The Department of Environmental Affairs is looking at the viability of the Oceans Act.
This emerged during the discussion session at the Portfolio Committee on Environmental Affairs workshop on the Marine Spatial Planning Framework and Marine Spatial Planning Bill with the Department of Environmental Affairs (DEA).
The Director-General said South Africa could have an independent Oceans Department focusing on oceans or to have it as an entity. It all depends on the executive authority. But he warned there would be challenges in terms of enforcement or monitoring the other affected departments.
67% of the ocean space is shared by other countries but governance is different. The Oceans Act has been proposed for our own ocean legislation. There are some gaps they are trying to address and to determine if there is a need for the Oceans Act or take some of the ocean elements and include them in the existing legislation.
The Department further informed the Committee about the National Environmental Management of the Oceans. Ocean policies sought to improve sectoral management of the ocean sector and planning and managing across sectors for accumulated and aggregated impacts. Between 2011 and 2012 the Department has been working towards developing the policy. There has been a review of international agreements that SA is party to, review of national ocean sectoral policy, and review of sectoral stakeholders e.g. mining and fishing. There is a need for a coordinated interpretation of policy framework for conservation, protection, and sustainable use of the oceans. The policy response describes the environmental mandate; identifies the need to move from general environmental governance to specific ocean governance; and provides ocean economic perspective analysis for SA.
Marine Spatial Planning is the governance process of collaboratively assessing and managing the spatial and temporal distribution of human activities to achieve economic, social, and ecological objectives. The Marine Spatial Planning would provide benefits for the SA nation by facilitating the unlocking of the ocean economy and sustainable ocean economic development; enhancing the achievement of societal benefits and strengthen the level of society’s interaction with the ocean; promoting a healthy marine environment and the sustainable use of marine resources; and contribute to good ocean governance.
The National Marine Spatial Planning Working Group (NWG MSP) would steer and oversee the Marine Spatial Planning process. This includes having responsibility for the preparation of this National Framework and for the contemplated Marine Area Plans. The National Working Group would provide guidance to the process of developing Marine Area Plans as outlined in the Draft Marine Spatial Planning Bill and Marine Spatial Planning Framework.
Members, on National Environmental Management of the Oceans, asked where the Marine Area Plan started and ended; wanted to know if there were an agreement between the ocean mining sector and fishing sector; asked the Department about its view regarding the expression there should be one law governing the oceans and if it made sense to have such a law; and enquired what the status is regarding the Marine Spatial Planning Bill.
Regarding Marine Spatial Planning, Members wanted to know why the Department did not start with the Bill first and then do the Framework later; asked if the Framework could be defended successfully in a court of law if other people take it forward; wanted clarity on why competency of the individual or officials was not described before the drafting of the Bill to the National Working Group; wanted to establish if officials would come from the various departments during the public hearings to elaborate on various issues; and asked if the comments from the public would go to the Bill or Framework
Committee report on the North West Game Donation was adopted..
Dr Monde Mayekiso, Deputy Director-General for Oceans and Coasts: Department of Environmental Affairs (DEA), informed the Committee that ocean policies sought to improve sectoral management of the ocean sector and planning and managing across sectors for accumulated and aggregated impacts. With regard to oil spills, he said SA is operating in the same vacuum as USA. There is no risk atlas available for coastal storms and tsunami sensitivity. There is no national information atlas for existing and new shipping routes, fishing grounds, mining areas, coral reefs, and coelacanth sensitivity to climate change.
Between 2011 and 2012 the DEA has been working towards developing the policy. There has been a review of international agreements that SA is party to, review of national ocean sectoral policy, and review of sectoral stakeholders e.g. mining and fishing. There is a need for a coordinated interpretation of policy framework for conservation, protection, and sustainable use of the oceans. The policy response describes the environmental mandate; identifies the need to move from general environmental governance to specific ocean governance; and provides ocean economic perspective analysis for SA.
Some of the guiding principles identified, amongst others, are around the following:
- The sustainable use and management of ocean resources and ecosystem services in order to benefit present and future generations
- The promotion of an ecosystem and earth system approach to ocean management
- The protection of biodiversity in the ocean environment and the conservation of marine ecosystems
- The application of the precautionary approach to sustainable use and conservation
- The promotion of collaboration and cooperative governance
- Coordinating and supporting the implementation of the relevant existing statutory and institutional framework. The DEA would assist other sectoral departments in the implementation of the framework.
- Creating and maintaining a shared national knowledge base on the human activities, status, and functioning of the ocean. Each sector could have the same information and have common maps and database. This works well in India.
- Establishing integrated ocean management plans by undertaking strategic environmental impact assessments and the use of spatial planning. This would help determine what activities would happen where.
- Pursuing regional and international cooperation and governance mechanisms. The Indian Ocean Expedition would enable the DEA to see what is useful in the ocean for Operation Phakisa. Currently, it does not know what is in the ocean. 67% of the ocean is not managed.
Dr Mayekiso also spoke of four strategic themes. First, is the ocean environmental information which deals with the production of information. It ensures there is improved adherence with the ocean environmental reporting requirements contained in domestic legislation; and enhances existing research and monitoring of the ocean. Second, is the ocean environmental knowledge. This deals with the conversion of information into knowledge. It produces information tools to facilitate understanding of the natural functioning of ecosystems and human impact on the ocean environment; and provides information to promote sustainable development whilst maintaining the resilience of the ocean. SA has the capacity to do measurements in the warm and cold oceans, including the extremely cold ocean of the Southern Cape. Third, is the ocean environmental management. It provides timeous information on trends and extremes in ecosystem and earth system functioning. After the Tsunami, the Indonesians are now able to anticipate extreme weather conditions. It further ensures the conservation, protection and rehabilitation of ocean habitat and species. Fourth, is the ocean environmental integrity. This says if you want to manage your ocean successfully, you need to adhere to rules and cooperation with neighbouring countries – regionally and internationally. 98% of the Exclusive Economic Zones (EEZs) have been given out for mining and exploration.
In his conclusion, Dr Mayekiso said the White Paper was approved for publication on 4 December 2013, and Cabinet decided that the DEA would be supported by key departments and National Planning Commission to develop an integrated approach to ocean governance.
Marine Spatial Planning Presentation
Mr Gcobani Popose, Director for Ocean Conservation Strategies: DEA, explained to the Committee that Marine Spatial Planning (MSP) is the governance process of collaboratively assessing and managing the spatial and temporal distribution of human activities to achieve economic, social, and ecological objectives.
Marine Spatial Planning would provide the following benefits for the SA nation:
- Facilitate the unlocking of the ocean economy and sustainable ocean economic development
- Enhance the achievement of societal benefits and strengthen the level of society’s interaction with the ocean
- Promote a healthy marine environment and the sustainable use of marine resources
- Contribute to good ocean governance
Some of the following were identified as the main human use activities in SA’s ocean space:
- Harvesting of Marine Living Resources
- Marine Mining
- Offshore Oil and Gas
- Municipal and Industrial Waste Water Discharge into the ocean
- Ocean Cultural and Social Use
Cabinet has designated the DEA as a coordinating department for MSP in SA. The DEA has facilitated the establishment of a National Marine Spatial Planning Working Group constituted of representatives from:
- Department of Agriculture, Forestry and Fisheries
- Department of Energy
- Department of Defence
- Department of Mineral Resources
- Department of Tourism
- Department of Transport
- Other organs of state as and when required
The National Marine Spatial Planning Working Group (MSPNWG) would steer and oversee the Marine Spatial Planning process. This includes the responsibility for the preparation of this National Framework and for the contemplated Marine Area Plans. The NWG would provide guidance to the process of developing Marine Area Plans as outlined in the Draft MSP Bill and MSP Framework.
The purpose of the MSP Framework is to provide framework for Marine Spatial Planning in SA’s ocean space. It provides high-level direction for undertaking Marine Spatial Planning in the context of South African legislation and policies as well as existing planning regimes. The framework would facilitate the development, implementation, monitoring, and revision of Marine Area Plans. Through this Marine Spatial Planning system, the sustainable development of SA’s ocean space would be enabled.
The need to introduce and implement MSP in SA is derived from this legislative context and the need for a workable framework to implement our laws. South Africa is also a signatory to several international declarations, treaties, conventions, and agreements that have informed some of the current legislation.
For the purposes of operationalising MSP and making it manageable and sufficiently relevant for detailed planning, SA’s ocean space would be divided into smaller Marine Areas which would serve as planning units. Four broad marine areas are contemplated: Agulhas current area; Benguela current area; intermixing area between Agulhas and Benguela areas; and Prince Edward Island Group.
As a preliminary measure to preparing the Marine Area Plans, a data-gathering activity relating to the whole of South African marine territory would be conducted. This is because the data that would be called upon for each plan is unlikely to relate only to the four marine areas, and may cover larger areas, possibly at a national or supra-national scale. An inventory would be drawn-up listing the issues for which data would be sought.
With regard to the Marine Area Plan process, consultation responses would be collated in a report to be presented to the NWG. A revised version of the plan would be prepared for agreement within the NWG. The final plan would include a full implementation plan, setting out the management actions needed to achieve the MSP objectives and the bodies that would have responsibility for these actions. The revised plan, agreed by the NWG, would then be submitted for final approval by the Ministerial Committee on Marine Spatial Planning. The NWG would oversee the implementation of the plan. The implementation of the plan’s provisions would mostly lie with those organs of state responsible for the regulation of marine activities.
The NWG would establish a process of monitoring the extent to which the plan’s provisions are being implemented. A monitoring schedule would be developed, setting out the optimal parameters that would need to be observed in order to ensure proper coverage of the plan. In line with the principle of adaptability, once the plan has been approved, consideration may be given at any stage to making amendments to it. The NWG would carry out any necessary analysis to support the proposed amendments and propose suitable changes to the plan. The proposed amendments would be submitted to the Ministerial Committee on MSP for approval, and would be publicised and made available. The NWG would begin revision of each Marine Area Plan approximately five years after its approval or when deemed necessary by the responsible authorities.
The Draft MSP Framework was published by the Minister for public comments on 19 August 2016 for a period of 30 days. Comments were received and collated. The final MSP Framework was endorsed by the MSP NWG in January 2017, and it was gazette for implementation on 26 May 2017.
The Director-General remarked that the proposal that MSPs should be ecosystem focused does not gel well with her because the eastern and western systems are different. She said the work they do on climate change is dependent on the ocean and earth system. It is important to understand that MSPs cannot be skewed only towards ecosystems because there are ocean and earth systems that need to be taken into consideration.
The Chairperson wanted to know if there were an agreement between the ocean mining sector and fishing sector.
Dr Mayekiso indicated there is a gentlemen's agreement between these two sectors. They agreed that on certain periods of the year there would be no fishing. There is no law. Legally, there is no restriction though there are 23 marine protected areas, but mining is not involved in the 23 marine protected areas.
The Chairperson asked where the Marine Area Plans started and ended.
Dr Mayekiso said the sea-bed is the start and what is underneath it is the end. There are lots of things happening in the sea-bed and beyond. When the White Paper was approved, it was decided to develop an integrated approach to ocean governance.
The Chairperson asked the Department about its view regarding the expression there should be one law governing the oceans and if it made sense to have such a law.
Dr Mayekiso pointed out that some of them have been attracted to what other governments have done. Canada has an ocean department to manage the oceans and to enforce ocean laws. Norway does not have that kind of a system. But to have a department like that of Canada appears to be the best way to manage oceans. Both approaches are working.
The Director-General agreed with Dr Mayekiso, saying it could be an independent department focusing on oceans or to have it as an entity. But it all depends on the executive authority. There would be challenges in terms of enforcement or monitoring the other affected departments. 67% of the ocean space is shared by other countries but governance is different. Activities are happening but the governance is loosely structured. The Oceans Act has been proposed for our own ocean legislation. Currently, the Department of Agriculture, Forestry and Fisheries (DAFF) is using the Marine Act and the DEA uses some of the elements of the Marine Act for things related to it.
The DEA Legal Advisor indicated they are looking at the viability of the Oceans Act. MSPs cannot be under NEMA (National Environmental Management Act) because NEMA is a coordinating and integrating piece of legislation. It is not part of the environment legislation, but a framework legislation that is intersectoral. There are some gaps they are trying to address and to determine if there is a need for the Oceans Act or take some of the ocean elements and include them in the existing legislation.
Mr S Makhubele (ANC) asked if NEMO is stalled.
The Director-General said NEMO is a White Paper that is still being processed to become legislation.
Dr Mayekiso added the Marine Living Resources Act was adopted in 1998, but there are still some gaps that need to be covered.
Mr Makhubele remarked that nobody knows at this stage what the future holds for NEMO. The DEA says it is not an economic department yet it is in the economy cluster. Technically, it is an economic department that is concerned with the economy of the ocean.
The Director-General stated people should understand that the environment legislation is not above the other areas. The environment is outlined in the Bill of Rights. The Department has to negotiate with other departments most of the time and they also do the same with DEA. For example, the DEA has no power to neutralise mining. If the DEA goes first and then tells the other departments about environmental impacts, it becomes difficult for those departments to act. The same applies for the DEA when the other departments go first, because it becomes difficult for the DEA to refuse. So, you allow other activities like mining to happen in some areas, while the DEA refuses some activities to happen in other areas. The oceans economy has provided the DEA with an opportunity to be proactive in the mining and exploration activities. The SA ocean has more wind than the oceans of the world. The DEA is trying to negotiate with the Energy Department to generate energy from the sea-based winds. That matter is still under discussion.
Ms H Nyambi (ANC) enquired what the status is regarding the Marine Spatial Planning Bill.
Dr Mayekiso explained the examination of sectoral management strategies has happened. The Marine Spatial Planning Bill has not been presented at this stage, but they are still looking at gaps that are existing. As an official you sometimes get a call from an ambassador that you need to meet an international company. This international company is in partnership with another one that is in partnership with a SA one. They then tell you they have an exploration or mining licence. So, the only way of doing this is to negotiate with them. It is those issues or gaps they are trying to work on.
The Chairperson said the process of developing the MSP Framework has been gazetted and they are now considering the Bill. He wanted to know why they did not start with the Bill first and then do the Framework later.
The DEA Legal Advisor explained the issue was raised during the stakeholder engagement. This is the first Phakisa Bill to Parliament. The reason is the Bill is not essential for planning purposes. There is no need to turn everything into law. They consulted widely and you can have the Framework as a system. The Norwegians advised the Department to develop a framework first because it describes what you cannot say in a Bill. The Bill is limited in what it could describe things because it is a regulatory tool on how to achieve your framework. The Framework does not delay them to come up with a plan. Rather it allows the planning process to happen and could be changed anytime, and it is not cumbersome when you have to amend it like the Bill.
The Chairperson commented that government is a regulated space because you have to have a mandate before you do anything. He thought the Bill would be overarching and the rest would follow. He asked if the Framework could be defended successfully in a court of law if other people take it forward.
The DEA Legal Advisor elaborated the Framework is an enabling system of consulting. It gives flesh to the process that allows input from stakeholders. This process is consultative and they want the groundwork to continue and get knowledge base. All the affected sectors have to bring forward their data on what needs to be done. This process is labour intensive and involves a lot of money. By the time the Bill reaches the stage of being passed, this process would be ready and would save time.
The Director-General confirmed that in their sector before everything is turned into law, it is fully tested first. Before legislation is put in place, they put a framework first to work through everything so that when the law gives them mandate, at least there is work done already.
Mr T Hadebe (DA) wanted clarity on why competency of the individual or officials was not described before the drafting of the Bill to the NWG.
Mr Popose elaborated that competency was requested by the Director-General to get people who could influence the NWG with expertise. There are terms of reference for competency skills that were needed for the NWG.
Mr Lisolomzi Fikizolo, Chief Director for Specialist Monitoring Services: DEA, added letters were written by the Director-General to sister departments so that they would nominate people with the required competent skills. Those people have an understanding of shipping in the marine industry. Some of them came from the Department of Transport.
Mr Makhubele wanted to establish if officials coming from the various departments would come during the public hearings to elaborate on various issues.
The Director-General stated it depends on how the Committee wants to run the public hearings. The DEA would answer questions for clarity. Other departments and provinces would be invited to participate in the hearings.
Mr Makhubele indicated they would convene stakeholders, especially in coastal areas and they would know the concerns they want to raise. The stakeholders would interact with the Bill as if it comes from the Committee. He also wanted to find out if there would be enough people from the NWG to clarify issues to participants.
The Chairperson stated they would find a way of conducting the public hearings with the support from the DEA, and invite members of the NWG to come for participation. Formal presentations would be done by the DEA, and some stakeholders would be allowed to make presentations, ask questions and interact with the Bill. Clarification of issues would be done by the Department, while the Committee would take only issues. Then after the public hearings, the information would be collated.
The Committee Secretary stated the public hearings would be held around 31 July in the coastal provinces of Eastern and Western Cape, and KZN. The DEA would present to Parliament on issues raised during the public hearings and the Committee would do the collection and collation of data.
The Chairperson stated the actual detail are in the Framework, not the Bill. What is done by the Committee is the responsibility of the Director-General and Minister. There are lots of interests in the process and could clash and frustrate the decision-making process.
Mr Hadebe asked what the role of the MECs and other spheres of government would be in the public hearings of the Bill.
The Chairperson indicated this is the responsibility of the National Department.
Mr R Purdon (DA) pointed out the Bill would give effect to and strengthen the Framework, but the plan would not be finished before the Bill. He asked if the comments from the public would go to the Bill or Framework.
The DEA Legal Advisor said the inputs would go to the Bill. The Framework has been consulted upon already.
The Chairperson indicated members of the NWG would be given a chance during the public hearings to explain what is in the Framework.
The Director-General stated the DEA would follow guidance from the Committee. She wanted to know if the Committee was going to publish an advertisement for people to make submissions and clarify matters during the hearings, and if those that made submissions would be given a platform to participate.
The Committee Secretary said so far, the Committee has received seven submissions from the advertisement that was published.
Adoption of the Oversight Report
The Chairperson took the Committee through the report page by page.
The report was adopted.
The meeting was adjourned.