Marine Pollution (Prevention of Pollution from Ships) Amendment Bill: public hearings

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Transport

08 November 2022
Chairperson: Mr L Mangcu (ANC)
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Meeting Summary

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The Portfolio Committee received submissions on the Marine Pollution (Prevention of Pollution from Ships) Amendment Bill from three organisations and an overseas individual with an interest in environmental issues, as part of the public hearings on the proposed amendments.

The Wildlife and Environment Society of South Africa (WESSA) said it supported the Bill, which was aimed at significantly improving the safe and appropriate management of sewage, waste and air emissions from marine vessels. Its concerns were that the Bill did not cover ships moving within SA territorial waters, nor between these waters and the high seas; that the threshold of the regulations applied only to ships above 400 gross tons; and that inorganics and solids in sewage would continue to be discharged overboard. WESSA also called for the inclusion of legislation to control shipping noise pollution.

The Southern African Foundation for the Conservation of Coastal Birds (SANCOBB) welcomed the proposed amendments, but raised concern over the level of capacity (personnel and resources) within government to implement the various activities listed in the Bill. It supported the amendment to increase the fine and imprisonment threshold, which would serve as a deterrent to potential polluters, as the economic, political and social costs could be severe. It pointed out that there was no reference to waste generated from cleaning engines, equipment or ships. If  that was covered in another Act, then that should be noted somewhere in this Act.

A lecturer in commercial and maritime law at the University of London said the Bill was aligned with the maritime policy and decarbonisation framework of South Africa, and was focused on global standards. However, the amendments needed to update the technical standards to reflect what the global community was doing.

The Natural Justice organisation asserted that South Africa was currently facing a crisis to protect its marine ecosystem. Marine pollution came from discharges from both land and ships. Chemical, plastic, light, noise and air pollution were all examples of marine pollution. Each of these issues, as well as their combination, posed significant challenges to the mariner. Key issues were around climate change and the scarcity of resources, and these were affecting people in rural areas the most. They urged that there be a substantial increase in the proposed penalties and that there was a need for integration with other enforcement agencies in the sector to ensure compliance with the Bill. There was a need for a specialised maritime police force that could identify, investigate and arrest perpetrators.

Members acknowledged that the presenters' submissions had broadened their perspective and understanding of the issues involved. They asked for further information on issues such as noise pollution, international best practice for implementing enforcement action, whether bribery would be a factor in the monitoring process, why consulting with the House of Traditional Leaders had been suggested, and what role technical advisers would play in the process.

Meeting report

The Chairperson said the Marine Pollution Amendment Bill was about preventing pollution from ships. Democracy without public participation was not complete, and the exercise of public hearings was done for the benefit of the people. Inputs from stakeholders enriched the process and addressed the needs in that particular sector.

Submission by WESSA

Mr Morgan Griffiths, Strategic Lead: Advocacy, Wildlife and Environment Society of South Africa (WESSA), said they supported this Bill, which was aimed at significantly improving the safe and appropriate management of sewage, waste and air emissions from marine vessels.

The first concern of WESSA was that the Bill did not cover ships moving within SA's territorial waters, nor between these waters and the high seas. It was proposed that Regulation 2.1 be extended to include ships engaged in voyages within and between SA's territorial waters and the high seas.

The second concern was that the threshold of these regulations applied only to ships above 400 gross tonnage. It was proposed that they should extend them to all ships above 100 gross tonnage. Emissions were growing, and were not aligned with keeping within the Paris Agreement’s 1.5oC target. The regulations proposed by this Bill were crucial to curbing shipping greenhouse gases (GHGs).

The third concern was that inorganics and solids in sewage would continue to be discharged overboard. WESSA proposed adding a regulation to require ships to separate out inorganics and solids from sewage, for disposal on land, and also that sewage be macerated before being disposed of into the sea.

WESSA was calling for the inclusion of shipping noise pollution in the Bill. Anthropogenic undersea noise was a growing threat to marine life. Ocean noise regulation is currently non-existent in both environmental l and maritime legislation in South Africa. WESSA suggested the application of a precautionary approach to ensure that ocean noise levels were not harmful to marine life and humans:

  • By developing effective noise regulations to mitigate or eliminate intense noise-producing activities, including sonar;

  • Requiring that the use of military sonar (outside of imminent or active conflict) be subject to the noise regulations;

  • Requiring that seismic surveys were also subject to the noise regulations; and

  • In consultation with marine biology/ecology experts, designating critical marine habitats (biosphere reserves, UNESCO Marine World Heritage Sites and Marine Protected Areas) as low noise areas, where shipping noise may not exceed determined decibel levels.

Mr Griffiths said the International Maritime Organisation (IMO) had been researching and promoting noise reduction solutions. Their current guidelines were on a trajectory to become international requirements. Using this Bill to align SA's shipping requirements to incrementally address noise pollution was opportune. The IMO promoted achieving this through ship design solutions at the propulsion level through a reduction of machinery noise, reduction of propeller noise, and structural and other solutions to reduce underwater radiated noise.

In his conclusion, he said that despite the plethora of waste management and pollution control legislation, SA's coastline was experiencing declining water quality. For this Bill to contribute towards stemming this decline, it needed effective compliance monitoring and enforcement. The Bill required that defined ships report periodically on their compliance with its regulations. WESSA proposed an additional clause requiring this compliance status information to be made publicly accessible through a website portal.

See attached for full submission

Submission by SANCCOB

Ms Monica Stassen, Manager: Preparedness and Response, Southern African Foundation for the Conservation of Coastal Birds (SANCCOB ), said the Foundation welcomed the proposed amendments as a significant step in addressing marine pollution.

However, SANCCOB did want to raise concerns about the level of capacity (personnel and resources) within government to implement the various activities listed in the Bill. It welcomed the amendment of section 3A, with the increase in the fine and imprisonment threshold. These changes highlighted the commitment of the government to ensure that polluters were severely punished for their crimes. It should also serve as a deterrent to potential polluters, as the economic, political and social costs could be severe.  

On page 3, SANCCOB welcomed the inclusion of “appoint an advisory committee to advise him or her regarding any particular matter dealt with by this Act” in section 3B, but recommended that any such committee should have clear terms of reference to follow, had balanced representation, and that individuals were appointed, based on their expertise on the matter in question.

SANCCOB stated there was no reference to waste generated from cleaning of engines, equipment or ships. If  that was covered in another act, then that should be noted somewhere in this Act. The organisation was further concerned whether there was a rationale for focusing only on international voyager ships, and wondered if there were other sections of the overall Act that covered other vessels not covered in the amendment.

Another concern was on Chapter 2, regulations 4 and 5, around the sort of criteria that would be used to select surveyors, as it wondered how the administration would ensure that the surveyors were independent and not biased in any way. It further recommended that some kind of time frame for notifying the authorities be included in points 3 and 6 of regulations 4 and 5 of Chapter 2. In its current form, it was very vague, with little room for accountability.

Ms Stassen pointed out that the meaning of point 2 of regulation 11 in chapter 3 was not clear, and wanted to understand if it meant that visiting ships must adhere to the regulations of the state, if their own state regulations were less stringent. She further questioned points 1 and 2 of Regulation 12, as to how South Africa would ensure the reception of sewage in reception facilities at its ports and terminals would be done properly when the country did not have the capacity or resources to manage its own sewage.

Regarding regulation 3.1 of Chapter 1, SANCCOB wanted to understand if these emissions were regulated elsewhere in the Act or by another Act, because this was a form of marine pollution and would need to be regulated, especially if South Africa continued with the development of oil and gas operations.

SANCCOB recommended that any measures should be decided upfront and included in the Act instead of at a later stage. This would avoid any confusion in the future and avoid any unnecessary delays in the implementation of such measures in the case of ships of less than 400 gross tonnage. It further recommended that a specific timeframe for notifying the authorities be included in point 6 of Regulation 5 in Chapter 2. In its current form, it was very vague, with little room for accountability.

Lastly, pertaining to point 1 of regulation 22A in chapter 4, SANCCOB commented that the regulation specified from calendar year 2019, but the concern was what would happen if the amendment was being finalised only now, and how the vessels could collect the information, and asked if this was the information that they should be collecting already, and how would this be dealt with once the amendments to the Act became official.

See attached for full submission

Submission by Dr Pia Rebelo (via Zoom link)

Dr Pia Rebelo, Lecturer: Commercial and Maritime Law, University of London, said she supported the amendment bill because it was a step in the right direction and was aligned with the maritime policy and decarbonisation framework of South Africa. It was centred on global standards. These regulatory amendments formed part of the short-term measures of the IMO.

She said the Bill had not taken in new technical measures and needed to update the technical standards to reflect what the global community was doing. She also recommended the insertion of sections 2A and 2B in Act 2 of 1986.

2A had got to do with the incorporation of the Convention into law:

  • Subject to the provisions of this Act, the Convention had the force of law in the Republic.

  • The Minister shall, as soon as practicable after the entry into force for the Republic, of any amendment to the Convention, amend the Schedule by notice in the Gazette, to reflect such amendment.

2B dealt with the technical standards for maritime transport:

  • The Authority may issue technical standards for marine pollution from ships on such matters as may be prescribed by regulation.

  • A technical standard shall have the force of law.

Dr Rebelo said Parliament should consider including the following amendments in domestic law:

  • Stakeholder preference for uniform standards.

  • Future-proofing of legislation to support upcoming mid-term measures.

  • Surveys and certification would not prove overly burdensome: SA had a small fleet of 106 vessels (UN Conference on Trade and Development statistic).

  • Surveys for enforcing Annex VI could be entrusted to nominated surveyors, with the costs passed down to ship owners/charterers.

It would not detract from the attractiveness of the SA Ship Registry. SA would have port state inspection duties where there were clear grounds for believing a foreign vessel did not have the requisite energy efficiency certificate and Ship Energy Efficiency Management Plan (SEEMP). Similar port reception facilities were required to those needed for the original proposed Bill, and similar reporting requirements of the flag state administration to the IMO ship fuel oil consumption database.

It still remained unclear how the IMO energy efficiency standards were going to achieve a sectoral transition, as there was standard-setting uncertainty at a global level. Further guidance was necessary from the IMO, yet member states should also adopt further strategies on how to support decarbonisation in the sector. Maritime policies should be aligned with national climate ambitions. The enactment of this Bill needed to be supported by a stronger policy strategy pertaining to the areas of research and development (R&D); green finance (multi-lateral development banks or private green finance); de-risking innovation; and driving market change.

The Getting to Zero (GtZ) Coalition for SA green shipping recommends the following policy actions:

  • Collaboration to secure effective GHG policy at the IMO.

  • Support for the development of scalable zero emission fuels (SZEF) standards and authorisations.

  • Signing the Clydebank Declaration and developing Africa’s first green corridor.

The report also highlighted the huge economic benefits for South Africa to position itself as a leading maritime nation.

See attached for full submission

Submission by Natural Justice

Ms Melissa Groenink, Programme Manager, Natural Justice, said South Africa was currently facing a crisis to protect its marine ecosystem. Marine pollution came from discharges from both land and ships. Chemical, plastic, light, noise and air pollution were all examples of marine pollution. Each of these issues, as well as their combination, posed significant challenges to the mariner. Furthermore, marine pollution is caused by various human activities, including agriculture, coastal tourism and recreation, port and harbour activities, urban and industrial development, mining, fisheries and aquaculture. The key issues were around climate change and the scarcity of resources. These were affecting people in rural areas the most.

Tabling the concerns of the organisation about the Bill, she said when it came to penalties and enforcement, these needed to be increased to act as a deterrent to those polluting the ocean. There should be a substantial penalty increase, especially when looking at the currency exchange rate. R10m was not a lot of money for some foreign companies. According to Natural Justice, the cap should either be raised further, or eliminated outright. The Bill sought to control all potential maritime pollution from any ships that fell under its purview. As a result, the Bill applied to any pollution -- even the kind requiring spending billions of rands to remedy. It was not difficult to conceive that potential contamination could result in losses that would cost more than R10 million to prevent. Natural Justice argued that the Bill must be more explicit and create a separate offence for persistent disobedience over time if the Minister decided to stick with the R10 million cap.

Another option was for the Bill to specify a minimal penalty. Considering the magnitude and unknowable effects of all marine pollution, Natural Justice argued that minimal penalties were necessary to have a significant deterrent effect and promote recovery. A minimum penalty could adequately address the importance of marine protection, mitigate the unknown impact of all marine pollution, and impose strong deterrence. The organisation further suggested that all government departments must work together and coordinate to reduce marine pollution.

The municipal departments adjacent to the coastal areas carried out much of the oversight. As a result, the Department of Transport must coordinate and collaborate with other government agencies. Similarly, the Department of Transport must collaborate and coordinate with coastal municipalities to reduce marine pollution. The Bill also provided a perfect opportunity for corporate governance to take place, because the Department of Minerals and Energy and the Department of Environment were working in silos. There was a need for integration with other enforcement agencies in the sector to ensure compliance with the Bill. Many enforcement agencies did not understand the intricacies of the Bill, and would need to be upskilled. Neither the Act nor the Bill establishes a central agency to enforce strict compliance regarding marine protection. Unlike environmental conservation on land, which was heavily regulated by the Department of Forestry, Fisheries and Environment (DFFE) under the National Environmental Management Act (NEMA) 107 of 1998, this Act was primarily concerned with water.

In South Africa, there was a need for specialised maritime police who could identify, investigate, and arrest perpetrators. A monitoring police force that patrolled the coastlines and shores of South Africa was also required. Compliance must be strengthened through the establishment of specialised authorities with critical skills.

Regarding the NEMA, there was a need to see the overlaps in the pieces of legislation that were existing and trying to address the process. Natural Justice stressed the importance of consultation. The Bill needed to take consultation wider and in a manner that could be understood. Technical consultants were recommended and should be on board, because the Bill contained many technical elements. During the drafting of the Bill, the Minister had not consulted any local communities, including the south Durban and western coast communities. Natural Justice submitted that meaningful consultation with local communities must take place before       the Bill could be passed into law. The Bill addressed general marine pollution in the ocean, which undoubtedly had an impact on local  communities' traditions and livelihoods. There was no physical barrier between the ocean and the surrounding airspace. Pollution from one source could spread to unexpected places. Marine pollution  would impact how local communities use the ocean space. As a result, Natural Justice asserted that, contrary to section 6 of the Memorandum, the Bill must be referred to the National House of Traditional Leaders.

In addition to the prescribed languages, the certificates to be issued must also be drafted in local languages of that coastal municipality. South Africa was a country rich in cultural and ethnic diversity. Local languages should be included to reflect not only the true cultural diversity of South Africa, but also to ensure compliance with the Act at the local level. If local governments were designated as the regulatory authorities, the certificate must be written in a language everyone understands.

Finally, Natural Justice asserted that the offshore mineral processing exemption was unnecessary. Considering the country's agenda on energy transition, government policies -- including offshore mineral processing -- should gradually direct the public away from fossil fuels. Many sources have demonstrated that South Africa had sufficient, sustainable energy options to power the country, making further development in the fossil fuel industry unnecessary. An exemption like this indirectly incentivised the private sector to expand further. As a result, Natural Justice believed this specific provision should be repealed entirely.

See attached for full submission

Discussion

Deliberations with WESSA

Mr C Hunsinger (DA) said the presentation had been educational. He wanted to know why the tonnage was not restricted, instead of reducing it to 100 tons and less. He asked who the forerunners were who wanted to control the noise pollution, and what the thinking was behind this trajectory of noise regulation coming into this area. Why was WESSA hesitant on the matter of wanting to include exclusion zones -- would it not be better to have them? He wanted to find out if other international practices could be applied when it came to enforcement, because it was not enough only to pay a fine.

Mr Griffiths replied that a number of elements were proposed in the legislation that were not achieved. There was a limitation on the size of the boat/tank, and 100 tons was a fairly good size to accommodate what they wanted to deal with. It was not indicated which ship companies were employing noise reduction initiatives. IMO guidelines had been developed for reducing noise. The New Zealand, European Union and North American areas have employed noise reduction strategies. There were stationary and moving devices that could measure sound. There was a network that could support this and be piggybacked on, including scientific instruments. With fairness and protocol, noise could be managed easily. The concept was working, and could be employed in many countries in the world without having a deleterious impact. He further noted the Bill was proposing fine levels amounting to millions of rands, and stated how they would be increased incrementally over the years. Organisations like WESSA and SANCCOB could monitor these ships to see if they were compliant, to aid good governance.

Mr M Chabangu (EFF) wanted to find out about the measures that WESSA would like the government to take against ships transgressing on the sea and dumping waste. Was WESSA calling for a ban on ships making a noise in the seas? Were the traffic monitors not taking bribes from ship owners?

Mr Griffiths said there were good bodies, like Transnet and the South African Maritime Safety Authority (SAMSA), that look at enforcement matters. At this stage, they were providing adequate compliance enforcement. Some ships were designed without consideration for the damage they were doing to the environment. These ships could be designed better to accommodate the environment in terms of noise. SAMSA did monitor the ships entering our ports, but did not have control over the ones entering exclusive economic zones (EEZs). He said bribery was a problem in SA, but he had not experienced it because SAMSA and Transnet were good monitors, and were effective.

Ms F Khumalo (ANC) remarked there should be measures introduced in future to curb underwater noise that could affect human beings.

Mr Griffiths said he was not aware of the general public being harmed by noise, because attention had been paid to this matter.

Ms M Ramadwa (ANC) sought clarity on the gaps in the legislation that WESSA indicated should be filled in the legislation.

Mr Griffiths said they had asked for adjustments on some of the matters mentioned in the Bill, like noise and reducing 400 tons to 100 tons. This piece of legislation was going through its own process and would have an impact in ten years’ time -- it was addressing issues that would have a deleterious impact on the environment.

Deliberations with SANCCOB

Mr Hunsinger sought an explanation for what had been emphasised as pollution that should not be interpreted as waste or spillage, including mining. He asked if concern about the lack of capacity in committees and monitoring bodies came from experience.

Ms Stassen responded that the marine environment was a holistic space with many activities producing waste. This affected creatures from the bottom to the top of the sea, including ship-to-ship bunkering. Generally, shipping generates waste. Since 2016, there have been four oil spills. The consequences had been severe, and these species would not reproduce in the long term. The DEFF had always mentioned capacity constraints when recommendations for changes were put forward. For certain scopes of work, there had always been limited capacity. The establishment of monitoring committees, including other stakeholders, should be considered, even though costs were a factor. However, one could do more with more people to tackle what needed to be done.

Mr Chabangu remarked that the submission had been an eye-opener for many members. He wanted to know how the rivers polluted by humans would be cleaned, because they looked bad for tourism in SA.

Ms Stassen replied that SANCCOB was working closely with Robben Island, and participated a lot in the cleaning and monitoring of beaches. It also did a lot of advocacy work, campaigning to do away with the use of plastic, or plastic reduction. SANCCOB was grateful for the opportunity to have an input on the Bill from the start, rather than at a later stage when it had been passed into law. The suggestions put forward were there to improve what the Bill aimed to achieve, and the Committee was welcome to come and see what the organisation was doing.

Deliberations with Dr Rebelo

Mr Hunsinger remarked the submission had provided Members with an international perspective. He asked the Committee to be given a view on how this legislation could make SA ship registry more attractive, because there was a fear the legislation could be a deterrent.

Dr Rebelo said decarbonisation legislation was not going to be a deterrent. There was a need for policy and private sector support, including funds, to move the decarbonisation trajectory forward. SA needed to do more on ports' enforcement, earmark certain alternative fuels, and support the global sector.

She thanked the Committee for providing her with the opportunity to make an input on the Bill concerning decarbonising the SA maritime sector.

Deliberations with Natural Justice

The Chairperson wanted to understand why Natural Justice wanted the proposals to be consulted with the House of Traditional Leaders; sought clarity on why the organisation came to the assertion the Minister had not consulted widely on the Bill; and asked why it thought technical consultants should play a role in this process.

Ms Groenink explained that the regulations would have an impact on indigenous communities situated along the coast. The local communities needed direct consultation on how this would affect their lives. Calling for comments in a publication or newspaper was not enough. Technical experts understood what needed to be done and what had been set out to be achieved, and were knowledgeable about technical matters affecting ships.

The Chairperson said the Committee would consider the comments, including its observations on the matter. If it felt there was a need for further consultation, it would consider it. The presenters had been specific in their areas for input.

He thanked the organisations for their proposals, because they have taken time to go through the legislation thoroughly. Their inputs had shown the Committee some blind spots. The Department had been given another opportunity to make their comments as well. That was why it had been present in the meeting to observe their inputs. The legislation would be concluded before the seventh Parliament came in.

Adoption of minutes

The Committee adopted one set of minutes dated 1 November.

The meeting was adjourned.

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