Green Paper on National Environmental Management of the Oceans; Integrated Coastal Management Amendment Bill [B8-2013]: public hearings

Meeting report

Opening Remarks
The Chairperson informed the Committee that he had received apologies from Mr S Huang (ANC), Ms J Manganye (ANC), Mrs B Ferguson (COPE) and Ms D Tsotetsi (ANC). Mr Gaolaolwe Selau (ANC) was introduced as a new member of the Committee. The Chairperson welcomed Ms Nosipho Ngcaba, Director-General: Department of Environmental Affairs (DEA) and the other members of her delegation, adding that the Committee had lined up a full programme with DEA for the third and fourth terms of Parliament.

The Chairperson noted that there had been few responses (four) from the public on the Green Paper after months of advertising for comments, and that no government entity had made comments.  He called it ‘a very sad situation.’

The Committee was informed that six Bills were being introduced during this term and that there would be a briefing on Thursday for members to get an understanding of what they are, following which the Chairperson would make press statements and then give a period of one month to six weeks for comments. The last term of Parliament was going to be a relatively short one, with an adjournment in the first week of November and not the last week as was the case previously.

The Chairperson said that the rhino workshop, which had been scheduled for the last week of recess at the Kruger National Park, had been moved to August or September, with specific dates to be communicated.  Next week was to be devoted to the Environmental Impact Assessment (EIA), and about 50 responses had been received. The interest from the public was because of the obligations that EIA put on people and as a result, three days (Tuesday, Wednesday and Thursday) were to be dedicated to these public hearings.   

Going forward, the Chairperson asked the DG to take note of what was going to transpire at the meeting and then produce a report that the DEA would brief the Committee on, before submitting the changes on the Green Paper to Cabinet.  He also expected a report following next week’s public hearings on the EIA. 

DEA: South Africa’s Policy on National Environmental Management of the Oceans
Ms Ngcaba introduced the senior managers for the Oceans and Coasts branch – Dr Monde Mayekiso, Deputy Director-General: Oceans and Coasts; and Mr Ashley Naidoo, Chief Directorate: Specialist Monitoring Services.

The Committee was informed that the DEA had embarked on a two-year process, starting with the development of the policy early last year. The process was now at the Green Paper stage, following Cabinet approval that Parliament could proceed with the consideration of the Green Paper. DEA was on track with regard to the process of the White Paper, and after the Parliamentary process, the Department would report back to the Committee to brief it on how the comments had been dealt with, and what the final product of the Paper looked like, before presenting it to Cabinet.

Mr Naidoo said that ocean governance failures and challenges had been observed in all parts of the world, including both developed and developing countries. He gave an example of the huge oil spill in the Gulf of Mexico and the failures that were associated with it -- the occurrence of the spill in the first place and, three years down the road, issues of liability and rehabilitation had not yet been completed.

Several countries, such as the United States of America, the United Kingdom and France, had been finalising ocean management policies while countries like India, Brazil, Russia and Norway, had a long history of ocean governance policies. Several countries were completing ocean governance structures. These efforts sought to improve sectoral management of the ocean sector and planning and managing across sectors for accumulated and aggregated impacts.

In developing a policy, the DEA had compared the ocean policies of 12 countries (a comparison was made between developed and developing countries). There had been a review of sectoral stakeholders in South Africa, such as fishing, mining, transport, energy and tourism, a review of international agreements to which South Africa was party, as well as a review of the national ocean sectoral policies (for instance shipping).  A policy had then been drafted and submitted to cluster departments and Cabinet. South Africa was currently working with Angola and Namibia to develop the Benguela Current Convention.

Following a thorough process, the DEA had received two dozen comments from organisations, and the observation was that there was sectoral management of ocean users. There was, however, a lack of a framework for planning and managing across sectors for accumulated and aggregated impacts. He gave examples of offshore oil mining producers’ waste, fishing producers’ oil waste, and energy production oil waste. No sector managed accumulated and aggregated impacts across sectors.

South Africa’s ocean jurisdiction
South Africa’s ocean space included the Exclusive Economic Zone (EEZ) which, under the United Nations Law of the Sea, allowed each country to claim 200 nautical miles (about 400 kilometres) from the coast into the sea as part of the country, including all the resources to the bottom of the sea. In 1949, South Africa had claimed two small islands (Marion Island and Prince Edward Island) and with them the 200 nautical miles of EEZ around them. There was also a possibility of South Africa extending its jurisdiction if it could prove that its continental shelf extended beyond the current boundary. It would then claim an additional 350 nautical miles – this was still subject to a United Nations Committee, following South Africa’s application.

At the moment, South Africa had 1.2 million square kilometres of mainland and 1.5 million square kilometres of the EEZ, including Marion Island and Prince Edward Island. South Africa’s claim for the new extended continental shelf was 1.8 million square kilometres. In terms of the global perspective, it was easy for South Africa to access a vast part of the ocean beyond its jurisdiction in the south. With a base in the Antarctica, South Africa continued to play a role in the Antarctica Treaty system.  Mr Naidoo briefly referred to the DEA’s mandate as provided for under Clause 24 of the Constitution, and other relevant laws, such as the primary framework under the National Environmental Management Act and additional international agreements.

Evolution of international ocean governance
The earliest international environmental conventions were the Stockholm Convention of 1972 and the United Nations Convention on the Law of the Sea of 1982. The Rio Summit and the Convention on Biodiversity in 1992 followed, and then South Africa hosted the World Summit on Sustainable Development in 2002, after which the Rio +20 summit was held in Brazil. The themes throughout the conventions were inter-generational equity, sustainable use, equitable use and the integration principle (equal approach). Comments had been received on the precautionary principle, and this had now been articulated in the Green Paper. 

Ocean ecosystem uses and sustainable use and environmental management of ocean ecosystem services
Mr Naidoo said that the uses of the ocean could be looked at in four categories: provision, regulation, supporting and cultural. Provision included sea trade, fish, oil, minerals, pharmaceuticals, sewage and waste disposal. Regulation uses were environmental, climate, and weather (recycling of carbon and nitrogen; and heat distribution). The support uses were the creation of niche habitats for biodiversity due to the ocean characteristics.  With regard to cultural use, people had some cultural association with the ocean, even if they were merely out for a day on the beach,.

The existing environmental management of ocean ecosystem services identified that there was a need to build on general environmental governance for ocean governance and the existing ocean sectoral environmental governance. It was noted that sectoral governance did not seek to manage aggregated and accumulated impact or cross-sectoral planning.

Selected international ocean management strategies and ocean policy objectives
The DEA had identified four areas of work with regard to ocean management.  The considered international ocean management strategies had the objectives of:
●  improving the competitiveness and effectiveness of existing activities taking place within their marine jurisdiction, while at the same time researching and developing innovative and responsible future uses;
● maintaining and improving marine ecosystems resilience, conservation of biodiversity and restoration of degraded habitat;
● participating and strengthening involvement in global and regional developments, in addition to supporting efforts to achieve environmental objectives;
● a spatial planning approach, which was seen as vital to managing large ocean spaces.

In developing a policy framework for South Africa, the DEA had focused on four objectives. The ocean environmental information policy objective sought to get more information through enhancement of existing research and monitoring of ocean ecosystems. This would be relevant in getting to know what information existed and what was lacking, so as to allow for an exercise on information gathering. There would also be a mapping of all data that existed in all the departments. The Chairperson advised that it should be categorically stated that a national database for oceans was going to be established. He added that there was also a need for structures to be in place, otherwise the policy would be meaningless.  

With regard to the ocean environmental knowledge objective, one of the targets was the establishment, in consultation with role players, of ocean ecosystem thresholds for human health and biodiversity conservation. The ocean environmental management objective sought, among others, to provide timeous information on trends and extremes in ecosystems and earth system functioning, as well as the establishment of ecosystem and biodiversity management plans, in consultation with role players. The ocean environmental integrity objective would enhance cooperation at a national, regional and international level to advance sustainable ecosystem-based management of the EEZ, high seas and the Antarctica. Such cooperation would see South Africa working with Mozambique, Namibia and Angola, to ensure uniformity in the norms and standards.
 
Mr Naidoo said that policy indicated that there was sectoral management of the oceans, with each department supporting and facilitating its own industry. The Green and White Papers wanted to move away from the sectoral management to a coordinated, or framework, approach -- something that would be achieved within the next five to 10 years. Some countries, like Portugal, were doing a full integration, with everything regarding the ocean going through one department, while other countries had left it to the coordinated sectoral approach.

In conclusion, Mr Naidoo said that the comments received from the public called for principle and high level objectives before getting to the four themes – this had since been done. The aspect of how government departments would work together had also been addressed, with relevant changes made in the Green Paper.

The guiding principles in the Paper were: the sustainable use and management of ocean resources and ecosystem services in order to benefit present and future generations; the protection of biodiversity in the ocean environment and the conservation of marine ecosystems; the application of the precautionary approach to sustainable use and conservation; the prevention, avoidance and mitigation of pollution and adherence to the “polluter pays” principle; the strengthening of human capacity to deal with a changing environment, including the impacts of climate change; the identification of opportunities which contributed to the development needs of the poor and vulnerable within the population, thus ensuring human dignity; the promotion of collaboration and cooperative governance; and the promotion of an ecosystem and earth system approach to ocean management.

The current strategic objectives were: coordinating and supporting the implementation of the relevant existing statutory and institutional frameworks; establishing mechanisms for inter-sectoral data collection and sharing; creating and maintaining a shared national knowledge base on the human activities, status and functioning of the ocean; establishing integrated ocean management plans by the undertaking of strategic environmental impact assessments and the use of spatial planning tools; enhancing national human and technical capacity to better understand and utilise ocean resources and opportunities; and pursuing regional and international cooperation and governance mechanisms.

Discussion
Mr J Skosana (ANC) asked what would happen to the central part of the ocean after the extension of the area to about 700 kilometres from the coastline.

Dr Mayekiso responded that the water between the different EEZs of different countries was referred to as “the high seas”, and this constituted 60 per cent of the oceans – it was free to all. There were, however, attempts to get a high seas regime to manage the water in such areas.

Mr F Rodgers (DA) commented that one of the challenges to be faced when dealing with multi-sectoral pieces of legislation was that they never worked, because a sector would not be willing to accept responsibility. Portugal did not have a multi-sectoral policy but rather had a ‘stand alone policy’ on oceans that was working – was South Africa exploring this option, or going the multi-sectoral route and if so, was it too late to change?

The Chairperson inquired whether there had been a review of all the legislation dealing with oceans and the international treaties, and whether these had been domesticated. There was a need for thinking on the lines of framework legislation for the ocean, as was the case with climate change, which suggested that the Green Paper had to be adapted to the climate change White Paper. Following up on Mr Rodgers’ question, he said that it was unlikely that the government would have one department dealing with oceans and seas, as Portugal was doing.  He added that for South Africa, the governance structures had to be in place for the framework legislation to work.  The DEA had to get the basics right, and by these he was referring to objectives, principles, governance and a national database.

The Director-General also commented that the option of integrated coastal management legislation was what should possibly be looked at, bearing in mind that there was currently an Integrated Coastal Management Act that legislated over what happened in the coastal zones. The DEA would have to find a way of adapting from policy to legislation.

Concerning the domestication of the international treaties on oceans, Dr Mayekiso said that this had been done, although their implementation was still unsatisfactory.

Ms M Wenger (DA) inquired about the name of the country that was pushing for a high seas regime.

Dr Mayekiso said that the development of a high seas regime was being driven by the United Nations. There was lobbying from non-governmental organisations to have some regime developed.

Briefing on behalf of Nautilus Bay Coastal Reserve
Ms Elmien le Roux, Director/Attorney: Knowles Husain Lindsay Inc Attorneys, in her introduction said that the representations to be made before the Committee were on behalf of the Home Owners Association of the Nautilus Bay Coastal Reserve. She acknowledged the good work done on the Green Paper, describing it as ‘absolutely amazing’ and of immense value. There were, however, gaps that needed to be addressed in order to ensure that the Paper was not an abstract document.

Commenting on spatial planning and ocean use, she said that spatial planning was one of the most important tools for land use management. The draft policy provided for spatial mapping to obtain and disseminate information, and then relied on cooperative governance and interaction with sectoral stakeholders to manage it.  This translated in sectoral management. The policy did not go further, as it did not lay out a map for specific spatial planning and ocean use schemes and zoning, as was the case with the European Union directive that was being finalised, where members were directed to attend to very specific spatial planning. Planning, and the whole process of information gathering, was a mammoth task and it would take a considerable period to gather such information and have it analysed and made available, to make management possible.

The policy did not provide for phased implementation of management, with incremental steps to be taken in order to arrive at a position where management of the immense territory could be achieved. One of the ways moving forward would be to provide for a specific structure to contain the existing uses and knowledge, and then commence with management. All new applications and uses should be dealt with in a structural framework. The type of management that would be required for the outer part of the EEZ would not be the same as that required for the first 12 nautical miles from the coast. The ideal approach would require dealing with the first 12 nautical miles, where much human activity and damage occurred.

With regard to cooperative governance, it was acknowledged in the Green Paper that it was not going to be viable in the long term, and that legislation would have to replace it. Cooperative governance was not even viable in the short term, because there was no specific taking of responsibility. One way of dealing with the issue of responsibility would be through the provision of actual spatial planning and ocean use schemes, similar to what was done on land with specific activities for a particular area. The other problem with the policy was that it contained no provision for monitoring and evaluation of the policy performance.    

Ms Le Roux said that in terms of spatial planning and ocean use, compared to land use, there was not a sufficient link in the policy to provide for synergy and coordination between the ocean and land use, adding that attempts at integrated management could not achieve this. The Integrated Coastal Management’s point of departure was that it was for the management of land activities that impacted on the ocean. The management of ocean uses that could impact on land activities was not provided for.  The policy should be supplemented to provide specifically for the alignment of ocean management within a distance to be determined, with onshore environmental spatial mapping and land use mapping, and adequate consideration of the socio-economic dimensions of the coastal communities and their active participation throughout the management process.
 
Ms Le Roux said the precautionary principle was not highlighted enough in the policy, especially with regard to knowledge gaps -- there was no provision as to how these would be dealt with. She wondered if moratoriums would be imposed in respect of activities where there were knowledge gaps.

The Committee was also briefly informed that the offshore offloading and re-gasification of Liquefied Natural Gas (LNG) was an industrial activity with extremely hazardous and not yet fully investigated consequences and impacts, and because of its unique and specific nature, the impacts should be addressed and provided for in the policy. Given the potential for grave and irreversible harm to the coastline and to the integrity of the maritime environment, there was need for inclusion of a research element in the policy dealing with such an activity.

Briefing on behalf of the South African Pelagic Fishing Industry Association
Mr Jeremy Marillier, Executive Director, Fish SA, gave an introduction outlining Fish SA and its relevance in the fishing sector, adding that it represented about 90 per cent of commercial fishing interests in South Africa. Speaking specifically on the pelagic sector (Anchovy and Sardine), he noted the quantities with regard to the total allowable catches.

There were substantial mergers and acquisition activity in the industry -- an estimated R1 billion over the last two years -- as larger tier companies were consolidating due to market conditions.  At Small, Medium and Micro-sized Enterprise (SMME) level, companies were in survival mode due to the collapse of the hake long-line market and the poor harvesting seasons for squid in some coastal areas like the Eastern Cape, and the price volatility due to exchange rate fluctuation.  The future focus was on small scale fisheries and fishing community empowerment.

In raising the pelagic sector issues, he said that there was a concern with the consultation process that was being followed with the industry with regard to the proclamation of off-shore marine protected areas (MPAs) like the Prince Edward Islands. This would have an effect on commercial interests and the fish species caught around the area. Looking at MPAs and priority fishing grounds, there was a need to balance the interests of the user groups.  Decisions involving the declaration of certain places as MPAs could have an effect on the rational management of the pelagic fishery, and could also have disastrous consequences for the industry as a whole. 

The Committee was informed that research results obtained during the current experimental closure of islands by the Department of Agriculture, Forestry and Fisheries (DAFF) had to date been inconclusive about the benefits, or the lack of benefits, to penguins. Caution had to be exercised about placing restrictions on the pelagic fishing industry that could have negative socio-economic consequences without necessarily resulting in benefits for specific seabird populations. Marine phosphate mining posed a threat to the fishing industry, in particular the trawl sector, and the same danger was posed by oil seismic surveys. 

Although it was indicated that islands would receive prioritised conservation status, the rationale for this was not clear. There were concerns with regard to capacity and budgetary resources for the effective management of MPAs, considering that there was currently insufficient capacity to monitor South Africa’s EEZ. As a way forward, it was proposed that MPA planning should be integrated with the management of fisheries and other maritime industries.

The Chairperson noted that the comments on MPAs were relevant for the review process of the Integrated Coastal Management Act. The Director-General added that there were consultations with various entities, such as the Departments of Mineral Resources, Energy, and Agriculture, Forestry and Fisheries.  

Briefing by Rescue Vleesbaai Action Group
Ms Kimberley Jackson from the Rescue Vleesbaai Action Group (REVAG), congratulated the DEA on the work done on the Green Paper and hoped that this would in due course be converted into a White Paper. There were two positive and laudable policy statements in the Paper that were of note: that the DEA would assume responsibility as the environmental regulatory authority for all unregulated and new human activity in the ocean environment; and that the DEA would establish best practice guidelines governing the transport of harmful and noxious substances in the marine environment.

The Green Paper’s observations were vital, since domestic legislation with respect to the marine space was largely piecemeal; there had been a failure to consider the cumulative effects of the totality of human activities within the marine environment; there was a multiplicity of role-players and no central authority tasked with exercising a general oversight of the maritime environment; and the ocean was not adequately included in the National Environmental Management Act.

Ms Jackson said that there was still a long way to go before the Green Paper could be promulgated into an Act, and only then would the DEA commence with the drafting of the ‘best practice guidelines’. This was problematic in the sense that there was currently a policy and control vacuum for the evaluation of all LNG maritime projects in respect of site, safety and security.  With the current statutes inadequate, LNG maritime projects could cause irreparable damage.

 Until adequate laws were in place, it was fitting that all authorities should suspend the consideration of all applications in respect of maritime LNG product projects – a moratorium should be imposed.  Compared to the United States of America, which had stringent guidelines in place, South Africa lacked such guidelines and it would be proper to have the ‘best practice guidelines’ in place before an environmental impact assessment process could be done.

PetroSA had disclosed details of its proposed terminal for the importation of LNG to be erected in or near Mossel Bay.  The other site being investigated was the pristine bay of Vleesbaai.  The effects of this facility on the area would include devastating marine and ecological impacts that would be caused by the cables and anchors in the sea bed; oil, diesel and waste water; air pollution and noise; an impact on whales and dolphins; and an effect on the temperature of the water by the LNG vessels. There would also be a detrimental effect on Pinnacle Point, which had been declared a heritage site. Fishing and recreational activities, as well as domestic and international tourism, would be affected. The communities living in the vicinity were at risk as they did not know the dangers posed by the facility and this was of greater concern, given the inadequate laws currently in place.

The USA had regulatory laws and guidelines in place to regulate the location of LNG terminals and the operational activities of the terminals. The focus was on safety, security and the environment. The USA Coast Guard also played an important role from the moment that an LNG carrier entered the USA waters until it left – South African law did not provide for such measures. The USA had three regulatory agencies involved in LNG facilities: the Federal Energy Regulatory Commission; Pipeline and Hazardous Materials Safety Administration; and the United States Coast Guard. Each agency had certain roles and responsibilities during the safety, security and environmental reviews of LNG terminal applications.

Ms Jackson quoted Professor Susan L. Sakmar in her book, ‘Energy for the 21st Century: Opportunities and Challenges for Liquefied Natuaral Gas (LNG)’ at pages 178 to 180, who said: “Despite regulatory changes and encouragement by many US energy experts and politicians, the proposed construction of new LNG import terminals in the US generated considerable public opposition...Those proposals struggled for approval due to community concerns about the safety and environmental impact of LNG facilities...In 2003, leading energy expert Daniel Yergin predicted that due to environmental concerns in the US, import terminals would probably need to be built in neighbouring countries such as Mexico and Canada. Mr Yergin’s predictions were correct. To date the only West Coast import terminal to have been built is in...Mexico...In short, no LNG project was successfully executed in the US in the face of staunch state and local opposition.”

 In conclusion, Ms Jackson said that REVAG’s plea to all authorities --and in particular the Departments of Energy and Environmental Affairs -- remained that of an immediate moratorium on all maritime LNG activities until the necessary research had been done locally in respect of the safety and environmental impact, and that laws, policies, norms and standards were in place in respect of the siting, safety and security of LNG import terminals.

Discussion
Mr Naidoo noted that LNG had not been specifically spelt out.   However, under the emerging uses of oceans, a description of all the emerging sectors had been included. Norms and standard looking at the ecosystem would have to be developed.  In the meantime, the presumption was to follow the current EIA in place for any construction in the ocean. The Director-General added that specialist studies were done on an area to determine its suitability, following which an EIA would commence.

Mr Selau sought clarity as to whether the submission implied that activities being carried out by PetroSA in that area should be stopped, and what that would mean for those working there?

Ms Jackson responded that it was not implied that the activities should stop. REVAG acknowledged the benefits of the work carried out by PetroSA.  However, the primary concern had to be the environmental impact which would be irreparable if the project to be launched was not regulated properly. REVAG’s proposal was that South Africa could in the interim, before the drafting of the best practice guidelines, make reference to the World Bank Group guidelines on environmental safety for LNG facilities.

The Chairperson said that it was for the DEA to give the proposal consideration, especially with regard to new applications that would be made in the interim, and the lack of norms and standards.

Mr Selau suggested that for transparency purposes, consultations had to be carried out with PetroSA.

The Chairperson reiterated the need for inclusion of internal governance and the national database in the policy, and for National Treasury to do a proper costing. The Committee expected a report and to be informed of the costing, as well as a briefing on the spatial mapping process.
The meeting was adjourned until the afternoon session.


On the resumption of the meeting, the Committee focused its attention on the Integrated Coastal Management Amendment Bill.

Briefing by Department of Environmental Affairs on the Integrated Coastal Management Amendment Bill
Ms Radia Razak, Director: Legal Services – Law Reform, said that the purpose of the hearing was not a detailed clause-by-clause approach to dealing with the Amendment Bill, but rather an overview of the process, amendments and proposed changes to key definitions as well as proposed solutions.

Process and overview of amendments
Ms Razak said that the Amendment Bill was published for public comment on 25 November 2011, with the process ending on 31 January 2012.  A total of 330 comments had been received from organs of State, NGOs, academic institutions and certain individuals. A special stakeholder workshop had been held on 26 July 2012 to discuss the ‘high-water mark’ – this was held after the comment period, and the Surveyor General and other experts had been invited to attend.  Having considered all the comments, the revised draft had been approved by Cabinet on 7 November 2012 and certified by the State Law Advisers on 18 March 2013.

A number of definitions had been amended to clarify language, broaden terms, or insert definitions which had previously been omitted. The definitions mostly required technical improvements. A few textual amendments/corrections had been made due to errors, incorrect cross references and typos identified after the Parliamentary printing process.

The amendments were also aimed at achieving alignment with the National Environmental Management Act as the umbrella legislation; extending the powers, including delegation powers, of MECs; clarifying the composition and ownership of coastal public property; ensuring that coastal public property did not impact on the ownership of assets and operations of other organs of State; clarifying and expanding provisions on reclamation; simplify the administration of coastal access fee approvals; simplifying and amending powers relating to coastal leases and authorisations; abolishing the National Coastline Committee; revising offences and penalties; and providing for exemptions.

Key definitions
The key definitions proposed for amendment were those relating to ‘coastal waters’, ‘estuary’, and the ‘high-water mark’. According to the current definition, coastal waters meant marine waters that formed part of the internal waters or exclusive economic zone of the Republic referred to in Clause 3, 4 and 7 of the Maritime Zones Act, 1994 (Act No. 15 of 1994), respectively; and subject to Clause 26 of the Act, any estuary. As a solution, ‘marine water’ was excluded from the definition and a clarification of the exclusive economic zone (EEZ), and not just resources, was included. The problem with the current wording was that it was confusing, as “marine water” was not defined (this had been raised in the comments); and that the coastal public property included resources within the exclusive economic zone (EEZ – 200 nautical miles seawards), but not the EEZ itself.

Ms Razak said that ‘estuary’ was another point of contention. There were implementation problems arising from the environmental impact assessment process. A lot of experts had debated the definition of estuary. The proposed wording for ‘estuary’ was: ‘means a body of surface water – (a) [that is part of a water course] that is permanently or periodically open to the sea; (b) in which a rise and fall of the water level as a result of the tides is measurable at spring tides when the water course is open to the sea; [or] and (c) in respect of which the salinity is [measurably] higher than fresh water as a result of the influence of the sea; and where there is a salinity gradient between the tidal reach and the mouth of the body of surface water.’ The problem with this definition was that ‘water course’ was not defined (this had been raised in the public comments); and that certain canal systems needed to be included in estuaries as they had an influence from the sea. A proposed solution was to remove reference to “water course” and to make the definition scientifically wide enough to cover only the canal systems that were influenced by the sea.

The definition of “high-water mark” caused the most trouble. The current definition referred to ‘high-water mark’ as the highest line reached by coastal waters, but excluding any line reached as a result of exceptional or abnormal floods or storms that occured no more than once in ten years; or an estuary being closed to the sea. This wording posed a problem in the sense that it incorporated reference to a 1:10 year flood line.  “Floods and storms” was too restrictive, and there were also concerns as to when the 10-year period was deemed to have started, and the possibility of more than one storm in 10 years. A high-water mark could be determined only after extensive mathematical modelling every six months, especially for sandy coastlines.  Any fixed line other than a natural boundary was rejected by the Surveyor General and the majority of experts, even though what was sought after was a legal certainty. As a solution, the amended wording saw the removal of reference to a 1:10 year flood line and reverting back to wording similar to the previous one contained in the Sea Shore Act, with improvements.

The Chairperson commented that at the moment it seemed to him that the ‘high-water mark’ had become a factual issue requiring the leading of evidence.

With regard to ‘Coastal Public Property’ (CPP) under Clause 7, the problem was that such property could not be owned, since Clause 11 vested ownership in the citizens to be held in trust by the state. The Clause was also confusing, as it was unclear what was in and what was omitted from the definition, considering that this involved a very large area -- it did not exclude buildings and structures below the high-water mark.  Transnet and the DEA had engaged for a long time, as there was a belief by Transnet that all buildings within ports had now became part of CPP and were therefore disowned by Clause 11 - an exclusion from CPP was needed. Solutions had been proposed, but it was still not clear what the appropriate way forward was. Clause 11 had not commenced, pending an amendment to clarify CPP and ownership in respect of Transnet.

As a solution, the DEA had created two separate clauses, with one clause dealing with what comprises CPP and the other dealing with what was excluded.  There was also a proposal to clearly exclude buildings and structures that were below the high-water mark. Notwithstanding the provisions of subclause (1), coastal public property did not include any immovable structure, or part of an immovable structure, including harbour installations and infrastructure, whether located on land or the seabed, lawfully constructed by an organ of state.  Transnet believed that this did not go far enough.

Reclamation (turning sea into land) under the Act was placed under Clause 27 (it was inserted late during the Parliamentary process to address ad hoc concerns). Its current placement was inappropriate and the current Clause 27(6) was inadequate. It was proposed that a new clause more appropriately placed should be drafted with established criteria, and it had to be more comprehensive.

Current position of high-water mark and Clause 14 problems
Ms Razak said that the issue on the position of the high-water mark had generated much debate, adding that it needed to be interrogated carefully.  The DEA had allowed owners to change their moveable boundaries to fixed boundaries, although the Surveyor General was not in favour of this approach.  The problem with the current position was that it posed implementation challenges.  It allowed owners to change their moveable boundaries to fixed boundaries and this would: cut off public access along the coast; could lead to abandoned structures below the high-water mark; and the two- and three-year periods were arbitrary, and would only give room for many complaints. The proposed solution to the ‘position of high-water mark’ was the simplification of procedures, retaining the owners’ property rights as per their title deeds, removing the option to fix boundaries, and allowing for natural movement of the coast.

Exclusion from Coastal Public Property and the abolition of National Coastal Committee (NCC)
Ms Razak informed the Committee that there had previously been an exclusion that had not worked out well, and there were efforts to reverse that exclusion. The proposed solution to the problem on Coastal Public Property was for clarification of ownership of Transnet assets in Clause 7, deletion of provisions allowing for exclusion from CPP in Clause 27, and reversing Parliamentary exclusion of all port footprints.

It was noted that there was a problem of duplication of functions of the NCC when compared with the Intergovernmental Relations Framework Act (IGRF Act). It was proposed as a solution that the existing functioning intergovernmental forums such as MINMEC should be used to perform the functions of the NCC, which itself should be abolished.

Leases on CPP and transitional provisions
The Committee was informed that at the moment, any activity on CPP required a lease or concession, and that organs of state and anyone present in the sea or seashore needed a lease or a concession from the Minister.  The environmental value of the leasing system was questionable as there were already regulatory systems in place.  The proposed solution was for regulation of activities only where there was a legal gap. Some activities would be prohibited, while others would require permits which would replace leases.

With regard to the transitional provisions, it was proposed that there was no need to keep all leases alive, but rather to require all holders of existing leases to submit copies so as to have a complete inventory; to inform listing of activities for coastal use permits; and to identify cases where stricter control would be required. Current holders of leases would be required to produce their leases to the DEA to determine the regime they were under. It would also inform the DEA of the activities that required regulation. The duty was on the holder of the lease, who would also have the option of applying for a coastal use permit.

Offences and penalties
Ms Razak informed the Committee that there were complaints that sentencing was inadequate and that there were gaps in the law, especially with regard to penalties for subsequent offences that were deemed inconsistent. As a result, offences and penalties had been tightened up. There were now only two categories of offences instead of three; and sentences for category two offences had been increased from R500 000 to R2 million.

Briefing by Western Cape Department of Environmental Affairs and Development Planning
Clause 1 definitions
Mr Gary Birch, Head of Component: Environmental Legal Support Services, said that the criteria listed in paragraphs (a) to (c) [(a)permanently or periodically open to the sea; (b) in which a rise and fall of the water level as a result of the tides is measureable at spring tides when the body of surface water is open to the sea; or (c) in respect of which the salinity is higher than fresh water as a result of the influence of the sea, and where there is salinity gradient between the tidal reach and the mouth of the body of surface water] of the definitions of estuary were not necessarily mutually exclusive of one another. The use of “or” was suggested as more appropriate than the word “and”.  Some estuaries would be excluded if there was a requirement for an estuary to fall within all the categories through the use of the word ‘and’.

Speaking on the definition of ‘high-water mark’, he said that the Western Cape did not agree with the proposed deletion of the words ’floods or storms that occur no more than once in ten years’ from paragraph (b) of the definition, since it provided a reference for what was regarded as abnormal or exceptional. The wording ‘‘that occur no more than once in ten years’ in the paragraph was suggested, maintaining the time period.

Clause 7 – Composition of Coastal Public Property and Clause 13 – access to Coastal Public Property
Mr Birch said that if the intention of the Bill was to include the seashore of estuaries into coastal public property, then this could be problematic, as the property boundaries of many land owners who owned property adjacent to estuaries extended to the middle of the estuary. This would result in those land owners losing ownership of such property below the high-water mark.

The Chairperson said that such property, if it existed before the legislation, would be saved under Clause 7A and as such was excluded as coastal property.

In terms of Clause 13 on access to coastal public property, it was proposed that the words ‘unless otherwise provided for in this Act’ be added to Clause 13(3) paragraph (a) so as to allow for the proposed Public Launch Site and Off-road Vehicle regulations to permit fees to be charged. It was also proposed that an insertion of the words ‘that are not considered facilities or activities for the purpose of obtaining access to coastal public property’ be made in Clause 13(3) (d), because facilities such as slipways were not there as access to the CPP but rather there, among other uses, as a boat launching site.

Speaking on Clause 13(5) paragraph (a), Mr Birch said that the proposed amendment implied that fees, including fees higher than the prescribed maximum -- without making an application in terms of Clause 13(3)(c) -- could be charged by the manager of a site if a Clause 65 permit had been issued. Therefore, if the Clause 65 permit did not expressly state that no fees should be charged, then this would permit fees to be charged, including fees higher than the prescribed maximum. 

Position of high-water mark – Clause 14
Mr Birch informed the Committee that the proposed amendment had implications for the movement of the high-water mark and its effects on property rights, particularly with respect to erosion and accretion. The effects of the amendments were that in the event of someone's property being eroded, that property would immediately cease to be their property and in case of accretion, they would gain ownership of that portion.  The enforcement of the amendment would thus become difficult, so it was suggested that the reference point of a period of three years from which to determine when this provision would be enforced, be retained. 

Clause 14(6)(a)
The Committee was informed by Mr Birch that the proposed amendment of the Clause was not supported, as it was not in line with Clauses 6A (Purpose of coastal public property) and 7 (Composition of coastal public property). It was proposed that private property should not be extended as a result of accretion. CPP was inalienable and as such, coastal public property could not be lost or converted to any other designation.

Measures affecting erosion and accretion – Clause 15
The use of the word ‘or’ in the amendment at the end of Clause 15(2) in the words ‘or any other law’ implied that if another law permitted the construction of a structure on coastal public property (for instance a municipal bylaw) then the Integrated Coastal Management Act would not have to be complied with.  It was proposed that the insertion ‘and any other law’ be used instead.

Coastal protection notice and coastal access notice – Clause 59 and environmental authorisations for coastal activities – Clause 63(1)(f)
The Committee was informed that subclause (1) had been changed to include the MEC (Member of the Executive Council) but this had not been similarly done for the rest of the Clause. It was suggested that the necessary changes be made to the other clauses.

Mr Birch said that the proposal to delete Clause 63(1)(f) which provided that: ‘Where an environmental authorisation in terms of Chapter 5 of the National Environmental Management Act is required for coastal activities, the competent authority must take into account all relevant factors, including - (f) the likely impact of the proposed activity on the coastal environment, including the cumulative effect of its impact together with those of existing activities”, was not supported because  the cumulative effect of a proposed activity had to be taken into account while deliberating whether environmental authorisation should be granted.

Clause 63 and terms of coastal leases and coastal concessions – Clause 66
It was proposed that a consideration be made for making Clause 63 applicable to all authorisations or decisions in the coastal zone and not only environmental authorisations under the National Environmental Management Act.

Mr Birch informed the Committee that the Western Cape was not in agreement with deleting the reference to the maximum time period of 20 years, adding that if the time period was problematic, then a consideration of increasing it to a more appropriate specified maximum time period could be a solution.

Unlawful structures on coastal public property – Clause 96 (1) and (1)(b)
The Committee was informed that there was no requirement for a person who unlawfully constructed a building or other structure on coastal public property to notify the relevant authorities, so it was proposed that a such requirement of notice be inserted by the inclusion of the words ‘...notify the Minister and relevant MEC thereof...’

Similarly, there was no requirement under Clause 96(1)(b) for a person who unlawfully constructed a building or other structure on coastal public property to notify the authorities after rectification had taken place. It was therefore proposed that an insertion of the words ‘and supply the relevant authorities with reasonable proof thereof” to the provision, to rectify this gap.

As a general comment based on Clause 24L of the National Environmental Management Act, which stated that “A competent authority empowered under Chapter 5 to issue an environmental authorisation in respect of a listed activity or specified activity may regard such authorisation as a sufficient basis for the granting or refusing of an authorisation, a permit or a licence under a specific environmental management Act if that specific environmental management Act is also administered by that competent authority”, Mr Birch said that a similar clause with the necessary changes could be inserted in the Integrated Coastal Management Act to allow for another competent authority to base a decision for a coastal discharge permit, without having to go through the whole process of an environmental impact assessment.

Briefing by Eastern Cape Department of Economic Development, Environmental Affairs and Tourism on Integrated Coastal Management Amendment Bill
Mr Sandiso Zide, Manager: Coastal Zone Management - Eastern Cape Department of Economic Development, Environmental Affairs and Tourism, said that the Eastern Cape was supportive of the Amendment Bill, although there were a number of issues to consider.

Clause 1: Exclusion of local municipality in definition of ‘municipality’
Mr Zide said that clause 1 of the Bill excluded “local municipality” in the definition of “municipality.”  This would cause a problem with regard to the implementation of some of the provisions of the Bill (or Act) --which provisions would be the direct responsibility of a local municipality by nature, such as coastal access land under clause18 of the National Environmental: Integrated Coastal Management Act, and the establishment of estuarine management plans under Clause 33 of the same Act?  He added that district municipalities would have to enter into an agreement with local municipalities if a provision of this Bill had to be implemented by a local municipality, but this would cause some practical difficulties in the actual implementation of the provisions of the Bill, because local municipalities were independent and had their own integrated development plans.  These had a direct influence on the coastal zone/area, such as the Ingquza Local Municipality Coastal Management Plan.

Proposed definition of municipality
As a result, it was proposed that the definition of municipality in clause 1(s) (b) (ii) should read thus: “the local municipality, if specifically mentioned in the Act or if the district municipality, by written agreement with the local municipality, has assigned the implementation of that provision in that area to the local municipality”. Upon adoption of the definition, the clauses dealing with the coastal access land (Sec 18), coastal management lines (Sec 25) and estuarine management plans would accordingly refer to “local municipality.” He further proposed that the responsibility given to municipality should also be given to local municipalities that were actually responsible for the coastal access to land.

The Chairperson asked the DEA to carry out research on this and then revert back to the Eastern Cape with regard to the findings. If the findings revealed that the correctness of the submission, then the provision would have to be amended.

Clauses 18, 25 and 65
Connected to the proposed definition, Mr Zide suggested that, where “municipality” was mentioned in Clauses 18 and 25, it had to read “municipality or local municipality…..”. It was also observed that there was a missing word “coastal” in number 31 for the Clause 65 heading of the Act, and that it had to be read as “Award of coastal [leases and concessions] use permits on coastal public property”.

Clause 95
Mr Zide said that the role of the MECs in Clause 95 had to be clarified for the leases that had been issued in the coastal provinces in terms of the Sea Shore Act, as some of the provisions of the Sea Shore Act were still assigned to provinces. The concern was whether the Minister would not determine the extent and nature of existing uses for areas leased by provinces, when read with Clause 65.

Discussion
Mr Selau, speaking on the independence of municipalities versus the need for all the agreements to go to the Minister, said that this was an issue that had to be discussed further by the Committee.

The Chairperson said that the Committee was going to discuss this and other issues at a later meeting.

Briefing by University of Cape Town: School of Architecture, Planning and Geomatics
Dr Jennifer Whittal, Associate Professor: University of Cape Town: School of Architecture, Planning and Geomatics, said that she had previously made submissions on the Act and the draft Bill, most of which were around the high-water mark definitions. She noted her support for the amendments made to the high-water mark definitions, terming them ‘a good thing’.  From a surveying point of view, it was difficult to survey a one in 10-year storm because of a lack of evidence of it on the ground, and one could not wait another 10 years to survey property. The other problem with the 1:10 year storm was that it did not have a legal definition.

The Committee was also informed that a person walking on the seashore needed to know if he or she was on public or private property and this would require such a person to look at evidence at the seashore – a 1:10 year storm did not leave such evidence. The evidence of the annual storm was the boundary beacon, which was evidence of ownership, and from this people would be able to tell if they were on public or private property.

Speaking on the point of the high-water mark moving with the high water, Dr Whittal said that high-water was different from high-water mark. High water was the instantaneous height of the water at a particular time, depending on the tide and weather conditions. High-water mark, under the Sea Shore Act, was an annual thing, although under the Amendment Bill it was annual by exclusion. It included everything excluding exceptional and abnormal storms. Surveyors would carry on as usual by considering evidence of annual storms, apart from exceptional rare occasions, in which case one would look at a combination of very extreme stormy weather conditions coinciding with the spring tide cycle, and that would constitute the high-water mark.

Estuaries
With regard to the definition of estuaries, she said that she was still unclear as to legal meaning of estuaries closed and open to the sea. Although there was an environmental classification of open and closed estuaries, this was not a legal definition or classification. Clarification was critically important, as the there was a possibility of the sea shore extending way inland for an open estuary and not for a closed estuary. Land bordering on estuaries was often of high value and this was likely to be contested if not clarified.  It was suggested that “open estuary” be defined as ‘an estuary which has been open to the sea for any period of time in the previous 10 year period’ (this would include those temporarily open to the sea and those permanently open to the sea) and “closed estuary” defined as ‘estuary which has not been open to the sea in the previous 10 year period’  She also supporting the proposal by the Western Cape of using ‘or’ for the three criteria on estuary that required an estuary to fall in any one of the definitions and not requiring that it fell in all three.

Clauses 14(5)(c) – erosion and Clause 14(6) - accretion
Dr Whittal suggested that this Clause which provided that: ‘If the high-water mark moves inland of the boundary line of a land unit due to the erosion of the coast, sea-level rise or other causes, the owner of that land unit ...’ should be replaced with: ‘If the high-water mark is landward of a straight line boundary of a coastal land unit when this Act took effect, or if the high-water mark moves landward of that boundary line due to the erosion of the coast, sea-level rise or other causes, the owner of a coastal land unit…’  In the case in which the boundary line was the high-water mark, the boundary line could not move seaward of itself. She suggested the removal of the phrase ‘of the boundary line of a land unit’ and talk about landward instead of inland. The high-water mark could move landward or seaward without reference to any boundary line or any other object – landward and seaward referred only to the terrain and the sea.

With regard to accretion, she said that high-water mark boundaries would move seaward in an ambulatory manner as they always had done. The wording in Clause 14(6) providing that: ‘Boundaries a set distance from the high-water mark may not be ambulatory’ was in conflict with Clause 30(d) of the Land Survey Act which stated that if any land had an imaginary curvilinear boundary at a stated distance from an ambulatory physical feature, that boundary would not be subject to any positional change after registration of that land had taken place. There were no-longer cases in which a high-water mark boundary could be replaced by a straight line boundary, so there was no need to consider this possibility as in the past (clause 14(a)(1)).

Differences between the Sea Shore Act and the Integrated Coastal Management Act Clause 14(5)(c)
Dr Whittal said that under the Sea Shore Act, the straight line seaward boundary and beacons became submerged and as such, sea shore ownership vested in the State while a curvilinear/fractal and ambulatory high water mark boundary moved with the physical high-water mark and gradual erosion and accretion. Under the Integrated Coastal Management Act and in the case of a curvilinear/fractal and ambulatory high-water mark, the boundary moved with the physical high-water mark and gradual erosion and accretion, as was the case in the Sea Shore Act. The only difference was that the straight line seaward boundary and beacons were replaced with the high-water mark where it was in the inland and the owner could gain land back to straight line in case of accretion.

With regard to the concept of the coastal protection zone (CPZ) under Clause 16, Dr Whittal said that
the inclusion of some land units would cast the CPZ far into the interior and way beyond what could be considered the coastal environment. Some land parcels had clauses close to the coast, but were very large and the whole land unit was then burdened as being part of the CPZ. Such complications required further consideration by the DEA.

The Chairperson proposed that the DEA should have a discussion on Clause 16 with Dr Whittal on the CPZ to see if something appropriate would be drafted.  

The meeting was adjourned.