Marine Spatial Planning Bill [B9-2017]: public hearings

Environment, Forestry and Fisheries

01 September 2017
Chairperson: Mr S Makhubele (ANC) (Acting)
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Meeting Summary

The meeting focused on the last set of submissions at the public hearings on the Marine Spatial Planning (MSP) Bill. Inputs on the Bill were received from a range of stakeholders, starting with the Department of Environmental Affairs (DEA), which gave background information on the rationale behind the Bill.

The founder of the Seachange Project showcased his research on the dynamism of the octopus as a tool for creating an argument on the need for the Bill to look into the protection of a higher percentage of the ocean. He also recommended that crayfish fishery should be addressed, as the percentage of crayfish been had reduced to less than 2%. He recommended that proper science should be put in place to consider the viability of octopus fishery, and the attendant devastation caused by such fishery.

The legal campaigner for the Centre for Environmental rights (CER) said its proposed recommendations included the need for an ecosystem-based approach that would underpin broader ocean development; the inclusion of a provision that would regulate the legal withdrawal, repeal or expropriation of existing rights; the need for an alignment of the MSP Bill with other legal instruments to enhance better interaction; the reincorporation of the provision on the need for government departments, together with all decision-making -- marine, licensing, permitting, permissions and authorizations -- to comply with marine area plans (MAPs) and marine spatial plans; the need for the establishment of an independent appeal authority; and the need for a comparable institutional structure with the Integrated Coastal Management Act (ICMA).

The founding member of the Equitable Access Campaign (EAC) expressed the support of the EAC for the MSP Bill.

The Research Chair on Oceans Economy at the Cape Peninsula University of Technology (CPUT) expressed concern over some definitions needing re-crafting in the Bill, and also proposed that estuaries should be included within the marine spatial plan.

The Council for Scientific and Industrial Research (CSIR) noted four fundamental challenges facing the Bill. These were the disproportionate effort to value; the unreasonable asymmetry; insufficient transparency, inclusion and participation; and the challenge of unclear and incomplete administrative governance. Recommendations were proposed for addressing each of the challenges.

The Western Cape Provincial Government (WCPG) commented on the problematic definitions within the Bill. It said that the Bill required improvement in its integration with provincial and municipal planning, as it might have significant implications for provinces and municipalities that had a coastline. There was a need for provincial governments and municipalities to be prepared and ready to respond to the MSP system, and this would be possible only with the aid of proper representation and proper integrated planning.

The City of Cape Town proposed a concept of governance from the perspective of local governments for inclusion in the Bill. The lack of institutional mechanisms to facilitate communication between national government and governments at the local level, was highlighted.

The Acting Chairperson assured stakeholders that their inputs would be taken into consideration in the process of finalising the Bill.

Meeting report

Department of Environmental Affairs (DEA): Presentation

Mr Gcosani Popose Director: Oceans Conservation, DEA gave background information on the rationale behind the Marine Spatial Planning (MSP) Bill.

Before 2009, the Department of Environment and Tourism included the Department of Fisheries. Through proclamation by the President in 2009, the functions of the Department of Fisheries were separated from those of the Department of Environment. This resulted in a separate Department of Environmental Affairs that could explore the protection of the marine environment at an in-depth level. This afforded DEA the opportunity to evaluate its functions in accordance to the National Environmental Management Act (NEMA). The DEA also explored all domestic legislation affecting all regulatory authorities that played a role in the South African ocean space. The DEA also explored international approaches. The in-depth study resulted in the development of a Green Paper, which showcased an existing gap of lack of a regulatory authority that looked into the aggregated impact of all sectoral operations in the ocean space in South Africa.

The Green Paper led to the development of an Oceans Policy, called the National Environmental Management of the Oceans (NEMO) policy. The policy considered the new coordinated approach in a bid to understand the impact of the approach on the environment. During the process of developing the Green Paper, the DEA realized that it was necessary for other relevant departments, their sectors and users to work together in order to manage the oceans properly. This process led to the presentation of a White Paper to Cabinet that was approved on 4 December 2013.

The White Paper contained about nine strategic priorities, one of which was to develop a legislative framework that would assist different departments and sectors in working together. The most important priority was for the DEA to have a coordinated legislative framework through marine spatial planning. The Cabinet ordered that the Minister of Water and Environmental Affairs should be supported by key ministries and the national planning commission (NPC) to develop an integrated approach to ocean governance, including management plans for ocean areas, environmental variables, conflict scenarios, and trade-offs as recommended in the White Paper.

This approach was also endorsed in the Ocean Economy Operation Phakisa, where the DEA had the fourth laboratory that was part of the labs identified for economic growth. These included aquaculture; oil and gas; marine transport manufacturing; and marine protection services and governance, aimed at protecting and managing the ocean environment in this new approach delegated by Cabinet. The endorsement of the approach took place in July 2014. The DEA has continued to work through the fourth lab in order to achieve the objectives of the NEMO.

In answering the question of why a new approach was necessary for South Africa, especially since the country had always derived its economic benefits and environmental issues through the terrestrial environment, it was pointed out that South Africa had more ocean space than land. The size of land was estimated to be 1.2 million square kilometers, while the size of the ocean space was about 1.5 million square kilometers. This provided an opportunity for a developing country like South Africa to begin to look into benefits that could be derived from the ocean, while moving away from dwindling resources derived from land. However, there was a need to derive benefits from the ocean in a sustainable way that would protect the marine environment and also ensure that the benefits for future generations were not destroyed. There was yet another aspect, with the potential extension of the continental shelf, which would lead to the creation of more space than what the country currently had.

Marine Spatial Planning (MSP) was the priority identified in the oceans policy and was endorsed in ocean economy Operation Phakisa. However, it had been discovered that a constant problem was the conflicting use of space. In the olden days, there were fewer operations. While fishing dominated the olden days, the emerging use and development of technology had brought about other sectors that were slowly moving towards exploiting the ocean environment. If such exploitations were not properly managed, it could lead to conflicts which could be detrimental to the overall development of the country, as the country was constantly benefiting from the marine environment.

Jobs had been derived in South Africa just by reason of an existing ocean space, unlike countries such as Lesotho, without an ocean space. A planning system was, however, necessary in order to consider these conflicting uses, as well as to prevent conflicts between various activities such as fishing and mining. The MSP therefore seeks to avoid the conflicts and also to recommend trade-offs that would be beneficial to the country in continuing its exploration, as well as ensure management and protection of the marine environment.

The purpose of the MSP Bill was to migrate from single-sector planning and permitting, to integrated and coordinated planning and permitting. Currently in South Africa, the Department of Transport (DoT) has an authority in the space, while the Department of Mining also has its own authority in the space. The same applies to the DEA and Department of Fisheries. The norm was for these departments to make separate plans, which could lead to issues of spatial distribution of activities. The Bill was therefore proposing that all departments make consultations with their sectors, gather information and plan towards working together in the ocean space.

From an environmental perspective, oceans were not homogenous, as some areas were more ecologically important than others. There were areas of high biodiversity which the DEA protects. There were areas of high productivity, one of which was the Benguela Current system. There were also spawning areas, nursery areas, as well as migration corridors and stopover points for some species.

It was also pointed out that some areas were more economically important than others. For instance, the South African ocean space was characterised by oil and gas deposits; sand and gravel deposits through the coastlines; fishing grounds that contributed to the overall gross domestic product (GDP) of the country, as well as job creation; transportation routes; areas of sustained winds; and areas of sustained waves. The Bill seeks to consider the conflicting use of these spaces.

The MSP was important for South Africa, as there was currently no overall system to guide the development, implementation, monitoring and refinement of national and regional MSP frameworks, and sub-regional marine spatial management plans in South Africa, which potentially leads to conflict, unsustainable use of ocean resources and failure to capitalise on development opportunities.

A map showing that 20% of the ocean space was mapped for potential petroleum exploration in 2006 was highlighted (see slide 9 of the attached document). This had been done in consultation with other sectors. Several proposals were listed in the map that could lead to conflicts in the absence of a planning system.

A traditional economic use of the ocean was fishing. In South Africa, an average of 800 000 tonnes of marine organisms are harvested annually through the different fishing sectors, which includes the deep sea trawling association, inshore fishing, small scale fishermen and many other people that derive a livelihood from fishing. A further 300 species were directly impacted as bycatches.

The conflicting use, therefore, included the environment, fishing activities, oil exploration, and several uses of the space.

The DEA held the view that without sufficient protection within marine protected areas (MPAs), degradation of ocean resources would occur rapidly. The replacement of lost natural resources carried a high economic and social cost. The DEA therefore proposed a network of MPAs as a key component of MSP that could unlock economic opportunities by creating a streamlined permit process for industry, as well as conflict management. Other proposals for MPAs were outlined (see slide 11 of the attached document).

Currently, South Africa has only 0.4% protection of the marine environment. There was a need for the country to move on to a more significant area for protection so that it can benefit from the marine environment.

The DEA seeks to protect habitats and species, such as coral reefs. Activities that destroy habitat would be excluded. High risk activities such as mining would also be excluded, particularly in areas which were important as far as biodiversity was concerned. High risk activities were not limited to mining. Deep sea fishing through trawling and other means of exploration in the marine environment could also be classified as high risk activities.

With regard to the international approaches that were considered, the North Sea was used as a case study where a similar approach has been applied. That approach considered particularly valuable and vulnerable areas; oil and gas; sea transport; offshore wind areas; and fisheries. The approach aided discussions on special distributions. It also assisted in the decision-making process.

On the mode of operation of the MSP, the Department proposed that other relevant departments (listed but not limited to those on slide 14 of the attached document) and their experts (which were not limited to government experts but could include experts needed as discussion of issues commenced) would gather sector information that would start from the existing situation; stakeholder interests and consultation, including community interests; plans projections, and so on. A national working group would prepare a draft in stages and separate them in bio-regions such as West Coast, East Coast, South East Coast and Prince Edward Islands. The Department also proposed that consultation between government, industry and civil society was necessary throughout the process.

The process flow, as proposed in the Bill, was that the process would be knowledge-based, dependent on all sector information and data, which would in turn influence the broad objectives and principles for MSP. From this, MPAs would be developed to include maps, spatial and temporal data that would influence the maps, as well as smaller planning units in the different regions as proposed in the Bill.

Structurally, the Bill proposes that a national working group comprising of various relevant departments and their experts would consult with their stakeholders and then make recommendations to the Director General (DG) MSP Committee. This would be followed by a final decision that would be taken by the MSP Ministers’ Committee that was comprised of the same departments listed in the MSP national working group.

Regarding how the MSP would interact with other sector laws, the Department proposed that MSP would have broad planning priorities that would focus on planning only, while individual sector departments would continue with the implementation of their laws in alignment with the broad MSP planning priorities. For instance, there would be no MPA in an area already prioritised for another conflicting use, such as mining. Authorisations, permits, and enforcement do not occur at the planning level. Rather, only planning and coordination takes place at the planning level.

Seachange Project: Presentation

Mr Craig Foster, founder of Seachange Project, addressed the Committee by means of an audio-visual presentation, and began by relating his extraordinary experience of visiting a wild octopus every day for a year, and building an incredible relationship with the animal. His aim was to showcase the wisdom of the octopus to Members of the Committee. This would be connected to two important things needed for the MSP Bill, which were the precautionary principle and the ecological foundation.

The Seachange Project specialised in showcasing indigenous knowledge and science, which was translated into conservation media. The current project, which was referred to as ‘The Octopus Teacher,’ had been predicted to reach one billion people globally in the form of a film, book and exhibitions.

Mr Foster had been privileged to be mentored and taught over a period of 20 years by a group of indigenous people from all over Africa and central America, including San master trackers, crocodile shamans, and so on. He had also worked with an incredible group of scientists and top journalists in the world. There was an incredible team behind the project.

His key mentor on land and in the marine environment was Professor Charles Griffiths, who had himself discovered over 100 new species. His primary teacher in the water was, however, the octopus, which he referred to as ‘the superstar’.

With regard to the current position of the world in evolutionary terms, he said that compressing evolutionary time to 1 000 days would mean that humans would be living for one day, while the octopus would have lived for 1 000 days. In essence, the octopus had been in existence far longer than humans.

An incredible discovery about the coast being referred to, was that the latest genetic evidence seemed to be pointing to this area as the origin of the human species. A consideration of what the coast used to look like would reflect black marlin, thick fish, springbok migrations to the water in excess of 50 million animals, 250 000 animals being pushed into the water to drown and being eaten by sharks, and so on.

Another important issue on the consideration of the origin of the species was the existence of powerful evidence to show this coast in Southern Africa was where the human mind woke up. It was along this coast that human beings first became symbolic. It was literally on the “Shores of Eden” where the humans became humans with minds, which was known as the cradle of the human mind.

A recreation of the artifact already described was highlighted (see attached slide). This was one of the oldest pieces of abstract art in the world found in the Blombos cave. It was a collection of the oldest abstract art on earth. The African people living on the coast were the first people ever to create art. Their creations were the first computers and first books. This was because the extraction of information from the human brain on to another object translated into the storage of information. Some of the pieces stored were 100 000 years old, which constituted the oldest art on earth.

Mr Foster showcased the team of scientists he was working with in a slide. The key member of the team was Professor Chris Henshilwood, who was arguably Africa’s top archaeologist.

One of the most incredible things discovered in archaelogy was the oldest chemistry kit on earth. The oldest science on earth was the abelone shell and a mixture created by Africans 100 000 years ago, which was unprecedented. Complex ingredients were mixed into a ritual paint in an abelone shell and were used for ritual purposes. A collection of the oldest spears and a collection of stone tools that made up the oldest bone arrows on earth, which were found on the South African coast, were highlighted.

These confirmed that Africa, and not Europe, was the origin of all art and science in human consciousness. It was not until 60 000 years ago that all of the aforementioned art and science was taken out of Africa to the rest of the world. The implication of the evidence given was a confirmation of what the DNA showed, which was that all human beings on earth had their origin from this coast in South Africa.

There was interesting evidence in the caves to suggest that humans first encountered octopuses about 90 000 years ago when humans began to dive under water. This scene was recreated by the Seachange Project to show the pursuit of abelone by the octopuses.

Based on this background, Mr Foster began to dive with his son. He set a task for himself, which was to dive every day for ten years in order to connect with the environment. The first challenge he encountered was the cold and he struggled with shivering and freezing every day for a year, but his body slowly adapted till it built up brown fat reserves which made it easy for him to dive into the coldest waters for up to two hours without issues.

The next challenge was getting in touch with the marine environment. He took the knowledge he had gained from hunting with the masters in the central Kalahari into the marine environment. However, it took about two years for him to learn how to track under water using the fine tracks left by molluscs and other clues which he used to track the octopuses. He highlighted the mollusc tracks on the back of a 4.5m giant sting ray that could show what the animal had been doing -- for example, how long the animal had been sleeping and so on. He also showed a picture of an octopus camouflaging itself with a shelly bed to buttress the point that octopuses were difficult animals to track. In such cases, he used the abelone shell, which the octopuses loved to eat and make holes in, to track them.

He described the particular octopus which he did his research on, as a little octopus reaching out to him as a timid animal that was unsure of what to do. It was not until after several daily visits, culminating in months, that the octopus was able to hunt in his presence. He went on hunting journeys with the octopus under water. As he got to know the animal better, he saw other animals attacking it, but the octopus managed to escape, although losing a limb. However, the octopus grew her limb back in two months.

The octopus also allowed him to put his camera inside her den, where he found other animals living in the den, including a new species of shrimps. Together with Professor Griffiths, over 30 new species with completely new animal behaviours to science, were found.

Word got out about the research he was doing, and “BBC Blue Planet” -- the biggest marine show on earth -- arrived with top cinematographers to film a big sequence that would be broadcast in October in 188 countries. The filming went on well till the octopus fishery commenced. Hundreds of plastic octopus traps were situated everywhere and octopuses began to get trapped. Trying to keep an open mind about the process, Mr Foster discovered that a single octopus generated more income than 20 000 dead octopuses in the traps. About 30 tons of octopuses were caught in a year out of False Bay alone. The result of a drop in the number of octopuses was the migration of the cat sharks from the area. The number of octopuses dropped substantially. The sharks matured very slowly; they were 35 years old and most of their eggs hardly ever made it to hatching, as they mostly get eaten by molluscs.

The otters relied on the octopus for food. The same applied to bigger sharks, such as spotted gully sharks. It was discovered that the predators began to lose their food as a result of a reduction in the number of octopuses. The movement of predators from their environment was usually a serious problem.

It was pointed out that octopuses were very messy eaters. Most of the animals and vertebrates in the lower food chain relied on the octopus for food, and this had become a problem as well. Also, many of the whales in the area began to get caught in the octopus traps, crayfish traps and whelk traps. Having a system that caught these animals in fairly large numbers without restrictions was doing more harm than good.

Research on octopuses has shown that they breed very quickly, and it may seem reasonable to use them as fishery. However, the massive ecosystem around them had hardly been considered and this was a concern. No scientific evidence was available to show that these animals could be taken on exploratory licences that had been rolled over for 15 years now.

Mr Foster held the view that when considering an ecosystem approach, the entire ecosystem should be taken into consideration, rather than looking into one species. The poaching of the octopus’s favorite food, the abalone, had become a regular thing as dead animals and shells in the water were regularly noticed.

Mr Foster also paid tribute to Donovan van der Heyden, who had assisted with the recreation process of the ancient human family, He had taken the images from the recreation process to the youngsters in his fishing township in order to divert their attention from drugs and the violence associated with poaching, to the benefits of fishing. He was a traditional fisher who had been affected by poaching.

The crayfish -- which was another food for octopuses -- were down to less than 2% of their original numbers, yet they were continuously harvested. The implication of this was a threat to jobs and food security in this sector for the future.

Mr Foster sid the lesson he had learnt from octopuses was that humans and nature were inseparable. He highlighted images to buttress this point. There was a primal joy that emerged from being immersed with nature. This joy had been experienced by the early humans. It was therefore necessary for South Africa to preserve this environment. What other parts of the world experience was what was known as “nature deficit disorder,” which was especially suffered by children in the Americas and Europe who had been disconnected from nature. South Africans were lucky to have such spaces available, as countries without such spaces were suffering from depression and anxiety in youngsters.

During his research, had had found that all political and socioeconomic issues sat firmly on an ecological foundation. Neglecting this foundation would bring about other serious issues. Taking out predators and neglecting the ecosystem could lead to serious problems. Already, places like India had a record of 40% of children with irreparable lung damage. In the past, there had been about 99% protection of the ocean, but this had been reduced to only 0.4% in recent times. There was a desperate need to increase this to about 10% for the time being. The good news was that South Africa was partly intact, with an ecosystem and mega-diversity. South Africa, therefore, had the opportunity to protect something that was invaluable and could be compared with the best ecosystems in the world.

There was a precautionary principle reflected in his experience with the octopus, in the sense that decisions made about nature should err on the side of precaution, particularly in cases where the full scientific story was not properly understood. Humans had a 300 000-year unbroken relationship with the marine environment, and there was a need for humans to protect it.

He ended his presentation with a picture of the octopus in her den, noting that the octopus lives for only one and a half years, after which she sacrifices her life for her children. He had witnessed her death and how she had been taken by the cat shark to be eaten. The lesson was for humans to leave a legacy for their children, as well as an ocean that could bring about a primal joy that emanated from a love for nature.

Discussion

Ms H Nyambi (ANC) asked for specific areas of the Bill that Mr Foster would like to be changed or further amended.

Mr Foster replied that the MPAs were a critical aspect that should be looked into in the Bill, including the protection of a higher percentage of the ocean. Crayfish fishery should also be looked into as the percentage of the animals was less than 2%. Octopus fishery should also be taken into consideration. Proper science should be put in place to consider the viability of octopus fishery and the attendant devastation caused by such fishery

Centre for Environmental Rights (CER): Submission

Mr Saul Roux, Legal Campaigner: CER, said that the CER had considered the number of iterations that the Bill had been through, and the DEA should be commended for engaging in this process.

One of the major comments made by CER on the first Bill had been the importance of an ecosystem-based approach to marine spatial planning, which underpinned the international experience of what MSP was aimed at achieving. A proper framework of principles that guided decision-making was also important. Although there had been no principles in the initial iterations, the latest iterations of the Bill had a set of guiding principles. An ecosystem-approach was necessary in order to ensure that ecosystems underpinned broader ocean development.

The first comment made on the MSP Bill had concerned existing rights. In some ways, ocean activities were fairly locked into specific configurations. 98% of South Africa’s exclusive economic zone (EEZ) had been leased for oil and gas exploration; over 10% for seabed mining; fishing rights; large concession areas provided for marine mining and so on. In terms of Operation Phakisa, there was also the spatial implication of things like aquaculture zones; increased shipping; as well as increased coastal and marine interactions.

Based on the above context, one of the strong recommendations made by CER was for mechanisms to be developed to deal with existing rights, where such rights conflicted with principles set out in the Bill. CER also suggested that these mechanisms should be aligned with proper regulatory systems for existing rights, including specific environmental impact assessment (EIA) processes. Environmental Management Plans (EMPs) specialised guideline tools and other regulatory instruments should align MSP principles with existing rights. A potential provision should be made to provide for the legal withdrawal, repeal or expropriation of existing rights, such as 98% of the EEZs earmarked for oil and gas.

A lot of the existing rights in the EEZs were also temporarily defined. An important part of an MSP process was a temporal dimension, which would ensure strategic lapsing of rights that would be discontinued in the event that they did not serve in terms of the broader marine area plans (MAPs).

On the alignment of the MSP Bill with a range of other ocean-related and non-ocean-related legal instruments that had special management tools in place already, CER noted that these were largely vested with different government departments with separate mandates and separate legal instruments. Examples included coastal protection zones, coastal protected areas, MPAs, aquaculture development zones, fisheries management areas, no-go areas, small scale fishing, community areas, as well as no-go areas for petroleum in terms of the Mineral and Petroleum Resources Development Act (MPRDA). These examples were already responsibilities of different departments, and were better placed with existing authorities and mandates. However, there was limited regulatory clarity on how these would be aligned with the MSP process -- whether they would remain with different departments or would become a part of one of the proposed institutional structures of MSP.

In terms of the alignment of the MSP with other legislation, there was a broad range of legal instruments that the MSP Bill was yet to capture. A list of some of the legal instruments that needed to be aligned to interact better with the MSP were outlined (see page 3 of the attached document). There was also a need for the MSP to align with international and regional legal instruments with a range of spatial implications and planning tools and commitments, such as the Convention on Biological Diversity and the Benguela Current Convention. It was important for the Bill to be aligned with existing South African legislation, as well as international and regional legislation.

One of the provisions in the previous iteration of the Bill had been an enabling provision that all other government departments, along with all decision-making -- marine, licensing, permitting, permissions and authorisations -- needed to comply with both MAPs and MSPs. This critical provision had been removed from the current iteration. Essentially, the provision sought to bind organs of state to marine spatial plans, and ensure coordination between different departments and sectors. The provision created some degree of regulatory certainty on the status of permit, permission, licence or other authorisation issued contrary to the MSPs or MAPs. The CER recommended that this provision should be reincorporated into the MSP Bill, as the entire credibility of an MSP system depended on having a binding status on other organs of state and individuals.

The CER also raised a concern on the need for the establishment of an independent appeal authority. Most of the major enabling legislative frameworks tended to have independent appeal authorities before final resort was sought from the court system. It therefore recommended the provision of a strong institutional structure around appeals, where appeals could be lodged against decisions relating to both marine spatial planning by persons directly affected, and other interested and affected parties. The CER provided a model provision based on the Water Tribunal in the National Water Act (NWA). This was a good model provision for the functionality of an independent appeal authority.

The CER had done a lot of reviews on the international best practices and processes that had been used by other countries in successful MSPs. The basis of MSP was stakeholder engagement and consultation. It was all about tradeoffs and different interests, and weighing such interests under a framework of principled decision-making through an ecosystem-based approach. CER felt that the consultation provision in the Bill was not strong enough. The MSP Bill posed an institutional issue, as it currently placed the onus of consultation on the national working group on MSP. This was a technical structure that was not suited to undertake consultation and stakeholder engagement.

The CER had been engaged in a workshop where the civil society role of MSP was proposed, and which highlighted the expectations of civil society from an MSP process. One of the key outcomes and recommendations from the process was a strong need for an institutional structure for open, accountable, collaborative stakeholder engagement and consultation. The recommendation was for the establishment of an MSP stakeholder forum that would be suitably open and would comprise of stakeholders from government departments, community groups, the private sector, conservation management agencies, not-for-profit organisations, academia, the broader marine community and other relevant stakeholders.

It was essentially important to align the MSP with current institutional structures. There were representations and structures of the national forum, as well as current chairs, sitting on the proposed regional planning institutional structures. The CER therefore proposed the establishment of an offshore institutional structure for stakeholder engagement that would be aligned to the national working groups. A representation of the proposed structure was highlighted (see page 5 of the attached document).

Another suggestion was to have a comparable institutional structure to what was outlined in the Integrated Coastal Management Act (ICMA), which essentially involved provincial coastal committees and municipal coastal communities. There was the potential to include a similar institutional structuring provision that would be modelled on ICMA’s enabling provision. The CER had drafted a potential enabling provision to say that there should be some sort of ministerial discretion to set up MSP committees 12 months after the commencement of the Act. The provision also outlined broad responsibilities or roles needed to promote integrated ocean management and coordinate an effective implementation of MAPs, as well as provide advice to the proposed institutional structures, such as the Director General’s (DG’s) committee and ministerial committee. The ICMA contained a range of enabling provisions on the composition of the aforementioned institutional committees.

CER also recommended an alignment of the MSP Bill with some sort of environmental management framework. MSP without regulatory tools on different issues, including environmental management, had the risk of becoming ocean zoning. This birthed the ideas around the specific environmental management Act (SEMA) for the oceans, which was also part of the rationale behind Phakisa and the governance lab. SEMA was critical for ocean governance and should therefore be aligned with the MSP Bill to provide guidance on environmental management around spatial planning, including conditions for permitting, licensing and authorisations.

Another key issue around MSP was the need for information and knowledge transfer. CER held the view that the access to information provision in Bill did not capture the extent of information and knowledge exchange needed for the necessary processes.

CER also commented on the publication of MAPs, noting that the current iteration did not reflect an intention to consult on the actual publication of the marine area plans. However, CER opined that there was a need for a strong publication and public consultation provision within MAPs and any other type of spatial planning process. For instance, the Spatial Planning and Land Use Management Act (SPLUMA) provided a 60-day commenting period for the development of any national, regional, provincial and municipal spatial development framework. It was necessary to have a similar provision for MAPs in the interest of fairness, clarity, participation and accountable public administration. CER proposed a potential provision on publication of MAPs (see page 8 of the attached document for details).

In summary, the key recommendations made by CER included the repetition of some provisions with the potential to withdraw or repeal rights that conflicted with the actual principles around marine spatial planning, as well as conflicts within MAPs that were problematic.

The Bill should reiterate and affirm powers around spatial management that were currently entrenched in existing legislative frameworks. The Bill should also be aligned with existing ocean governance legislation, as well as with international and regional commitments.

The Bill should contain a provision on the status of decision making around MSP. It should also contain a binding provision on the compliance of other organs of state with MSP processes.

One of the strongest recommendations proposed by CER was for the Bill to have an enabling provision on stakeholder engagement.

Other recommendations already outlined above were reiterated (see pages 8 and 9 of the attached document for a summary of recommendations).

Equitable Access Campaign (EAC): Submission

Mr Gavin Craythorne, founding member of EAC, began by stating that the subtitle to his presentation was “Another lifeless piece of legislation for the people of the Northern Cape littoral, or good governance and equitable access at last?” This was not his first time of appearing in Parliament on behalf of his community. The EAC had participated on two different occasions, where members of the association had left dispirited.

The EAC credentials and background were highlighted (see slide 2 of the attached document, along with accompany documents attached to the slide). Past EAC Parliamentary engagements were also outlined (see slide 3 of the attached document). The EAC viewed the MPRDA as a promise broken in many ways. This view was buttressed with explanations outlined in slide 4 of the attached document.

Mr Craythorne went on to give some personal and industry background information. An extract from one of the annual reports by Alexkor was highlighted (see slide 10 of the attached document).

The current state of the marine industry was showcased in a bid to explain the importance of the MSP Bill for the industry. Details were given on the strengths and weaknesses of the industry; available opportunities in the industry; threats facing the industry.

In summary, the EAC showed its support for the MSP Bill. It wished the Department and the Portfolio Committee well in taking the Bill forward.

Cape Peninsula University of Technology (CPUT): Submission

Professor Ken Findlay, Research Chair: Oceans Economy: CPUT, said he had had a previous opportunity to appear before the Committee to make a submission on the Bill, and continued by recapping his previous comments. Worldwide, regions and nations were expanding their oceans economy in a bid to provide solutions that would foster economic growth, as well as food and energy security. Humans derived numerous market and non-market goods and services benefits from ocean systems through the oceans economy.

It was important to have ecosystem services. There were provisioning services and regulatory ecosystem services that showcased the role of the oceans in advancing ocean climate, hydrological cycles, carbon syncs and so on. Cultural ecosystem services also existed.

The provisioning services were market services. Some products were taken to the market because they had values and prices. The other two services were non-market services, and were quite difficult to value. At most times, the latter services were taken for granted. It was important to note that all ecosystems’ services were, by definition, dependent on functional ecosystems and ocean health. Without ocean health and ocean integrity, there would be no ecosystem services, which would in turn result in a loss of ocean economies.

On the other hand, there were environmental services such as mining and transport, which were non-dependent on ecosystem services. It did not mean that such environmental services did not have huge potential to impact on the provision of ecosystem services. Environmental services provided for the economies, industries and consumption, with externalities that indirectly impacted on the ocean health, climate change, sea level rise and so on.

As mentioned earlier, ocean economies were dependent on ocean health and consequently, on good ocean governance.On the one hand was the environment, while on the other hand were resources. The environment was driven by environmental functions. Services were derived from the environment and such services provided value across a range of particular industries leading to particular benefits that occurred in a limited ocean space.

On the discussions around an expansion of the EEZ and ocean space in South Africa, it was pointed out that many of these EEZs were coastal and occurred in the shallow coastal waters because of the restriction of access in deep waters. There was therefore, a huge potential for conflict between industries and the environment that would revert back into the system function, which would eventually result in lower ecosystem services. Governance was required in a positive-reinforcing-negative-cycle.

Professor Findlay expressed the desire for ocean governance to balance human benefits and ocean health. This did not translate to support for non-expansion in this area. Rather, a balance was being sought.

Ocean governance was needed. The concept of ocean governance has been defined as an informed decision-making process of tradeoffs. The model he preferred to use in ocean governance was that of the Malin Falkenmark's Trialogue model, which was an interlink of government, science and society, and communication between those particular areas. The important factor was stakeholder engagement between government and rule-making implementation; rule-making adjudication processes; societies consisting of pillars of economy; the social fabric of the environment; and science that provided the knowledge basis of information needed for making informed decision tradeoffs.

Professor Findlay highlighted a paper that was recently published by Jones, Lieberknecht and Qiu, which showcased 12 MSP case studies in Europe. The paper noted that MSP was often focused on achieving sectoral objectives, and for that reason was termed in the case studies as strategic sectoral planning.

MSP had become complex, fragmented and emergent on ad hoc basis, rather than cyclical and adaptive, and prescribed on a prior basis, as was often captured in MSP literature. The process seemed to be a top-down process which tended to dominate. Blue growth was the dominate priority that was often aligned with strategic sectoral priorities, rather than balancing the expansion of oceans economies and ocean health.

He expressed concern over some definitions in the MSP Bill, one of which was the definition of marine area plan, where the word ‘plan’ was omitted. He proposed that the wording of the definition of MAP should be re-looked.

The definition of South African waters was yet another definition that raised a concern, as it specifically stated that it excluded all fresh water bodies and estuaries. This implied that the MSP Bill dealt with territorial waters, the EEZs, and outwards from the baseline, with the exception of inwards from the baselining between the low water mark and high water mark as far as estuaries were concerned. South Africa had a very high energy coastline, which meant that most of the recreation and tourism activities carried out by the South African population were carried out within estuary spaces that were relatively sheltered. This should be addressed, and estuaries should be included within the marine spatial plan.

In conclusion, Professor Findlay echoed the need for a greater public participation process. He had requested in his submitted comments that the review periods for stakeholders and the public, which had been addressed at the national working group level, should be reviewed to bring about a potential for public comments, appeals and participation in the publication process.

Council for Scientific and Industrial Research (CSIR): Submission

Dr Louis Celliers, Principal Scientist: Coastal Systems, CSIR, began by explaining his role in the organisation, which was research and the development of coast and ocean governance.

The CSIR acknowledged the elementary importance of an MSP Act to govern the allocation, exploitation and management of ocean resources in a manner that was sustainable, equitable, transparent and administratively responsible. The organisation agreed with the motivation for the MSP Act, which had been presented by DEA. The Bill was therefore, an important step towards the development of such an Act. The CSIR’s comments were aimed at improving the development of an MSP Act as incorporated within the existing legislative framework, and which was intended to govern an inseparable and seamless coastal and ocean environment.

Four fundamental challenges faced the current MSP Bill.

The first challenge was the disproportionate effort to value. He pointed out that the Operation Phakisa and oceans lab initiative suggested that the ocean economy could add R177 billion to the South African GDP and create one million jobs. Such an incredibly valuable resource would require a commensurately meticulous attention to the legal framework that would govern the use of the space and resources in the same way as had been done for the coast. The Integrated Coastal Management Act (ICMA) and other legislative instruments provided an example and precedent for the development of legislation intended to govern national resources of high value. It was not unreasonable to expect ocean governance to be underpinned by a legislative framework that was as comprehensive as the NEMA and ICMA at the very least.

The second challenge was unreasonable asymmetry. A consideration of the coastal space, when compared to the ocean space, showed that the coastal space had an extensive and comprehensive set of legislation to deal with both terrestrial and coastal spatial planning. This included legislation like SPLUMA, NEMA, ICMA, the Municipal Systems Act (MSA) and regulations dealing with environmental impact assessments, and many others. This created a precedent on how change was planned. The CSIR suggested that the lack of legislation for the National Environmental Management of the Oceans (NEMO) was one of the most critical weaknesses of the current MSP Bill. Without the NEMO or enactment of an Oceans Act, the MSP Bill would be inadequate as a proxy, as it lacked the overarching framework for ocean governance and the effective and coordinated role of MSP.

The third challenge facing the MSP Bill was insufficient transparency regarding inclusion and participation. In the opinion of CSIR, the Bill promoted the sentiment of ‘out of sight, out of mind’. It was an indisputable truth that ocean resources were held in trust by the state on behalf of South Africans. This statement was explicitly mentioned in the ICMA, but was absent from the MSP Bill. This tended to indicate that the Bill concentrated power at the national sphere of government, which was not indicative of a willingness to consider the critical role of provincial and local government, as well as civil society, including the private sector, and many others. Another definition for the word ‘governance’ had been given, to the effect that effective governance could be conceived as a framework of accountability and responsibility to users, stakeholders and the wider community. This included formal and informal arrangements, structures, functions, institutions and organisational traditions and values that had been put in place to achieve the objectives in an effective and transparent manner. A consideration of the above proposed definition in relation to the Bill revealed a weakness in the creation of governance structures for the ocean space.

The major challenge that the Bill should address was the challenge of unclear and incomplete administrative governance. The current version of the Bill did not create a relationship between the data-intensive marine planning process and the burden of accountability required for spatial data within the spatial data infrastructure (SDI) framework. The Bill also failed to provide mechanisms for the policy process. It was difficult to identify a policy process in the MSP Bill that was similar to the ICMA and its implementation. Specifically, the Bill made no reference to the SDI Act as the national regulatory framework for the provision and maintenance of spatial data from government entities. Also, no governance mechanism existed to inform, govern or monitor the implementation of the marine area plans. This reflected the lack of a recognisable policy process for the implementation of the MSP Bill.

Some of the comments made by the CER had highlighted the processes required to govern the ocean space.

In conclusion, the CSIR held the view that an MSP Act located within the framework of an Oceans Act (NEMO) was critically important for South Africa. However, it questioned the sequence of legislative planning that resulted in the presentation of an MSP Bill before the development of a National Environmental Management of the Oceans Act. The Bill in its current form could not compensate for the lack of an Oceans Act, previously initiated as NEMO.

In the CSIR’s opinion, the Bill was positioned in a legislative vacuum, and was not sufficiently comprehensive as a proxy for an Oceans Act. It therefore recommended that all efforts should be focused on the development of an Oceans Act that would be as comprehensive as the Act for the coastal environment. The CSIR anticipated a future with two complementary Acts that were equally strong in respect of the coast and the oceans, and within which MSP could take place in an effective, transparent and responsibly governed manner by an MSP Act.

Western Cape Provincial Government: Submission

Mr Theo Rebel, Chief Town and Regional Planner: Western Cape Government (WCG), said that his role in the provincial government was to consider and support municipalities with planning legislation. Submissions by previous stakeholders had made references to some of the legislation, including SPLUMA and municipal planning by-laws. The WCG had recently received the MSP Bill and it confirmed that the Bill had an impact on the role of terrestrial planners. It had submitted written comments on the Bill, but the comments to be presented would focus on the jurisdiction of the Bill; integrated planning; the Coastal Management Act; and a representation on various governance structures.

Clause 6.2 of the memorandum of objects, recognised that harbours would be substantially impacted by this Bill. There were many things in the Bill that could be improved as far as harbours were concerned. Harbours were a contested space, as various departments operated in them.

As mentioned by Professor Findlay, the definition of ‘South African waters’ should be looked into, as the current definition gave a presumption that the Bill could be interpreted to have an application on inland waters as well, such as rivers and dams, which was most likely not the intention of the Bill.

Another area that should be improved in the Bill was the integration of the Bill with provincial and municipal planning. It would be impossible for marine spatial planning to ignore and plan in isolation from terrestrial planning. All that would be done in terms of MSP would eventually be linked to terrestrial planning, which would have implications, especially for coastal provinces.

The MSP Bill did not also cross-reference the Local Government Municipal Systems Act (LGMSA). The LGMSA required municipalities to have a clear integrated development plan, often described as the ‘role of government plan.’ There was no indication of the MSP Bill’s attempt to integrate or connect with what the LGMSA sought to achieve. Municipalities had to ensure that the compatibility of their plans was considered when working on their plans.

Some of the aquaculture activities in the Saldanha Bay were highlighted (see slide 9 of the attached document). Even though the MSP Bill could be focused more outside of land, in some areas, it created a definite connection and impact on land based operations.

In terms of the ICMA, coastal planning schemes needed to be compiled by all three spheres of government. The MSP Bill did not seem to recognize this factor, neither did it recognise the potential conflict and interface between the Bill and the ICMA. The Bill did not provide users with a logical point of entry to the important task of integrating terrestrial and marine spatial planning.

The WCPG had noticed the suggestion of the establishment of a national working group, DG committees and ministerial committees. However, there was no suggestion of representation from provincial officials, municipal officials, and provincial MEC representation on the ministerial committee. This reflected a lack of integrated planning on the part of the Integrated Development Plan (IDP), and municipal spatial planning.

On the procedure for committees, the WCPG highlighted an issue in clause 10 (7) (a), which provided that the Director-General committee could either ‘approve or refer’ to the ministerial committee. It also highlighted an issue with the numbering of Clause 11 (6) (a). Comments on other identified technical issues in the Bill were highlighted (see slides 15 and 16 of the attached document).

In conclusion, the WCPG believed that the Bill may have significant implications for provinces and municipalities that have a coastline. The terrestrial areas adjacent to the ocean would be directly affected by marine spatial planning. Provincial governments and municipalities would have to be prepared and ready to respond to the MSP system. This would be possible only with the aid of proper representation and proper integrated planning.

City of Cape Town: Submission

Mr Darryl Colenbrander, Head: Coastal Policy Development and Management Programmes: City of Cape Town (CCT), said that the need for an MSP Bill was evident from the previous comments made by different stakeholders.

One of the main intentions of the MSP Bill was for it to provide “institutional arrangements for the implementation of marine plans, and governance of the use of the ocean by multiple sectors”. The emphasis was on governance. CCT considered governance from a broad perspective. In its opinion, governance referred to public and private interactions that were used in solving social problems and creating societal opportunities. This was the key driving force behind Operation Phakisa and the MSP Bill.

Governance in this respect, should include amongst others, negotiations and engagements between all three tiers of government, civil society, and private sector.

In this instance, such governance was key because the interventions, rules, regulations, strategies, and marine area plans that emanated from the MSP Bill would have direct and indirect implications for local government, particularly in relation to activities that may be scheduled in the near shore areas. CCT therefore held the view that local governments and other sectors at the lower level should be included in the process of developing issues and strategies that were linked to the MSP Bill

CCT also noted that there was no institutional mechanism that could facilitate communication and collaboration between national government and government at the local level. This was an important link, as the MSP Bill and activities surrounding its process would have a direct impact on local government. The MSP Bill, however, referred to institutional arrangements such as the national working group, ministerial committee and the DG’s committee. The national working group referred to a wide range of responsibilities, such as mapping and spatial data of different sector uses; compatible and incompatible uses with specific ocean planning; synergies among compatible uses, and so on. These responsibilities had direct elements and values for local governments, and they brought out the need for some form of clarity around institutional arrangements that could facilitate communication between local governments and higher tiers of government in the development of an MSP and local area plans.

Discussion

The Acting Chairperson asked the Department to comment on any issue needing clarification from the various submissions made by the above stakeholders. Once the Committee had developed its report, the Department would be invited to respond to some of the issues arising from the submissions made throughout the public hearings. Relevant submissions made by stakeholders would be considered and included in the final draft of the Bill.

Mr Popose said that the comments from the CER were encouraging, particularly in terms of specific inputs on the Bill and the submission of improvements noticeable on marine spatial planning. A stakeholder summit had been held on the MSP Bill and the MSP framework. All inputs given at the summit had been reflected in the current MSP Bill. The publication of the draft MSP Bill for public comments was for 60 days, and this was aimed at incorporating comments from as many members of the public as possible.

The Department acknowledged that the next phase of MSP would require the inclusion of more stakeholders. More stakeholders were being encouraged to participate in the process.

Most of the comments reflected the importance of the role of civil society. Suggestions had been made that the proposed structures in the Bill should take the form of a forum. The Department has taken note of these suggestions, and it would respond to the inputs made going forward.

With regard to the information base, it was important for the Department to continue to base the Bill on information from the different sectors and stakeholders. Lack of information in certain areas could be solved through the precautionary approach to certain principles in the Bill.

The Department would also pay attention to the suggestions for a re-crafting of some definitions in the Bill, as highlighted by Professor Findlay.

Most of the comments also sought clarity on the difference between the ICMA and the MSP Bill. The two pieces of legislation regulated two different things. In the ICMA, there was a closer link between the people and the coast. However, a vessel would be needed as one went offshore in the ocean environment. This explained the bio-physical issues of the Act, and what the Act sought to achieve.

On the linkages between land and oceans, the national working group was comprised of the Department of Rural Development and Land Reform (DLRDR), which was responsible for planning. This was specifically designed as per the ministerial decision that had been made in 2013 to include the DRDLR, because of its experience in planning. The DEA was learning from the DRDLR, especially because there were no structures in the ocean. The planning on land had different arrangements from what obtained in the ocean. Nevertheless, the planning principles were the same.

The Department would look into the proposal for the inclusion of estuaries.

Adv Nicolette de Kock, Legal Adviser: DEA, commented on the distinction between the ICMA and the MSP Bill. The NEMO Act was just a piece of sector environmental legislation, whereas the MSP Bill was a piece of cooperative governance legislation that cut across all sectors, and was not purely an environmental piece of legislation. The lack of a specific Oceans Bill did not translate to a lack of laws that related to the ocean. All environmental legislation contained laws that covered the marine environment, including marine species, MPAs, and so on. An Oceans Bill would only take those relevant sections and consolidate them into one Act, and this was unnecessary since there were laws in place for this purpose.

ICMA was a dynamic piece of environmental legislation that covered the land and sea interface, and had created a specific framework to deal with the three spheres of government that managed such spaces. The MSP Bill on the other hand, dealt with the huge ocean space where there were often fewer role players. It focused more on planning in the ocean space, using sector legislation like the ICMA, the Marine Living Resources Act (MLRA) and the MPRDA. These sector legislations would apply and would be utilised for the planning of the space. The MSP Bill should be considered as framework legislation for planning that allowed each department to manage its sector in accordance with its own legislation.

The Acting Chairperson assured stakeholders that their presentations and inputs would be taken seriously, regardless of whether some of the inputs went slightly outside the Bill itself.

He commented on the Afrikaans quotation referred to by Mr Craythorne, noting that the attitude of the Committee was not to ignore any stakeholder. Every stakeholder was valuable and meaningful to the Committee. The concerns of the organisation had been noted and would be properly considered.

The broader issues should be addressed elsewhere and not necessarily within environmental affairs.

He concluded by appreciating all stakeholders for their inputs.

The meeting was adjourned.

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