National Environmental Management: Integrated Coastal Management Bill [B8-2013]: deliberations

Water and Sanitation

20 August 2013
Chairperson: Mr J de Lange (ANC)
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Meeting Summary

The Department of Environmental Affairs (DEA) briefed the Committee on the various proposals and concerns that had been submitted in response to the National Environmental Management: Integrated Coastal Management (ICM) Bill.  Written submissions had been received from various provincial governments and individuals. The DEA presented its responses to the comments and its counterproposals.  In general, the Department’s responses did not concur with those comments or concerns that would fundamentally change the overall objective and intentions of the clauses, or the ICM Amendment Bill.  In instances where the suggested text would provide more clarity on a clause, such comments were accepted.

There were a number of concerns raised with the definitions in the amendment to Section 1 of the Act. These included issues with the definition of an estuary, a high water mark, a harbour, a municipality, port infrastructure, reclamation, and the sea.

Various concerns were raised with clauses in the body of the Act.  Transnet had wanted “port infrastructure” to be defined as in the National Ports Act, and to exclude port infrastructure -- and the land/seabed below that infrastructure -- from the meaning of coastal public property. They had argued that reclaimed land formed part of state-owned land, and land reclaimed in ports should be owned by Transnet.

The provincial governments of the Western Cape and KwaZulu-Natal had proposed that authorization should be allowed by “the relevant legislation,” rather than “national legislation”.  Members asked that the DEA flag this issue and discuss it with the provinces to determine what legislation they had in mind. The provinces had proposed that no fee should be charged for access to coastal public property without the approval of the Minister, and that private property should not be extended as a result of accretion.  The provinces had suggested substituting the need for regulations with some other mechanism and allowing the relevant municipalities, in consultation with the MEC, to determine the type of management mechanism to be used, as areas seaward of setback/management lines could most effectively be managed by municipalities.

The KwaZulu-Natal Department of Agriculture and Environmental Affairs had said that having dealt with a number of coastal erosion “emergencies” recently, neither the Act nor “any other law” adequately dealt with private property owners preventing erosion by placing structures on coastal public property.   Members asked the Department to check if a clause on emergencies was needed.

Members had asked the Department to look at the enforceability of the National Estuarine Management Protocol. The Department had attempted to strengthen it by enforcing reporting to the Minister.  Members suggested that this should also be reported to Parliament.

The Department had wanted to take away the National Coastal Committee (NCC). The South African Association for Marine Biological Research had said that a National Coastal Committee was imperative and should be formulated as originally outlined by the Integrated Coastal Management Act. Members flagged this issue for further engagement.
 

Meeting report

Briefing by Department of Environmental Affairs
Adv Radia Razack, Director: Legal Services, Department of Environmental Affairs (DEA), briefed the Committee on the various proposals and concerns that had been submitted in response to the National Environmental Management: Integrated Coastal Management (ICM) Bill. Subsequent its tabling in Parliament, the Portfolio Committee had published the Bill for public comment and invited members of the public to submit written submissions.  Written submissions had been received from the provincial governments of Western Cape, Eastern Cape and KwaZulu-Natal, Dr Jennifer Whittal (land surveyor and lecturer at the University of Cape Town), the South African Association for Marine Biological Research, Transnet, the Gender Commission, Mr Chris Williams Wynn in his individual capacity (though employed at the Eastern Cape Surveyor General Department of Rural Development and Land Reform), and Dr Whittington, in his individual capacity.

The Department had prepared a detailed comments and response table setting out all the comments submitted, whether or not oral presentations had been made. In general, the Department’s responses did not concur with those comments or concerns that would fundamentally change the overall objective and intentions of a clause, or the ICM Amendment Bill.  In instances where the suggested text would provide more clarity on a clause, such comments were accepted.

Amendment of Section 1 of Act 24 of 2008
Ms Razack said that the definition of an estuary had been contested. Dr Whittal had wanted the definition to specify that estuaries should be open to the sea for a period of at least ten years. Other scientists, however, had said that some estuaries, for example St Lucia, had been closed for 10 years and then opened again. The ecosystem still needed the same protection afforded to estuaries. Such cases should not escape regulation because of the definition. This would also create uncertainty for the managers of an estuary. The Department wanted to avoid creating loopholes by giving such a definition.

The Chairperson asked why Dr Whittal had wanted the time period to be included.

Ms Nosipho Ngcaba, Director-General, Department of Environmental Affairs, said that this was a more scientific definition.

The Chairperson had said that it was Dr Whittal who had argued for the three definitions in the Bill, and she had initially wanted it wider. Why should they narrow it by introducing the time period?

Adv Razack said that it was to protect the land owners, as land around an estuary had a high value so it was likely to be contested. The definition as it stood said that an estuary should be “permanently or periodically open to the sea”, Dr Whittal had said that the word periodically suggested some regularity, and there should be a limit to that. If, for example, an estuary had opened to the sea once in the last 100 years, that would not be considered periodically.

The Chairperson said that there was no point in including this definition unless there was a reason, such as different consequences in the Act for an open or closed estuary. He could see no reason to attach legal consequence to the fact that it was open or closed. If there was ever a dispute, a court would have to decide what fell within the bounds of “periodical” or not.

Adv Razack said that there had been other comments on the definition.  A private individual had suggested including coastal wetlands and tidal rivers.

The Chairperson said that both of these would be included under the current definition of an estuary, and to include them separately would be repetition. The Department agreed.

The KwaZulu-Natal provincial government had wanted to align the definition with the Environmental Impact Assessment (EIA) definitions. The Department felt that the EIA would align itself with the Act, rather than the other way around.

The Chairperson accepted the definition proposed by the Western Cape.

Adv Razack said that the definition of high water mark had been contested by the Western Cape, which disagreed with the proposed deletion of “floods or storms that occur no more than once in ten years”. The following wording had been suggested for Section 1(o)(a) “exceptional or abnormal weather or sea conditions that occur no more than once in ten years; or”. The Department’s view had been eloquently conveyed by Dr Whittal.  In short, there was no evidence on the ground of where a one-in-ten-year flood line is, and it would require complicated modelling scenarios to determine this. This was a factual definition which had been proven by the test of time. This was accepted by the Committee.

The Chairperson paused the meeting to welcome a new member to the Committee, Ms Zintle Ndlazi. He said that the Committee had a good working atmosphere and nice interpersonal relations across party lines. He hoped that Ms Ndlazi would enjoy her time on the Committee.

Adv Razack said that Transnet had proposed changes to the definition of ‘harbour’, as the definition as it stood did not clearly include existing ports, and commercial ports and harbours should be distinguished. The Department agreed with this suggestion, and the additional consequential amendment was that 'harbour' means “a port or harbour proclaimed in terms of any law and managed by an organ of state." There were consequential insertions of “’port” in sections 13(5)(b), 18(4) and 56(5)(b).

Ms M Wenger (DA) asked what the difference was between a port and a harbour.

Adv Razack said that international ships used ports, but harbours were for smaller fishing vessels.

Mr Theodore Hercules, Principle State Law Advisor, Office of the Chief State Law Advisor, said that ports had a specific meaning in terms of the National Ports Act.

The Chairperson agreed to the proposal.

Ms Razack said that the Eastern Cape Provincial Government had suggested changes to the definition of ‘municipality’. They felt that Section 1 of the Bill excluded “local municipality” in the definition of “municipality” and that would cause a problem for the implementation of some of the provisions of this Bill (or Act), which were the direct responsibility of a local municipality by nature -- for example, the establishment of estuarine management plans, coastal management lines and coastal access land. It was understood that district municipalities would have to enter into agreements with the local municipalities if a provision of the Bill had to be implemented by a local municipality, but this would be practically impossible or would cause difficulties, because local municipalities were independent. The Department had agreed and withdrawn the amendment.

Transnet had wanted to add a definition of port infrastructure, but they had since said that it wasn’t necessary.

The Western Cape and KwaZulu-Natal had suggested amending “from” to “within”, as new land could not be created from water. As such the following wording was suggested: ‘reclamation’ means the process of artificially creating new land within coastal waters, and includes the creation of an island…”. The Department agreed with this suggestion. The provinces also felt that the amendment needed to remove the comma in “,and” and start a new sentence, starting ““Reclaim”. The Department disagreed, as that phrase clarified that the different forms of the word had the same meaning and was used conventionally in drafting. It had not created interpretational problems in the past.

The Chairperson suggested that the Department take out the “and” and leave the comma.

Adv Razack said that KwaZulu-Natal had wanted to add, under reclamation, that beach replenishment should be maintenance-related. The suggested wording was: “but excludes beach replenishment by sand pumping for maintenance purposes”. The Department disagreed, because they did not want to narrow the definition in case there were other purposes that had not been anticipated.

The Chairperson said that the province was being cautious by excluding beach replenishment.

Adv Razack said that the Department had not included beach replenishment because it was regulated under EIAs.

The Chairperson said that it could be possible for someone to create a whole beach through sand pumping, so the Department should be careful not to create a loophole. He suggested that this issue be flagged. Sand pumping should be allowed only in order to maintain the beach as it was. As soon as there was expansion beyond that, it should be classified as reclamation.

Adv Razack said that the Department would consult with scientists on the issue. Langebaan, for example, had needed to pump sand to protect houses near the beach.

The Chairperson said that was fine, but if a port started to extend the beach, that was what they wanted to avoid. The Department should engage in consultations, as it may be better to be cautious.

Adv Razack said that in the Langebaan case, the beach had been made wider, which suggested that stricter controls were necessary.

A typographical error had been picked up during consultation on the definition of the sea. A technical correction had been made.

The Chairperson said that he was not equipped to decide if estuaries should be considered seas or not. Dr Whittington had said that it would be a problem, but he himself did not know where the term “sea” was used in the Act. 

Ms Razack said that there were scientific definitions, and then definitions used in a legal context. Dr Whittington  was concerned that the definition of ‘sea’ included coastal waters, which also included ‘estuaries’. It followed that an estuary could be defined as ‘sea’.  This was misleading.  However, the definition of “sea” for the purposes of the Act had to include estuaries, otherwise the dumping at sea provisions would not apply to estuaries.

The Chairperson asked the Department to provide a list of all Sections where “sea” was used.

Ms Razack undertook to provide that information.

The Chairperson said that the definition of “sea” could be revised once all mentions of the sea in law had been considered, and it was established that there would be no contradictions. For the time being, the issue could stand over.  Regarding the definition of coastal waters, it was also necessary investigate further. It was not desirable to create a “subject to” in the definition of the Act.

Insertion of section 6a in Act 24 of 2008
Adv Razack said that KwaZulu Natal had recommended that section 6a, “purpose of coastal public property” be removed, to after section seven. The Department felt this was right, because it reflected the composition of the Act.

The Chairperson said that it should be 7a, not 6a, so that it read as a composite whole.

General Comments
Adv Razack said that the Gender Commission had not made specific comments, but had general proposals which the Department had tried to accommodate. They had wanted the Bill to emphasis that “coastal property is an asset which is at disposal of every citizen which includes men, women, boys and girls no matter their differences, which has to be utilized and enjoyed in a responsible way, in order to avoid any immediate or future damage to the environment and to the population.” The Department felt this was enshrined in the Constitution and the Act itself, in different ways in the preamble, the objects as well as Sections 11 and 12 of the Act. The addition of this statement would confuse the interpretation. The listing of categories of people could result in inadvertent discrimination.

The Gender Commission had appealed to the Portfolio Committee to consider empowering women and also “gender mainstreaming” the Bill. This would entail ensuring that women were granted permits and leases to use coastal property in keeping with their needs, as contemplated in terms of Section 65 of Act 24 of 2008.  Section 68 of Act 24 of 2008 should be amended to allow for revocations that were not in keeping with the aforementioned gender equality legislative framework and aspirations of the state. The Department did not believe that the Bill was gender-biased in any way.  Business opportunities and development for women fell under the mandate of the Department of Trade and Industry. 

The Chairperson liked the romance of the notion, that coastal property was an asset for all citizens for their use.

Adv Razack referred the Chairperson to Clauses 11, 12, and 13, which she felt covered this.

The Western Cape had proposed an amendment to Section 5, which would make the National Environmental Management Act (NEMA) applicable. The Department argued that this was not necessary, as the Act already applied.           

Clause 4: Amendment to section 7 (Composition of coastal public property)
The amendments to Section 7 of the Act were at the heart of the contention between the Department and Transnet.  Various formulations and reformulations and proposals had been back and forth between the two bodies.

Transnet had initially wanted “port infrastructure” to be defined as in the National Ports Act (i.e. “the basic infrastructure of a port, including breakwaters, seawalls, channels, basins, quay walls, jetties, roads, railways and infrastructure used for the provision of water, lights, power, sewerage and similar services”); and they had wanted to exclude port infrastructure, and the land/seabed below that infrastructure, from the meaning of coastal public property.

The Department had disagreed with their proposals. “Port infrastructure”, as defined in the National Ports Act, included basins and channels, which were part of the sea and sea-bed.  Such an exclusion would controvert the principle of ‘res publicae’, which was enshrined in the Act. The Department’s view was that Transnet’s assets were excluded in the proposed section 7(2) (a).  However, to ensure that Transnet suffered no disadvantage, it was proposed that the intention be made clearer. The Chairperson also proposed clarifying the ownership of excluded ‘property’.

The suggested alternative wording was:

(2) Notwithstanding the provisions of subsection (1), coastal public property does not include --

(a) any:

(i)         immovable structure, or part of an immovable structure;  or

(ii)         installation or infrastructure located in a port or harbour,

whether located on land or the seabed, lawfully constructed by an organ of state.

(3)   The provisions of this Act shall not affect the ownership of an immovable structure, part of an immovable structure, port or harbour installation or infrastructure referred to in subsection (2)(a), which shall vest in the organ of state contemplated in that subsection.

Transnet had accepted this wording.

The Chairperson said that this should apply after the Act was passed.

Ms Razack said that it would, if Transnet got the proper authorisation. Whatever was there at the time that the Act was passed, was excluded, and anything in the future would be excluded, as long as they had followed the proper procedures.

The Chairperson said (a) should be kept as it was. The rest should be a sub-section, to make it clear that it applied only before the Act was passed.

Adv Razack asked if the Chairperson was saying that in future all assets would be coastal public property.

The Chairperson said that the purpose of the addition was to create an exception.  This should not mess with the structure of the rest of the Act.

Adv Razack said that it was never the Department’s intention to have port infrastructure as coastal public property.

The Chairperson said that the aim was to create a transitional measure, not to create exceptions within exceptions in the Act. He asked which clause dealt with transitional arrangements.

Adv Razack responded that it was covered generally in clauses 95, 96, and 97.

The Chairpersons suggested that the heading of Section 6 should be changed to read “conflict with other legislation and interpretation”. Infrastructure built after the Act was passed should be dealt with separately from that which existed already. Cabinet had decided to change the regime and break with the past, and this Act was being amended to comply with that. The Department was trying to assist Transnet by making exclusions for them. However, this should not affect the overall structure of the Act.  It should be put separately in an interpretation clause. It should not affect the structure of the new regime.

Mr Hercules undertook to consider this and report back to the Committee.

The Chairperson said that the use of the sea surface for Transnet’s two turning basins and channels should remain as existed at the time of the Act coming into operation. This would guarantee them further protection.  Whatever rights they had regarding use would not be affected. While Transnet preferred to fight for ownership, he felt it was sufficient to protect their use.

Adv Razack said that Dr Whittington had been concerned that natural islands were to be defined as coastal public property.  Most of these islands were nature reserves, some falling within National Parks, and access was restricted.  Many had important breeding colonies of seabirds, which already had a poor conservation status, and these populations could be seriously threatened if the public was allowed access to these islands. The Department had responded that these natural islands were mostly proclaimed protected areas, and were subject to an access limitation in Section 13 (2).

Clause 5: Insertion of new section 7A (Reclamation)
The Western Cape had corrected grammatical errors in this section.

Transnet had argued that reclaimed land formed part of state-owned land (section 7A(4)).  Land reclaimed in ports should be owned by Transnet. The Bill should provide that land reclaimed by an organ of state in ports, would vest in that organ of state. They suggested that section 7A(5) should read “Notwithstanding subsection (4), ownership of land reclaimed in terms of subsection (2) by the organ of state responsible for ports vests in that organ of state.” The Department did not have an objection in principle to the proposal, as the section had sufficient controls to ensure proper usage of reclaimed land.   However, alternative wording was proposed. The Department proposed that the section should read: “(4) subject to subsection (5), land reclaimed in terms of subsection (2) forms part of state-owned land which may be alienated in terms of the applicable legislation. (5) Ownership of land reclaimed in terms of subsection (2) by the organ of state responsible for ports, vests in that organ of state.” This had been agreed to by Transnet.

The Chairperson suggested that this should be made general, rather than specific, to ports so that when the Minister took a decision on reclamation, she knew she was also conferring ownership.

Adv Razack responded that it would most likely be organs of state applying for reclamation.

The Chairperson suggested that the Bill should confer ownership to whoever applied.

Adv Razack said that the problem with that was that it could be a public/private partnership. In Durban, the municipality had entered into an agreement with a private developer to develop the Durban marina area, and had applied as an organ of state, before developing it for commercial interests. The Department needed to safeguard against that.

The Chairperson suggested including a clause saying that the Minister should determine the ownership of the land or, alternatively, excluding private commercial gain completely. The principle was that it should be state-owned because it was coastal land.

Adv Razack said that this was born out of an existing situation.  Perhaps, in future, reclamation should not be allowed for private purposes. This would not apply retrospectively.

Mr Rodgers asked for clarity. Would the Bill prohibit any development on coastal land?

The Chairperson said that it would, in the case of reclaimed land. If someone reclaimed the land they could have the use of it, but the land remained the property of the state. Even that was problematic, because it opened the door for people creating things like in Dubai. It would also create vulnerabilities to corruption.

Adv Razack said that there were proposals that were quite dangerous, and which required engineering feats which the Department was not convinced of. A proposal had been made to create an island in Melkbosstrand. The natural environment in South Africa was not the same as in Dubai, and even in Dubai the reclaimed land was thought to be failing.

The Chairperson asked the Director General (DG) to consider this and decide if private reclamation should be possible. If the Department wanted to open up to the possibility of reclamation for commercial interests, it should be strictly regulated and the ownership of the land should remain with the state.

Ms Nosipho Ngcaba Director-General, Department of Environmental Affairs, said that this would depend on what the government wanted to, and what areas were identified as growth areas. Legislation should anticipate that. The state would still have to own the land, but create a leasing of the sea space through legislation. It was clear that there would be a demand for this in the future.

The Chairperson said that once a principle had been decided upon, as had been in Section 7, then the government should stand firm. He asked who would decide on what developments should be allowed.

Adv Razack said that it had originally been the Minister and Parliament, but this had since been amended to require only the Minister.

The Chairperson thought that Parliament should have a say.

Adv Razack said that there were many minor reclamations -- they were not all big developments. Each one could not be taken to Parliament.

The Chairperson said that they could be tabled, but would not necessarily require public hearings. The Department should refine the definition of “state-owned”, as this could also refer to an organ of state.

Adv Razack said that section 8 of the Act said the “The Minister may, by notice in the Gazette, declare in the manner contemplated in subsection (2) any state-owned land as coastal public property.” However, Section 10 spoke to the designation of state-owned land for certain purposes.  Section 10(5) said that state-owned land should be regarded as coastal public property. These various elements created confusion and confusing scenarios. It had not yet been implemented, so the Department was not sure how it would unfold. They needed to speak to the people who had developed the original white paper to find out what the thinking behind it was.

The Chairperson said that the Department should rationalise these clauses.

Clause 7: Amendment of section 11 (Ownership of coastal public property)
Adv Razack said that the Western Cape and KwaZulu-Natal had proposed a grammatical change which the Department had not agreed to, as they felt it would change the meaning of the sentence. The provinces had also proposed deletion of the word “national”, as not only national legislation may be applicable. The suggested wording was “… authorised to do so by the relevant legislation…” The Department disagreed, because the exploitation and allocation of natural resources was an exclusive national competence.  They did not want to give the impression that provinces were mandated to make such authorisations.

The Chairperson asked if the problem was in the wording. The word “exploit” suggested mining, which the provinces did not have a mandate over. The “use” of natural resources could mean anything, including water, which did fall under the province.

Adv Razack said that laws did exist which specified who could dig out shells or plants for medicinal purposes.

The Chairperson asked if this would fall under the mandate of a province. If so, the Bill could be worded specifically so that the right authority would apply. Where did the provinces think that their legislation would be applicable? He asked that the Department flag this issue, and discuss it with the provinces to determine what legislation they had in mind. If they could provide relevant legislation, then it should be catered for; if not, it should remain national.

Adv Razack said that this would centre on what was meant by natural resources.   If this included water, then a distinction would have to be made.

Clause 8: Amendment of section 13 (Access to coastal public property)
The Western Cape and KwaZulu Natal had proposed that section 3(a) should read: “No fee may be charged for access to coastal public property without the approval of the Minister, unless otherwise provided for in this Act.”  Section 13(d) should read: “the provisions of paragraph (a) should not apply to fees for the use of facilities or activities that are not considered facilities or activities for the purpose of obtaining access to coastal public property.”  Having considered the difficulties with this subsection, the Department proposed to delete it altogether and to insert a definition of ‘access fee’. The suggested definition was that “access fee” meant a fee that is charged to allow a person to get to coastal public property and included launching from, and getting to, a boat launch site with a boat.

The Chairperson asked about other facilities, like toilets, kiosks, and so on. Should all those fees also be decided by the Minister?

Ms Ngcaba said that those amenities were not public property.

Adv Razack said that the counter proposal tried to define access fees so that it would be clear what it entailed and what it did not. Particular problems had emerged from KwaZulu-Natal regarding boat launching and fees.

The Chairperson said that the definition of “access fee” should be included, but should be reworded.

Adv Razack said that sometimes there was no charge to get to the beach, but for one to get access effectively, in order to get one’s boat to the spot, an excessive fee was charged. Municipalities wanted a cost recovery model, but it could not be that high, because it would effectively exclude people.

The Chairperson was happy with the principle, but asked that the Department reword it so that the access fee was very clearly defined.

Clause 9: Amendment to section 14 (High water mark)
Adv Razack said that the Western Cape and KwaZulu-Natal did not support the deletion of Section 14(5), as the period of three years was a reference point from which to determine when this provision may be enforced. The Department had disagreed. As confirmed by Dr. Whittal, the high water-mark was an ambulatory/factual line which could not be confined to a time period.

The provinces said that Section 14(6)(a) was not supported, as it contradicted sections 6A and 7. Private property should not be extended as a result of accretion. Coastal public property was inalienable. As such, coastal public property could not be lost or converted to any other designation. The Department disagreed, arguing that it was a common law principle that if one’s land unit was bounded by an ambulatory high water-mark, one gained and lost land as that boundary moved.  If one had a straight line boundary, one’s ownership was regained to the extent of that straight line (known as a cadastral boundary).

Regarding Section 14(5), the provinces had asked whose responsibility it was to implement this provision (i.e. who notified the landowner that he/she had lost ownership of the said property?). What was the process to be followed in this instance?  Did the property in question automatically become coastal public property?  What consideration was given to implications regarding title deeds and amendments thereto? The Department had responded that the Surveyor General made a determination on the high water-mark where there was a dispute.

This issue was complicated, because it was related to the debate on the definition of the high water mark.

The Chairperson said that Dr Whittal had argued that in the case in which the boundary line was the high water mark, the boundary line could not move seaward of itself. 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.

Adv Razack said that Dr Whittal had improved the wording.

The Chairperson said that this was technically more correct, and should be accepted.

Adv Razack said that it was always understood that the boundary would move with the water mark. If there was a straight line border, then the owners would lose if ground was lost from erosion, and gain if the sea moved out, but only to the point of the boundary line.

The Chairpersons asked if there was anything to be gained from this clause.  Dr Whittal had questioned whether it was necessary. Was it not obvious?

Adv Razack said that when people lost ground because of erosion, they claimed that the state had robbed them of land and should have put up measures to protect the ground.  If ground was lost, it was not the municipality’s responsibility to protect the land from falling away. This legislation protected the state from people saying that the state should pay for that.

The Chairperson said that in that case, it was only necessary to specify the loss, and not the gain.  It should be in the Title Deed Act.

The Chairperson asked why this clause was subject to any exclusions from coastal public property.

Adv Razack said that if there was an immovable structure, it would still be subject to the specifications of Section 7(2).

The Chairperson asked if this was necessary.  It was decided that it was not.

Clause 10: Amendment to section 15 (Measures affecting erosion)
The Chairperson said that the Western Cape had wanted to consider changing the proposed insertion to the recommended text to read “and any other law” rather than “or any other law”.  In response, the Department had proposed that it read: "No person may construct, maintain or extend any structure, or take other measures on coastal public property to prevent or promote erosion or accretion of the seashore except as provided for in this Act, the National Environmental Management Act or any specific environmental management act”.  If any law was allowed to override this provision, for example, a municipal bylaw which allowed such measures, it could create a problem. He said that “other” should be added before “specific”.

The KwaZulu-Natal Department of Agriculture and Environmental Affairs said that having dealt with a number of coastal erosion “emergencies” recently, neither the Act nor “any other law” adequately dealt with private property owners preventing erosion by placing structures on coastal public property.   Unless the authorities knew “what other law/s” there were for dealing with such matters, this section was challenging to implement.  Some municipalities in KwaZulu-Natal had proposed to deal with these matters through encroachment agreements, but this needed to be clarified in terms of whether such agreements were in the spirit of the Act, as well as what unintended consequences could occur as a result of such agreements being concluded. The Chairperson asked what legislation there was for dealing with coastal emergencies.

Adv Razack said that it might be in the Disaster Management Act.  Under NEMA, there was Section 28 and Section 30.

The Chairperson said that if there was no law dealing with it, a clause should be added. He asked the Department to check if a clause on emergencies was needed.  If the NEMA amendment covered it, it might even be worthwhile to spell that out in the Bill.

Clause 11: Amendment to section 16 (Composition of Coastal Protection Zone)
Adv Razack said that Dr Whittal had raised a concern that the inclusion of some land units might cast the Coastal Protection Zone (CPZ) far into the interior and way beyond what could be considered the coastal environment.  Some land parcels had sections close to the coast, but were very large and the whole land unit was then burdened as being part of the CPZ. This was likely to occur due to 16(d), which included the whole of a land unit, where any part of this fell within 1km of the high water mark (HWM) (rural land); 16(e) 100m from the HWM (urban land); and 16(i) which included any land unit adjacent to a 100-year flood/storm event.

The Department had clarified the wording, which had satisfactorily allayed Dr Whittal’s concerns. The default distance in urban and rural areas (100m and 1km) was a starting point, and not intended to be the permanent boundary line of the CPZ. The “guestimate” for urban areas was based on the area likely  to be subject to the biggest impact (the interface between land and sea) as a result of a dynamic coastal process, including storm surges, erosion, a sea-level rise, wind-blown sand, and so on. The reason for the discrepancy between urban and rural areas was that in urban areas, most properties had already been developed and there was little scope for proactive planning (the damage was already done). In rural areas on the other hand, there were large expanses of undeveloped land suitable for “greenfields” development. This created an opportunity to develop properly near the coast in a more responsible way --for example, taking into account dynamic coastal processes and allowing for improved public access to the coast. The MEC had the power to adjust the CPZ boundary based on the actual sensitivities, location of infrastructure and the views of coastal stakeholders. This adjustment would address the concerns raised by Dr Whittal.

Clause 16: Amendment to section 25 (Coastal set-back lines)
Adv Razack said that the Western Cape agreed with the proposed amendments, but wanted their suggestion to be included in the amendment.  In most cases in the Western Cape, the regulation of the area seawards of the setback/management lines would be administered by the relevant municipalities, by mutual agreement with the relevant municipalities. This would be done by means of overlay zones in terms of the zoning schemes. It would be useful if municipalities could create their own regulatory framework – this was possible with the by-laws to implement the coastal management programmes (if the management of areas seawards of setback/management lines were incorporated into the coastal management programmes), but empowering provisions would be better suited under section 25 of the ICM Act.

The province suggested substituting the need for regulations with some other mechanism and allowing the relevant municipalities, in consultation with the MEC, to determine the type of management mechanism to be used, as areas seaward of setback/management lines could be most effectively managed by municipalities. The Department was concerned with devolving such an important function, which required uniformity and consistency across a province.

The Chairperson agreed that the devolution of functions to municipalities was a bad idea.

Adv Razack said that the KwaZulu-Natal Department of Agriculture and Environmental Affairs had said that in terms of the EIA Regulations, 2010, “construction” meant the building, erection or establishment of a facility, structure or infrastructure that was necessary for the undertaking of a listed or specified activity, but excluded any modification, alteration or expansion of such a facility, structure or infrastructure and excluded the reconstruction of the same facility in the same location, with the same capacity and footprint.  In this regard, what would be the situation where an existing sea-front home had been damaged – could the owner reconstruct “like for like”, even where such a structure was now seaward of a recently established coastal management line?  Or was the intention to exclude “reconstruction”, and cover only “construction”?  This would lead to a conflicting situation, where an existing structure could be reconstructed without environmental authorisation, but if the neighbouring property was vacant land and a new structure was now intended to be built, the EIA and ICM regulations could potentially prohibit or restrict such a structure from being built, if found to be seaward of a coastal management line. 

The Department agreed with the province’s concerns, and suggested instead that the MEC should, in regulations published in the Gazette, establish or change coastal management lines in order: to protect coastal public property, private property and public safety; to protect the coastal protection zones; to preserve the aesthetic values of the coastal zone; or for any other reason consistent with the objectives of this Act; and prohibit or restrict the building, erection, alteration or extension of structures that are wholly or partially seaward of that coastal management line.

Moreover, KwaZulu-Natal held that an entire vacant land parcel/plot may be found to be seaward of the established coastal management line.  Assuming the area had been zoned residential, was there not an ‘expectation/right’ to develop such land, yet now the MEC could potentially “prohibit” such a development if it was in a risky zone?  In other words, could the onus be on the landowner to assume the appetite for risk -- and subsequent liability -- for developing seaward of the established coastal management line, or should a “prohibition” or “restriction” be effected by the MEC’s regulations, if the development is proposed in an extremely risky zone, irrespective of an area’s historical zoning.

The Department had responded with the clause: “(1A) When establishing coastal management lines in terms of subsection (1), the MEC must consider the location of immovable property the ownership and zonation of vacant land”.

The Chairperson said that it should read “and the ownership”.

Adv Razack said that KwaZulu-Natal had then asked if a coastal management line and a development setback line could be the same line on a map, albeit serving different purposes.  In provinces which did not have EIA development setback lines for the coast, the proposed coastal management line could inform a development setback line, and in some cases could be one and the same line.  In other words, if the risk management line was 70m from the high water mark, could one move the default EIA development setback seawards (from 100m), as there was less risk?  Alternately, if the risk management line was 130m from the high water mark, it did not make sense for the EIA development setback to still remain at 100m. 

The Department had responded that they could be the same line, albeit for different purposes. EIAs dealt with environmental impact.  NEMA EIA development set-back lines only determined when an EIA was required. It served no other purpose.  Coastal management lines could be established for multiple reasons -- for example, a height restriction to avoid shade on the beaches. It could also prohibit building altogether, to mitigate a sea-level rise or coastal erosion, or to create a buffer zone on the coast.

KwaZulu-Natal held that there was an interpretation conflict between the EIA regulations and the ICM Act in relation to “construction”, and this had to be resolved. The Department disagreed, saying that the term ‘construction’ was not used in the section. In any event, the restrictions on “development” activities, which was presumably what was being referred to, were regulated for a different purpose to EIAs and should not be aligned with the EIA definition.

Clause 17: Amendment to section 27 (Determining and adjusting coastal boundary of coastal public property)
The Western Cape and KwaZulu-Natal argued that the Minister should take into account not only natural influences, but also anthropogenic processes. Should this not be explicitly stated as a criterion?  It was suggested that the Department consider including an additional clause: “(f) any potential anthropogenic influences on dynamic coastal processes”. The text of the provision may be re-arranged to read as “(e) any potential anthropogenic influences on dynamic coastal processes; and (f) any other factor that may be prescribed.” The Department had agreed with this suggestion, and would renumber accordingly.

Amendment to section 33
Adv Razack said that Section 33 stated that the Minister must prescribe a National Estuarine Management Protocol. The word “prescribe” referred to a separate legislative instrument, and was therefore not accurate. The Department had changed this “to be done by publication in the Gazette.”

The Chairperson had asked the Department to look at the enforceability of the National Estuarine Management Protocol. The Department had attempted to strengthen it in this section, by inserting 33.4(a) and (b). The Minister had to report to the National Coastal Committee on non-compliance with the annual report. There was a reporting requirement on relevant legislation being enacted, requiring them to report to the Minister on an annual basis about implementation of the legislation.

The Chairperson suggested another clause saying that it should also be reported to Parliament.

Clause 19: Amendment to sections 35, 36 and 37 (the National Coastal Committee)
Adv Razack said that the Department had wanted to take away the National Coastal Committee (NCC). The South African Association for Marine Biological Research had said that a National Coastal Committee was imperative and should be formulated as originally outlined by the ICM Act. While they understood the reasoning for streaming, the intention of the NCC was not to be inter-governmental, but it allowed non-government experts the opportunity to interact with and assist government officials. Sections pertaining to it, and all references to it, should also remain in the Act.

The Chairperson said that it was best to have a structure through which proper reporting to Parliament could be done. Because there were many role players, they needed something to pull it together, otherwise the Minister was in a weak position because she would have to liaise with so many entities.

Ms Ngcaba agreed to review this.

The Chairperson said this should be flagged for further engagement. He was loathe to create agencies, but he was also loathe to leave no structure at all where there were other agencies involved.

Closing comments
The Chairperson ran through the Committee’s upcoming priorities. There were three pieces of legislation that had to be amended. A triple briefing would be held to discuss this. Public hearings would have to be scheduled for those Bills. The Department of Water Affairs would report on the National Water Strategy and the policy review process. The rhino hearings, or if that was not possible, rhino workshops at Parliament, should be held before the end of the year.
 

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