Protocol to Nairobi Convention: DFFE briefing (with Ministry present)

Meeting report

The Chairperson observed that the previous week, the Minister of Forestry, Fisheries and the Environment had apologised for being unable to attend the Committee’s meeting, as she was attending a meeting of the Portfolio Committee. Today, both the Minister and Deputy Minister were present, which the Chairperson felt showed that the Department took the Committee seriously.

Apologies were read out. Ms M Mokause (EFF, Northern Cape) noted that while Mr M Magwala (EFF, Western Cape) was in the meeting, he was busy with examinations and so would not be participating.

Ms Barbara Creecy, Minister of the DFFE, said that there were no apologies from their side.

Minister’s Opening Remarks

The Minister remarked that South Africa wanted to accede to the Nairobi Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Western Indian Ocean, which involved the Protocol for Protection of the Marine and Coastal Environment of the Western Indian Ocean from Land-based Sources and Activities. In order for Government to accede to the Convention, it required permission from Parliament. The Minister’s understanding was that the matter of the Convention had already been to the National Assembly (NA), and was now coming to the National Council of Provinces (NCOP) for approval.

Briefing on Protocol to Nairobi Convention

Mr Ashley Naidoo, Chief Director: Oceans and Coastal Research, DFFE, presented.

Mr Naidoo reiterated that what he was presenting was a Protocol to the Nairobi Convention. He was presenting in place of Dr Lisolomzi Fikizolo, Deputy Director-General (DDG): Oceans and Coast Branch, DFFE, who was in an international meeting. Two weeks ago, Dr Fikizolo introduced the Nairobi Convention and the latest amendments to it to the Committee. The Protocol dealt with one specific action on land-based sources of pollution in the marine and coastal environment. Most of the pollution that ended up in the marine and coastal environment came from land-based sources. 

Background to the Convention

• Developed in 1985 under the United Nations Environmental Programme’s (UNEP) Regional Seas Programme, which was established directly to address oceans and coastal issues as part of the 1972 Stockholm Agenda.

Mr Naidoo added that most of the world’s oceans could be divided into “cells” called large marine ecosystems (LMEs). South Africa participated in three LMEs: On the east coast, it had the Agulhas-Somali Current LME; the Protocol talked about managing that. On the west coast, it had the Benguela Current LME. In the south, between South Africa and Antarctica, it had the Southern Ocean LME. South Africa participated in the management of three Regional Seas Programmes.

• Overall objective: To achieve sustainable management and use of the marine and coastal environment.

• Covers over 15 000 km of coastline from Somalia to South Africa including island states in the Western Indian Ocean (WIO) region.

• It came into force in 1996; RSA acceded in 2003; currently 10 Contracting Parties.

Key Obligations of the Conventions

• Take measures to prevent, reduce, combat and control pollution of the Convention area (land-based and offshore sources);

• To ensure sound environmental management of natural resources;

• To prevent, reduce, combat and control coastal erosion;

• To protect and preserve rare or fragile ecosystems and endangered species, through the establishment of Marine Protected Areas (MPAs);

• To co-operate in taking all necessary measures to deal with pollution emergencies.

Mr Naidoo added that the Agulhas-Somali LME was regarded as one ecosystem, so pollution anywhere in the ecosystem, especially if it came from north of South Africa, meant that South Africa would feel the impacts of that. Therefore, they had to work together to monitor and mitigate the impacts of pollution.

Process of Developing the Protocol

• The 1st draft LBSA Protocol was presented in March 2006 in the 2nd Regional Task Force Meeting in Diani, Mombasa;

• Draft Protocol then presented to Ministerial Technical Committee (MINTEC) Working Group II (Session 2: Pollution and Waste) in September 2007;

• The National Advisory Forum established under the Department’s National Programme of Action (NPOA) on land-based activities, in July 2008;

• South Africa participated in two regional negotiation meetings which were held in Cape Town (2008) and Mombasa (2009) to finalise the Protocol;

• Convened a national stakeholder consultation workshop on 22 January 2010;

• In April 2010, All parties of the Nairobi Convention finalised the Protocol and was open for signature;

 Reconvened a national stakeholder consultation workshop in October 2018 to discuss the importance of the protocol.

Features of the LBSA Protocol

• Detailed preamble

• 26 Articles, thematically organised under five headings:

• General provisions, including definitions, geographical scope, protocol application, and general obligations

• Provisions on pollution and other degrading activities and sources: includes pollution from point and diffuse sources, degradation from other harmful activities and transboundary pollution

• Legal opinions were obtained and viewed the Protocol on Land-Based Sources and Activities of the Nairobi Convention as consistent with international law and with South Africa’s international obligations.

Mr Naidoo added that an example of a point source of pollution would be a port, sewage pipeline or industrial pipeline that has a fixed point. Diffuse sources were generally more difficult to deal with – they travelled down rivers and could be microplastic pollution. Other examples were chemicals used in industries that travelled down rivers. A major source of chemicals identified in diffuse pollution was fertilisers used in agriculture along the coast. Those seeped into sand dunes, so there was no point at which one could manage the pollution, so they were difficult to get a handle on.

Recommendations

It is recommended that Parliament approves South Africa to accede to the Protocol for the Protection of the Marine and Coastal Environment of the Western Indian Ocean from Land-based Sources and Activities of the Nairobi Convention.

Mr Naidoo added that the Department got legal advice from the State Law Advisor (SLA).

(See Presentation)

Discussion

Ms L Bebee (ANC, KZN) asked if the Department had any guidelines on environmental impact assessments (EIAs) consistent with the Land-Based Sources and Activities Protocols (i.e. the Protocol that the Department presented). If yes, how often did it review and update those guidelines?

As part of advancing the Protocol, was the Department planning to work jointly with other countries to develop and promote contingency plans to respond to incidents involving pollution or the threat thereof in the Convention area? If yes, which countries were the Department planning to work with?

Ms C Labuschagne (DA, Western Cape) said a while ago (perhaps at the beginning of the current term), there was a presentation to the Committee which showed a map of oil and gas exploration sites, both onshore and offshore. It seemed that very little of the sea along the coastline of South Africa was not mapped for possible exploration. South Africa had to do sustainable development, and some of those resources were already being looked into and would be in future. Would the Convention or the management of producing oil and gas (onshore and offshore) be covered by the Convention when it came to pollution and protection?

Did the agreement create opportunities for funding for special projects such as protecting ecosystems or endangered species?

Ms W Ngwenya (ANC, Gauteng) said that since South Africa was a member state and contracting party to the Nairobi Convention, had the Department experienced difficulties in the implementation of the Protocol? If yes, what were the difficulties?

Apart from the Land-Based Sources of Activities Protocol and the other protocol, how many protocols did the Nairobi Convention have?

The Minister explained that the EIA requirements would be something that was under the National Environmental Management Act (NEMA). The requirements would cover projects that would be carried out at different levels of government. There would be different authorities responsible for the EIAs. Certain EIAs would happen under provinces, and others would happen at a national level. There was also a requirement for waste management licences, which would be under the national environmental waste legislation. All of those processes had their own regulatory environments that covered them. From time to time, where necessary, those regulatory environments would be reconsidered. At that point, there was no reform on those regulations. Where the Department had regulatory reform (as was the case with the biodiversity and conservation legislation, which also involved aspects of the National Environmental Management: Waste Act, etc.), it brought that before Parliament. It was a process that went on for many years and concluded last year.

On the EIAs: Mr Naidoo said that the Protocol allowed for synergies between the participating countries. The countries involved in such activities were the countries in the Convention. That included the Comoros, Kenya, Madagascar, Madagascar, Mauritius, Mozambique, Seychelles, Somalia, Tanzania, South Africa, and France (since it has territories in the Indian Ocean. The Protocol allowed for reporting on standards, reporting on activities towards mitigation, and sharing information on the risk levels that each country was managing. 

On oil and gas: The Protocol allowed countries to share information on the risk tiers related to oil and gas and levels of pollution that countries were mitigating. pollution mitigation. It allowed for uniformity of approach and building of resources in the region so that member states knew who had which resources in the region in case of an emergency. The Protocol did allow for funding, and it allowed for countries in the region to jointly put forward to big environmental funding agencies, such as the Global Environment Facility (GEF) or the World Bank, to look at synergy projects, assessing pollution levels, combating strategies, building background levels of monitoring, and emergency protocols. The key with joint projects was that a country needed to take other countries with it in the joint proposal. That was one of the assets of such protocols.

On whether there had been difficulties in working with the Convention and its protocols: The Department had its usual range of difficulties. Working on joint projects involved meeting to write proposals, and it took a lot of time and investment. When funding was received, the Department had to work with the National Treasury (NT) to get those funds. The Department was getting better at that, but it took a long time for the Department to go through the NT process.

On how many other protocols the Nairobi Convention had: The Convention also had the Protocol Concerning Protected Areas and Wild Fauna and Flora in the East African region; and a Protocol on Emergency Cases for Combating Pollution in the East African region.

Mr Z Mkiva (ANC, Eastern Cape) asked about the cost involved on an annual basis in financing the convention; what would be South Africa’s contribution through the Department? He understood that the Convention was progressive; it helped that African countries were joining hands in managing an aspect of their assets, especially in a critical area where there were contestations between African waters and international waters.

Mr Naidoo replied that South Africa paid annual fees to the Nairobi Convention, and that did not change with the addition of more protocols. It was paying one fee, which it had been paying since it became a member of the Convention. In 2022, its fees were R543 180. South Africa did not pay extra for the Protocol. Within the protocols, there was the intention that officials from member countries write proposals on activities that the Convention must carry out, whether it was protected areas, looking at surveys to identify critical key habitats, developing emergency protocols, and sharing information on various platforms. Participating countries were expected to write proposals to global bodies and receive funding for those specific activities. The once-off Convention payment remained a country’s contribution to the Convention, and that went to the running of the Convention and the Secretariat.

The Chairperson said that the Protocol was very important. Now that it had received a presentation from the Department, the Committee would deal with the Protocol, as the Minister and her team had requested. She thanked the Department for its presentation, and for attending the meeting to clarify some political issues that Members asked about. She also thanked the Department for taking the Committee seriously

Minister’s closing remarks

The Minister stated that the Department must thank the Committee for taking its request seriously, and it looked forward to the Committee’s approval on the matter of the Protocol.

Adoption of Minutes

23 May 2023

Mr M Nhanha (DA, Eastern Cape) jokingly remarked that Ms M Mokause (EFF, Northern Cape) was “sleeping”, and that was why she had not talked during the meeting.

Ms Mokause observed that load shedding affected her network, so she could not talk in the meeting when she was called upon. She strongly objected to Mr Nhanha’s remark that she was “sleeping” in the meeting. She felt it was “ANC people and the DA of Mr Nhanha” who were sleeping in meetings.

Members talked simultaneously, and one of the Members called for order.

Ms Mokause told Mr Nhanha to apologise on record, because he said that she was sleeping in a meeting on record.

Mr Nhanha wholeheartedly withdrew his remark about Ms Mokause “sleeping”.

The minutes were adopted without changes.

Closing remarks

The Chairperson said that next month the Committee was returning to the Northern Cape. Last year, it did oversight there on issues of mineral resources. It met with the community, which raised their issues. Unfortunately, no one from the Department and mining management gave an answer to those issues. Now it was time for the Committee to go back and get a response from both the Department and mining houses. The oversight visit would be from 26 June to 3 July. On Friday 3 July, the Committee would be dealing with the issues of the Communal Property Association (CPA) and traditional leaders. There was a fight between the CPA and traditional leaders. The Committee needed to get more information from both sides. It seemed that there was nothing according to the letter that [name unclear 56:29] wrote to the Chairperson. He wrote several letters to the Chairperson, and she sent those letters to COGTA. She was still waiting for a response. COGTA had been saying that it noted the letter, and would come back to the writer. On the last day of the oversight visit, the Committee needed to go to the Traditional Council to hear its side. If there was something that the Committee could do to help, it could do so. As public representatives, the Committee would not take any sides. When the Committee met with the mining management and the Department, it needed to remember one thing: It was representing the country, and the interests of Members’ provinces. When the Committee went to the Nkosi and his traditional council, and the CPA, the Committee needed to represent the interests of the community, whether it was meeting with a traditional leader, the CPA or other parties. If the Committee had any solution to assist to unite the different sides of the conflict.

Ms Mokause said that the name of the village that the Chairperson mentioned was Camden. She observed that Members had been having difficulties within the Committee since the beginning of the term. When the Committee was invited for oversight or any other matter that related to its work outside the jurisdiction of its workplace in Cape Town, it needed a formal invitation explaining in detail where the Members were going on specific dates and the reason for the oversight visit. Members were from different political parties. She felt that some Members were not being taken seriously with invitations within the Committee, and it was wrong. Members had said over and over again that the Committee needed to be proper and professional and to invite Members properly. Members could not be told that, for example, they were going to the Northern Cape the next day, and that they needed to pack their bags. Members could not just leave without the principals in their party knowing exactly what Members were going to do in a particular location. It was only in that Committee that Members were seeing that phenomenon.

The Chairperson said that the Committee was working as a collective. If she made a mistake, Members were there to assist her. Sometimes she did not know that she had to invite individuals to attend oversight visits. Since Ms Mokause had raised that matter, she would consult with the House Chairperson and her whips so that they could help her to deal with the matter of formal invitations.

Mr Nhanha asked for clarity on the dates. The oversight visit was meant to be ending on 1 July. On his calendar, 1 July was on a Saturday. The Chairperson had said that the last day of the visit would be on a Friday, on which the Committee would meet with the traditional authorities and the community.

The Chairperson replied that the reason the visit was until 1 July was because the Committee might finish late on Friday. Those who were able to travel on Friday could do so. Those who were unable to travel on Friday would travel on Saturday 1 July. That week, it would be during the constituency period. The Chairperson requested that week because the Committee did not have time previously. It was supposed to go for oversight the previous week, according to the calendar of the NCOP programme. That week, all were very busy, including debating, examinations, etc. The Committee had a lot of things to do. That was why she requested the first week of the Members’ constituency period. From there, Members would be going back to their constituencies. The Committee would be travelling Friday and Saturday for its oversight visit.

Mr Nhanha said that he would confirm his availability with the Committee Secretary before the end of the week.

Ms Ngwenya asked that the S&T (subsistence and travel) allowance needed to be ready. She had observed that when the Committee did oversight visits, Members always got the S&T allowance late. Sometimes it was worse; one got it on the day one went back home. She believed it was not meant for that, and asked that the Committee improve on applying for the S&T allowance. Ms Beebee also needed to have the correct preparations; Members “could not fight again” on that issue. The Committee needed to make sure that Ms Beebee got the services she was supposed to get in terms of the booking of accommodation, the service of a helper, and transport.

The Chairperson replied that Ms Ngwenya’s points were key because she had spoken to her colleagues the previous day, to say that Members needed to get proper and decent accommodation. She did not want Members to struggle with accommodation when they arrived at a destination. She also did not want a situation where Members did not sleep well but were still expected to participate in a meeting the following day. Ms Beebee’s needs would be addressed. The Committee would make sure that she got everything she was supposed to, i.e. the proper car, proper accommodation, and the assistance of a helper.

The meeting was adjourned.