said that they dealt with species generally.

Dr. Preston replied that he believed that it applies to plants and animals. Animals will move within invasive species.

Mr. Burgener emphasised that it was necessary for CITES implementing legislation. Looking at the previous version, there is a need to find out if a criteria has been found. He suggested that they obtain an opinion from the CITES Secretariat. He raised that if the country fails to deal with the issue, this may result in a trade ban on South Africa.

Mr. Wadee responded that the Animal Protection Act was written with animals as things. He added that they are talking about the intrinsic value of life. To leave issues of care to the disused legislation would create problems.

Adv. Bosch suggested that with respect to Ms. Yako’s response, he would recommend officials from DEAT get input from the NDA. Its important to have a formal view from them.

The chairperson raised that they wanted a meeting of minds to address the committee and they want to encourage them to meet and add more expertise on the subject matter. 'We need a workable solution" she said.

Dr. Botha responded that on the issue of provincial invasive lists, the issue of political boundaries are not always ecologically based.The Dept has submitted to CITES. The question was what would happen to the confiscated specimen. Regulations would need to be developed by the Minister.

Ms. Ramotsamai (ANC) commented that the issue raised by Mr. Penfold about protected areas that are less known requires attention. She asked if they were looking at them? If not, how do they look at them.

Ms. Mbuyazi (IFP) commended IUCN for bringing the video for MP’s and members of the public to see. It has been our worry seeing big guns in the meetings. However, she wanted clarity on the difference between wilderness area and protected area.

Dr. Bainbridge commented that he heard what Dr. Cowan was saying. He raised that Protected Area and Wilderness Area is a protected area category. However, there will be some national parks or nature reserves that would be designated as wilderness. There are some private wilderness areas. But there is no provision to make them as such in terms of the law. He also raised that the Mountain Catchment Area is primarily privately owned. The concept of the Mountain Catchment area is a nice one but is not always working well as a wilderness area.

Dr. Cowan responded that was not a forestry area but a nature reserve. Mountain Catchment Area is not only a private but state land as well.

The chairperson thanked Mr. Burgener for the video. That is one point we are not succeeding to deal with, she added.

Dr. Bainbridge raised that he was happy that wilderness zones are protected. "We want to see it under Section 9". It would not prejudice any part of the Act.

Mr. Penfold raised the same plea for natural protected environments which is different. He appealed that unless there is mention of natural protected environment, it would be dropped out of the window. He added that he would like it under Section 9.

The chairperson thanked the officials from DEAT and stakeholders who took their time to attend the important public hearings. She told the meeting that the two bills (NEMA and Biodiversity) were going to be voted on on Thursday and the Committee will informally deliberate on PA next week.

Mr. Arendse raised that normally, the Committee meets on Tuesdays. Members may have other meetings to attend, and the Committee needs to be aware of the Parliamentary schedule.

This document was generated on: 2003-09-04
Disclaimer: Every attempt is made to ensure that this information is accurate, but this report is not an official record of the meeting and therefore should not be regarded as a complete and correct record of the proceedings.