Marine Spatial Planning Bill [B9D-2017]: negotiating mandates

NCOP Land Reform, Environment, Mineral Resources and Energy

30 October 2018
Chairperson: Mr O Sefako (ANC)
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Meeting Summary

The Select Committee, comprised of Members from the National Council of Provinces (NCOP), on Land and Mineral Resources met to discuss the negotiating mandates relating to the Bill on Marine Spatial Planning (MSP).

The KwaZulu-Natal and Western Cape Legislations brought forth some suggestions for amendments. Officials from the Department of Environmental Affairs were present to engage with the Members and the negotiating mandates that were submitted on behalf of the provincial legislatures.

Both the KwaZulu-Natal and Western Cape Provincial Legislatures expressed concern that municipalities were not included in the Directors-General Committee that would be appointed. The Bill would have significant implications for provinces and municipalities that had a coastline.

Meeting report

Opening Remarks

The Chairperson explained that the agenda for the meeting was the consideration of the negotiating mandates that had been submitted from the provinces. The apologies for absent Members were given, which included Ms Z Ncitha (ANC; Eastern Cape). Ms Ncitha’s son had recently passed away and so there was a moment of silence in respect of him.

Proposed Amendments

The Free State Provincial Legislature voted in favour of the Bill with no amendments.

The Gauteng Provincial Legislature supported the principle and the detail of the Bill and therefore voted in favour of it.

The Mpumalanga Provincial Legislature voted in favour of the Bill as it conferred on the permanent delegate representing the province in the NCOP.

The Limpopo Provincial Legislature had no mandate.

Mr A Singh (ANC; KwaZulu-Natal) would represent his province and its mandate. Ms C Labuschagne (DA, Western Cape) would do the same for her province and its mandate. There was no Member to present the North-West Provincial Legislature and its mandate, however only one proposed amendment had been submitted.

Ms Labuschagne said it was difficult to ascertain if the different provincial submissions complemented one another when it was not discussed clause-by-clause. All the Members chose to abstain from voting in favour or to oppose of the amendments proposed in the meeting as the amendments were dealt with in sections of province submissions and not in order of the sections in the Bill. However the provinces voted in favour of their respective amendments in the negotiating mandates.

Section One: Definitions

The North-West proposed an insertion to the definition section; a clause that defined an “ocean” was a common heritage of all citizens of South Africa of which the State was a custodian.

KwaZulu-Natal (KZN) submitted that the term “sustainable use” was used in the Bill and should be defined.

Western Cape said that Marine Spatial Planning (MSP) must be defined in the Bill. The Bill applied to South African waters which were defined to include “internal waters”. The Maritime Zones Act stated that internal waters shall comprise “all waters landward of the baselines and all harbours”. The Bill specifically excluded all fresh water bodies as defined in the National Environmental Management: Integrated Coastal Management Act. It was submitted that “fresh water bodies” also be defined to further clarify that the Bill was not applicable to inland waters as terrestrial planning for those was already covered by other legislation. In addition, the term “knowledge and information system” should be defined as it was used throughout the Bill.

Section Four: Conflicts with other legislation

The Western Cape submitted that as there was no other legislation dealing with MSP and clause four was probably intended to read as follows:

‘In the event of any conflict between the provisions of this Act and other legislation, this Act prevails where the conflict relates to marine spatial planning.’

Section Five: Principles and criteria for marine spatial planning

The Western Cape submitted that clause 5(1)(a) started with capitalisation, which should be lower case. In clause 5(1)(k) it appeared as though ‘… good administration coherent …’ should be ‘… good administrative coherence…’.

KwaZulu-Natal submitted that this clause dealt the principles and criteria and so those should be tabulated in order of hierarchy (from the most important to the least).

Section Six: Marine spatial planning system

The Western Cape submitted that clause 6(a) started with capitalisation, which should be lower case.

Section Eight: Consultation

The Western Cape submitted that the ‘the’ preceding the words ‘marine area plans’ in the first sentence of clause 8(1) should be deleted.

Section Nine: National Working Group (NWG)

KwaZulu-Natal submitted that the NWG proposed within the MSP Bill should not consist of government officials and representatives of government departments only. The only successful historical steering committees and working groups contained a good balance of government and private sector representation. Therefore the proposed amendment read as follows:

“9 (1)(a) … rural development (and) land affairs and representatives from the environmental private sector and independent civil society.”

The Western Cape submitted that the development and drafting of the Marine Spatial Planning Frameworks (MSPFs) were designated to the NWG in terms of clause 9(2). The Bill was silent to the manner in which MSPFs must be drafted, whether such frameworks must be national or drafted for certain regions or areas, to who draft MSPFs must be submitted, how and by whom these draft MSPFs would be evaluated and reviewed and who would be responsible for the approval and implementation of these frameworks. MSPFs should be included as a separate clause, in which the process, from drafting to acceptance and review, be set out.

The Western Cape continued that no determinable requirements were set in the Bill for officials to qualify for nomination to the NWG. Furthermore, if the NWG was to be comprised of persons who were considered to be experts in their respective fields of study or practice, a rider must be included in clause 9(4) so that experts may only be appointed in the event where the NWG was not capable of dealing with a specific matter internally. The NWG on MSP created in terms of clause 9 includes competent officials from various national departments but it does not make provision for the inclusion of provincial officials on the committee. The Bill may have significant implications for provinces which have a coastline and it was therefore submitted that provision should be made for the inclusion of provincial officials on the NWG on MSP.

In clause 9(2)(b)(xiv); It was also submitted that the “ cultural values” mentioned in line 50 was a repetition of that in line 45 and should be deleted.

The Western Cape also submitted that ‘data base’ in the second line of clause 9(2)(b) should be ‘database’. Clause 9(2)(b)(i) started with capitalism which should be lowercase. It was submitted that everything after the expression ‘subsection (3)(a)’ in the first line of clause 9(2)(c) be deleted, since the obligation here to report to the Directors-General Committee was also stated in subsection 3(a).

Section Ten: Directors-General (DsG) Committee

The Western Cape said that the DsG Committee created in terms of clause 10 did not provide for provincial or municipal representation on the committee. The Bill also did not provide for representation by the Department of Water and Sanitation, Disaster Management Authorities, the South African Maritime Safety Authority and the South African Local Government Association. The province did not agree that marine spatial planning could be done without the provincial and municipal input that was responsible for the terrestrial areas that would support the ocean-based activities, the terrestrial areas adjacent to the ocean would be directly affected by maritime spatial planning.  Provincial governments and municipalities would have to be prepares and ready to respond to the MSP system.

The Bill may have significant implications for provinces and municipalities that have a coastline and it was therefore submitted that provision should be made for the provincial and municipal representation from the entities mentioned on the DsG Technical Committee and any other committee created in respect of MSP. It was also submitted that a comma needed to be inserted between “planning” and “monitoring” in line 17.

KwaZulu-Natal municipalities were also in the view that they had been left out from the MSP Bill and regarded themselves as an important component in planning.

Section Eleven: Ministerial Committee

The Western Cape submitted the word ‘the’ be inserted between the words ‘of’ and ‘Ministers’ in the second line of clause 11(1). A comma needed to be inserted between “planning” and “monitoring” in line 47. It also submitted that clause 11(4) be redrafted to state that, ‘Decisions made by the Ministerial Committee must be by consensus.’ The current draft suggested that there was only one type of decision to which the consensus-requirement applies. From clause 11(5) it appeared that this was not the case, and that there were various decisions that the Committee may make.

Section Twelve: Publication

The KwaZulu-Natal province said that clause 12 did not provide for an opportunity for public comments.

The Western Cape said that parliament does not have a Speaker. Parliament consisted of the National Assembly and the NCOP. If it was the intention for the relevant portfolio committee of the National Assembly to consider these frameworks and plans then clause 12(2) should follow the following approach:

Clause 12(1) Any marine special framework and marine area plans that have been approved by the Ministerial Committee must be submitted by the Minister to the Speaker of the National Assembly for tabling for consideration by the relevant committee of the National Assembly.

Section Fourteen: Review of plans

KwaZulu-Natal suggested a shorter period for the review of plans as five years was deemed to be too long. It was submitted that the review should happen every three years instead.

Engagement from the Department of Environmental Affairs (DEA)

Nicolette Vink, Acting Director: Law Reform, at the DEA, said that the term “knowledge and information system” was not used in a legal sense and was intended to have the ordinary dictionary meaning. New information was constantly being found and integrated into the process.

Popose Gcobani, Director: Ocean Conservation Strategies, DEA, said that NWG members would be appointed by their respective DGs who have the legislative mandate in terms of management of the ocean. Whatever those members do would still have to be reported back to the DGs, the DGs would need to take that information to the next level as proposed in the Bill, which was the Ministers.

Ms Labuschagne asked what the consequences would be should those processes not be followed as prescribed in the Act.

Mr Gcobani said there was an escalation mechanism proposed in the Ocean Economy Initiative of which this Act was a key initiative of integration. The DGs Committee would have to elevate the issue and find amicable solutions.

He said that the provinces were not excluded from the operations of the NWG and the various DG Committees. The terms of reference for the NWG indicates that at any given time were required to invite experts depending on the issue and area that needed to be resolved.

Ms Vink said that the DG Committee was quite broadly represented by the national Departments. There was a provision in the Bill that allowed for additional members to be co-opted as well. One of the reasons that specific provisions for provinces or local governments was not included was that those spheres of government get consulted in a very extensive consultation process provided for in clause eight of the Bill, which set out sector organs of State that needed to be consulted and that information would be feed out into those committees. If the committee was too big it would be very difficult to manage. The committee needed to be a manageable size and those representative members would go on to consult the relevant spheres of government and  to interact.

She said that any decision taken by the Ministerial committee would be by consensus.

The Members were in favour for the adoption of the Bill.

The meeting adjourned.

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