Bulk of the provisions contained in the National Environmental Management Laws Amendment Act, 2022, proclaimed
The bulk of the provisions contained in the National Environmental Management Laws Amendment Act, 2022, (NEMLAA 2022) have been proclaimed and come into effect today, 30 June 2023.
The coming into force of the NEMLAA 2022 follows its publication on 24 June 2022.
The NEMLAA 2022 amends the National Environmental Management Act, 1998 (Act No. 107 of 1998) (NEMA) as well as several specific environmental management Acts, namely: the National Environmental Management: Protected Areas Act, 2003 (Act No. 57 of 2003); the National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004) (NEMBA); the National Environmental Management: Air Quality Act, 2004 (Act No. 39 of 2004); the National Environmental Management: Integrated Coastal Management Act, 2008 (Act No. 24 of 2008); and the National Environmental Management: Waste Act, 2008 (Act No. 59 of 2008). It also contains amendments to the National Environmental Management Amendment Act, 2008 (Act No. 62 of 2008) and the National Environmental Management Laws Amendment Act, 2014 (Act No. 25 of 2014).
Besides correcting and clarifying definitions and measures related to the making and adoption of environmental management instruments, appeal processes and financial provisioning requirements, it also sets new requirements related to NEMA section 24G applications for environmental authorisation and waste management licenses.
Other amendments include:
In the National Environmental Management: Protected Areas Act, 2003, the ability to prohibit certain activities in marine protected areas;
In the National Environmental Management: Biodiversity Act, 2004, the Minister is empowered to prohibit certain activities that may negatively impact on the well-being of an animal, while clarity is provided on measures to be undertaken to eradicate listed invasive species;
In the National Environmental Management: Air Quality Act, 2004, the Minister is provided with the discretion to establish the National Air Quality Advisory Committee;
In the National Environmental Management: Integrated Coastal Management Act, 2008, allowing for the removal of structures erected prior to commencement of the Act;
In the National Environmental Management: Waste Act, 2008 (NEMWA), clarifying that there will be no ability to be exempted from the requirement to obtain a waste management licence; and
In the National Environmental Management Amendment Act, 2008, clarifying the instances prior to 8 December 2014 when the requirements of the NEMA are regarded as having been fulfilled.
The Constitutional Court, in its judgment dated 26 June 2023, found that the provisions contained in sections 61(c), (j) and (k) of the NEMLAA 2022, are unconstitutional and invalid as Parliament had failed to comply with its constitutional obligation to facilitate sufficient public involvement during the consideration of these provisions. These sections contain an amended definition of the term “waste” as well as newly introduced associated definitions for the terms “commercial value” and “trade in” and will not form part of the provisions that come into effect on 30 June 2023. The current definition of “waste” as contained in the NEMWA remains in force and if Parliament wishes to proceed with these provisions, the public must be afforded an opportunity to provide inputs and comments thereon.
A number of other provisions contained in the NEMLAA 2022 will also not come into effect on the date of the publication of the proclamation, as work is still underway to ensure these provisions can be brought into effect as soon as practically possible.
Source: Government of South Africa