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THE NATIONAL FORESTS
AMENDMENT BILL
THE SELECT COMMITTEE ON LAND AND MINERAL RESOURCES (02 JUNE 2020)
1
PRESENTATION OUTLINE
� Acronyms
� Purpose
� Objectives of the Bill
� Process followed to date
� National Forests Amendment Bill Clauses
� Implication of the Bill to the NCOP mandate
2
ACRONYMS
� Bill: National Forests Amendment Bill, [B11-2016]
� DAFF: Department of Agriculture Forestry and Fisheries
� DPME : Department of Performance Monitoring andEvaluation
� EXCO: Executive Committee
� GG: Government Gazette
3
ACRONYMS ….� NCOP: National Council of Provinces
� NEDLAC: National Economic Development and Labour Council
� NFA: National Forests Act
� NFAC: National Forests Advisory Council
� PC: Portfolio Committee
� SEIA: Socio Economic Impact Assessment
4
PURPOSE � The purpose of the presentation is to brief the Select
Committee on Land and Mineral Resources (National Council
of Provinces – NCOP) on the National Forests Amendment Bill
[B11-2016], which seeks to amend the National Forests Act,
1998 (Act No. 84 of 1998) (NFA).
� The purpose of the National Forests Act, 1998 ("the NFA") is to
promote sustainable management and development of forests
and provides for the protection of certain forests and trees.
5
WHY AMENDMENTS ARE NECESSARY
� Recognised need for changes.
� Legislation is not static, it moves with time.
� During implementation, experience since 1998 …. need for
improvements on existing sections
� To make the legislation more responsive to the operational
realities, and challenges on the ground.
6
OBJECTIVES OF THE BILL
The Objectives of the Bill are to:
• provide for clear definitions, for example, natural forests and
woodlands;
• provide for public trusteeship of the nation’s forestry resources;
• increase the promotion and enforcement of sustainable forest
management;
• increase the measures provided for in the Act to control and
remedy deforestation; and
7
OBJECTIVES OF THE BILL…..CONT
• provide for appeals against decisions taken under delegated
powers and duties;
• reinforce offences and penalties; and
• promote equity by inclusion of youth and women in the
National Forests Advisory Council (NFAC).
8
PROCESS FOLLOWED TO DATE
Below is the process followed thus far in amendingthe NFA:
� Stakeholder consultation 2012/13 financial year;
� Publication of the draft Bill in the GovernmentGazette in May 2013 (GG notice No. 36485) andMarch 2015(GG notice No. 38533) for publiccomments;
� Stakeholder re-consultation 2014/15 financialyear
9
PROCESS FOLLOWED….CONT
� Consultation with Government structures such as NEDLAC andEconomic Cluster and internal committees within DAFF such asEXCO;
� Pre-certification of the Bill by the State Law Advisers;
� Engagement with Department of Public Monitoring and Evaluation(DPME) for Socio Economic Impact Assessment (SEIA)
� The Bill was introduced to Cabinet in April 2016, and
� Referred to the Portfolio Committee (PC) on Agriculture Forestryand Fisheries in May 2016
10
PROCESS FOLLOWED…..CONT
� Publication of Explanatory summary of the National Forests
Bill in the Government Gazette in terms of Rule 241 (1)(b) of
the Rules of the National Assembly in July 2016;
� Publication of the Bill for public comments and public hearing
by PC on Agriculture, Forestry and Fisheries in August 2017,
which initiated the extended public hearings in various
provinces with communities living in and around forests;
11
PROCESS FOLLOWED….CONT
� Various deliberations on clauses of the Bill as per outcome of
various consultations were held with PC on Agriculture,
Forestry and Fisheries leading to the adoption of the Bill for
further processing in May 2018;
� The Bill was tabled and adopted by the National Assembly in
August 2018;
� The Bill is currently in the NCOP, and has been published for
comment on 6 December 2019 until 24 January 2020.
12
CLAUSE BY CLAUSE ANALYSIS OF THE BILL
CLAUSE 1 CURRENT
PROVISION
PROPOSED AMENDMENT GAP
Insertion of
a definition
under
section 2
New insertion “Assignment’ means the permanent
or temporary transfer of—
(a) a power, duty, role or function
from the functional domain of
national government to one or more
provincial governments, organs of
state or to persons who are not an
organ of state; or
(b) the administration of a matter
listed in Schedule 4, Part A, of the
Constitution;’’.
To assist in the
interpretation of terms
in the Act. This is a
new insertion
(Assignment is
currently not defined
in the Principal Act)
13
CLAUSE BY CLAUSE ANALYSIS OF THE BILL
CLAUSE 1 CURRENT
PROVISION
PROPOSED AMENDMENT GAP
Insertion of
definition
under section
2
This is a new
insertion.
“Appeal committee’ means the
committee constituted in terms of
section 57 A (2).
To assist in the
interpretation of terms
in the Act.
14
CLAUSE BY CLAUSE ANALYSIS OF THE BILLCLAUSE
1
CURRENT
PROVISION
PROPOSED AMENDMENT GAP
Insertion of
definition
under
section 2
(xx) “natural
forest” means a
group of
indigenous trees—
(a) whose crowns
are largely
contiguous; or
(b) which have
been declared by
the Minister to be
a natural forest
under section 7(2);
“natural forest’ means a group of
predominantly indigenous trees—
(a) whose crowns are largely contiguous in
its undisturbed state;
(b) which may represent any successional
stage or state of forest
degradation, in which case crowns may not
be contiguous;
(c) which occur in association with
characteristic plants or animals recognised in
vegetation science as diagnostic species of a
specific natural forest type; or
(d) which have been declared by the Minister
to be a natural forest in
accordance with section 7(2)”;
To broaden the
definition of a
natural forest
(so as to
include all
vegetation
within the
Natural forest-
grassland,
thicket, shrubs-
under storey)
15
CLAUSE BY CLAUSE ANALYSIS OF THE BILL
CLAUSE 1 CURRENT
PROVISION
PROPOSED AMENDMENT GAP
Amendment
of definition
under section
2 (xxxix)
woodland”
means a group of
indigenous trees
which are not a
natural forest,
but whose crowns
cover more than
five per cent of
the area bounded
by the trees
forming
the perimeter of
the group.
“woodland’ means a group of
indigenous trees which are not a
natural forest, but whose crowns
cover [more than] at least five
per cent of the area [bounded
by trees forming the perimeter
of the group] they occupy, and
which may in a degraded state
have a crown cover of less than
five per cent”.
To simplify and
broaden the definition
in order to cater for
situations where
woodland may be
degraded.
16
CLAUSE BY CLAUSE ANALYSIS OF THE BILL
CLAUSE
2
CURRENT
PROVISION
PROPOSED AMENDMENT GAP
Insertion
of Public
Trusteesh
ip of the
Nation’s
forestry
resources
as
Section
2A.
New insertion Public trusteeship of nation’s forestry
resources
“The National Government, as the public
trustee of the nation’s forestry resources,
acting through the Minister, must ensure that
these resources, together with the land
and related ecosystems which they
inhabit, are protected, conserved, developed,
regulated, managed, controlled and utilised
in a sustainable and equitable manner, for
the benefit of all persons and in accordance
with the constitutional and developmental
mandate of government”.
To clarify
where the
nation’s
forestry
resources are
to be
managed.
17
Clause by clause analysis of the BillCLAUSE
3
CURRENT
PROVISION
PROPOSED AMENDMENT GAP
Amendment
of section
7(1)
Prohibition on
destruction of trees in
natural forests
7. (1) No person may
cut, disturb, damage
or destroy any
indigenous, living tree
in, or remove or
receive any such tree
from, a natural forest
except in terms of—
(a) a licence issued
under subsection (4)
or section 23;
‘”cut, disturb, damage or destroy
any indigenous tree or any other
indigenous vegetation in a natural
forest; and or’’;
‘‘(b) possess, collect, remove,
transport, export, purchase, sell,
donate or in any other manner
acquire or dispose of any tree,[ or
any] forest product derived from a
tree contemplated in paragraph
(a), or any other indigenous forest
vegetation, or any forest product
derived from vegetation
contemplated in paragraph (a) ‘’
To broaden the
provision under
section 7 (natural
forest) (to include
all vegetation
within the Natural
forest- grassland,
thicket, shrubs-
under storey)
18
Clause by clause analysis of the BillCLAUSE
3
CURRENT
PROVISION
PROPOSED AMENDMENT GAP
Amendment
of section 7
New insertion of
subsection (5)
“(5)If a person is in breach of
subsection 1(a), the Minister may,
by written notice—
(a) inform that person of the−
(i) nature of the alleged breach;
(ii) steps which the person must
take to prevent further damage or
to redress the
said breach; and
(iii) the period within which they
must take the steps referred to in
paragraph (ii); and
(b) in addition to any penalties in
terms of section 63(2)” —
To provide for directive
(to rectify damage) by
the Minister in the case
of non compliance with
the provisions of
section 7(1), dealing
with prohibition of
destruction of natural
forests.
19
Clause by clause analysis of the BillCLAUSE 3 CURRENT
PROVISION
PROPOSED AMENDMENT GAP
Amendment of
section 7(6)
New insertion “ If the person failed to comply
with the directive within the
period determined under
subsection (5)(b)(ii), the
Minister may—
(i) take reasonable steps to
remedy the situation;
(ii) recover consequential
damage or costs from the
person concerned;
or
(iii) approach a competent court
for relief.’’
To provide for steps to be
taken in the case of non
compliance with the
directive issued in terms
of section 7 (5).
20
Clause by clause analysis of the Bill
CLAUSE 4 CURRENT
PROVISION
PROPOSED AMENDMENT GAP
Insertion of
new sub-
section 8(3)
New insertion “A person may not conduct any
activity in a protected area which
is inconsistent with the
conservation, recreation or any
other management objectives of
that area, except under a
licence issued by the Minister
in exceptional circumstances
that may be determined by the
Minister”.
To prohibit any
activity in a protected
area, so that the
purpose of protected
area is not defeated.
21
Clause by clause analysis of the BillCLAUSE 5 CURRENT
PROVISION
PROPOSED AMENDMENT GAP
Amendment of
section 14 (6)
by insertion of
subsection 6
New insertion ‘‘The Minister may issue a written
order to immediately terminate the
felling, mutilation or destruction of an
individual tree or group of trees if he
or she has reasonable grounds to
believe that such a tree or group of
trees may qualify to be declared as—
(a) protected, in accordance with
section 12(a) and (b), until such time
that a notice in this regard is
published in the Gazette in
accordance with section 14(2); or
(b) a controlled forest area in
accordance with section 17”.
To provide Minister
with powers to
stop/terminate any
activities e.g. cutting
of trees that may
need to be protected
while still conducting
investigations.
22
Clause by clause analysis of the BillCLAUS
E 6
CURRENT PROVISION PROPOSED AMENDMENT GAP
Amend
ment of
section
15 (3)
(3) The Minister must
publish—
(a)a list of all species
protected under section 12;
(a)an appropriate warning
of the prohibition referred to
in subsection (1) and the
consequences of its
infringement, annually in the
Gazette and in two
newspapers circulating
nationally.
“The Minister must by notice in the
Gazette and in two newspapers
circulating nationally, publish-,
‘‘(b) an appropriate warning of the
prohibition referred to in
subsection
(1) and the consequences of [its]
an infringement [annually] at least
every five years or publish a
change that has been effected to
the list contemplated in paragraph
(a) in the Gazette and in two
newspapers circulating nationally.’’
To minimise
costs for
compliance
promotion
incurred annually
through
publication of
declared national
list of protected
trees.
23
Clause by clause analysis of the BillCLAUS
E 7
CURRENT
PROVISION
PROPOSED AMENDMENT GAP
Amend
ment of
section
16 (1)
(b) a particular tree or
group of trees or
woodland to be
protected under section
12(1),
the Minister may request
the registrar of deeds for
the area to make an
appropriate note.
“where the Minister has
declared:
(b) a particular tree [or], group
of trees [or], woodland, or a
state forest or part of
it, to be protected under
[section] sections 12(1) and 8
(1), respectively, the Minister
may request the registrar of
deeds for the area to make an
appropriate note’’.
To provide for the
registration with
deeds office when a
state forest or part
of it has been
declared to be a
protected area (this
is to align with other
Environmental
legislation such as
the National
Environmental
Protected Areas,
No. 57 of 2003
24
Clause by clause analysis of the BillCLAUSE
8
CURRENT PROVISION PROPOSED AMENDMENT GAP
Amendm
ent of
section
17 (2)
(2) If the Minister is of the
opinion that urgent steps
are required to—
(b) rehabilitate,
a natural forest or a
woodland protected under
section 12(1) which is
threatened with
deforestation, or has been
deforested, he or she may
declare it a controlled forest
area.
(2) If the Minister is of the opinion
that urgent steps are required to—
(b) rehabilitate,
a natural forest or a woodland, which
is threatened with deforestation, or is
being [or has been] deforested, he
or she may declare it a controlled
forest area.
Syntax
25
Clause by clause analysis of the BillCLAUSE
8
CURRENT
PROVISION
PROPOSED AMENDMENT GAP
Amendm
ent of
section
17
New insertion 17(13) ‘‘(c) The Minister may declare a
controlled forest area, and due to the
urgency of the situation, the Minister may
proceed with the declaration without prior
consultation with, or affording a prior
hearing to, any affected person, but as
soon as reasonably possible after the
declaration contemplated in section
17(3), the Minister must—
(i) consult with, and afford a hearing to,
any affected person;
(ii) consider any representations
received during such consultation or
hearing; and
(iii)confirm, vary or cancel the declaration
concerned.
To provide the
Minister with
emergency powers to
declare a controlled
forest area in order to
prevent continued
deforestation (for
example most of the
time the forest is
deforested prior to
declaration due to
process being
lengthy).
26
Clause by clause analysis of the BillCLAUSE 8 CURRENT
PROVISION
PROPOSED AMENDMENT GAP
Addition of
subsection
17(14)
New insertion 17(14) If the Minister is of the
opinion that the owner failed to
comply with the notice issued in
terms of subsections (3) and (4),
he or she may—
(i) take reasonable steps to
remedy the situation;
(ii) recover consequential
damages or costs from the
owner or person
concerned; or
(iii) approach a competent court
for appropriate relief.”
To provide the
Minister with powers
to issue a directive in
the case of non-
compliance
27
Clause by clause analysis of the Bill
CLAUSE 9 CURRENT
PROVISION
PROPOSED AMENDMENT GAP
To insert new
sub- section
23(4)
New insertion ‘’23 (4) No person may engage in
any prospecting or mining activity
in a State forest except in terms
of—
(a) an existing lease agreement
or any other valid contract; or
(b) applicable legislation.”
To prohibit mining
activities in a State
forest in order to
promote sustainability
within the forest.
28
Clause by clause analysis of the Bill
CLAUSE 11 CURRENT
PROVISION
PROPOSED
AMENDMENT
GAP
Amendment
of section 34
Constitution of Council Section 34(2)(j) added:
“(j) youths and women.”.
To include youth and
women in the Council
composition
29
Clause by clause analysis of the Bill
CLAUSE 11 CURRENT
PROVISION
PROPOSED
AMENDMENT
GAP
Amendment
of section 35
(4)
4) Members of the
Council and members
of a committee of the
Council who are not in
the
full-time employment of
the State may be paid
for their services,
except for attending
Council meetings.
Section 35 (4) Members of
the Council and members
of [a committee] the
committees of the Council
referred to in section 36
who are not in the full-time
employment of the State
may be paid for their
services, except for
attending Council meetings.
To include both
committees
(sustainable forest
management and
forest access)
30
Clause by clause analysis of the BillCLAUSE 11 CURRENT
PROVISION
PROPOSED
AMENDMENT
GAP
Amendment
of section 35
(4)
(5) The Minister must
determine the
remuneration and
allowances payable
to members of
the Council and
members of a
committee of the
Council with the
consent of the
Minister of
Finance.
The Minister must determine
the remuneration and
allowances payable to
members of the Council and
members of [a committee]
the committees of the Council
referred to in section 36 with
the consent of the Minister of
Finance.".
and to address the
issue of remunerating
NFAC members
when attending
council meetings
31
Clause by clause analysis of the Bill
CLAUSE 12 CURRENT
PROVISION
PROPOSED AMENDMENT GAP
Amendment
of section 36
(6)
(6) The functions
of the Committee
on Forest Access
are to advise the
Minister on—
36 (6)The functions of the
Committee on Forest Access are
to advise the Council,
Department and the Minister on--
To provide for the
committees on Forest
Access to also advice
the Council and the
Department not only
the Minister.
32
Clause by clause analysis of the BillCLAUSE 13 CURRENT
PROVISION
PROPOSED
AMENDMENT
GAP
Amendment
of section 37
(3)
The chairperson of
the Council must
provide the Minister
with advice or
information
emanating from any
meeting within two
weeks.
37(3) The chairperson of the
Council must provide the
Minister with advice or
information emanating from
any meeting [within two
weeks] of the Council within a
period not exceeding one
month after the date of the
said meeting.
To provide for the
extension of the time
period that the
council needs to
advice the Minister on
issues emanating
from the Council
meetings.
33
Clause by clause analysis of the BillCLAUSE 14 CURRENT
PROVISION
PROPOSED AMENDMENT GAP
Amendment
of section
47(1)
(1) The Minister
may—
(a) assign any
power or duty in
this Act to—
(i) a province or
other organ of
State; or
47(1)”The Minister may–
(i) Assign any power or duty in
this Act to –
(a) [province or other] an
organ of State in accordance
with section 99 of the
Constitution of the Republic of
South Africa, 1996; or “
To ensure that
provisions under
section 47
(assignment of
powers and duties) in
the principal Act are
done in accordance
to section 99 of the
Constitution, 1996
34
Clause by clause analysis of the BillCLAUSE 15 CURRENT
PROVISION
PROPOSED AMENDMENT GAP
Insertion of
section 57A
New insertion 57A. Right of Appeal
57B. Composition and membership of
Appeal Committee
57C. Vacancies in Appeal Committee
57D. Investigation and consideration
of appeal by Appeal Committee
57E. Consideration of appeal by
Minister
To provide for appeal
procedure against a
decision taken by a
delegated officer, e.g.
issuing of a –licence by
forest officer)
35
Clause by clause analysis of the Bill
CLAUSE 16 CURRENT
PROVISION
PROPOSED AMENDMENT GAP
Amendment of
section 58 (6)
"(6) A person who is
guilty of a fifth
category offence
referred to in section
61 may not be
sentenced to
imprisonment, but
may be sentenced to
a fine up to not
exceeding R50 000";
and;
‘’58 (6) A person who is guilty of a fifth
category offence referred to in section
61 may [not] be sentenced to a fine not
exceeding R10 million or imprisonment[,
but may be sentenced to a fine up to
R50 000] for a period of up to 10 years
or both fine and such imprisonment.’’
To strengthen enforcement
, specifically for offences
committed in relation to
major development e.g.
mining and to align with
other environmental
legislation e.g. section 35
of NEM:BA, Act 10 of 2004
36
Clause by clause analysis of the Bill
CLAUSE 13 CURRENT
PROVISION
PROPOSED AMENDMENT GAP
Amendment of
section 58 (8)
(b)
‘‘(b) for any offence in
terms of this Act, may
suspend or revoke a
licence granted to the
offender under
section 7, or 23.’’.
‘’58 (8) ‘(b) for any offence in terms of
this Act ,may suspend or revoke a
licence granted to the offender under
section 7, 15 or 23.’’
To strengthen
enforcement, previously
section 15 (protected
trees) was excluded
37
Clause by clause analysis of the BillCLAUSE 17 CURRENT
PROVISION
PROPOSED AMENDMENT GAP
Amendment of
section 61
Any person who fails
to take the steps
which he or she has
been instructed to
take in
terms of section 4(8)
within the period or
the extended period
laid down, is guilty of
a fifth
category offence.
Offences relating to
protection of forests
and trees
61(a). Any person who fails to take the
steps which he or she has been
instructed to take in terms of [section]
sections 4(8), 7(5), 8 (3), 14(6) and
17(3) within the period or the extended
period laid down, is guilty of a fifth
category offence.
To provide for new
offences in respect of non-
compliance with
instructions in terms of
sections 7(5), 14(6) and
17(3) of the Act
38
Clause by clause analysis of the Bill
CLAUSE 18 CURRENT
PROVISION
PROPOSED AMENDMENT GAP
Amendment
of section 62
(1)/(3)
To strengthen
enforcement
and ensure that
amended
provisions under
section 7 are
catered for.
62(1),(2) (c) (ii) and (3)
‘’62 (1) Any person who
contravenes the prohibition of
certain acts in relation to trees,
indigenous vegetation or any
other forests product in natural
forests referred to in section 7(1)
is guilty of a [second] first
category offence.’’; and
To strengthen
enforcement and
ensure that amended
provisions under
section 7 are catered
for.
39
Clause by clause analysis of the BillCLAU
SE 18
CURRENT PROVISION PROPOSED
AMENDMENT
GAP
Amen
dment
of
sectio
n 62
(1)/(3)
(3) Any person who
contravenes a prohibition or
any other provision in a notice
declaring a
controlled forest area under
section 17(3) and (4) is guilty
of a second category offence.
Offences relating to use of
forests.
‘‘’62 (3)Any person who
contravenes a prohibition or
any other provision in a
notice declaring a controlled
forest area under section
17(3) and (4) is guilty of a
[second] first category
offence.
To strengthen
enforcement and
ensure that
amended
provisions under
section 7 are
catered for.
40
Clause by clause analysis of the BillCLAUS
E 19
CURRENT PROVISION PROPOSED
AMENDMENT
GAP
Amendm
ent of
section
63
(5) Any person who
contravenes a condition in a
licence, exemption or other
authorisation
in terms of this Act—
(a) in any protected area is
guilty of a second category
offence;
(b) in any other forest is guilty
of a third category offence.
‘’63 (5) Any person who
contravenes a condition in a
license, exemption or any
other authorization in terms
of this Act, in respect of—
(a) [in any] a protected
area, natural forest or
protected trees, is guilty of a
second
category offence.
(b) [in] any other forest, is
guilty of a third category
offence’’.
To strengthen
enforcement by
the inclusion of
natural forest and
protected trees.
41
Clause by clause analysis of the BillCLAUS
E 20
CURRENT PROVISION PROPOSED
AMENDMENT
GAP
Amend
ment of
section
65
65. The Director-General may—
(a) designate posts in the
Department or in any provincial
administration or local
authority, whose incumbents are
forest officers; and
(b) appoint any other suitably
qualified persons as forest officers.
General powers of forest officers
65 by the addition
of the following
paragraphs:
‘‘(c) determine
different levels of
forest officers; and
(d) determine
qualification criteria
for forest officers.
To strengthen
enforcement and to
provide for grading of
Forest officer, e.g.
Grade 1, 2 depending
on ranks-
42
� The mandate of the National Forests Act is listed in Schedule 4 of theConstitution.
� This causes the Bill to be tagged as a Section 76 Bill in terms of theConstitution.
� The proposed amendments is aiming to strengthen the provisions forpromoting sustainable forest management and not to change the currentadministrative processes of the functional areas listed in Schedule 4.
� The proposed amendments will not affect the current provincial mandate withregards to management of forests.
� The principal Act already has various mechanisms to promote the use offorests for the benefit of all. These have not been affected by these proposedamendments.
IMPLICATIONS OF THE BILL ON NCOP MANDATE
43
44