Environmental Assessment (Amendment) Act, 2020

A.65 ENVIRONMENTAL ASSESSMENT (AMENDMENT) ACT, 2020 No. 11 of 2020 ARRANGEMENT OF SECTIONS SECTION 1. Short title and commencement 2. Amendment of section 2 of Cap. 65:07 3. Insertion of new Part IA 4. Amendment of section 6 of the Act 5. Amendment of section 7 of the Act 6. Amendment of section 8 of the Act 7. Insertion of new section 8A into the Act 8. Amendment of section 9 of the Act 9. Amendment of section 10 of the Act 10. Insertion of new section 41A into the Act 11. Amendment of Part X of the Act An Act to amend the Environmental Assessment Act to provide for shorter times for assessments, to provide for reviewers including private reviewers and other related matters. Date of Assent: 02.11.2020 Date of Commencement: ON NOTICE ENACTED by the Parliament of Botswana 1. This Act may be cited as the Environmental Assessment (Amendment) Act, 2020 and shall come into operation on such date as the Minister may, by Order published in the Gazette, appoint. 2. The Environmental Assessment Act (“the Act”) is amended in section 2 — (a) by inserting in their correct alphabetical order, the following new “environmental management plan” means a basic environmental assessment which excludes the development of a scoping report but may include the requirement for public review; “private reviewer” means a person appointed as such by the Director under section 62 (2); “rehabilitation plan” means an outline of measures for the treatment or management of disturbed land, air or water for the purpose of establishing a safe and stable environment; section 62 (1); “waste management plan” means an outline of waste streams and treatment options comprising of the collection, temporary storage and safe disposal of the waste streams associated with an activity and includes provisions for the recovery, re-use and recycling of waste; and Short title and commencement Amendment of section 2 of Cap. 65:07 A.66 “working day” means any day other than a Saturday, Sunday or any day which is a public holiday under the Public Holidays Act; and (b) in subsection (3) by substituting for that subsection with the following new subsection – “(3) The Minister may, in writing, upon application for exemption by a person implementing an activity referred to under subsection (2), exempt the activity from the provision of this Act if in the opinion of the Minister it is desirable in the interest of the public that such exemption be granted.”. 3. The Act is amended by inserting the following new part immediately after Part I — “Part I A – Institutional arrangements 5A. (1) There is hereby established, in accordance with the laws governing the public service, a department to be known as the Department of Environmental Affairs. (2) Subject to the Public Service Act, there shall be appointed be necessary. (3) The Director shall oversee the implementation of this Act. (4) The Director Shall — (a) be a person capable of being admitted as a practitioner; and (b) have specialised qualifications in the areas of environmental science and environmental management.”. 4. Section 6 of the Act is amended by deleting subsections (3), (4), (5) and (6) and substituting for them, the following new subsections –– “(3) The competent authority shall review an application made under subsection (1) (a) within 3 working days . and specify to the applicant in writing, the additional information to be provided by the applicant. information is available in the application and that the activity can be carried out without any adverse environmental impact, the competent authority shall — (a) authorise the implementation of the activity; (b) require the applicant to submit a — (i) waste management plan, (ii) rehabilitation plan, or (iii) other plan as may be prescribed; or (c) require the applicant to submit an environmental management plan. Establishment of Department Amendment of section 6 of the Act Cap.03:07 Insertion of Part I A A.67 under subsection (5) (b shall authorise the activity. (7) The competent authority shall review an application made under subsection (5) (b) within 5 working days. (8) Where, upon consideration of all the information submitted by the applicant, the competent authority is of the view that in carrying out the activity an adverse environmental impact will or is likely to arise, the competent authority shall require the applicant to undertake an environmental impact assessment or a strategic environmental assessment. (9) Where the competent authority requires an environmental management plan under subsection (5) (c) the competent authority may — (a) request the developer to consult stakeholders; or (b) request the developer to prepare a statement in terms of section 9 (4). (10) Where the competent authority requests for an environmental impact assessment or a strategic environmental assessment to be undertaken under subsection (8), the competent authority shall, in writing, require the developer to — (a) carry out a scoping exercise in terms of section 7; and (b) prepare terms of reference in terms of section 8.”. 5. Section 7 of the Act is amended — (a) by deleting subsection (1) and substituting it with the following new subsection –– “(1) Where the competent authority has required an applicant to carry out a scoping exercise under section 6 (10) (a), the applicant shall engage a practitioner to undertake the assessment”; and (b) in subsection (2) by substituting for the words “21 days” wherever they appear in the subsection, the words “10 working days”. 6. Section 8 of the Act is deleted and substituted with the following new section — 8. (1) A practitioner shall prepare the terms of reference required under section 6 (10) (b) at the applicant’s own expense. (2) The terms of reference shall be in the prescribed form.”. 7. The Act is amended by inserting, immediately after section 8, the following new section — 8A.(1) An applicant shall, after complying with sections 7 and 8, submit the terms of reference and the results of the scoping exercise to the competent authority. (2) In considering the terms of reference, the competent authority shall consult with relevant technical departments or local authorities, and may — Amendment of section 7 of the Act Amendment of section 8 of the Act “Terms of reference Insertion of section 8A into the Act “Assessment of scoping report A.68 (a) conduct such investigation as it considers necessary to ascertain the validity of the scoping exercise; or (b) request the applicant to provide additional information to clarify the terms of reference. reference will adequately assist in guiding the environmental impact assessment or a strategic environmental assessment of the proposed activity, the competent authority shall approve the terms of reference within 10 working days of receipt of the terms of reference and the scoping report.”. 8. Section 9 of the Act is deleted and substituted with the following new section — 9. (1) Where — (a) upon consideration of all the information, the competent authority determines that the proposed activity is likely to have a significant adverse environmental impact, it shall require that such activity undergo environmental impact assessment, the costs of which shall be borne by the developer; or (b) a proposed activity under paragraph (a) is a programme, plan or policy and the competent policy determines impact, it shall require that such activity undergo a strategic environmental assessment, the costs of which shall be borne by the developer. (2) An environmental impact assessment or a strategic environmental assessment shall identify and evaluate the environmental impact of an activity with particular reference to the — (a) health, safety or quality of life of people; (b) archaeological, aesthetic, cultural or sanitary conditions of the environment; and (c (3) Where the competent authority determines that an environmental impact assessment or a strategic environmental assessment be made under subsection (1), upon being informed in writing about the decision, the developer shall, before undertaking or implementing the activity, engage a practitioner to prepare a statement which shall be submitted by the developer to the competent authority within the period of time stipulated in the approved terms of reference. (4) Where the competent authority determines that an environmental management plan be made under section 6 (5) (c), upon being informed in writing about the decision, the developer shall, before undertaking or implementing the activity, engage a practitioner to prepare a statement which shall be submitted by the developer to the competent authority within the period of time stipulated by the competent authority. Amendment of Section 9 of the Act “Environmental assessment and statement A.69 (5) The statement prepared under subsections (3) and (4) shall be in the form prescribed by the Minister. (6) A person who contravenes subsections (3) and (4) 000 000, or to a term of imprisonment not exceeding 15 years, or to both.”. 9. Section 10 of the Act is deleted and substituted with the following new section — 10. (1) The competent authority shall, upon receipt of a statement from a developer as required under — (a) section 9 (3) in relation to an environmental impact assessment or a strategic environmental assessment; or (b) section 9 (4) in relation to an environmental management plan, examine the statement to determine whether such statement complies with the requirements prescribed by the Minister. (2) Where a statement relating to an environmental impact assessment or a strategic environmental assessment complies with the requirements prescribed by the Minister, the competent authority shall — (a) place, at the developer’s expense, a notification in the Gazette and in a newspaper circulating at two consecutive weeks, inviting comments or objections from those persons who are most likely to be affected by the proposed activity and other interested persons, stating the — (i) nature and of the activity, (ii) location of the activity, (iii) anticipated environmental impact of the activity, and (iv) proposed mitigation measures to respond to the negative environmental impact; and (b) in its decision making, consider the comments or objections raised by persons who are likely to be affected by the proposed activity and other interested persons. (3) The competent authority shall review a statement relating to an environmental impact assessment within 14 working days. (4) The competent authority shall review a statement relating to an environmental management plan within 10 working days. (5) The competent authority shall review a statement relating to a strategic environmental assessment within one month of receipt. Amendment of section 10 of the Act “Review of statements A.70 (6) A review under subsections (3), (4) or (5) shall be carried out by a reviewer, or where the competent authority has determined that it is necessary to do so, by a private reviewer, appointed. (7) The competent authority shall pay for the costs of any review carried out by a private reviewer under this section.”. 10. The Act is amended by inserting the following new section immediately after section 41 — 41A. Every person whose name has been entered in the register as a practitioner shall, as long as his or her name remains on the register, be entitled to — (a) adopt and use the word and title “Practitioner” or “Registered Practitioner” or such other style or title as may be approved by the Board; and (b) offer his or her services to the public for gain or reward based on fee scales provided in the conditions of engagement and such fees as may be prescribed by the Board.”. 11. Part X of the Act is amended by deleting sections 61 to 73 and replacing them with the following — “Part X – Administration and enforcement 61. (1) For purposes of the administration of this Act, competent authority. carrying out their functions under this Act. competent authority as a reviewer for purposes of carrying out the review functions under Part III of this Act. (2) Where it is expedient or necessary to do so, the Director may appoint such number of persons as may be necessary as private reviewers for purposes of Part III of this Act. (3) The Director shall specify the terms and conditions of a private reviewer appointed under subsection (2) in his or her instrument of appointment. (a (1); and (b) a person appointed as a private reviewer under subsection (2). Insertion of section 41A into the Act “Effect of registration Amendment of Part X of Act competent authority Reviewers and private reviewers A.71 (a (b) shall be valid for 12 months from the date of issue unless earlier suspended or cancelled. (6) A person who is engaged as a reviewer under this section shall not simultaneously carry out any work as a practitioner. 63. (1) For purposes of the administration of this Act, an by the Director, in writing, may, without previous notice and at any time — (a) enter upon any land, premises or vessel for the purposes of undertaking investigations and inspections to ensure compliance with this Act; (b) stop, search and seize any vehicle, vessel, boat or in the commission of an offence or to contain anything which might provide evidence of the offence; or (c) require the driver of the vehicle, the person in charge of the vessel, boat, or the pilot of the aircraft, referred to in paragraph (b with details of any licence, permit, authority or permission issued to him or her under this Act. (2) An officer mentioned under subsection (1) shall, if required, produce the written authorisation given to him or her by the Director. authorised to exercise the powers under this section, or who gives information which he or she knows or ought reasonably to have known is false, commits an offence both. (4) Any power conferred by this section shall be construed as including power to search for the purpose of ascertaining the environmental impact of an activity. 64. the purpose of ensuring compliance with this Act, require the owner or occupier of any premises to provide any information which may be required for the purposes of this Act. (2) Any person who — (a) refuses to give the information required under subsection (1); or Powers of entry Powers to require information A.72 (b) gives information which is false or misleading, years, or to both. 65. authorised by the competent authority, Director or Board, acquired in the performance of any duty, or the exercise of any function under this Act, except for the purposes of the performance of a duty or the exercise of a function or when lawfully required to do so by a court. not exceeding P2 000, or to imprisonment for a term not exceeding three months, or to both. 66. (1) A practitioner or private reviewer shall not engage in a consultancy where the engagement in the consultancy (2) A practitioner shall not simultaneously carry out work as a reviewer under this Act. (3) A practitioner or private reviewer shall, where a disclose such interest to the competent authority. (4) A practitioner or private reviewer who contravenes the provisions of this section commits an offence and is a term not exceeding three months, or to both. authority shall not be subject to any liability, action, claim for the purposes of carrying the provisions of this Act into effect. 68. If a person alleges that any provision of this Act has been, is being, or is likely to be contravened in relation to him or her, or any other person or group of persons who have a substantial interest, that person may apply to the High Court for redress. 69. (1) Where a proposed activity is likely to have a the competent authority shall consult the Minister. (2) The Minister shall, through the Minister responsible for foreign affairs, inform the country concerned about the intended activity, by sending to that country’s Minister responsible for foreign affairs, the terms of reference or a statement, and any other relevant information. interest Protection from personal liability Enforcement of provisions Trans boundary environmental impact A.73 (3) This section applies to any country — (a) in respect of which the Minister, having regard to any reciprocal provisions under the laws of that country, so directs; or (b) that is a party to an international agreement or treaty to which Botswana is a party, where the parties to the international agreement or treaty are obliged to inform one another. Part XI — Miscellaneous 70. (1) Any person who is not a practitioner, or private reviewer who — (a) performs the work of a practitioner or private reviewer for gain; (b) practises or carries on business under any name or style which contains the word “Reviewer”, “Private Reviewer” or “Practitioner”; (c) uses by way of advertisement, description, document, drawing or other means, any name, title, addition, description, letters, motto, emblem, symbol, badge, seal or other insignia which indicates or is calculated to lead persons to assume that he or she is a practitioner, reviewer or private reviewer; or (d) pretends or by any means whatsoever, holds himself or herself out to be a practitioner, reviewer or private reviewer, commits an offence. (2) A practitioner who knowingly employs or engages in the capacity of a practitioner any person who was registered and — (a) whose name has been removed from the register and has not been restored; or (b) who has been suspended from practice in terms of this Act, during the period of suspension, save with the prior written consent of the Board, which consent may be given for such period and subject to such conditions as the Board may determine, commits an offence. (3) A person convicted of an offence under subsection P50 000, or to imprisonment for a term not exceeding two years, or to both. (4) For the purposes of subsection (1), a person shall be deemed to be performing the work of a practitioner or private reviewer for gain if he or she or a partnership of which he or she is a member or an employee including a director in relation to a company — Offence and penalty A.74 (a) performs the work of a practitioner or private reviewer for or in expectation of a fee, gain or reward, direct or indirect to himself or herself or to any other person; or (b) holds himself or herself out as prepared in expectation of a fee, gain or reward, direct or indirect to himself or herself or to any other person, to perform the work of a practitioner or a private reviewer. 71. (1) Without prejudice to the generality of section 70, it shall be lawful for — (a) a person who is — (i) in the employment of a practitioner, to perform the work of a practitioner under the direction and control of such practitioner, or service for such practitioner, to perform, in accordance with the instructions of such practitioner, the work of a practitioner, other than the supervision of such work; (b on business which involves the performance of the work of a practitioner, to perform the work of a practitioner or to describe or hold itself out to be a practitioner where — (i) the business of the body corporate, firm or partnership, in so far as it relates to the works of a practitioner, is under the direct control and management of a principal who is a practitioner and who does not act at the same time in a similar capacity for any other body corporate, (ii) the business referred to in subparagraph (i) is carried on and is not personally conducted by the said principal, such business is being conducted under the direction of the said principal by an assistant who is a practitioner; or (c) a person in the bona fide employment of a body corporate, firm or partnership referred to under paragraph (b) to perform the work of a practitioner under the direction and control of a principal or assistant referred to under paragraph (b). (2) It shall be a defence to any charge of contravening subsection (1) (a) for a person to show that he or she performed the work of a practitioner for his or her employer whilst in the full time employment of his or her employer and that his or her remuneration was by way of a wage or salary and not a fee or commission. Exemptions A.75 72. Any person who contravenes the provisions of this Act for which no penalty is otherwise provided and exceeding P50 000, or to a term of imprisonment not exceeding two years, or to both. 73. (1) The Minister may make regulations for any matter which under this Act is to be prescribed or for the better carrying out of the provisions of this Act. (2) Without prejudice to the generality of subsection (1), regulations made under subsection (1) may provide for — (a) the governance of environmental impact assessment issues; (b) a list of activities, locations and thresholds or environmentally sensitive areas for which a statement is mandatory; (c assessment; (d) contents of — (i) a project brief, (ii) an environmental impact statement, (iii) a strategic environmental assessment report, (iv) an environmental management plan, (v) terms of reference, or (vi) any other report or document to be submitted to the competent authority; (e) the manner of carrying out reviews of — (i) the terms of reference, (ii) the statement, (iii) the monitoring programme, and (iv) the evaluation report; (f) the manner of holding public hearings; (g) revoking or modifying an authorisation issued under this Act; (h) the manner in which entry into premises may be achieved to investigate or evaluate an environmental impact, or to monitor and audit the environmental impact of an activity; (i) the code of conduct of practitioners registered and private reviewers appointed under this Act; (j) fees charged by reviewers and practitioners for the provision of services under this Act; (k) fees charged by the competent authority for the provision of services under this Act; (l) forms to be used under this Act; General penalty Regulations A.76 (m) criteria for — (n PASSED by the National Assembly this 17th day of September, 2020. BARBARA N. DITHAPO, Clerk of the National Assembly.