Committee Workshop on legislation and policy in Environment, Forestry and Fisheries portfolio day 3

Environment, Forestry and Fisheries

20 August 2020
Chairperson: Mr F Xasa (ANC)
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Meeting Summary

Video: Portfolio Committee on Environment, Forestry and Fisheries, 20 August 2020

The Committee met with officials of the Department of Environment, Forestry and Fisheries (DEFF) on the third day of a virtual workshop on the legislation and policies administered by the Department.

Members were briefed on the Marine Spatial Planning Act, which provides a framework for coordinating other legislation on the oceans. They were told that the oceans had many users and this had resulted in conflict due to a lack of proper guidance on the most appropriate uses. Cabinet had designated the DEFF as the lead authority for marine spatial planning (MSP), and it collaborated with other authorities to ensure sustainable ocean development for the benefit of all citizens of the country.

Spatial planning was based on four bio-regions -- the eastern, southern and western regions, and the area around Marion Island, 2 000 km from Cape Town. Planning was currently focused on the southern marine area, which was one of the most productive fishing grounds in South Africa's exclusive economic ocean zone. It was also important for the oil and gas sector.

The Committee also received a briefing on the network of 20 Marine Protected Areas (MPAs) which had been approved by the Cabinet. Members were told that the Department was communicating with various executive agencies and communities on how they would be affected by the regulations for the MPAs.

They received a presentation on Chapter 7 of the National Environmental Management Act (NEMA), which provides for an environmental management inspectorate, or so-called “Green Scorpions.” They were told that the Act provided a single set of enforcement powers for environmental management inspectors (EMIs) in the national, provincial and local spheres of government. The Department aimed to achieve greater consistency in applying regulations on biodiversity, protected areas, air quality, developmental impact assessments and coastal management. In total, there were 3 240 EMIs.

Members raised the possibility of establishing dedicated environmental courts, but were told that the Department of Justice was not in favour of this because of the complex logistics that would be required. They heard that air quality compliance notices had been issued to several Eskom power stations, as well as to ArcelorMittal at Vanderbijlpark and to Sasol. They were told that EMIs faced major challenges in dealing with mining issues, where the Department of Mineral Resources and Energy had exclusive jurisdiction.

The Committee was also briefed on the Marine Living Resources Act (MLRA), and was told the Act provided for the conservation of the marine ecosystem and the sharing of resources among three recognised forms of fishing -- recreational, commercial and small-scale. The Act provided for the appointment of fishery control officers and honorary marine conservation officers. There was scope to appoint more honorary officers to provide “eyes and ears on the ground.” It also provided for the annual determination of total allowable catches. It prohibited certain fishing methods, such as the use of explosives or poisons.

Members raised concerns that traditional small-scale fishers did not have adequate access to fishing rights and resources. They were told that strategies were being developed to help fishing cooperatives to participate in the fish processing and marketing value chain.

Meeting report

The Chairperson commented that the meeting was the final session of the three-day workshop on the policies of the Department of Environment, Forestry and Fisheries (DEFF). He invited Mr Ishaam Abdader, Acting Director-General, to make the opening remarks.

Mr Abader said he and his colleagues had noted questions raised during the earlier sessions of the workshop, and would respond to them. He asked Mr Gcobani Popose, Director: Oceans Conservation Services, DEFF, to make a presentation on the Marine Spatial Planning Act.

Marine Spatial Planning Act

Mr Popose said the Act provided a framework for coordinating other legislation on the oceans. The oceans had many users, and this had resulted in conflict due to a lack of proper guidance on the most appropriate uses. The Cabinet had designated the Department of Environment, Forestry and Fisheries (DEFF) as the lead authority for marine spatial planning (MSP), and the Department had collaborated with other authorities to ensure sustainable ocean development for the benefit of all citizens of the country. A national MSP working group included representatives from the defence, environmental, agricultural, transport, rural development, mineral resources and science and technology sectors.
Mr Popose said South Africa’s ocean space exceeded its land mass and included Marion Island and the Prince Edward Islands. There had been extensive consultations about the Act with coastal provinces and rural communities to explain how they would be affected by it. A national data gathering process was currently under way to ensure that planning was based on good information. There were challenges in ensuring that different departments shared information and in determining where the information would be hosted.

Planning was based on four bio-regions - the eastern, southern and western regions, and the area around Marion Island, 2 000 km from Cape Town. Planning was currently focused on the southern marine area. It was one of the most productive fishing grounds in South Africa's exclusive economic ocean zone, and it was also important for the oil and gas sector. There were vital submarine communication links and high-value marine tourism routes. Careful management was needed to ensure the region's value was shared equitably.

Discussion

Mr N Paulsen (EFF) wanted to know whether the planning process included providing information to the sea fisheries authorities on the levels of fishing stock.

Ms C Labuschagne (DA, Western Cape) asked whether the allocation of ocean areas for different activities such as aquaculture or oil and gas exploitation would be based on scientific data. What authority would the MSP Act provide for the licensing of these activities? How long would it take to develop a spatial planning framework? Would the database be kept up to date?

Mr Popose replied that the MSP was a collaborative effort. Fisheries authorities were included in discussions in the national MSP working group. They would have to take account of these discussions in determining fishing quotas. He agreed with Ms Labuschagne that keeping the database up to date was going to be a big task. A national coastal information system was being developed.

Marine Protected Areas

Mr Popose made a presentation on a network of 20 Marine Protected Areas (MPAs) approved by the Cabinet as part of Operation Phakisa - a plan to speed up the delivery of objectives of the National Development Plan (NDP). Now that these areas had been declared, the Department was communicating with various executive agencies and communities on the interpretation of the regulations. There would be no point in developing regulations written by lawyers if people did not understand them. It was necessary to explain to communities what the regulations meant for their livelihoods. There would have to be constant research and monitoring of the effectiveness of the MPAs.

Discussion

Ms Labuschagne asked about the timeframe for declaring the MPAs, and drafting regulations for them.

Mr Popose responded that the MPA process had been lengthy and complex. Government departments had conflicting interests involving, for example, oil and gas exploitation and marine preservation. In the end, the matter had been placed before the Cabinet, which had approved 20 of the 22 MPAs which had been recommended to it. Regulations had already been approved. Currently there were road shows to further explain the language of the regulations to the people.

Green Scorpions

Ms Frances Cragie, Chief Director: Enforcement, DEFF, made a presentation on Chapter 7 of the National Environmental Management Act (NEMA), which provided for an environmental management inspectorate, or the so-called “Green Scorpions.”

She said the NEMA provided a single set of enforcement powers for all officials in the national, provincial and local spheres of government. It created a network of environmental management inspectors (EMIs) to achieve greater consistency in applying regulations on biodiversity, protected areas, air quality, developmental impact assessments and coastal management. The EMI network involved the DEFF and the Department of Human Settlements, Water and Sanitation. Also involved were three statutory bodies, nine provincial environmental authorities, five provincial parks agencies and 64 district and local municipalities. In total, there were 3 240 EMIs.

There were key partnerships with the SA Police Service (SAPS), the National Prosecuting Authority (NPA), the SA Revenue Service’s (SARS’s) customs and border authority, and the Departments of Water and Mineral Resources.

EMIs were designated by the relevant Ministers, who could also delegate this function to directors general (DGs) or to the boards of statutory agencies. The NEMA set out the functions of EMIs in monitoring and enforcing compliance with environmental regulations, and in investigating breaches of the law. There were strict admission criteria for EMI basic training.

EMIs had a geographical mandate. For example, EMIs for the SANParks could operate only within the boundaries of national parks. However, some officials had requested national designation to enable them to investigate criminal syndicates operating across the boundaries of provinces and protected areas.
Ms Cragie said a challenge in implementing the EMI system was that the mandates of EMIs sometimes overlapped with other sectoral departments or spheres of government.

The powers of an EMI included entry on to land in order to ascertain compliance with legislation; the power to issue compliance notices; and investigative powers of search and seizure. The Act also specified that an EMI should be regarded as a peace officer, with powers similar to those of a police official.

EMIs were required to identify themselves to the public while on official duties; provide receipts for seized items; and maintain confidentiality while exercising their official duties.

EMIs had powers of administrative enforcement which required a lower level of proof than criminal proceedings. The aim here was not to punish, but to remedy situations causing environmental damage by issuing various types of compliance notices. However, there were times when there was a need to take both administrative and criminal action.

Criminal enforcement could include the forfeiture of property used in committing an offence. In addition to fines, there could be expanded penalties equal to the monetary value gained in committing the offence. The law also provided for cost, damage and rehabilitation orders.

The NEMA also provided for Environmental Mineral Resource Inspectors, which fell within the mandate of the Department of Mineral Resources and Energy (DMRE).

Ms Cragie provided details of some of the cases prosecuted under the NEMA. The highest sentence of 37 years’ imprisonment had been imposed in Mpumalanga for trespassing, possession of an unlicensed firearm and ammunition, and illegal hunting and possession of a dangerous weapon. She referred to another case in which the construction of the Pan African Parliament in Midrand had been stopped because an environmental assessment plan had failed to disclose the presence of a wetland.

Responding to questions raised during earlier sessions of the workshop, Ms Craigie said there were specific guidelines on when to take administrative or criminal action. There was also a standard operating procedure for non-compliant organs of state, such as municipalities.

On a question about specialised environmental courts, she said there had been talks with the Department of Justice in 2010 on whether it would make sense to establish courts similar to the one which had existed at Hermanus to deal with abalone poaching. The Justice Department was not in favour of dedicated courts due to the complex logistics which would be involved. However, it might now be time to have another look at the issue.

In response to earlier questions about air quality, Ms Cragie said the DEFF had issued a number of compliance notices to Eskom power stations, as well as to ArcelorMittal at Vanderbijlpark and to Sasol. A fair amount of money raised from fines had been spent on air quality monitoring at hotspot sites, such as hazardous waste landfill sites.

Discussion

Mr J Lorimer (DA) asked whether EMIs needed the cooperation of the Department of Mineral Resources in acting against mines which were damaging the environment. He suggested that the decision to close the Hermanus court had been wrong, as at the time it had been the only effective counter to abalone poaching.

Ms Labuschagne also raised concern about the issue of EMI’s and mining operations. She asked what the levels of EMIs were in coastal areas known for poaching, and whether the DEFF or the police were responsible for dealing with poachers.

Ms A Weber (DA) said there were not enough municipal EMIs to deal with air pollution in Mpumalanga.

Mr Paulsen asked how successful EMIs were in bringing people to book.

Ms Cragie responded that EMIs faced major challenges in dealing with mining, where the Department of Mineral Resources and Energy (DMRE) had exclusive jurisdiction. It was a cumbersome process to get the DMRE Minister’s concurrence in taking action against mines.

She saw little prospect of dedicated environmental courts in the near future. However, the Cabinet would soon be considering an international strategy for combating trafficking in wildlife products, including rhinos, abalone, cycads and elephants. This would put the Department of Justice on terms to say how it would deal with these issues.

On bringing people to book, she said the EMI system was “fairly good” in correcting behaviour through pre-compliance notices. However, there was still a lot to be done on bigger pollution issues such as sewage. A stage had been reached when criminal cases had to be brought against specific people. There were court cases against some municipalities.

She realised there were challenges around the capacity of local authority EMIs in Mpumalanga. There was a specific project this year to see whether they were doing what they were supposed to do.

Marine Living Resources Act

Mr Saasa Pheeha, Director: Offshore & High Seas Fisheries, DEFF, briefed the Committee on the Marine Living Resources Act (MLRA), which provided for the conservation of the marine ecosystem and the sustainable use of its living resources for the benefit of all citizens.
He outlined key definitions contained in the Act. A fish processing establishment meant any vehicle, vessel or place where fish products were processed. A small-scale fisher was defined as a member of a community which fished to provide a basic livelihood, and used low technology fishing gear.

Mr Pheeha told the Committee that the Act recognised three forms of fishing -- recreational, commercial and small-scale. There were groups who regarded themselves as subsistence fishers and had opted to use recreational fishing licences in order to avoid regulation. They then sold their catches illegally. Efforts were being made to incorporate them in small-scale fishing cooperatives.

The Act provided for the establishment of a consultative forum to advise the Minister on matters related to the fishing industry. The last forum had been disbanded in 2003. Efforts to reconstitute it last year had been disrupted by changes in government Departments. Nominations for the forum had been invited just before the imposition of the Covid 19 lockdown.

The Act also provided for the appointment of fishery control officers and honorary marine conservation officers. There was scope to appoint more honorary officers to provide “eyes and ears on the ground.” Following the lapsing of a memorandum of understanding (MOU) with the Ezemvelo wildlife conservation authority, the Department had had to deploy its own officers in Kwazulu-Natal, putting a greater strain on its resources.

The law required that a register be kept of all fishing rights, permits and licenses granted, and that it be available for public inspection. Catch permits were issued for periods of not longer than a year, and laid down clear conditions about the types and sizes of fish to be caught. Permit holders who did not comply with the conditions would be refused a permit for the next fishing season. A permit had to be kept at the place where a right was exercised so that it could be checked by fisheries officers.

The Act provided for the annual determination of total allowable catches. Allocations were made to all three spheres of fishing -- recreational, small-scale and local commercial fishing. The policy did not allow foreign ships to fish in South African waters, although there were some foreign-flagged vessels operating on behalf of South African business entities.

The Act prohibited certain fishing methods, such as the use of explosives or poisons. Fishers were discouraged from going to sea with firearms. There had been reports of seals being shot. Fishing gear had to comply with requirements set for different types of fishing. It was illegal for fishers to interfere with the gear of others. This was a major source of conflict at sea, where lobster pots were raided or fishing lines were cut. Fish aggregating devices, which provided shelters to which fish were attracted, were not allowed.
The Act prescribed how fishing gear should be stowed on foreign vessels when they passed through South African waters. Fisheries officers had the power to search and seize vessels and aircraft, and to confiscate illegally caught fish.

Mr Pheeha outlined the provisions which empowered the Minister to allocate fishing rights and to delegate authority to officials. The Act also provided a process for appealing to the Minister about rights allocations.

A section allowing permits to be granted for scientific research or practical experiments had resulted in an “avalanche '' of applications from people attempting to circumvent the allocations process. A moratorium had now been placed on unsolicited applications.

Among the challenges faced in the fishing sector was increased poaching as marine resources declined. There were reports of fishing rights being consolidated in the hands of a few, and of fish processing plants closing in economically depressed coastal areas. Law enforcement was another challenge. The fishing industry was a 24-hour operation, and there were not enough officers to provide round-the-clock compliance services. Health and safety was another concern. There were reports of unfair labour practices on land and at sea.

Discussion

Mr Paulsen described the MLRA as a “dubious Act.” It had initially excluded small scale fishers, many of whom were artisanal fishers employing skills handed down from generation to generation. They did not have the resources of larger corporations. Should there not be an allocation of 50 per cent of all resources to local fishers? He suggested that the scrapping of a fishing transformation council by the Minister might have been illegal.

Mr Lorimer asked whether the receipts of commercial fish retailers were ever inspected, and how often permit fees were increased.

Ms H Winkler (DA) said small-scale fishers had difficulty in applying for fishing rights and in accessing fishing cooperatives. They were not “ tech-savvy,” and did not have the electronic resources to apply for rights. This forced them to apply for recreational permits and sell their catches illegally.

Ms Labuschagne asked whether there was a specific formula in the Act for determining fish stocks, and who was responsible for monitoring them

Responding to concerns about small-scale fishing rights, Mr Pheeha said there were plans to review the MLRA. The size of the fishing cake had not changed, but there was now a need to split allocations between more people. Small-scale fishing was in its infancy. Allocations to this sector would have to be at the expense of other sectors.

The fishing transformation council had been disbanded a long time ago. Legal opinion was that the work that the transformation council should do was already “inculcated” in the MLRA.

Responding to Mr Lorimer, he said inspections were carried out to check the receipts of retailers and to reconcile them with stocks on hand to determine whether retailers had obtained fish illegally from recreational fisherman, or by other means. The entire permit fee structure would be reviewed in the coming months.

He told Ms Winkler there were fisheries development officers in coastal towns to assist people with fisheries services.

On fishing stocks, he said the Fisheries Department had a research division which assisted in setting the recovery targets for various marine species. Data was collected by fisheries research vessels, and also from catch records provided by rights holders on a monthly basis.

Ms Sue Middleton, Chief Director, Fisheries Operation Support, DEFF, said the Department was developing strategies to provide small-scale fishers with alternative livelihoods, such as repairing boats and nets and farming fish.

In a follow-up question, Mr Paulsen said a lack of resources had pushed small-scale fishers into selling their allocations to bigger companies. What could be done to make them self-sufficient?

Ms Middleton replied that small-scale fishing rights were allocated to cooperatives, which decided who would fish on their behalf, and which allocated other roles and responsibilities. The DEFF and the Department of Small Business Development were developing strategies to assist them to participate in the value chain of processing, marketing and exporting.

The Chairperson commented that the three-day workshop had been a good exercise. He thanked the officials and Members for participating, and adjourned the meeting.
 

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