Marine Spatial Planning Bill: deliberations, with Minister

Meeting report

Marine Spatial Planning Bill: Legal opinion on issues raised

Ms Suraya Williams, Principal State Law Advisor, Office of the Chief State Law Advisor (OCSLA), referred to the incorporation of an oversight role for Parliament in respect of the approval of the marine spatial planning framework, the marine area plans, and the functioning of the Directors-General and Ministerial Committee, as provided for in the Bill. She also dealt with the feasibility of a consultation role for civil society, the incorporation and acknowledgement of international agreements’ obligations in the Bill, and how the Committee could deal with issues of conflict of laws between the MSP bill and other legislation.

On the Parliamentary oversight role, the Committee had expressed its concern that the approval of the marine area plans, as provided for in the Bill, were left at the behest of the executive and there was no provision in the Bill that provided for its oversight. However, the Constitution of the Republic of South Africa, as the supreme law, provided the National Assembly, under section 55, powers to require any person or institution to report to it. Parliament may adopt further legislative measures to ensure that it effects and maintains this oversight role. To this end, a proposed amendment to clause 12 of the Bill had been crafted so as to provide for the oversight.

With regard to the consultation by civil society, the Committee had expressed concern at the lack of express provisions for including civil society in the consultation process. To this give this effect, the DEA had proposed an amendment to the wording of clause 8(1) of the Bill and a further amendment to clause 13 of the Bill. The amendment would authorise the Minister to make regulations regarding the procedure and manner of the consultative process.

With regard to the acknowledgement and incorporation of international commitments, the Committee had raised concerns over the lack of representation of the relevant international agreements in the MSP Bill. As such, clause 5(1)(i) of the Bill lists the principles applicable to the MSP and includes the recognition of South Africa’s international obligations. As an alternative, this acknowledgement could also be incorporated into the preamble of the Bill. However, at this time, the OSLA was not able to express a view as to which international obligations were applicable to the MSP and had left it up to the DEA to confirm which international agreements were applicable.

With regard to any potential conflict of laws as envisaged in clause 4 of the Bill, the DEA had highlighted that provisions such as clause 5(1)(i) and (2) of the Bill adequately addressed the issue. Further, section 52 of the Integrated Coastal Management Act (ICMA) provided for a remedial process in the event there was a conflict. In effect, clause 4 of the Bill and section 52 of the ICMA give the MSP preference over a coastal management plan without necessarily nullifying section 52 of the ICM Act.

Discussion

Ms Radia Razack, Director: Law Reform & Appeals, Cape Town Office, DEA, said that they had a few issues which they would like to respond to during the deliberations on the Bill’s clauses. On the matter of the Parliamentary oversight opinion, it fulfilled the constitution’s prescripts and gives effect to Parliament’s oversight intention, and the DEA was in support of this opinion.

The Chairperson expressed his concern regarding the proposal of tabling the MSP within 30 days, since it did not provide any specific plan after the tabling of the plan, or when it became effective.

Ms Williams said that the provision was merely an arbitrary proposal and explained that upon the publishing of the plan in the gazette, it became effective. However, the timeline set assumed that there would not be any additional input from the DEA, and that therefore the plan could be published. However, depending on the type of Parliamentary oversight desired, this may affect the time periods.

Mr S Makhubele (ANC) said that the Committee had requested assistance on the issue since it was not qualified to oversee an inter-ministerial committee. Also, one portfolio committee might not be enough to oversee the Director-Generals’ committee, since decisions would be made collectively as a board. The opinion needed to address how the board would be accountable to Parliament, and which committee would be charged with that responsibility. This needed to be reflected in the law, or else the Speaker should take responsibility.

The Chairperson reiterated the same issue of assignment of responsibility and noted the Bill established a technical working group, a DGs’ committee and an inter-ministerial committee. He asked which board would be held accountable and who would ultimately bear responsibility. He also asked how or who would be held accountable to the Committee.

Ms Razack said that on the determination of accountability, the ministerial committee was the one that could be sued. However, since there were many departments involved, there was a provision in the Parliamentary rules regarding joint-committees, and these could be adopted for the inter-ministerial committee and thereby create a provision that could apply for this unique situation.

The Chairperson said that this was an area that the Committee needed to think about, and formulate a much more elaborate oversight provision. The state law advisors and the Parliamentary legal advisors should draft a provision that speaks to the objective of the Committee.

Mr Makhubele said that there should be a structure in which each board accounted for what it had done and appeared before the oversight body and accounted for what it had been doing.

The Chairperson requested the state law advisor and the Parliamentary legal advisors to craft a provision to ensure that there was proper oversight over the MSP.

Mr Nathi Mjenxane, Parliamentary Legal Advisor: Parliamentary Legal Services, asked for clarification on whether the Committee was concerned with the development of the plans, or the oversight of the plans after they had been implemented.

Ms Veounia Grootboom, Chief State Law Advisor, DEA, suggested that Parliament had numerous powers in the Bill, and could delegate its oversight authority to the executive by prescribing to them the procedure to be followed before the approval of the MSP. However, in the event Parliament would like a more specific role, it could be incorporated into the Bill. She proposed that the Department should approve the plan before it was published in the gazette. If the DGs’ Committee approved it, it would go to the ministerial committee and thereafter, if approved, it would go to Parliament for the final approval.

The Chairperson said that Parliament would not want to get involved with the final approval of the plan, but would only need to be satisfied that all the required prescripts had been complied with. This should be an inherent requirement before the final plans were approved.

Ms Williams asked for clarification on the technical or practical term the Committee oversight requirement would entail.

The Chairperson said that the formulation of the procedure should be the work of the executive.

Ms Razack said that the executive would need the Bill to be accompanied with the regulations, since there was a pre-existing precedent whereby the executive would not approve the Bill if the Regulations that would give it effect were not approved. In order to avoid that, there could be a provision in the Bill explaining the procedure so as to give effect to the Committee’s suggestion. With regard to the incorporation of international agreements, the UN Convention on the Law of the Sea (UNCLOS) was incorporated in the Maritime Zones Act, and gave effect to the territorial waters. The Benguela Convention was incorporated into the Marine Living Resources Act.

Clause by clause deliberations on MSP Bill

The Chairperson took the Committee through the clause by clause deliberations on the Bill.

Preamble

Ms Razack said that the Committee’s suggestion on the incorporation of the international agreements’ obligations was already captured in the general statement of the preamble of the Bill.

The Chairperson said that, on the conservation versus development issue, the Bill sought to achieve both objectives. However, these issues were mutually exclusive, and he therefore asked for clarification on whether the Bill was seeking to protect and preserve first over development.

Ms Razack said that the Bill sought to strike a balance between the economic and social factors, and proposed that the Bill should include the word ‘sustainability’ in order to achieve this objective.

Mr R Purdon (DA) asked for clarification on whether there already was a statement in the preamble of the Bill that recognised South Africa’s international obligations, or whether those obligations were left to sector legislations.

Ms Razack said that there had been two suggestions, one of which was to include a general statement in the preamble. However, there was already one provision under the principles in the Bill. The other suggestion was to the effect that, in the event the principles did not sufficiently capture South Africa’s commitment to those obligations, it could be included in the clauses as well.

Definitions

Ms Razack said that there was a suggestion to amend the definition of ‘Marine Area Plan’ in the Bill, as it did not quite capture the meaning, and therefore proposed a better wording of the provision.

Mr Makhubele proposed that the word ‘governance’ should be included in the definition section of the Bill in order to provide a more accurate interpretation in the future, since it may extend to other governing structures outside the government.

Ms Razack said that ‘governance,’ when used without an assigned definition, had the ordinary dictionary meaning. It therefore meant the procedure of the planning or the carrying out of a duty. Defining it would give it a specific definition that might bring ambiguity. There was also no provision that specifically dealt with governance and therefore it may not be necessary to define it further than its ordinary meaning.

The Chairperson clarified that the word in the act was ‘responsible ocean governance’.

Objects of the Act

Ms Razack said that defining the phrase might raise more interpretation difficulties, and may be used adversely in any potential litigation. On the objects of the Act, it gave the Bill the widest possible reach with regard to compliance with international obligations.

The Chairperson expressed his concern that ‘preservation for future generations’ was not among the objects of the Bill, and proposed its inclusion.

Clause 5

Ms Razack informed the Committee that clause 5 of the Bill had been revised after public comments to include the recognition of the ‘precautionary approach’ and other grammatical amendments, to give the provision a better reading.

The Chairperson said that there had been a lot of licences given for exploration for oil in the Exclusive Economic Zone, and any conflict must be resolved through equitable resolution under clause 5 of the Bill. 

Ms Edna Molewa, Minister of Environmental Affairs, said that, on the exploration of mineral licences, the DEA was aware that the Department of Minerals had issued some exploration licenses. It was the first time that South Africa was dealing with oil and gas issues in the ocean space, and that was why there were exploration licences. That was why they were not a permanent licence since it was not a guarantee that the explorers would find what they were looking for. The MSP remained important since negotiations were taking place outside a legal framework regarding the 22 marine protected areas (MPAs). The MSP could guide these negotiations to avoid a conflict of jurisdiction and strike a balance between competing priorities.

The Chairperson said that the Committee was keen on finalising the Bill soon. The marine protected areas were contested spaces, since the fewer the MPAs the better for the explorers. He reiterated that conservation could not co-exist with mining or exploration.

Ms Razack said that the issue of existing rights was addressed in clause 13 of the Bill. However, the state law advisors were considering that clause, as it may be too forward looking for a sector legislation.

Clause 8

Ms Williams proposed a revised version of clause 8 of the Bill regarding the consultative process, to ensure that all relevant stakeholders were included in the event that there was a prescribed manner.

The Chairperson expressed his dissatisfaction with the formulation of the revision, and requested further refinement of it.

Ms Razack said that the provision needed to be completed, since there was a precedent to the effect that the President could not sign a Bill into law in the event that the Bill required regulations so that it may be implemented.

The Minister said that the Bill needed to apply to persons beyond explorers, such as persons who were not considered as ‘holders of existing rights.’ She proposed a change to the term in order to include other classes of persons who may be affected by the application of the Bill, and might not necessarily fall under it. She also suggested that private enterprises should also not be forgotten among the sector stakeholders envisaged in the Bill.

Clause 10

The Bill intentionally defined a ‘minister’, ‘ministerial committee’, a ‘Director-General’ and a ‘Directors-General Committee,’ since the Bill would be implemented through facilitation and not necessarily a hierarchy by the Minister and the DG of Environmental Affairs. The Bill would be coordinated under the DEA.

The Chairperson asked for clarification regarding the quorum vote for the Directors-Generals’ committee. Also, in the event a quorum was not present in the meeting, why was the DG of the DEA the one who had a deciding vote and not any other DG?

The Minister proposed that clause 10 (5) of the Bill be scrapped, since the DGs hardly voted and in the event of a lack of consensus, the matter should be escalated to the ministerial committee.

The Chairperson asked what would happen in the event the technical working group did not reach a consensus.

Ms Razack explained that the technical working group did not make decisions, but merely suggested recommendations and therefore there was no need for a consensus.

The Minister added that the technical working group dealt with scientific information and as such there was little difference on the factual grounds.

The Chairperson said that the Bill should be clear and not have co-chairpersons, since work may be frustrated by bad working relationships.

Ms Razack said that although the ministerial committee was the final approving body for the MSP, the plan could still go to Cabinet for voting

Mr Makhubele asked for clarification regarding the issue of the quorum of six people. The initial understanding was that there should be more than half of the officers of Department present at the meeting, which would take the Department to 12, and initially there were 11. In the event there was a need for more people, there would need to be at least seven more people as representatives of the Department.

The Chairperson proposed that the committee should even have five people, since it was comprised of Cabinet ministers and DGs who had busy schedules. In the event the quorum was raised, there may be a situation where the Committee could not operate due to a lack of quorum. A lower number would facilitate easier decision making. The Committee had been scheduled to meet on the following day if the Department was comfortable in responding to all the issues raised, but if the Department was not in a position to respond, the Committee could convene next week.

Clause 13

Ms Razack said that the DEA needed more time to consult with its technical advisors and they could meet the Committee at a later date to finalise the Bill. Regarding Clause 13 of the Bill relating to Regulations of the Bill, there was a proposed addition to the provision that still posed legal challenges that could not be avoided to be dealt with. The provision still needed more refinement.

The Chairperson said that the content advisor had observed that the MSP Bill did not specify the legal position of existing permits, licences, permissions and other authorisations that were contrary to the objectives of the Marine Area Plans or the principles of the MSP Bill. The ability of the MSP Bill to balance interests and at the same time ensure ecosystems were functioning was severely hampered considering that up to 98% of South Africa’s exclusive economic zone had already been leased to offshore oil and gas exploration. Over 10% of seabed mining and large concession areas provided for marine mining, and fishing rights granted significant commitments made for expanding marine mining and other marine sectors such as shipping. For the MSP Bill to be meaningful, it must legally provide for withdrawal, repealing, and the expropriation of rights that were not compatible with the overall MSP objectives. There was therefore a need to include a provision to give this effect, and the penalties thereof.

The Bill also did not provide for the criteria of granting a permit, meaning that a licence may be granted even in the event that it is against the objectives of the Bill. This had been a point of contention, with parties differing on whether the Bill granted rights or not. The Committee needed to address how this should be resolved.

Ms Razack said that the version of the Bill the DEA had sent to the Committee had a proposal regarding that problem. However, the Office of the State law advisor had expressed concerns with the proposal.

The Chairperson said that there were provisions in other legislation that allowed for the operation of the existing legislation to operate during the transitioning period, or where there was a conflict.

Ms Razack responded that the office of the state law advisor was currently working on the formulation of that provision.

The Minister sought clarification on why the provision had been removed in the first place.

Ms Razack explained that the state law advisor had expressed concerns regarding the provision since it inadvertently created an offence that the DEA could not enforce, and that was why it had been removed.

The Minister expressed her concerns regarding the present version of the provision, and said that it may create legal problems. The DEA was a coordinating Department, and therefore did not instruct other departments.

Ms Razack said that the proposal for consultation with stakeholders could be incorporated in clause 13 of the Bill regarding the formulation of regulations on the MSP by the Ministerial Committee.

Summary by Chairperson

The Chairperson summarised the meeting’s discussions. He said that regarding the oversight mechanism of Parliament, although the Committee was not comfortable with Parliament being the one to make decisions, there had to be a role that Parliament played to ensure that there was compliance. There had to be the publishing of the MSP, and thereafter there should be a briefing.

On the consultation issue, the procedure should be included in the regulations. However, civil society should be consulted on how it should be conducted.

Regarding the Bill, he observed that the preamble and the definitions were fine. However, on the objects of the Bill, there should be a provision including the preservation of the ocean floor, despite the fact that there were other legislations addressing it. The Bill could not mention the exploitation of the Exclusive Economic Zone without the conservation and preservation of its living resources. There should be balanced economic development to ensure that there was a balance between the conservation for future generations and the exploitation of the economic resources of the sea.

It had been observed that the principles of the Marine Spatial Planning framework were not included in the Bill, and it was suggested that they should be expressly stated in the Bill so as to give them legal status. He therefore requested the DEA to give direction on how that would be handled.

Ms Razack said that the DEA would look again at the framework and see if there was anything that they had left out and reflect it in the text.

Mr Gcobani Popose, Director: Oceans and Coasts Branch, DEA, said that the language used in the Bill was different to that used in the Marine Spatial Planning framework and that the DEA had aligned the two documents during the drafting of the Bill. However, they would look into the MSP planning framework and see what might have been left out. He explained that the MSP framework was not a legal document but rather a process document, and therefore it used simpler language, and that might have been the reason why the principles might have not been identified.

The Chairperson summarised further that, on Clause 8 of the Bill which related to the consultation process, the Committee had agreed to amend and take out the reference of ‘rights holders’ so as to make the provision more inclusive. Also, the National Working Group under section 9 should have the DEA for chairmanship, and the decisions made by general consensus. In the event of a disagreement, the issue should be escalated to the Director-Generals’ Committee. However, on the equitable resolution of disputes in the Committees, it was observed that that needed to be an overriding consideration, since some issues could not be mutually coexistent.

Ms Razack said that the DEA had added a precautionary approach among the principles so as to reduce the ambiguity.

The chairperson said that, regarding the DGs’ Committee, the committee had agreed to remove the positions of co-chairpersons and make the DG of DEA as the chairperson but with no deciding vote. In the event of a lack of consensus, the issue should be referred to the ministerial committee. On the issue regarding the DG’s powers to nominate their alternates, they may not nominate any person of lower that the level of the Deputy Director General. He thereby suggested that the alternates in the DGs’ Committee should not be persons who sit in the technical working group.

Ms R Razack suggested that the Committee could allow the chief Directors on the condition that they do not participate on the working group.

The Chairperson questioned why the committee should therefore be called a “Directors-General Meeting” if it was not being attended by DGs. On the quorum of the DGs’ Committee, the Committee had agreed that five members would be a sufficient quorum to make decisions and vote. The ultimate responsibility should stop with the ministerial committee. However, ministers may have reservations regarding any voting procedures, since they worked under consensus and any conflict was forwarded to the Cabinet for decision-making. Despite this, there was a need to establish how a ministerial decision would be reached under the MSP Bill. The Committee could meet at a later date to finalise the Bill and the issues raised.

The meeting was adjourned.