National environmental management: specific environmental management Acts
Author: Andrew Muir (Environmental Planning Trust) and Chris Galliers WESSA
( Article Type: Overview )
Known by the abbreviation of SEMA’s, Specific Environmental Management Acts, all fall under the auspices of the overarching National Environmental Management Act (NEMA). To date five SEMA’s have been promulgated, with the most recent one being Waste Act in 2008. The full list of SEMA’s are:
1. National Environmental Management: Protected Areas Act (57 of 2003), known as the NEM:PAA
2. National Environmental Management: Biodiversity Act (10 of 2004), known as the NEM:BA
3. National Environmental Management: Air Quality Act (39 of 2004), known as the NEM:AQA
4. National Environmental Management: Integrated Coastal Management Act (24 of 2008), known as the NEM:ICM
5. National Environmental Management: Waste Act (59 of 2008), known as the NEM:WA
The NEM: PAA
The NEM:PAA is intended to “provide for the protection and conservation of ecologically viable areas representative of South Africa’s biological diversity and its natural landscapes and seascapes” and provides for the identification and classification of various types of protected areas to give effect to this intention and underpinning this intention is the stated objective of creating a “national system of protected areas in South Africa as part of a strategy to manage and conserve its biodiversity”. These protected areas are to fall on state owned land, privately owned land and communally owned land.
The NEM:PAA defines various kinds of protected areas, namely: “special nature reserves, national parks, nature reserves (including wilderness areas) and protected environments; world heritage sites; marine protected areas; specially protected forest areas, forest nature reserves and forest wilderness areas declared in terms of the National Forests Act, 1998 (Act 84 of 1998); and mountain catchment areas declared in terms of the Mountain Catchment Areas Act, 1970 (Act 63 of 1970)”.
The State is the trustee of all protected areas including those defined and administered under separate legislation e.g. mountain catchments. The NEM:PAA sets out the mechanism for the declaration of protected areas (other than those proclaimed under different legislation) and provides for matters incidental to the administration of these protected areas. The act also regulates the National Parks Board.
The NEM:PAA needs to be read along with the NEM:BA as they have essentially the same underlying objective. A consistent and significant criticism of the legislation is that categories of nature areas is reduced to only four, which is an oversimplification and is in conflict with international practice (the IUCN recognises six categories). The narrowness of these four categories has the effect of failing to address conservation partnerships with private, communal and civil society structures. More incentives for the conservation of privately owned land needs to be creatively developed. Another concern is the omission of the public participating in management decisions concerning protected areas, as it is not enshrined in the legislation. This is unfortunate, as it serves to remove a sense of ownership from ordinary citizens, and yet it is on this very sense of ownership that the future health of the South African environment relies. Although the Act firmly entrenches the State as the guardian of protected areas in South Africa, over time, it has become apparent that the State believes that such protected areas should generate the necessary funds for their management and protection through an array of commercial activities and systems of cross-subsidisation between protected areas. This is unfortunate, as there is a very real danger of shifting the focus from environmental protection to profit-making.
The NEM:BA
Similarly to the NEM:PAA the NEM:BA has as an objective “to provide for the management and conservation of biological diversity within the Republic and of the components of such biological diversity”. As such the focus of this legislation is on the preservation of species (a widely defined term) and ecosystems irrespective of whether or not they are situated in protected areas. Biodiversity is defined as the “variability among living organisms from all sources including, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part and also includes diversity within species, between species, and of ecosystems”.
The NEM:BA establishes both the South African National Biodiversity Institute (SANBI) through which the act is, to a large extent, implemented and the National Biodiversity Framework which is a strategic document for implementation of the Act. In addition to these the NEM:BA provides for the identification of threatened and/or endangered species and ecosystems and deals with their protection. NEM:BA also identifies biological threats to biodiversity, principally through alien and/or invasive species but also may require an EIA to be conducted before genetically modified organisms may be released into the environment. The act defines restricted activities which apply variously to threatened, endangered, alien and invasive species. One final aspect of the NEM:BA are those provisions relating to bio-prospecting. Any bio-prospecting activity requires a permit. For several years, the Convention on Biological Diversity has worked on the preparation of guidelines on how to consider biodiversity in environmental impact assessments. Biodiversity conservation still does not receive the priority attention it should in these environmental impact assessment processes. At best, rare and endangered species are prioritised by specialists – and at the expense of habitat conservation, which is the basis for the existence of species. In general, it would appear that there is greater emphasis on species and not enough on the protection of habitats and ecosystems. It is hoped that through the development of more strategic planning tools such as bioregional plans and the strengthening of provincial conservation plans, ecosystems and habitat management will be better managed. The Act furthermore allows for the publication of provincial and national lists of ecosystems that are threatened and in need of protection. The finalisation of this list is urgently required.
The NEM:AQA
The NEM:AQA repealed the antiquated Atmospheric Pollution Prevention Act (45 of 1965) with the stated objective of “protect[ing] the environment by providing reasonable measures for: the protection and enhancement of the quality of air in the Republic; the prevention of air pollution and ecological degradation; and securing ecologically sustainable development while promoting justifiable economic and social development”. All three spheres of government are responsible for enforcement and to achieve this the NEM:AQA provides for National, Provincial and Local air quality standards and emission standards. The national standards apply but provincial standards may be published which are more stringent than the national standards and similarly the local government standards may be published and cannot be less stringent than the national and, if applicable, provincial standards. National ambient air quality standards have been published (GNR 1210 of 24 December 2009 in gazette 32816), as a list of identified activities and allowable emissions (GNR 248 of 31 March 2010 in gazette 33064.). Licensing and enforcement is delegated to the local (metropolitan or district municipality) government function although this responsibility may be delegated to provincial government. The control of noise also falls under the NEM:AQA. Critics of aspects of the Air Quality Act have pointed to the fact that the Act fails to focus specifically on human health, and the emphasis appears to be on how to allow industry to continue within the limits demanded by civil society. To this end, the Act would be strengthened if it included specific timeframes within which key actions are taken to achieve the objectives of the Act, e.g. the setting of standards and the length of time a facility may hold a provisional licence. The Act also does not provide for mechanisms that can be used by provinces if local municipalities fail to fulfil their licensing and monitoring functions adequately. Concerns have been expressed about adequacy of public participation provisions with respect to the granting of a licence for a listed activity. A crucial omission from the Act is the lack of explicit provision for the process of an appeal against the decisions of licensing authorities.
The NEM:ICM
This act applies to the coastal zone of South Africa and is intended “to preserve, protect, extend and enhance the status of coastal public property as being held in trust by the State on behalf of all South Africans, including future generations.” The NEM:ICM establishes “coastal public property” which the State holds in trust for all citizens and furthermore establishes mechanisms for the protection and administration of such land. The NEM:ICM also provides for a “coastal protection zone” which is an area of land required to be conserved in order to protect coastal public property. (For instance section 17(a) describes the zone as being required to “protect the ecological integrity, natural character and the economic, social and aesthetic value of coastal public property”). Human requirements are a key feature of the act and district municipalities (generally) have a duty to declare “coastal access land” to provide for and regulate access to coastal public property. Apart from coastal access land, the administration of the act and accordingly coastal public property and coastal waters are functions of national and provincial government. The minister may declare a special management area where additional measures are necessary given the environmental, cultural or socioeconomic conditions.
The NEM:WA
The newest SEMA, the NEM:WA, is possibly also the most problematic. The problem stems from the overly complicated definition of the term ‘waste’, the act also defines ‘disposal’ and restricts disposal of waste to disposal into or onto land only. Presumably the disposal of waste into fresh water, marine water and the air are dealt with by the National Water Act, NEM:ICM and NEM:AQA respectively but this makes the implementation more complicated. Additionally waste is only waste until such time as it is re-used, recycled or recovered. These problems aside, the NEM:WA introduces some very much needed concepts into our law, including ‘extended producer responsibility measures’ which requires the producers of potential waste to provide for mechanisms to minimise the likelihood / negative impact of such product becoming waste. This takes the well known ‘cradle to the grave’ variation on the waste minimisation theme further to include the ‘cradle to cradle’ product life cycle responsibility. The NEM:WA also provides for a licensing process for specified waste activities with the result that a person may require authorisation under both NEMA and NEM:WA for elements of the same activity (which may also require authorisation under NEM:AQA) and care must be taken that all authorisations required are obtained as there is not yet a single, comprehensive authorisation.
