Hydrographic Bill: consideration of written submissions & Department response

Meeting report

The Chairperson said the ministry must communicate their non-availability for meetings. He mentioned that though this meeting would be to amend the contents of the Bill the main considerations for adoption would be done the next day, Thursday, 13 September 2018. The main item on the agenda was the written submissions from members of the public and the responses by the Department of Defence (DoD) on the Hydrographic Bill.

Department of Defence and Military Veterans on the written submissions on the Hydrographic Bill

Lt Col K Mashego, Legal Advisor, DoD, introduced the delegation that will provide responses to the submissions by the public comments received. The aim is to align and standardise the definitions as noted by the Maritime Zone Act (MZA. The Integrated Coastal Management Act (ICMA) supersedes the Maritime Zone Act

ICMA refers to sea-shore as opposed to the word ‘beach’, as ‘beach’ is a generic term. The ICMA has the word ‘sea-shore’, however if there is a conflict of definitions between the 2 Acts (ICMA and MZA) then the interpretation of the ICMA will prevail.

Section B of the Bill limits application of the Bill to exclusive economic zones. The Hydrographic Bill intended to legislate the economic zones of the Republic, including inland water catchment areas and the ocean. The term ‘ocean’ is not defined in the MZA and ICMA and it is also not defined under the UN Convention law of the sea. The Department concedes that there is no universal definition of the word ‘ocean’, so rather the proposal was to suggest that an ordinary meaning of the word to be used.

 Lt Col Mashego argued that definitions existing in other laws may not be wrongfully interpreted with definitions in the Hydrographic Bill.

Lt Col Mashego further talked provided a proposed amendment on hydro-surveying, and defined surveying in this context as the purpose of determining data generally. This was not accepted by the DoD as it regards all hydro data collected to be special in nature therefore it cannot be generalised data..

Clause 1

Professor Whittal proposed navigation not limited to sea, but must include air, land and sea. The Department rejected the proposal, because the Hydrographic Bill deals with navigation of the sea. Further Professor Whittal proposed that hydrographic data be amended to read physical features of the sea and adjoining coastal zones with reference for the purpose of offshore navigation. The Department accepts the proposal but proposes the definition from the International Hydrographic Organisation (IHO).

Lt Col Mashego said the next proposal was the amendment of hydrographic surveying for determining geospatial data relating to inland and sea water bodies and terrains. This was not accepted by the Department as all hydrographic data is special in nature and there is no need to filter that into legislation - the scope is captured in the Hydrographic Bill.

Mr S Esau (DA) asked clarity on registration of hydrographic surveyors. 

Captain Stokes replied that the registration of hydrographic surveyor’s clause was written in a way that you get certified by engineers of hydrographer and you need to comply with accreditation to the Geomatics Professions Council. There are exams to be written to be considered as a hydrographic surveyor to be registered into the profession.

Mr Esau asked if that comment cold be included in the Hydrographic Bill,

Advocate Thameshni Ramcharan, Legal Advise Director, DoD, clarified that registration into the Geomatics Professions Council ensures that you have complied with the verification processes.

The other proposed amendment is on the definition of ‘user’ where the Professor says the user definition is limited to those that buy information from and who pays for services of the hydrographic office –it should be clarified with detailed wording. The Department accepts that proposal and defines a user as any person who obtains through purchase or otherwise information from the hydrographic office or who pays for the services of the hydrographic office. This is mentioned in this way as there might be users that do not purchase information, so this definition also includes third party subscribers to the field of hydrography.

Clause 4

Professor Whittal argues that the duties of Hydrographer should be included in the Bill. It defines the limits of the Republic and it is thus important that the responsibility is conveyed and assumed. The Department notes that the duties of the Hydrographer were indicated in the Draft Bill. Hydrographic services involved are stated in the definition of surveying and part of the hydrographic duties. If there are issues of overlapping of functions, this is where cooperation agreements are vital.

Professor Whittal further proposes an inclusion of section 4C to determine the position of the low water line to be defined as “the intersection of the low-water tidal plane with the land and includes low-water line on a low-tide elevation. This proposal was not accepted by the Department as there is no need to incorporate low water, as it is inherent in the functions of hydrographic data capturing, the same for low water line. The Hydrographer cannot produce a chart without having tidal information.

Further Professor states that low water lines should not be determining the low water lines. This is not accepted by the Department as the Minister does not have jurisdiction of low water lines and this Bill does not make reference to low water.

Clause 7

The Professor argues that section 7 a, b, and c to me amended in the following manner:

- replace ‘beach’ with ‘sea-shore’

-add ‘coastal’ before word ‘reserve’

-delete ‘ocean’ and replace with ‘sea’

This proposal is not accepted by the Department. The word ‘beach’, according to the Department, must be understandable to the general public, the word beach is known in general. The wording of sea-shore does not sound correct from a public perspective. The word coastal excludes internal water and the Department does not accept that,

Captain Stokes explained that any ocean area in hydrographic data is for topographic features and any area that a vessel can transit on. When you operate a hydrographic survey the word beach is on the charts and not the surrounding dams or rivers, so the term coastal reserve is too restrictive.

Mr S Marais (DA) said the replacement of ‘beach’ suggests that the Act is not for ordinary beach goers but for the purposes of the Hydrographic Bill and that ‘sea-shore’ is a more technical term

Mr Esau said if the word sea-shore is used it should be included in the definition, but the ‘beach’ should remain as it is used for laymens term.

Mr D Gamede (ANC) asked for clarity on offshore navigation.

Captain Stokes explained that if it is on a fixed terrain, it is offshore

Advocate Ramcharan commented that ‘beach’ is clearer and more generally accepted even for the purposes of drafting the legislation.

Captain Stokes said the word beach is commonly used, but the term sea-shore is more accepted as it includes land, rocks, cliffs all terrains of the water.

Clause 8

The Professor proposes the separation of powers and responsibilities to be clearly defined by the Hydrographic Bill to be under the Departments of Defence, Environmental Affairs, Transport, and Rural Developmentto surveying boundaries. The Department response submission under Clause 14 as it includes other interested parties under Clause 14.

The Chairperson commented that ordinary people would not know what “any persons” refers to hydrographer and that it should include a definition.

 Mr Marais mentioned that ‘any person’ is not in the definition and asked if ‘any person’ in the Bill is a natural person.

Col Leon Germandt, Legal Advisor, DoD responded that any person caters for natural and juristic person.

Discussion

The Chairperson commented that the only area of concern from his side was the wording difference between ‘beach’ and ‘sea-shore’. He suggested using the latter for purposes of the Bill.

Mr S Marais (DA) asked who is going to be the beneficiaries of the Act, DoD or Transport?

Captain Stokes responded that it covers everybody from the hydrographer through to the safety of the mariner who is the recipient of the data from the hydrographer. And in addition, hydrography contributes to the economy of the country.

Mr Marais said DoD should ensure that its budget was not affected if it cuts across all issues.

Col Germandt said DoD and the Department of Transport (DoT) have had inter-relationships regarding matters of mutual interest, so there must be cooperation agreements between the two government departments. This is in line with international best practice.

Advocate T Ramcharan then noted to the Chairperson that there are parliamentary advisors comments received and will be included in the final Bill and she then asked Captain Stokes to inform the Committee on the revenue generated by the hydrographic office in the last three financial years.

Captain Stokes said the revenue in the main is through sales of products, data usage agreements and data from other hydrographic institutions. In 2015/16 the office generated R8.5 million; R9.02 million in 2016/17; and R9.05 million in 2017/18, subject to rate of exchange. The operating costs were R6.3 million, R2.9 million and R2.8 million for the three years respectively. The project under way currently will include new IT equipment and that may affect the costs.

Mr Marais asked where the revenue goes. The Committee needs to be aware that revenue goes to the central revenue fund.

Captain Stokes responded that the hydrographic office does not have access to any funds and it all goes to the central revenue fund.

The Chairperson responded that this matter was dealt with in the previous meeting.

Advocate Ramcharan then went through the final draft Bill with editing notes on spelling and grammar.

Col Germandt reminded Members that the SA Navy is under the Department of Defence and Military Veterans. Section 83 of the Defence Act deals with all issues surrounding archiving and captured in all DoD policies.

The Chairperson said that there would be a follow up meeting tomorrow to finalise the Bill. All Members to have the documents and the changes will be incorporated into the Bill.

The meeting was adjourned.