Marine Spatial Planning Bill [B9D-2017]: briefing

Meeting report

Marine Spatial Planning Bill [B9D – 2017]

Ms Judy Beaumont, Deputy-Director General: Oceans and Coast, Department of Environmental Affairs (DEA), said that as interest was growing in optimising the use of South Africa’s oceans for promoting economic growth, opportunities and job creation, the South Africa also needed to recognise that that increased interest and intensity required a very clear and focused approach to managing and governing its ocean space. Hence was born the Marine Spatial Planning (MSP) Bill, which essentially was a cooperative governance process for decision-making in respect of potentially overlapping areas and activities within South Africa’s ocean space.

Adv Radia Razack, Director: Legal Services, DEA said that South Africa had more ocean space than land, and its ocean jurisdiction would increase should the extended continental shelf claim be successful. She referred the gathering to a cartoon illustrating the many diverse and key mining, oil, transport, defence and environmental interests within the ocean space.

The purpose of the MSP Bill was to take to take marine spatial planning from single-sector planning and permitting, to integrated coordinated planning and permitting.

She explained that some areas were more ecologically (environmentally) important than others, specifically areas of high biodiversity, high productivity, spawning areas, nursery areas, migration corridors and stopover points. On the other hand, some areas were more economically important than others, specifically oil and gas deposits, sand and gravel deposits, fishing grounds, transportation routes, areas of sustained winds, and areas of sustained waves.

Currently, there was no overall system to guide the development, implementation, monitoring and refinement of national and regional (sub-national) marine spatial planning frameworks and sub-regional marine spatial management plans in South Africa, potentially leading to conflict, unsustainable use of ocean resources and a failure to capitalise on development opportunities.

Adv Razack referred the gathering to the map of petroleum exploration and production activities in 2006. Subsequently, she gave a breakdown of the fishing sector in South Africa. Approximately 800 000 tonnes of marine organisms were harvested annually, and 300 species were targeted. In addition, a further 300 species were directly impacted as bycatch, and a broader ecosystem disturbance affected many more.

Marine Protection Areas

Without sufficient protection within Marine Protected Areas (MPAs), degradation of ocean resources would rapidly occur. Replacement of lost natural services carried a high economic and social cost.

She explained the measures to protect habitats and species, and presented a case study on the approach of Norway, which informed South Africa’s approach to marine spatial planning. The goal of the Bill was also to create an institutional arrangement that was workable.

Adv Razak unpacked the process flow of the MSP Bill, the key elements or phases of which were the knowledge base, the MSP framework and the marine area plans.

She described the processes which linked the national working group, the Director General’s MSP committee, and the Minister’s MSP committee. Marine spatial planning could not happen except at executive level, and if there was political buy-in at the executive level.

She clarified the interaction of the Bill with sector laws. Among others, individual sector departments implemented their own laws in line with broad MSP planning priorities – for example, no MPAs in an area prioritised for another conflicting use, like mining. There were no authorisations, permits and enforcement happening at the planning level.

Discussion

Ms E Prins (ANC, Western Cape) asked about a court case she had read about in the papers where the DEA did not allow a person to fish in a specific area. Did these circumstances arise out of not having this Bill in place? The Committee would like to understand where there were gaps and how to fill the gaps. This Bill was long overdue. Since former Minister Marthinus van Schalkwyk, there had been a lot of issues raised concerning, among others, the shortage of fees etc.   

The Chairperson supported Ms Prins’s comments, highlighting the important role played by the DEA. It was impressive to see the young people doing research in the ocean. Among them was a young man from the deep rural area in Taung, who was a brilliant researcher.

Mr A Nyambi (ANC, Mpumalanga) asked about the financial implications of the Marine Spatial Planning Bill. Could the DEA elaborate on what it had said concerning the role of section 76 of the Constitution in the context of the Bill? Why had section 76 been opted for? Lastly, concerning the section 76 process and the people who were to be consulted, what were the implications for people living in provinces that were landlocked, such as the North West? While the Committee could accept it today, anything that came to the Committee and did not reflect the Committee towards the end of its term, was a serious problem for the DEA. As there had been proper planning and communication, anything that was in front of the Committee should reflect that there had been proper preparation and that the DEA took the Committee seriously. However, if the DEA came before the Committee, disempowering it by apologising, in the future it would be a very serious problem. The Committee wanted to see that there was communication between the DEA and the Committee. He pointed out errors on the first two presentation slides, and said this meant it was not edited.   

The Chairperson also highlighted an error in the letter of apology. However, the Committee had historically had a cordial relationship with the DEA. Such mistakes should not occur.

Mr Nyambi wanted the DEA to confirm whether they understood what the errors were in the presentation? While the Committee had a better sense of what the Bill was about, the DEA had to edit whatever it presented to the Committee. If the public were attending the meeting, they would see that there were some glaring mistakes and they were not being raised by the Committee. This was not something that could be taken lightly.  

Ms C Labuschagne (DA, Western Cape) said that the objective of the Bill was essentially positive. However, there were some concerns around the definitions which were a cause of confusion. There was the Spatial Framework Bill and the draft Marine Spatial Planning Framework. There was no definition as to the difference between them. Why could the draft Marine Spatial Planning Framework not be integrated into the Marine Spatial Planning Bill? Furthermore, in this Bill, three new structures were being mentioned, such as the National Working Group. Would the work that the National Working Group did take into consideration the draft Marine Spatial Planning Framework? Concerning the National Environmental Management Act (NEMA), there was a consultative national environmental policy process as is. That framework provided for, among others, sustainable development. This Bill was totally silent on the impact that its working would have on the NEMA. Considering that the Spatial Planning Bill would take precedence in any other matter pertaining to Marine Spatial Planning, why was this Bill needed as an independent piece of legislation? Why could it not be incorporated into the framework of NEMA in an amendment Bill as a new chapter? In so far as the three new bodies that had been created, among others, the National Working Group and the appointment of experts, there were a few concerns in this regard. For example, there was no limit placed on the number of officials, and many could be appointed.

Ms Labuschagne said no mention had also been made whether those people who were going to be appointed into the National Working Group would be transferred permanently. While there was particular reference to ‘competent officials,’ there was no definition of ‘competent.’ While the inclusion of ‘competency’ in the Act was a good thing, it needed to be defined. Moreover, in so far as the DG’s MSP Committee was concerned, there were some concerns. Quite often the appointment of the Director-General was a political appointment. It seemed that this Committee had to make recommendations to the Minister’s MSP Committee. While the National Working Group had competent officials being appointed, they also could appoint expertise. This could, in a way, be a contradiction. If one was a competent person in one’s field, why did a panel of experts have to be appointed? If they appointed a panel of experts, how did it work -- that the work of a panel of experts and the competent officials’ had to go to the DG’s panel that endorsed it, and then sent it to the Minister’s MSP Committee? Should the DG’s MSP Committee fall under the National Working Group? In the end, it was only the Minister’s MSP Committee that could approve these plans and make recommendations.     

Mr J Julius (DA, Gauteng), echoing Ms Labuschagne, commented that the purpose of this Act could be overshadowing the ambit of other Acts. In terms of the distinctions between this Act and other pieces of legislation, how did the Bill touch on provincial interests when it came to planning and permitting? In respect of Section 76 Bills, how did it change and actually improve the provinces as a whole, because the Bill seemed to be silent on these matters. Provinces should be given more say in planning and permitting, because it was actually where the economy was built for local people, also in terms of departmental inputs in planning. Furthermore, there were current gas and oil exploration efforts. What was the current situation, because there was one planned for 2019, where many kilometres of exploration could be expected -- would this be included? The reason for this was that South Africa had an ocean and sometimes oil and gas exploration efforts were withheld because of political reasons. At times, it was corruption seeping into these efforts. There was huge potential in these initiatives for South Africa’s economy. Moreover, according to the DEA, what would take preference in terms of government policy? Would it be the environment or the economy? This was a very serious issue to consider. It should at times be legislated to say that in these areas, the environment would take preference, and in those areas, the economy would take preference. However, it was sometimes seen that, because of corruption and greed, environmental issues would be left behind and issues of growing the economy would be given preference. How did the DEA manage this concern?

Mr C Smit (DA, Limpopo) commented that throughout government, there were really serious problems around red tape that made processes very expensive and time consuming. This restricted economic growth as well because of all the time that lapsed while everything needed to be done. In this Bill, there was quite a lot of procedural uncertainty and unnecessary red tape. Had the DEA borne this in mind, and how did it plan to make sure that this was reduced? This process was repeated over and over. However, South Africa wanted an economy that grew and a process which stream-lined these issues. This was an opportunity to seriously look into these concerns and rectify them.

DEA’s response

Ms Beaumont responded that these were a combination of questions which dealt with policy, implementation and legal issues. The critical thing was that there was an urgency to get the planning framework in place because of the activities and the intensity of interest -- for example, with oil and gas exploration companies arriving on a daily/monthly basis. It was critical that as government, there was a plan in place. The work had gone ahead and the legislative process had commenced in parallel. Concerning sustainable development, how it was to be implemented, and what took precedence -- economics, environment or social issues -- this was a question which the DEA was grappling with.

In ensuring that economic growth and job creation was not impeded but also was sustainable, the DEA aimed not to undermine the natural resource base that was really the foundation of much of South Africa’s economic activity. It was a question that was raised in the context of tourism, mining, oil exploration, farming, aquaculture, human settlements etc. In respect of this Bill, the answer was about making sure that there was a decision-making process that was informed by a set of principles that were essentially sustainable development principles. These were principles that applied both in enabling and maturing economic growth and social development, but also enabling and ensuring that this took place within the context of environmental sustainability. The Marine Spatial Planning Bill puts down a set of principles that would guide decision-making by the various structures set out in the Bill.

Concerning the lack of accuracy in the presentation, and the error in the letter of apology, she offered a sincere word of apology. The bottom line was that the DEA really respected, engaged with and deeply appreciated the guidance and the inputs from this Committee. It would make sure that it cleaned up on those areas.      

Mr Gcobani Popose, Director: Ocean Conservation Strategies: DEA, addressed the issues around policy, and said that what this Bill sought to achieve was planning. All the other departments (Mining, Fisheries, Environment) would continue addressing the issues for which they were responsible.

Concerning the concerns around people not being allowed to fish in certain areas, in the absence of a planning system, this was exactly what happened. Without planning with the other departments, the DEA, would continue to execute its own mandate irrespective of what the issues were. However, with this Bill, into the future, the DEA would be able to sit together with the different structures as proposed in the draft, where all the different departments and constituencies would actually discuss these issues together so that conflict was avoided. No one activity provided for in the Bill was more important than the next. Through consensus all the goals, like protection, would be achieved. Concerning the differences between the Marine Spatial Planning Framework and the Marine Spatial Planning Bill, the Framework influenced the drafting of the Bill. The Framework sought to guide the DEA as to what process South Africa would follow in terms of implementing marine spatial planning. Before the DEA started, there had been no system in place. The DEA had had to start from the framework, and had discussed with the other role players -- the different departments and the National Working Group -- on how this would be approached. The Bill sought to legislate the process going forward. In South Africa, in the absence of a proper legislative framework, there was a tendency to go backwards and not do what the country sought to achieve. The Framework was proposing the same process, but the Bill was the legislation. The Framework informed the development of the Bill. Furthermore, the National Working Group was a group that had been nominated by the different departments.

The DEA had forwarded the terms of reference for this Group, where the different departments had been tasked to nominate people who had planning expertise, were policymakers in their different departments, and had experience in the science that was needed for the development of marine area spatial plans. When expertise was sought, it was basically to enhance the expertise that already existed in the National Working Group. The Group was constituted by the different DGs, and they remained responsible for whatever occurred in it.

The ocean was earmarked for different activities, including oil and gas exploration. The members of the National Working Group had an authority for oil and gas, and also the Department of Mineral Resources (DMR). All of these constituencies’ interests were represented in the National Working Group, where all the constituencies with different backgrounds discuss the different activities with a view, among others, of enhancing the economy of South Africa through the contribution of the oceans.

There was much that South Africa could do, but without planning, all the economic projections that this country sought to achieve, such as job creation, a better contribution from the ocean, better oil and gas, would not be achieved if there was no collective planning. This planning system was proposing a better way of working together in the different sector departments, which were representing their own stakeholders who had an interest in the marine space.      

Adv Razack referred to the role of section 76 in the context of the Bill, and stressed that this was a very pertinent question. This was a matter that had been dealt with quite vigorously when the DEA met with the state law advisors. One of the viewpoints that had been raised was whether this should be a section 75 or 76 Bill, because most of the permitting that happened in the offshore area was for mining and fishing, and this was an exclusive national competence under the Constitution. This needed to be a consultative process. Whether there was permitting happening in the provinces or not, the DEA had coastal management bodies which had built-in mechanisms where there were national and provincial coastal committees. These were already established forums which the DEA would like to tap into with the Marine Spatial Planning process. During that consultation, the DEA had to link up with the coastal management, even though most of the MSP planning was happening offshore. Even though there may not be financial war or permitting implications for provinces, provinces had an interest because the entire country was effected by what happened in that space. For this reason, the DEA was quite happy to bring this to the Committee as a Section 76 Bill so that the DEA could go to a province regardless of whether it was a land or a sea province, as all South Africans ate the fish that were caught there. All were impacted by the economies where the activities took place. Legally, it may not be a neat fit for a Section 76 Bill, but it was a better process for the DEA to follow.

Regarding the process and consultation, Adv Razack commented that the DEA had that in Clause 9 of the Bill where, in terms of the development of the Marine Spatial Planning Framework and the area plans, the National Working Group must ensure that all relevant stakeholders were adequately consulted, including sector departments, affected organs of state, institutional coastal planning bodies (i.e. the provincial implementers in the coastal space), industrial representative bodies, representative organisations of affected persons and institutions, and the general public. In terms of subsection 2 of this section, sector departments (the DMR, Fisheries, Environment etc.) must ensure that their particular stakeholders were properly consulted and the outcomes of the consultations must be made available prior to the development of any marine area plans. This information should form part of the sector information submitted in terms of section 72. There was that leg of consultation. During the development of the plans, the Marine Spatial Planning Framework actually set out more detail as to how these approaches could happen. The DEA wanted the National Working Group to have as much flexibility as possible to reach as many people as possible, as far and wide as possible, so that it was a comprehensively consulted Bill.

Concerning the NEMA, this was also an issue which had come up. The MSP Bill was not a specific environmental management Act under the auspices of NEMA. It had started out that way in the beginning stages of the Bill. However, there had been much resistance from other departments because it was argued that environment could not be trumping every other sector.

Therefore, it was not an environmental, but a planning Bill. What happened ultimately was that in order to accommodate everybody, it had been taken out of the environment sphere because, while environment was an important sector, it was as important as the economic sectors in this planning. There was a great attempt by all departments who, in order for them to participate fully, had to be satisfied with all the diverse interests in the DEA. Everybody wanted to feel that they had an equal say and that they were not being bullied by the DEA. The environment sector also had to ensure that its information was adequate so that environmental protection was adequately mooted around the table.

These were the complications which had been faced when the Bill was being developed. It was not put under the auspices of NEMA. It was not a pure environmental Bill, but a planning and coordination Bill, but the DEA was made one of the drivers of the development of the ocean policy. It fell in the lap of DEA and it had quite a great difficulty convincing other departments that the DEA was landed with this responsibility and that it would try to make it as coordinated as possible. To make the Bill a chapter in NEMA became impossible in this kind of environment.

Regarding the concerns raised in relation to definitions, Marine Spatial Planning was not just about a plan, but about many different components. This was why Clause 6 existed in the Bill, which spoke to the Marine Spatial Planning system.

Adv Razack read from Clause 6. This was the framework. When one referred to the framework, it gave a great deal more flexibility to describe things than a Bill did. It gave one the platform to put in details where processes could be explained, and it actually provided a guide to what was intended in the Bill. Legislation could be very restrictive because it spoke to obligations and rights and principles. The DEA had started with a framework because when they spoke to Norway initially, they had done their planning but they did not have legislation. They had made an impact in pioneering the development of legislation in the area of marine spatial planning globally. Legally, a Bill or piece of legislation was not required if planning policy was in place.

The DEA had been advised by some of the proponents of Marne Spatial Planning that in their experience, the minute there was a change in the guard – for example, the Select Committee or the government – which did not appreciate the process which had happened before this, or was not aware of it, would not implement or it would just fall by the wayside. If it was written in a law, it gave one that additional safeguard. After the DEA had developed the framework and had had consultations, the DEA had then gone through the process, and it had become imperative to do a Bill. The framework was mentioned in the Bill, but it also provided a guide to the provisions in the Bill. In fact, it placed the Bill in a much better position that some others.

The framework could actually be of help when there were interpretation difficulties, but it also gave the policy body. If it were to be incorporated, it may be included as an annex or a schedule. If it was done as a schedule, it would be easier to amend. Then, if there was an amendment, like there was with the Act, then the whole process did not have to be followed. It ought to be made more flexible and easier to describe things. That was a possibility, and the DEA would be led by the Committee when the Bill was dealt with Clause by Clause, if the Committee was happy with that approach. It was an extremely useful document, and it had been leading the National Working Group, because the DEA was trying to catch up. It had been leading the DEA before the finalisation of the Bill.

In the context of ‘competent officials,’ ‘competent’ was intended to reflect in each department what was required for their mandates. The DEA had looked at the definition, but it did not want to narrow its scope or make it so narrow that it was limiting. It had been left open. To add on the issue of the experts, the DEA may have expertise but other extraneous expertise was needed. For example, serious Government Communication and Information System (GCIS) expertise was required for mapping. Not all of that resided within departments. These kinds of experts would need to be co-opted to assist in developing the maps. That was the intention behind adding those experts.          

Ms Beaumont explained the financial implications of the Bill. There were two parts to this question. Firstly, what were the financial implications of implementation? Secondly, how did the DEA finance it? In terms of the first part, the financial implications related to the development and implementation, in particular, of the marine area plans. Therefore, the implementation of the legislation had financial implications. The financial implications of convening committees and bringing in the necessary expertise would be included in this. Regarding the second part, how this was financed was through three sources. One source came from Operation Phakisa (OP). The MSP Bill was one of the Operation Phakisa Ocean Economy targets. A component of the OP budget had been allocated for this work. There was also donor funding. There was quite a significant international interest in this process. National departments who had been a part of the development of the Bill had also budgeted for its implementation.  

Ms Labuschagne asked whether the DEA had any indication of the timeframes as to when the extended continental shelf claim could be approved or declined? Where an oil and gas lease already existed, what would happen when this came into conflict with those areas that had been listed as, biodiversity areas? How would this be negotiated? Could the DEA give the Committee a progress report on how these competing priorities were being managed? Finally, if the DEA spoke of the ocean area maps, would this Bill, as a planning bill, map the entire ocean under the sovereignty of South Africa for specific activities? Would areas be demarcated for particular activities? Would it make provision for seabed mining, which was a big issue at this moment, and for deep sea aquaculture?  

Ms Beaumont explained how the DEA protected those areas which were important from a biodiversity perspective, recognising that there were activities that were not necessarily complementary. One of the targets in the Ocean Phakisa process was proclaiming a set of marine protected areas. South Africa had some MPAs, but currently only 0.4% of South Africa’s ocean space had protected areas. The Operation Phakisa target was to grow that area, or the percentage. The Convention on Biodiversity had an international target of 10% protection of oceans by 2020. The question was how South Africa should move from where it was now at 0.4%, to a much better percentage of protection. In 2014, a set of protected areas had been gazetted for public comment and there had been extensive engagement with stakeholders. The DEA could give the Committee a more detailed presentation on that.

The DEA had begun to engage with those stakeholders with an interest in fisheries, including the Department of Agriculture, Forestry and Fisheries (DAFF), industry, fishing communities, the DMR, the Petroleum Agency of South Africa (PASA) and the transport sector. It was getting close to a set of protected areas where the boundaries had been adjusted to accommodate as many interests as possible without losing those most important areas of ocean landscapes, species and ecosystems which needed to be protected for future generations. The final negotiations were under way with the DMR and the PASA . That process was, to some extent, the marine spatial planning process in action because it was about understanding what the spatial extent was of the current mining, oil, transport, defence, and environmental interests, and ensuring that what was eventually proclaimed as MPAs could be enforced as well.

On the extended continental shelf claim, this had been a long and complicated process. The DEA was at a point where further work needed to be done. It was an international process and the DEA was required to do further geological work. The ocean floor had to be mapped.   

Mr Popose referred to the extended continental shelf, and said that South Africa had made a huge investment in buying the SA Agulhas 2, one of the big vessels which the DEA used to survey the ocean. On the last trip to Marion Island, a few days had been dedicated to this process. The DEA was constantly required to provide more information on the continental shelf issue because it had to prove whether the shelf was the same as what it was trying to claim. The project was nearing conclusion, but it was uncertain as to whether South Africa would get all that it had planned for.

In the DEA’s marine area planning process, the first step was for the DEA to understand what was happening currently. This was called a current status report -- who was doing what and where? Future projections were then done, based on what people were doing and what the sector plans of the various departments, through their stakeholders, were. The mapping was quite crucial, and was what the DEA was busy with at the moment so that it understood who was doing what. All the information of the National Working Group would be submitted to the subsequent levels. They could not make decisions without knowing what was happening where. This was the process which the DEA was currently embarking on.

The Chairperson asked the DEA, as one of the stakeholders, in future to touch on the marine effects of piracy within the ocean.

Ms Beaumont commented that the question of piracy was more a matter for the South African National Defence Force and Navy. They were, however, a key player in the mapping process.

The Chairperson thanked the DEA, and indicated that the NCOP would be briefing the Provinces. The DEA would need to be ready to assist in this regard.

Adoption of Minutes

With the recommended corrections, the minutes were seconded and adopted.

The meeting was adjourned.