ATC131029: Report of the Portfolio Committee on Water and Environmental Affairs on the National Environmental Management: Integrated Coastal Management Amendment Bill 2013 [B8- 2013] [National Assembly – section 76], dated 29 October 2013.

Report of the Portfolio Committee on Water and Environmental Affairs on the National Environmental Management: Integrated Coastal Management Amendment Bill 2013 [B8- 2013] [National Assembly – section 76], dated 29 October 2013.

The Portfolio Committee on Water and Environmental Affairs (the Portfolio Committee) having deliberated and considered the subject matter of the National Environmental Management: Integrated Coastal Management Amendment Bill [B 8 - 2013] (National Assembly – section 76) (Amendment Bill), referred to the Portfolio Committee and classified by the Joint Tagging Mechanism (JTM) as a section 76 Bill, agrees with the classification as a section 76 Bill and reports the Amendment Bill with amendments [B 8A – 2013].

The Portfolio Committee processed the Amendment Bill, by receiving briefings from the Department of Environmental Affairs (the Department), calling for written submissions from the public, hosting public hearings for oral submissions by the public and the Portfolio Committee engaged in deliberations on the Amendment Bill.

The Portfolio Committee, mindful of the need:

(a)   for development of our country;

(b)   to effectively track and improve environmental management systems; and

(c)   to monitor the environmental sustainability of development, particularly relating to  coastal public property, which is held in trust for the benefit of all citizens and the importance of managing development activities in the sensitive and dynamic coastal zone area, particularly within the sea, decided to support the following amendments:

Decided to support the following amendments:

1. Amendment of definitions

Certain definitions are amended to clarify their meanings and usage. These include technical improvements to definitions such as "estuary", "high water-mark", and "land unit". It is proposed that the scope of "coastal waters" be expanded by including the exclusive economic zone (EEZ) and the continental shelf. New definitions are proposed for insertion as a consequence of proposed amendments to the Act, e.g. the definitions for “access fee”, "reclamation" “harbour” and "port".

2 Section 2 : Insertion of coastal protection zone in the objects clause

It emerged from the public comments that the coastal protection zone was erroneously omitted from the objects of the Amendment Bill.

3 Section 6: Insertion of new subsection 4 to clarify ownership of organs of state

This clause clarifies the ownership and status of assets owned by organs of state, like Transnet, within coastal public property and that they can continue to enjoy the use and control of the sea space within ports and harbours.

4 Amendment of section 7:  Coastal public property

The Act creates the notion of “coastal public property” (CPP), which comprises the territorial waters of South Africa up to the high-water mark and includes admiralty reserves. In other words, the beaches, sea and sea-bed which occur below the high-water mark form part of coastal public property. Section 11 of the Act (which is not yet in operation) vests ownership of these natural assets in the citizens to be held in trust by the State. Section 65 (also not yet in operation) prohibits occupation of CPP without a lease from the Minister of the Department of Environmental Affairs (the Minister). Coastal Public Property cannot be sold or leased.  The Act did not clearly specify whether the infrastructure below the high water-mark also formed part of coastal public property and as a result, organs of state, such as Transnet, felt uncertain about the status of their assets within ports.  Transnet, for example, leases out spaces on jetties which extend into the sea in order to fund port operations. They are concerned that the Act may be interpreted as divesting Transnet of its ownership and right to lease these jetties. In addition, they are concerned that the 20-year limitation on leases in section 65 limits their ability to secure finances through long-term leases. Clause 4 seeks to clarify that coastal public property does not include assets or infrastructure above or below the high water-mark. Hence the Act would not negatively impact on their leases as they would not be subject to the ownership and lease restrictions in sections 11 and 65.

5 Insertion of new section 7A: The purpose of the coastal public property

Public comments revealed that whilst the purpose of the coastal protection zone is fully covered in section 17 of the Act, there is no similar clause in respect of coastal public property. A new section is therefore proposed.

6 Insertion of new section 7B:  Reclamation for purposes of state infrastructure

Section 27(6) of the Act briefly addresses reclamation. The section was inserted late during the parliamentary process to address ad hoc concerns that arose when the Portfolio Committee was considering the Act.  It was inappropriately placed and the current provision in section 27(6) is inadequate. The Amendment Bill proposes an insertion of two new comprehensive clauses in a more appropriate place in the Act. In addition, a definition for “reclamation” was inserted under clause 1.This clause deals with the process to be followed in respect of reclamation for state infrastructure purposes.

7 Insertion of new section 7C: Reclamation for purposes other than for state infrastructure

This clause sets out the process for all reclamation other than for state infrastructures purposes. The main difference in the process is that these types of reclamation can only be approved by the Minister with the pre-approval ratification of Parliament and once reclaimed, such land becomes coastal public property which is subject to a lease with the Minister.

8 Amendment to section 8:  Consequential amendment

This proposed amendment is a consequential amendment to the insertion of section 6A – the purpose of coastal public property.

9 Deletion of section 10 relating to the designation of state land for certain purposes

This clause contains very similar provisions to section 8 of the Act and appears to achieve the same purpose and was creating confusion. It is, therefore, being deleted as the provisions in section 8 can achieve the same objectives.

10 Amendment of section 13:  Access fees to coastal public property

Section 13 of the Act currently obliges a person to obtain the approval of the Minister before charging access fees to coastal public property. The current provisions result in multiple individual applications being made to the Minister for permission to charge any access fees to coastal public property. Fee payers would include municipalities, boat-clubs, events organisers, etc.  This would result in hundreds of applications which need to be responded to and delays in processing such applications may negatively impact on municipal revenue. To streamline the process and standardise access fees, it is proposed that the Minister publish a maximum fee and anyone who wishes to charge a higher fee would only then have to apply to the Minister, justifying the need.  In addition, it is made clear that access fees are not to be confused with the costs of tickets for commercial activities that take place on or in coastal public property, e.g. a trip to seal island or a beach volley ball event. The term “access fee” has therefore been defined. In addition, an offence has been created in relation to blocking public access to coastal public property.

11 Amendment of section 14:  High-water mark

After the stakeholder engagement on the high water mark, it became apparent, particularly from the Surveyor-General, that the substitution of the high water-mark for a straight line boundary was no longer necessary as those properties that were bounded by the high-water mark would gain or lose land depending on the natural movement of the high-water mark.  Allowing a property owner to determine a fixed line could potentially create unfair land grabs of coastal public property which would impact on the public’s access to the beach.

The relevant sections have therefore been deleted and the remaining sections clarify the consequences of the high-water mark moving inland.

12 Amendment of section 15:  Erosion and accretion

This proposed amendment to section 15 of the Act is intended to align it with National Environmental Management Act and other specific environmental Acts.

13 Amendment of section 16:  Composition of the coastal protection zone

The proposed amendments to section 16 of the Act address textual corrections and a technical change to increase the surface area of flood prone areas as a consequence of climate change. Public comments pointed out that relevant parts of rivers were not part of the coastal protection zone and this is corrected through the proposed amendment to section 16(1) (f) .The proposed amendment to section 16(1) (i) is intended to refer to flooding only from the sea and not from storms upstream from rivers. It is therefore limited to areas adjacent to the other categories of the coastal protection zone. If not, it could potentially cover areas of land that are nowhere near the sea.  In addition, the 1:100 year flood line is more appropriate in light of climate change.

14 Amendment of section 17:  Terminology

The proposed amendment seeks to clarify terminology. The term “coastal waters” is more accurate in the context.

15 Amendment of sections 18 and 19:  Designation of coastal access strips

Currently, there is no power to intervene if a municipality fails to designate coastal access land which is an essential function in complying with the objectives of the Act.  Given the Department’s strategic focus on access of beaches by the public, it is important to empower the Member of the Executive Council (MEC) and failing the MEC, the Minister to act if a municipality fails to do so.  Provisions clarifying the nature of the public servitude, which is created once access strips are designated, are also amended.

16 Amendment to section 22:  Powers of Minister to excise protected areas

This clause has been amended to insert the wording from section 87 which allows the Minister to exercise powers in relation to excising national protected areas from the coastal protection zone.

17 Amendment of section 25:  Coastal set-back lines

There was confusion between EIA development set-back lines (in terms of the NEMA Environmental Impact Assessment (EIA) regulations) and coastal setback lines under this Act. It is, therefore, proposed that ‘coastal setback-lines’ be changed to ‘coastal management lines’.  The proposed amendments to these sections are consequential to that change. In addition, a few problems were raised during the public consultations. The Act, in section 26, provides that coastal boundaries may be determined or adjusted by notice in the Gazette .  However, section 25 of the Act provides that the MEC must in regulations establish or change coastal (set-back) management lines.  Provinces point out that they are currently experiencing difficulties and have to amend some of their set-back lines.  It is in fact easier to withdraw or amend notices as opposed to amending regulations, it is therefore proposed that the MEC be given the power to publish a notice in the Gazette to establish or change coastal set–back lines, similar to the powers in section 26 (adjustment of boundaries).  The MEC may then still by way of regulations prohibit or restrict the building of structures seaward of that coastal set-back line.

18 Amendment of section 26:  Insertion of Minister’s powers in respect of the coastal protection zone

This amendment inserts similar wording to what is contained in section 22 to make it clear that where such powers, as described in section 26, are exercised in certain circumstances in the coastal protection zone, the Minister must exercise them.

19 Amendment of section 27:  Determining and adjusting the boundary of coastal public property

During the Parliamentary process when enacting the Act, an attempt was made to resolve the issue relating to the status of Transnet’s assets within coastal public property (see paragraph 4 above) by inserting a power to exclude areas from coastal public property with the ratification of Parliament. Such ‘exclusion’ was effected prior to the commencement of the Act, whereby certain portions of ports under the control of Transnet were excluded from coastal public property, which resulted in unintended and undesirable consequences for both Transnet and the Department. Transnet found itself in a worse position after the exclusion, as the ports which were previously coastal pubic property now became state-owned land, placing them in an equally precarious situation regarding their ownership status. From an environmental perspective, an unintended consequence of exclusion of an area of sea and sea-bed from CPP meant that the excluded portion of the sea and sea-bed could be privately owned, thereby subverting the principle established in the Act – that the sea and sea-bed cannot be owned privately. It is therefore necessary to delete the provision empowering the Minister to exclude coastal public property, as clarity relating to what constitutes coastal public property has now been addressed in section 7 as amended.

The reclamation provision in section 27 of the Act was inserted late during the parliamentary process to address ad hoc concerns that arose when the Act was being considered by the Portfolio Committee.  It was inappropriately placed and the current provision in section 27(6) of the Act is inadequate. Two new clauses have been drafted and more appropriately placed through an insertion of sections 7B and 7C.

20 Amendment of section 28: Adjusting coastal boundaries

This amendment inserts similar wording to what is contained in section 22 to make it clear that where such powers, as described in section 26, are exercised in certain circumstances in the coastal protection zone, they must be exercised by the Minister.

21 Amendment of sections 33 and 34: Estuary management protocol and estuary management plans

Section 33 was amended to change the terminology to reflect that the National Estuarine Management Protocol should be published in the Gazette by notice and not prescribed by regulations. Section 34 was amended to insert additional criteria when compiling a management plan and also inserted additional reporting criteria for monitoring progress on development and implementation of these plans.

22 Amendment of sections 35 – 37 and section 39:  National Coastal Committee

The sections of the Act, relating to the National Coastal Committee have been revised to streamline the provisions and create more flexibility with the appointment of representatives. This flexibility will allow the functions to be performed by any existing forum such as a MINTEC working group.

23 Amendment of sections 38, 51 and 56:  Corrections and improvements to text

The Amendment Bill proposes to correct a cross-reference in section 38 of the Act, align the wording of section 51 with NEMA, and make a textual improvement to section 56 of the Act.

24 Amendment of section 59:  Extending powers of MECs

The Act erroneously failed to give an MEC the power to issue coastal protection notices and coastal access notices. Clause 30 of the Amendment Bill proposes to correct that omission and to cover a loophole in the criteria for issuing such notices. In addition, the wording in section 59(3) of the Act appears to be in conflict with the powers of the MEC as it relates to delegations in terms of section 91.  It is therefore proposed that section 59(3) be deleted.

25 Amendment of section 60: Correction

Section 60(3) of the Act erroneously gives the Minister the power to delegate a power to the MEC, while subsection (1) already assigns the original power to the MEC.  The Amendment proposes to correct this. There is also a significant typographical error which will simultaneously be addressed.

26 Amendment of section 62:  EIA report

Section 62(2) of the Act requires an organ of state to first consider an environmental impact assessment report before authorising land to be used for activities within the coastal protection zone which may have an adverse effect on the coastal environment.  Since the NEMA Environmental Impact Assessment (EIA) Regulations already cover activities which may have an adverse effect on the coastal environment, this section is unnecessary. In addition, it is unclear what is meant by an "environmental impact assessment report" and it is assumed to be a reference to the report under the EIA Regulations, although it is not clearly stated so. An EIA report is only one component of an environmental authorisation process so this terminology is inaccurate. It is therefore proposed to delete subsection (2).

27 Amendment of section 63:  Criteria for considering EIAs for coastal activities

The criteria in section 63 of the Act have given rise to interpretational difficulties for competent authorities.  The factors listed for which authorisation must be refused are so broad, that it could potentially prevent competent authorities from granting authorisations.  The amendment proposes to address this problem by incorporating the exclusionary criteria as part of the general criteria to be taken into account by competent authorities when considering EIA applications.

28 Amendment of section 64:  Minister’s override

The Amendment Bill proposes the deletion of section 64 of the Act. This section currently gives the Minister an override power over a competent authority to issue an environmental authorisation in certain circumstances, which creates a parallel process to the appeal process in NEMA and causes confusion.

29 Amendment of sections 65 and 66:  Coastal leases and concessions

The original need for coastal leases was to generate funds and to control activities within coastal public property. Section 66 of the Act, which provides for leases of coastal public property is administratively cumbersome, over-regulatory and has a potential unintended impact on other organs of state that operate within coastal public property. In addition, it is not practical to subject every activity on coastal public property to a lease as not all activities have impact and it would therefore serve no real environmental value. As a result, it was not put into operation when the Act commenced in 2009.

The Amendment Bill is proposing to replace the leases with coastal use permits whereby the Minister is authorised to list activities which require a permit, thereby removing the blanket requirement that all activities on CPP require a lease. It is intended to create a mechanism to only regulate certain activities which impact on coastal public property but which are not appropriately dealt with under other environmental legislation such as the NEMA Environmental Impact Assessment Regulations.  The time limitation of 20 years has been retained as a maximum period for which a permit may be issued.

30 Insertion of a new section 66A:  Leases in admiralty reserve

Since admiralty reserve forms part of coastal public property, there needed to be a clause inserted in the Act to determine how existing leases on admiralty reserve, which are primarily managed by Public Works, should be dealt with. The new section now indicates that such leases should continue to be managed by the appropriate authority but in accordance with the objects of the Act.

31 Amendment of sections 68, 74, and 83

These proposed amendments are consequential to the change in terminology from “authorisation” to “coastal authorisation” – see definitions. The term authorisation was causing confusion with EIA authorisations and was therefore proposed for amendment.

32 Amendment of section 69:  Consequential amendment

The proposed amendment is a consequential amendment to the amendment to the definition of authorisation and the reporting with respect to pipelines is now covered under the section 93.

33 Amendment to section 70:  Dumping

The proposed amendment is a consequential to the amendment of the definition of ‘coastal waters’ and ‘sea’. ‘Coastal waters’ currently covers the Republic’s territorial waters (12nm) but excludes the exclusive economic zone – 200 nm (EEZ). It would mean therefore that cabling and pipelines etc. that require coastal authorisations would require no authorisation if they extend beyond the 12 nm. It was therefore considered necessary to extend it to the EEZ as well.

34 Amendment of section 71:  Dumping permits

There are a limited number of activities for which the Minister may issue dumping permits under section 71 of the Act.  There may be circumstances where additional categories are required as changes occur in the international regime which governs dumping, namely the London Dumping Protocol 1996, to which South Africa is a signatory.  The amendment proposes to give the Minister the power to prescribe in regulations, additional waste and other material that may be permitted without the need to continuously amend the Act as and when new categories occur.  The amendment also proposed to clarify the time period for validity of a permit which is ambiguous.

35 Amendment of sections 79 – 81: Offences and penalties

There have been complaints that the penalties are inadequate and that there are gaps in the sentencing provisions. Sections 79 to 81 of the Act (offences and penalties) have been tightened up. There are now only two categories of offences instead of three and the sentences for category two offences have been increased. A subsection has been inserted to allow a High Court to impose a higher penalty than stipulated in the Act. In addition, the proposed amendment to section 81 deals with extra-territorial jurisdiction of South African courts and improves the text regarding the jurisdiction of courts in respect of offences in terms of the Act.

36 Amendment of section 84:  Terminology

The proposed amendment is consequential to the amendment of the definition of “coastal set-back lines”.

37 Amendment to section 85:  Penalties for regulations

There was initially no maximum limit set for offences in regulations but this has now been inserted to provide certainty as to the upper limit of the Minister’s powers.

38 Amendment of section 87:  Powers of the Minister

This section is proposed for deletion as a consequential amendment to inserting these provisions in each section e.g. sections 22, 26, 28 and 83 where powers relating to the coastal protection zone must be exercised by the Minister.

39 Amendment of section 89:  Delegations by the Minister

This clause clarifies the powers which the Minister may not delegate.

40 Amendment of section 90:  Correction

The proposed amendment is consequential to the amendment of the definition of ‘coastal set-back lines’.  It also proposes a correction to subsection (1) (d) of the section for clarity purposes.

41 Amendment of section 91:  Delegations by MECs

The Act erroneously does not allow an MEC to delegate to an official within his or her department. This amendment proposes to correct this.

42 Amendment of section 92:  Urgent action by Minister

Following requests during the public comment period, it was considered appropriate to give this power to the MEC to allow for improved efficiency in urgent situations, hence the proposed amendment to subsection (1).  This proposed amendment to subsection (3) is consequential to the proposed amendment to section 59 of the Act.

43 Amendment to section 93:  Reporting

This section has been amended to create more specific provisions with regards to reporting by the Minister.

44 Proposed insertion of new section 94A

There is a probability that many organs of state may require exemptions from certain provisions. Unforeseen situations need to be accommodated without the need for an unnecessary statutory amendment. It is therefore proposed that an exemption provision be inserted so as not to hinder service delivery. The provision is similar to that it in the Marine Living Resources Act (MLRA), 1998 (Act No. 18 of 1998), which exemption clause has been approved by the courts.

45 Amendment to section 95:  Transitional provisions relating to leases

Since it is proposed that the concept of leasing in section 65 be replaced with coastal use permits for activities which are yet to be listed, there is no need to keep existing leases alive. The reason being that some activities which are currently governed by leases may not require a permit in terms of the new section 65. An example of this is the use of slipways, for which there is no real need for a permit as they would already have undergone environmental scrutiny through the Environmental Impact Assessment process. The only value therefore in asking for all existing leases, would be to assist the Department in determining which activities currently under lease (in terms of the Sea-Shore Act, 1935 (Act No. 21 of 1935), would need to be listed as requiring a coastal use permit under the new section 65. It is therefore proposed that copies of all existing leases be submitted to the Minister within 24 months. In addition, more specific subsections have been inserted to clearly indicate what process a person must follow when the section comes into effect and whether their lease lapses or whether they must apply for a permit.

46 Amendment to section 96:  Transitional provisions relating to unlawful structures

The proposed amendments are consequential to the amendment to section 65 of the Act – i.e. the new regime of coastal use permits which replace leases and explains the detailed processes that must be followed by the public.

47 Correction by deleting section 97

A transitional provision based on earlier versions of the Act, which were subsequently changed, was erroneously retained and is creating confusion. Section 97 currently saves activities which were previously listed in a schedule. It was subsequently decided to integrate these activities with the NEMA EIA provisions and this section no longer serves a purpose.

48 Proposed insertion of new section 97A

Parliament excluded certain portions of ports from coastal public property prior to the Act commencing in 2009.  The exclusion had unintended and undesirable consequences for both Transnet and the Department. Transnet found itself in a worse position after the exclusion, as the ports which were previously coastal pubic property now became state-owned land, placing them in an equally precarious situation regarding their ownership status. From the environmental perspective, an unintended consequence of exclusion of an area of sea and sea-bed from coastal public property meant that the excluded portion of the sea and sea-bed could be privately owned, thereby subverting the principle established in the Act – that the sea and sea-bed cannot be privately owned and is held in trust by the State.  It is necessary to nullify that exclusion in the legislation, as section 7 of the Act dealing with coastal public property, now clearly excludes port infrastructure and structures/assets from coastal public property and there is no longer a need for exclusions from coastal public property.  It is important to retain the principle that the sea and sea-bed is not capable of ownership and is held in trust by the State.  Allowing for exclusion subverts this principle.

49 Amendment of section 101:  Short title and commencement

There is no legal or practical impediment to allowing all of the proposed amendments to come into effect six months after publication of the assented Amendment Bill.  Therefore, the Amendment Bill will come into operation six months after being published by the President in the Gazette in terms of section 81 of the Constitution of the Republic of South Africa of 1996 or an earlier date if proclaimed by the President.

B. Resolution dealing with outstanding matters

During the processing of the Amendment Bill three major issues relevant to the implementation and subject matter of the Amendment Bill became apparent, which aspects are hereby recorded for future action by the Department:

(a)    Sea mining: It is noted by the Portfolio Committee that this Amendment Bill does not deal with the important issue of sea and seabed mineral and resource exploration and exploitation. There is currently a gap in the environmental legislative framework as regards specific legislation relating to seabed exploration and exploitation. The National Environmental Management Act, No. 107 of 1998 (NEMA), does contain provisions which will cover certain aspects of sea mining, including the environmental impact assessment regulations and general duty of care, which can be applied to sea mining. There is, however, no specific provisions in the Amendment Bill or other specific environmental management acts which directly relate to sea mining. It is noted that the Department is in the process of developing an Oceans Policy, which does discuss the impacts and need for monitoring of mining in the sea, but there is no legislation which adequately regulates this aspect and it is therefore essential that once this policy process is concluded, appropriate legislation is introduced to create an environmental framework to regulate and monitor this activity.

(b)   The Portfolio Committee noted the recent occurrences of shipping incidents along the South African coastline accompanied by coastal oil pollution; and noting the report of the Department on the legal, institutional and operational arrangements for response to such incidents, including the inherent challenges of such arrangements, and historical aspects, resolves:

(i)           that a review is carried out on the legal framework governing the Department’s pollution combating functions and the overlapping mandate with the Department of Transport and their role and function with regard to shipping and marine pollution; and

(ii)          noting the serious effects that such incidents could have on the coastal and marine environment, including the potential for significant prejudice to the public, the Department should enter into negotiations with the Department of Transport to identify options for rationalisation of the marine pollution function as it relates to shipping.

(c)        Clause 13 amending section 18 of the Act, relates to the designation of strips of coastal access land by municipalities and the subsequent registration of a public servitude. This clause and the Act itself rely on the cooperation and effective implementation and action by all three spheres of government. One of the essential functions which have been assigned to municipalities is section 18 of the Act, which relates to the designation of strips of coastal access land and the subsequent registration of servitudes in favour of the public. This provision will ensure that the public has reasonable access at designated points along the coast to the beach and sea areas as part of coastal public property. In light of this important function, section 18 has been amended to include a provision which allows the Minister to perform the function of designating coastal access land in the event that a municipality fails to do so.  It is therefore resolved that the Department  will investigate the extent to which municipalities have, since the commencement of the Act, implemented this section and in fact begun the process of designating strips of coastal access land. In addition, there should be an assessment of how far the registration of servitudes has progressed. The Department must table a report in Parliament dealing with these three issues before the end of January 2014.

Report to be considered.