Integrated Coastal Management Amendment Bill [B8-2013]; Green Paper on National Environmental Management of the Ocean; State of the Oceans

Meeting report

National Environmental Management: Integrated Coastal Management Amendment (ICM) Bill
Ms Nosipho Ngaba, Director-General: Department of Environmental Affairs (DEA), introduced the delegation.

Ms Razeem Omar, Chief Director: Integrated Coastal Management, DEA, said that the National Environmental Management: Integrated Coastal Management Act had come into effect in December 2009, replacing the Sea Shore Act. Ms Ngaba added that some of the provisions of the ICM Act had not come into effect immediately, specially some provisions dealing with Transnet.

Ms Omar said that the South African coastline extended over 3 000 km, and was the third longest in Africa. There was a dense population on the coastline. Past practices were characterised by poor decision making. The lives of people, their property and the environment were at risk. The coastline had been managed badly. She showed Members the results of some of these malpractices. Factors such as waves and tides had not been considered. There was an example at Witsand where the dunes were swamping adjoining houses.

Ms Omar said that there were further aspects that needed to be managed. Pollution control was one of these. Estuaries were crucial environmental areas, and were not being managed well especially in the proximity of major metros. A National Estuary Protocol had been gazetted for public comment.

The Chairperson asked why Members had not been given a copy of the National Estuary Protocol.

Ms Ngaba said that the protocol had been distributed to the Committee a year previously.

The Chairperson insisted that this had not happened. Any such document should be sent to the Chairperson or to the Speaker of Parliament. He was meticulous with his record-keeping, and had not received this document.

Ms Ngaba said that it would be provided and Ms Omar apologised for the oversight.

Ms Omar said the Integrated Coastal Management Act had been in effect for three years. During the implementation, the need for certain changes had come to light.

Adv Radia Razack. Director: Legal Services, DEA, explained these proposed changes. She said that a number of definitions had been updated. Most of these were not contentious, and many were simply issues of clarification. There were some textual corrections due to typographic errors. She assured the Chairperson that the errors were not at the Committee stage but in the printing phase.

The Chairperson said this could not happen, as DEA would surely check every piece of legislation before it was promulgated. He asked if the persons responsible had been dismissed for such oversights. He was amazed. He instructed that this information be passed on to the Committee Section.

Adv Razack said some issues had to be aligned with the National Environmental Management Act (NEMA), specifically dealing with coastal issues. Delegation powers of provincial government were clarified. The ownership of coastal public property had been clarified. A balance was needed with other state organs. The issue of reclamation would be clarified.

Adv Razack went through the key amendments. The first of two definitions that needed some attention was the term 'estuary'. It was a highly technical concept, and she explained the concept with the aid of some pictures. It was the area between the ocean and fresh water, and thus had higher salinity. It was an important area to manage, as it interacted on the ocean environment as well as the adjoining fresh water areas. At Cape St Francis, artificially constructed canals interacted with the estuary. The canal system was part of the ecosystem, and should be included in the definition of an estuary. Pollution control and the use of canals for recreational and sporting purposes had to be considered. The reference to 'watercourse' had been better defined.

Adv Razack read the proposed new definition of 'estuary'. There was a reference both to watercourses which were permanently attached to estuaries and temporarily attached.

The Chairperson said that at face value, it did not seem clear to him that the canals had been included in the definition.

Adv Razack said that not all artificially created watercourses would form part of an estuary. She would explain it in more detail later. The salinity of the water would determine the status.

The second problematic definition was that of 'high water mark'. There had been intensive internal stakeholder consultation. Legal opinion had been to advocate for a fixed line, but she had been convinced that such a determination would not be practical as there were too many variables involved. The concept of a one to ten year flood-line was also problematic. Under the Sea Shore Act, the high water mark had been understood as a natural, moving boundary. This was how it should be established.

The Chairperson noted that the definition given would not fix the high water line.

Adv Razack presented an example of damage to property caused by intrusion into the high water mark. A lot of work was needed to determine the correct definition.

The Chairperson said it would be necessary to see how the definition affected sections of the Act.

Adv Razack said that Clause 9 dealt with the high water line. There had been substantial changes. Previously a provision allowed property owners to create beacon boundaries on their property, but these could be washed way. If the sea increased the size of the property the owner was lucky, but might also stand to lose some property due to sea action.

Adv Razack said that the next issue was the concept of 'coastal public property'. When the Bill had been enacted, there had been considerable interaction with Transnet. This was effectively the beach, the sea and declared admiralty and forestry reserves. The Roman Dutch principle that the sea and seabed were sacrosanct was observed by the current legislation. These areas could not be owned privately. It belonged to the citizens of the country, but was held in trust by the state. It was a busy area. Although there was such a long coastline, there were a number of ports. These had a high impact on the environment.

Adv Razack said that there was a conflict in striking a balance between port activity and limiting the damage to the environment. Environmental Impact Assessments (EIA) were needed for new development, but there were other problems. In terms of the Act, the President was the owner but there was a shift to make the public the owner. Parliament had to approve any leases of these areas. A new leasing regime had been created. The wording was wide, which created problems. Erecting an umbrella on the beach could be seen as such an activity requiring a lease. Transnet felt that it owned the ports, and would be dispossessed if the legislation was enacted. Port assets had been excluded to prevent an impact on ports. Transnet had wanted an exclusion of ports from the ICM Act. In the extended port area of Cape Town, the area included even part of Robben Island. This was not tenable.

Adv Razack said that a medium solution had been proposed. The port footprint area should be excluded. Parliament had approved a provision to exclude areas from public ownership. Definitions of the port area had been created for port areas. This did not really suit Transnet. The area became state property, and Transnet would have to work through the State Land Act. The sea was not registered property, and could only be regarded as an area of operations. DEA had tried to get clarity. This forced a re-look at what was coastal and public property. The principle that the sea and sea bed could not be owned privately could not be violated, even if by a government agency. There were potential problems in the event of land reclamation.

Adv Razack said that physical assets could be excluded, such as jetties which were leased out. Such assets were not public property, but the sea and the sea bed were still public. Permits were needed for dredging operations.  Coastal public property was now linked to NEMA.

The Chairperson needed some clarity on NEMA and EIAs.

Adv Razack replied that there was an activity listed in NEMA.

The Chairperson asked if that meant NEMA would be applicable within harbour areas.

Adv Razack agreed. Any existing immovable property would be excluded, but EIAs and reclamation permits would be needed for new construction.  The current clause gave the power to exclude areas. There was some debate on the legality of the powers of exclusion.

The Chairperson understood the concept. Parliament had the power to grant exclusions. He asked why this provision was to be removed.

Adv Razack said that there was another section in the Act which allowed for exclusions and the adjustment of boundaries. [Section 27(2) - 27(4) allowed exceptions by ministerial proclamation and ratification by Parliament. There was thus agreement for the exclusion of confined port areas, namely the footprint of ports where the actual work was being done. The exclusion did not include extended areas.]

The Chairperson felt that the current legislation was satisfactory. In this case, it was not necessary to scratch where there was no itch. If it was left solely in the hands of DEA, errors could be made.

Dr Monde Mayekiso, Deputy DG: Oceans, DEA, said that this would remove some workload from Parliament.

The Chairperson was jealous of the role of Parliament. He would not shirk the extra work load. This power should not be abdicated.

Ms Ngaba said that Transnet felt the current situation was onerous. They needed the exclusions in order to run their business without the onerous provisions of the Act.

The Chairperson said that there was agreement that the sea should remain public property. He was now hearing that there was a new clause allowing for exceptions to be created, such as for fish farms.

Ms Ngaba said that there was a history of Transnet conducting their own business. They had gone directly to Parliament in the past. There had been a hearing in the process of finalising the previous Act. Transnet had made a submission. The solutions put forward by Adv Razack had not helped, hence the need for reconsideration.

The Chairperson reiterated his understanding that Transnet had agreed to relinquish ownership of parts of the sea. Cabinet had acquiesced that certain exclusions were needed.

Adv Razack said that there were two separate issues. Transnet did not agree on the approach being taken, and wanted to be out of the process. There was a problem defining public property. Parliament had excluded the port footprints before the Act had been signed off by the President. The footprints would be excluded. Parliament had taken a resolution to this regard. DEA wanted to reverse that provision. Cabinet had approved the clause taking away the exclusive conditions. This would be needed in the legislation at hand.

The Chairperson said that the practical implications would have to be considered. If the footprint was to be reversed, the only detrimental consequence for Transnet would be if they had taken any action in line with the current legislation. It was not the exclusion clause that was to be deleted but some of the procedures involved. The Bill and the comments by the Committee should be made public for comment.

Adv Razack said that the next issue was that of reclamation. This referred to filling in parts of the sea to create jetties, artificial islands or other such structures. It was a serious issue, ranging from small projects such as building a slipway to creating islands. An EIA was needed for such projects. She felt this was not sufficient. This was why a permit was needed. Requests to change the face of Africa had been declined in the past, such as building a walkway from Cape Town to Robben Island.

Adv Razack said that there was an emotional issue regarding access to coastal public property. Such access could no longer be denied in terms of the proposed amendments. She raised the example of Eerste Rivier in the Eastern Cape, where a gated community had exclusive access to a beach. This was the only beach in the area, as the surrounding coastline was rocky. Even DEA had initially been denied access to the beach when they visited the area to conduct an inspection. This situation had been resolved, but there were many other examples where this had not been done.

Adv Razack said that there were some cases where a fee could be charged legitimately, but such fees should not be so high as to disqualify the poor. The Amendment would create a provision that any such application should only be approved by the Minister. A maximum tariff could be set by Gazette, and any higher request would have to be determined by application.

Adv Razack said that the National Coastal Committee would be abolished. It looked as if government was abdicating responsibility, but there were other forums which served the same purpose.

The Chairperson did not think that the proposal of different agencies working together would work. Using Deputy DGs instead of DGs might be a solution.

Adv Razack said that there were already joint meetings at a MinMEC level. Municipalities also attended these technical meetings.

Ms Lize McCourt, Chief Operating Officer (COO), DEA, explained how the technical committees worked.

The Chairperson said that Parliament did not receive reports from these bodies.

Ms Ngaba said that there had been competition with other government structures. There were coastal committees in each municipality.

The Chairperson said that Parliament had no authority over provinces. They could be invited to meet with the Committee, but it was a complex situation regarding the powers of different levels of government. This might be a necessary structure, but a full debate was needed on this issue. Parliament's role was being eroded. After serving on this Portfolio Committee for two years, this was the first he was hearing about this structure. MinMECs were not innovating as far as Parliament was concerned, but did assist at the executive level.

Adv Razack said that the current legislation did not make sense regarding leases of coastal public property (CPP). The legislation was applied by provinces in an inconsistent manner. Value was needed in the regime. People using public space should do so responsibly. Structures would be subject to EIAs. Instead of having hundreds of concessions, something like a coastal work permit was needed. Prohibited activities should be listed, such as seismic survey activities during whale mating season. Close monitoring was needed on certain activities. The coastal use permit would address this need.

Adv Razack said that this issue had been debated. She explained to the Chairperson that regulations pertaining to the use of vehicles on the beaches fell under NEMA.

Ms M Wenger (DA) asked what the position was with aquaculture.

Adv Razack replied that these activities fell under the Department of Fisheries. These plants often were located on the beach or in the sea, and there was an environmental aspect which DEA needed to enforce.

The Chairperson said that defences should not be found in old legislation. In every Act, there should be discussion on when it should come into force. This should not be left up to the relevant Department. A date should be set in the legislation, but could be considered for amendment if needed. The press statement would be finalised later that day. There were many good provisions, and Members had no other queries. Further consideration was needed on the need for a national co-coordinating body. The documentation was needed urgently.

Green Paper on National Environmental Management of the Ocean (NEMO): briefing
Mr Ashley Naidoo, Chief Director, DEA, said that many policies had been investigated. There were many overlapping policies which influenced the environment. A convention had been developed on the Benguela Current with Namibia and Angola. This was expected to be finalised in March 2013. In most coastal countries, the ocean formed a vast portion of the national assets. There were also island neighbours, owned both by South Africa and other foreign powers. Antarctica was the largest store of fresh water. South Africa was one of twelve founding members on the pact on that continent. Over the last decade or two, many countries had noticed that oceans connected the world. There were heat and salt exchanges in the oceans that influenced all parts of the world.

Mr Naidoo listed what South Africa owned. Every country was allowed to claim 200 nautical miles, which was approximately 400 km, of surrounding water as an economic exclusion zone. The ocean territory was 1.5 million square kilometres, which was more than the land mass. South Africa had applied to United Nations for an extension. A further 350 nautical miles could be claimed for areas which were part of the continental shelf. The claim should be finalised within the following three to six years. This also applied to Marion and Gough Islands.

Mr Naidoo said that the claim, if approved, would add 1.8 million square kilometres to South African territory. This would put South Africa into the tenth highest position regarding combined land and sea area.

Ms Ngaba said that the DEA was building an empire on behalf of the Committee.

Mr Naidoo said that the insurance claim against BP resulting from the recent oil spill in the Gulf of Mexico was now amounting to about 31 billion dollars. The oil spill on the coast of America covered an area equivalent to a fifth of South Africa's land mass. Insurance policies were still being processed. In drafting the Green Paper, the DEA had specifically looked into issues of liability.

Mr Naidoo said that the carbon dioxide content in the atmosphere was increasing, and this was causing the oceans to become more acidic. This was causing harm to life forms. For example, crabs in North America were now batting to form hard enough shells to protect themselves. The number of penguins was declining in South African coastal areas. There was a relationship between the amount of plankton, the predators that fed from this stock, penguins and the predators that fed on the penguins. DEA should be able to explain this phenomenon to the public.

Mr Naidoo commented that there were still some coelacanths at isiMangaliso. A population had been filmed some 100 m below the surface. There was a huge resource potential. It had fleshy fins, and could walk like a lizard. It could be an evolutionary indicator.

Mr Naidoo said that the rights to use and enjoy the ocean were enshrined in Section 24 of the Constitution. There were many international agreements. The ocean was a source of fish and oil, and allowed the passage of ships. The oceans distributed heat and salt, and had a driving influence in weather and climate patterns. There were also cultural considerations.

Mr Naidoo said that spatial planning of the oceans was needed. Some countries felt it wise to pump excess carbon dioxide into the sea. This had to be considered carefully. Many countries were making use of coastal winds as an energy source. Tourism was an important industry. Fishing operations were being conducted in further-flung areas, and more and more fish were being extracted. Pharmacists were finding cures for various diseases by examining creatures, especially those living on the sea bottom and in extremely cold water. Anti-ageing products were the first such benefits. Enormous revenue was possible.

Mr Naidoo said that more than 90% of South Africa's trade was conducted by sea. There was talk that South Africa could follow the Dubai example and build artificial islands, but there were more cons than pros. Mining had been limited to shallow areas, but in India mineral bearing rocks were being recovered at 4 000 metres below the surface, and the technology was being improved to go even deeper.

Mr Naidoo said that new technology was making it possible to access more and more of the ocean.

Mr Naidoo noted there were four policy priorities. Fish stocks were not fully appreciated due to a lack of exploration and mapping. The next would be to generate knowledge. The next intervention would be to convince other Departments to develop norms and standards regarding the use of the oceans.

Mr Naidoo then gave an example of the policy being put into action. The penguin population was the focus of the example. Co-operation was needed both with other Departments and other countries to manage the environment.

Mr Naidoo said that the policy aimed to give congruence over the sector.

State of the Oceans presentation
Mr Andre Sher, Chief Director: Oceans and Coastal Research, DEA, said that the oceans had to be understood in a global context. The warm Agulhas Current flowed on the east coast and the mineral-rich Benguela Current on the west. Various devices were used to investigate the state of the oceans.

Mr Sher said that wind speed and direction coincided with temperatures. Warm and cold episodes influenced wind patterns, and were cyclical over a three to four year period. Changes in wind strength and direction led to storms. Changes also affected temperatures. Changes in the surface temperatures influenced the up-welling procedure. Water from the bottom of the sea welled up to the surface.

There had been an intensive study in the St Helena Bay area. Colder surface water was normally found inshore and the warmer water offshore, where it was deeper. Nutrients were an important consideration. Nitrates were eaten by plankton. The second most important nutrient was silicate. The nutrient content decreased with an increase in water temperature. There had been a steady increase since 1978 in silicates and phosphates but a decrease since 1990. This led to reduced plankton populations and as a result, decreased fish stocks.

Mr Sher said that St Helena Bay had been chosen as it was a rich breeding ground. It had been chosen as the sole site for this research. The Agulhas current was normally nutrient poor, and there was therefore less commercial activity on the east coast.

Mr Sher said that the oxygen concentration on the sea bed was low, particularly closer to shore. Between 2006 and 2008 there was an extremely low oxygen concentration extended to approximately 130 km into the sea. When up-welling occurred, it brought life forms to the surface. Even plankton consumed oxygen. This led to rock lobster populations coming out of the water.

There had been an increase in zoo-plankton, but a decrease since the mid 1990s. There had been a shift from larger species to smaller animals. From other research done, it was clear that there was an association with ocean warming. Populations were moving southwards and eastwards. Factories closed on the west coast but opened in Mossel Bay. The bulk of the catches were between Gansbaai and Quoin Point.

Mr Sher listed various pollutants. Mussels were used as an indicator species, as they filtered the chemicals out of the water. The pollutants were left in the muscles of the animal. Data was being collected. Sea birds were used as indicators of the health of the marine system, and of global climate change. There had been a decline in the population of African penguins, Cape Cormorants and Bank Cormorants. This was also linked to the availability of prey. Changes in the environment were affecting animal populations of various orders.

The Chairperson said that the population lived close to the sea and were affected closely. He reminded Members of the programme for the forthcoming week. The DEA needed to distribute documents to the Committee. Copies of international and other policy documents were also needed.

Ms C Zikalala (IFP) said that the Committee had observed conditions in the St Helena area. It was important to revisit the area.

The Chairperson noted this for the oversight programme.

Mr J Skosana (ANC) said that there was a conflict of interest between the Committee and the Department of Agriculture and Fisheries.

Mr Naidoo said that the DEA was aware of the overlap. There were many other sectors such as mining and shipping. DEA now saw the environmental concerns over fishing together with the concerns in the other sectors. The environmental and fishing sectors had now been separated.

The meeting was adjourned. 

Appendix:
Cape Argus news article: New environmental laws to clarify issues around coastal properties
Draft changes to coastal legislation are in the pipeline that include new definitions for the legally crucial high water mark and for estuaries - those environmentally sensitive areas where rivers discharge into the sea.

The national Environment Department hopes that the proposed changes will resolve several legal and enforcement problems, including with the management of ocean-linked canals in waterfront and marina developments such as those at places like St Francis Bay in the Eastern Cape.

Also, the amended legislation is aimed at resolving serious differences between the department and Transnet over the management of ports.

Misunderstandings over Transnet's authority caused a debacle in 2008 when it was incorrectly reported that most of Table Bay and even a corner of Robben Island had been included in Transnet's 2006 sale of the Waterfront for around R7 billion.

But advocate Radia Razack told Parliament's environmental affairs portfolio committee yesterday that the issue of land reclamation from the sea - such as has been done at the Waterfront and where there are further plans to reclaim a substantial area - was not properly dealt with in the current Integrated Coastal Management Act that came into effect in December 2009.

"In the existing act there is just one line (on reclamation), so we need to look at it more carefully. There are huge potential impacts if this is not regulated properly."

Razack, director of legal services in the Department of Environmental Affairs, was part of the department's team briefing the committee on the Integrated Coastal Management Amendment Bill which is now before Parliament.

She explained that a "panicked" Transnet had argued that the 2009 act would have dispossessed it of its ownership of property in the ports and that it would not have been able to function as a result. However, the department had argued that excluding the parastatal from the provisions of the act would have "subverted our mandate".

A compromise solution had involved creating "extended ports" not subject to the act - a move that had required Parliament approving a special resolution - but this not proved satisfactory to either party and there had been "unintended consequences".

The amendment bill aimed to resolve this, partly through clarifying the ownership of Transnet's assets and by allowing the minister to exclude, by proclamation, any area from defined coastal public property for government purposes.

Razack said an issue in the amendment bill that might cause "emotional reaction" involved proposed changes to access to coastal public property.

Although the 2009 act had made it unlawful to restrict access to the beach, there were places where legitimate access fees were charged. "But we don't want these fees to be so high that they exclude the public and only allow access to a wealthy elite," she explained.

It was proposed that the minister would set a maximum access fee, and anyone wanting to charge more would have to apply and give reasons.

Committee chairman Johnny de Lange said he wanted public hearings on the amendment bill "a month or two down the line".

Cape Argus: posted at 09:39AM Feb 14, 2013 by Editor in Market