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National level

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The primary legislation governing the environment in South Africa is the Constitution – specifically Section 24, which states that South Africans have the right to an environment that is not harmful to their health or well-being. 
 
In 1995, following South Africa’s first democratic elections the previous year, the Consultative National Environmental Policy Process (CONNEPP) was launched, resulting in the 1997 White Paper on National Environmental Management. 
 
New legislation in 1998 empowered government to implement the policy, and the National Environmental Management Act (No. 107 of 1998) (NEMA) established the concepts of participatory, cooperative, and developmental governance.
 
Following the release of NEMA, the Department of Environmental Affairs and Tourism embarked on law reform, in order to provide a consolidated legislative framework for environmental management in South Africa.
 
New legislation, developed under NEMA, has aimed to promote sustainable development, with wide-ranging implications for national, provincial, and local government. It moved towards specialized legislation to tackle particular resource issues, such as biodiversity and air quality.
 
An overview of the key pieces of legislation and other legislative developments since 1999 is presented below. (See the table below for legislation of departments other than DEAT that has relevance for the environment.)
 
 
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Biodiversity Act (No. 10 of 2004)

The passing of the National Environmental Management: Biodiversity Act (No. 10 of 2004) (NEMBA) is one of the most substantial improvements to environmental governance.  It provides the framework, norms, and standards for the conservation, sustainable use, and equitable benefit-sharing of South Africa’s biological resources. 
 
NEMBA takes a comprehensive view of biodiversity in that it instils an ecosystem approach to planning and management and requires the ‘mainstreaming’ of biodiversity into sectoral policy and planning.  It also expands the mandate of the former National Botanical Institute to include responsibilities relating to the full diversity of South Africa’s fauna and flora. 
 
In its new role as the South African National Biodiversity Institute (SANBI), the institute produced the National Spatial Biodiversity Assessment in 2004 as part of the National Biodiversity Strategy and Action Plan currently being developed as part of South Africa’s obligation in terms of the Convention on Biological Diversity.
 
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Protected Areas Act (No. 57 of 2003)

The Protected Areas Act came into force on 1 November 2004.  The initial Protected Areas Act (No. 57 of 2003) was amended (No. 31 of 2004) to make provision for national parks and marine protected areas. 
 
In essence, these Acts provide for the protection and management of ecologically viable areas that represent our biological diversity and natural landscapes and seascapes. 
 
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Air Quality Act (No. 39 of 2004)

The new Air Quality Act (No. 39 of 2004), which came into force in December 2004, replaces the outdated and ineffective Atmospheric Pollution Prevention Act (No. 45 of 1965), and provides for a more comprehensive decision-making and management framework for air pollution (see Chapter 8).  It acknowledges that:
 
  • many areas of South Africa do not provide a healthy environment for people
  • that the burden of ill health associated with polluted ambient air falls most heavily on the poor
  • that air pollution carries a high social, economic, and environmental cost that is seldom borne by the polluter
  • that atmospheric emission of ozone-depleting substances, greenhouse gases, and other harmful substances damage the environment.
 
The Act provides the basis for setting standards for both ambient air quality and emissions.  The Act further provides for the establishment of air quality monitoring stations to be paid for by industry.
 
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Climate Change Response Strategy

In October 2004, the DEAT launched the Climate Change Response Strategy, which was approved by Cabinet the following month. 
 
The strategy outlines South Africa’s response to climate change.  During the financial year 2005/2006, the DEAT conducted intensive sector-specific consultation with a view to developing sector adaptation plans and mitigation plans. 
 
The first National Climate Change Conference was held in October 2005.  Owing to the crosscutting nature of climate change, the DEAT has established four formal stakeholder committees, which inform and coordinate climate change issues, including the implementation of the Climate Change Response Strategy.
 
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Sustainable coastal development

The White Paper, adopted in April 2000, sets out a vision for the coast, as well as principles, goals, and objectives for coastal management and a Plan of Action for implementation. 
 
The proposed National Environmental Management: Coastal Zone Management Bill will give effect to the White Paper.  It sets out a new approach to managing our coastal resources with a view to promoting social equity, and to optimizing their economic use while protecting them. 
 
The proposed Bill aims to provide a legal and administrative framework for promoting cooperative, coordinated, and integrated coastal development.  It provides for important interventions that will preserve, protect, and improve the status of the coastal environment as the heritage of all; ensure that coastal resources are managed in the interests of the whole national community; and ensure equitable access to the opportunities and benefits that the coast offers.  
 
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Environmental Impact Assessment regulations

Since 1997, developments that could result in significant environmental pollution or degradation are required to have undergone a rigorous assessment of their possible effects through the Environmental Impact Assessment (EIA) process.
 
The Second Amendment of NEMA (No. 8 of 2004) provides for other tools such as Strategic Environmental Assessments (SEAs) to be used where appropriate.  New regulations for environmental impact assessment aim to streamline decision-making for the approval of developments and making the environmental process more flexible to project-specific requirements.  Some commentators argue that the process will allow developments to be pushed through more easily than before, without appropriate consideration for environmental sustainability.
 
This Second Amendment repeals all the provisions of the current outdated Environment Conservation Act (No. 73 of 1989), which currently controls the EIA process.  The new EIA regulations also provide for the formulation of environmental management frameworks for designated geographic areas that allow local and provincial environmental departments to decide where development can or cannot take place, so as to avoid lengthy EIA delays in approving such initiatives.

 
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Other legislation

Other legislation with implications for the environmental management function is presented below:
 
 
Department
Act
Objective
Agriculture
The Conservation of Agricultural Resources (No. 43 of 1983)
To conserve the natural agricultural resources of the Republic by, amongst other things, maintaining the production potential of the land and combating and preventing erosion.
 
The Fertilizers, Farm Feeds, Agricultural Remedies Act (No. 36 of 1947)
To provide for the registration of fertilizers, farm feeds, agricultural remedies, stock remedies, sterilizing plants, and pest control operators; to regulate or prohibit the importation, sale, acquisition, disposal, or use of fertilizers, farm feeds, agricultural remedies, and stock remedies.
 
Agricultural Pests Act (No. 36 of 1983)
To provide for measures for control over plants and for the prevention of plant diseases (agricultural pests).
 
The Genetically Modified Organisms Act (No. 15 of 1997)
To provide for measures to promote the responsible development, production, use and application of genetically modified organisms; to ensure that all activities involving the use of genetically modified organisms (including importation, production, release, and distribution) shall be carried out in such a way as to limit possible harmful consequences to the environment.
Department
Act
Objective
Water Affairs and Forestry
The National Water Act (No. 36 of 1998)
To ensure the protection, use, development, conservation, management, and control of water resources in a sustainable and equitable manner.
 
The Water Services Act (No. 108 of 1997)
To provide a regulatory framework for local authorities to supply water and sanitation services in their respective areas.
 
The National Forest Act (No. 84 of 1998)
To provide for sustainable forest management and the restructuring of the forestry sector.
 
The National Veld and Forest Fire Act (No. 101 of 1998)
To provide for measures to prevent and combat veld, forest, and mountain fires throughout the Republic.
 
The Mountain Catchment Areas Act (No. 63 of 1970)
To provide for the conservation, use, management and control of land situated in mountain catchment areas.
Land
The Development Facilitation Act (No. 67 of 1995)
To introduce measures to facilitate and speed up the implementation of reconstruction and development programmes; it lays down general principles governing land development throughout the Republic.
Minerals and Energy
The Minerals and Petroleum Resources Development Act (No. 28 of 2002)
To provide for the equitable access to and sustainable development of the nation’s mineral and petroleum resources.
 
The Nuclear Energy Act (No. 46 of 1999)
To set out the Minister’s responsibilities regarding source material, special nuclear material, restricted material, radioactive waste, and the storage of irradiated nuclear fuel.
 
The Mine Health and Safety Act (No. 29 of 1996)
To provide for the identification of hazards and the elimination, control, and minimization of risks relating to health and safety in mines.
Health
The Hazardous Substances Act (No. 15 of 1973)
To provide for the control of substances that may cause injury, ill-health, or death to human beings by reason of their toxic, corrosive, irritant, strongly sensitising or flammable nature, or by the generation of pressure.
Arts, Culture, Science and Technology
National Heritage Resources Act (No. 25 of 1999)
To introduce an integrated and interactive system for the management of national heritage resources.
Laws and agreements
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