By Garyn Rapson, Partner & Tendai Bonga, Senior Associate from Webber Wentzel
The long-awaited NEMLAA4 has been sent to the President for signature concluding a 6-year long parliamentary process. NEMLAA4 once signed will introduce higher environmental compliance standards across the board, as well as stricter penalties for environmental transgressions
It is finally happening – the long-awaited National Environmental Management Amendment Bill [B14F-17], dubbed NEMLAA4, has been approved by Parliament and sent to the President for signature, along with the National Forests Amendment Bill (Forests Amendment Bill). This signifies the conclusion of a 6-year parliamentary process for NEMLAA4 which will introduce a wholesale shift in South Africa’s environmental legislative landscape.
This development marks the end of an arduous parliamentary journey for both the Forests Amendment Bill and NEMLAA4, which were introduced to the National Assembly (NA) in 2016 and 2017, respectively. The progression of NEMLAA4 was however side-tracked in September 2018, when the NA rejected and remitted it back to the Portfolio Committee on Environmental Affairs. The Bill was subsequently remitted and passed by the NA in November 2018 and transmitted to the National Council of Province (NCOP) for concurrence. Progress was further delayed when the Bill lapsed in May 2019 and was later revived in October of the same year. In December 2021, the Bill was passed by the NCOP and returned to the NA for concurrence. Finally, on 1 March 2022, the Bill was passed by both Houses and sent to the President for assent.
NEMLAA4 is intended to address a range of issues associated with the One Environmental System, amongst other objectives. The Bill also proposes to extensively amend the financial provisioning (FP) regime applicable in terms of NEMA, the scope of which will be potentially extended to other holders of environmental authorisation (EA) issued in terms of NEMA, as opposed to holders of mining related EAs only. Once assented to and signed by the President, NEMLAA4 will also likely set the scene for the finalisation of the Third Draft FP Regulations, which are intended to completely replace the existing set of FP Regulations. Although it is anticipated that a fourth set of Draft FP Regulations may be published for comment, the timing of NEMLAA4’s finalisation draws the spotlight on the looming 19 June 2022 deadline for the bulk of mining right holders to transition to the NEMA FP regime, which will in some cases, severely impact rehabilitation liability assessments.
The finalisation of NEMLAA4 is a much anticipated and long overdue development – the Bill will introduce higher environmental compliance standards across the board, as well as stricter penalties for environmental transgressions. We will analyse the key changes arising from NEMLAA4 as well as the Forests Amendment Bill in more detail in a series of focused alerts once the Bills are signed into law.