Integrated Coastal Management Draft Bill [B40:2007]: Department briefing

Meeting report

ENVIRONMENTAL AFFAIRS AND TOURISM PORTFOLIO COMMITTEE
15 August 2007
INTEGRATED COASTAL MANAGEMENT DRAFT BILL: DEPARTMENT BRIEFING

Chairperson:  Mr L Zita (ANC)

Documents handed out
Presentation on Integrated Coastal Management Bill
Memorandum on objects of National Environmental Management: Integrated Coastal Management Bill, 2007
National Environmental Management: Integrated Coastal Management Draft Bill

Audio recording of meeting

SUMMARY
The Department highlighted the challenges that had arisen in coastal management as a result of past inadequacies and detailed the solutions that were proposed in the Integrated Coastal Management Bill. Coastal resources must be managed to promote social equity and best economic use, while protecting the environment. This would be achieved through integrated management of the coastal zone, that addressed social, ecological and economic sustainability. The Bill aimed to address the challenges that had arisen through natural coastal processes by demarcating the coast and adjusting zone boundaries according to coast sensitivity and implementation of stricter environmental impact assessments.  Existing access points and servitudes would be maintained, and owners of property directly abutting beaches or coast must provide access. Existing waste disposal pipes at sea would be assessed and there would be stricter control over new sea outfalls. Planning and decision-making were no longer to be sectoral, but through integrated planning and decision-making by a National Coastal Management Committee, which had provincial, municipal and national input. New coastal zones would be created to more strictly control activities causing environmental damage to dunes or draining of wetlands, and coastal public property zones would be created. Coastal Protection Zones, which could differ in depth according to the sensitivity of the area, would also allow for stricter controls.

The Department highlighted each Chapter of the Bill, and explained its scope and purpose. There had been extensive consultation and the public submissions had been incorporated into the new draft approved by Cabinet in July. Members addressed the naming of the National Coastal Management Committee, suggesting that it be called a Council, and asked about the nature and extent of the public comment. Further questions addressed the current developments on the coast, capacity to ensure that the objectives of the legislation were met, the streamlining of the process, ownership patterns along the coast, removal of illegal dwellings. Members also discussed dune erosion, land based water pollution, assistance to those whose homes were affected by sea levels, land exchanges, mining on coastal property, waste water pipelines, and the definition of coastal zones.

MINUTES
Integrated Coastal Management Bill: Briefing by the Department of Environmental Affairs and Tourism (DEAT)

 Mr Monde Mayekiso, Deputy Director General, DEAT, introduced the rationale behind the Bill. He explained that in South Africa, the coast contributed 35% of the country’s gross domestic product (GDP). Around 60% of the world's population resided along the coast and there was therefore a need for management of these areas. In South Africa the coastal challenges had not been adequately dealt with in the past. The Integrated Coastal Management Bill now proposed would seek to address these problems while setting a new approach. There was a need for manage coastal resources to promote social equity and best economic use, while protecting the environment, through setting up integrated management of the coastal zone and a framework for the management of the activities in the coastal zone. For coastal development to be ecologically sustainable, it should involve protection of coastal ecosystems and sustainable use of marine and coastal resources. Socially sustainability would be achieved through public awareness and shared responsibility, including empowerment of disadvantaged individuals and communities. Economic sustainability required diversification of opportunities to provide jobs and facilitate access to productive resources.

Mr Mayekiso said that one of the challenges was that natural coastal processes such as wind, waves and currents resulted in sediment movement, and climate change and rising sea levels also posed a potential threat. Planning in the past had not taken these factors into account, so that there was now erosion in Langebaan and St Francis, storm damage along the Kwazulu Natal (KZN) coast and wind blown sand. The new Bill required that planning and Environmental Impact Assessments (EIA) take coastal processes into account. The mechanisms included the demarcation of coast, and adjustment to zone boundaries according to sensitivities of the coast (not private property boundaries), set-back lines and control of certain activities via stricter EIAs.

The second challenge in the past had been that there was limited access to the coast because of farmland, property developments such as golf estates, mining areas and residential owners being permitted to build along coast lines and not observing existing servitudes. The Bill now ensured that existing access points and access servitudes were retained. It also required that municipalities must demarcate access land, signpost access points and maintain property such as cliff paths to and along the coast. Owners of property directly abutting the beaches or running into dunes or cliffs should provide access and if they refused the Bill allowed expropriation of necessary areas.

Inadequate control of pollution had also proved to be a challenge, and had resulted mainly from discharge of inadequately treated waste water into sensitive coastal or near-shore areas, as well as the inadequate control over incineration and dumping at sea, and the possibility of pipelines carrying waste being close to an aquaculture. The Bill required that all existing waste disposal pipelines at sea be assessed. It also required strict control over new sea outfalls. These would include sewage and industrial outfalls, fish factories and aquaculture outlets. The Bill also clarified the roles of DEAT and the Department of Water Affairs (DWAF) in pollution management. It aligned the legislation with the international best practice.

Mr Mayekiso noted that in the past the fragmentation of planning and decision making also proved to be a challenge. Planning and decision-making had been sectoral. Sewage or bloody water outfalls were constructed next to hotels and Blue Flag beaches. Development was allowed in flood prone areas or areas subject to coastal erosion. Planning usually stopped at the high water mark. The Bill now proposed integrated planning and decision making as a solution to this problem. It created an integrated, non-sectoral institutional framework as well as wide representivity in terms of planning and decision-making. The structures proposed were a National Coastal Management Committee (which would be chaired by DEAT, with four affiliated provincial committees of Kwazulu Natal, Eastern Cape, Western Cape and Northern Cape, with representation by local authorities. Although some provincial committees already existed they were of an informal nature, and the Department proposed that they should be formalised within a year. There would be a National Coastal Management programme, with aligned Provincial and Municipal Coastal Management Programmes. Wide participation would make it possible to develop a common vision and objectives, determine priorities and strategies, and norms and standards as well as indicators.

Inadequate control over activities that caused environmental damage to dunes, and agricultural activities that involved the clearing of land, clearing of indigenous vegetation, draining of wetlands and the abstraction of water affecting estuaries had been problematic. Development activities along the coast had not been properly managed as the EIAs had too narrow a focus. Infrastructure and structures such as sea walls, harbours and piers, car parks, access roads and resorts were erected in inappropriate areas. The Bill proposed the creation now of coastal zones. Coastal public property (CPP) would include the sea, beach and adjacent state land. This would enable the coast to be managed in the interests of the whole community.

Mr D Malan, Director: Legal Services, DEAT, noted that there were some pieces of state land along the coast, that were typically 62m wide and may bear different names. These were not continuous along the whole coastline, but if they were they would have been an excellent buffer against the effects of sea level rise.

Mr Mayekiso noted that the Bill was establishing a Coastal Protection Zone (CPZ). This was an area that could vary from 100m above the high water mark (HWM) in urban areas, to 1000m in rural areas, and could be adjusted depending on the sensitivity in the particular area. It allowed for stricter control in sensitive areas. It did not affect existing property rights; provincial, municipal, cadastral, or other legally recognised boundaries. No private property could be expropriated in terms of this Bill without following procedures set out in the Expropriation Act. EIAs in these zones would have to consider additional issues, such as coastal management programmes, dynamic nature coastal processes, management plans, cumulative impacts and the interests of the whole community.

Mr Mayekiso then took the Committee through the Bill, highlighting areas where it had changed the application of the principal Act, or added new concepts. He explained that in Chapter 1: Objectives and application of the Act, there were minor amendments to definitions, and new definitions were added to ensure proper alignment with impacting legislation, such as the National Environmental Management Act (NEMA) and the Biodiversity Act. Chapter 2 deal with Coastal Zones. The preconditions for the extension of coastal public property were made less restrictive (clause 6). The movement of the high water mark in relation to property boundaries was clarified to address misconceptions of expropriation (Clause 14).The previously named “buffer Zone” was renamed to “protection zone. The composition of the protection zone was redrafted to align it with land use terminology (clause 16). Chapter 3 addressed boundaries and coastal Areas. Two zones were created, as he had already described. These were “coastal public property” (CPP), which was state land across the coast, the beach, estuaries and seas, and “coastal protection zones” (CPZ), which were broadly demarcated but could be adjusted according to sensitivity of the areas. The CPP and the CPZ did not affect existing property rights; provincial, municipal, cadastral or other legally recognised boundaries, or the powers of any organ of state to dispose of land. The Bill sought to regulate activities with potential adverse environmental impacts, no matter who was the owner of the land.

Chapter 4 aimed to facilitate effective management of all estuaries. Estuarine Management Protocol was to be jointly implemented by the Minister of DEAT and the Minister responsible for Water Affairs. Chapter 5 set out the Institutional Arrangements and empowered municipalities to establish municipal coastal committees. Chapter 6 reduced the time frame for production of national coastal management programmes from six to four years. The sections on zoning were amended to clarify the purpose of the coastal zoning scheme (s56). Areas that were subject to coastal erosion and vulnerable to sea storms, as well as inland areas subject to flooding (below 1: 50 year flood line) should be identified and not be zoned for residential purposes. Zoning could now also occur below the high water mark, for instance to identify areas for surfing only.

Chapter 7 was amended to reduce overlapping and to streamline processes. EIAs for coastal activities would be done under NEMA. As a result there would be single authorisation and no more special permits or coastal use permits. Provision for integrated permitting was elevated to NEMA. Chapter 8 clarified the roles of DEAT and DWAF in pollution management. Certain activities were prohibited. The Minister was to provide a national action list to screen waste and other material. Chapter 9 set out the appeal procedures, was aligned with NEMA and permitted the Minister to make interim orders if necessary. Chapter 10 set out the offences. The powers and responsibilities of the Minister were defined in Chapter 11. Clause 90 was a general emergency clause giving special powers to the Minister. Coordination of activities between provinces and municipalities was provided for. Transitional and other matters were covered in Chapter 12.

Ms Pam Yako, Director General, DEAT, added that there had been an extensive consultative process within government. The Bill was taken to Cabinet in December 2006 then was published for three months for public commenting. The public commenting process ended in March 2007. The Bill was then redrafted to reflect  changes as a result of the public participation process before being sent back to Cabinet in July for final approval.

Discussion
Mr A Mokoena (ANC) complimented the Department on their presentation. He asked whether public hearings were necessary, as he felt that the Bill should not be delayed.

Ms Yako said that the Department had a done extensive consultation process, especially in the coastal areas. As this was a Section 76 Bill she said that once the National Assembly (NA) had dealt with it, it would go to the National Council of Provinces (NCOP), which would then have extensive hearings in the provinces. She pointed out that the call to have hearings had emanated from this Committee

Mr Mokoena felt that the term “National Coastal Management Committee” was “loose” and it would be preferable to refer to it as a "council", as this would give a better recognition of its national authority.

Ms Yako said that the term was not that important but the responsibility was the fundamental issue. She said the Department could consider a change in name. The idea was to ensure co-ordination between all spheres in government.

Ms J Chalmers (ANC) asked what was the nature of the public comments and whether the original draft of the Bill had addressed most of the public concerns.

Mr Mayekiso said that in the main people had supported the Bill. Different viewpoints had been seen. Some people in business did feel that the Bill may hamper their activities and some NGO’s felt that it did not go far enough. He said that the Department felt that the Bill did strike the right balance by allowing development to occur but also ensuring that it did not impact too negatively on the environment. He added that the changes that were made to the Bill following the comments were mainly of a drafting nature.  

Mr G Morgan (DA) asked the Department to give an indication of their impression of the current level of development on South Africa’s coastline. He felt that the Bill would stop certain types of development that had, until now, gone relatively unchecked, such as ready approval of seaside developments. He pointed out that the Department's White Paper dated back seven years and this Bill had been under discussion for over five years. He asked if DEAT was seeing a spike in developments on the coastline in anticipation of this piece of legislation.

Ms Yako felt that there had been significant developments along the coast in the last five years, but it was  difficult to know whether these had occurred in an attempt to "beat" the Bill. Once implemented, it would certainly give the DEAT a tool to regulate what happened on the coastline.

Mr Mayekiso agreed that there had been an increase in developments on the coast, and a very recent development was building right on the beach. He said that the department had done an audit of developments done on the coast.

Dr I Cachalia (ANC) asked whether there was sufficient scientific expertise to ensure that the objectives of the legislation were met.

Mr Mayekiso answered that the capacity might be uneven. At national and provincial level there was capacity but the Department feared that there might not be capacity at local level. DEAT felt that there would be a need for capacity building to occur progressively as the Bill was being implemented, and although there may not be total capacity from the start, the Bill did make provision for incremental issues.

Dr Cachalia also asked if there were sufficient personnel being trained to monitor the discharge of pollutants and effluents into the sea.

Mr L Khoarai (ANC) asked why the appeal panel had been excluded in this Bill.

Ms Yako said that the idea was to streamline the process, and that the appeal panel had not been totally excluded, as there would be an enabling clause so that an appeal panel could be set up if it was necessary.

The Chairperson asked what the ownership patterns of the coast were, and if there was any indication of the ratio of private, state and community ownership.

Ms Yako said that DEAT did not regulate ownership patterns, but only access to the coast.
 
Mr Malan said that the Department of Land Affairs was in the process of doing an audit on state owned land on the coast. If it was appropriate, such land could be incorporated into the CPP and be utilised to improve access to the coast, or be used perhaps for projects that could benefit the community.

Ms Radia Razak, Chief Director: Legal Services, DEAT, said that land that was not privately owned belonged to all the people but the State was regarded as the custodian or trustee of the land.

Mr Khoarai said that social equality must apply, and most black people had been excluded from being able to fully enjoy the beauty of the sea. He asked if the Bill would be specifically addressing these issues.

Mr Mayekiso answered that this was regrettably a heritage of the past, and the Department would be particularly careful when creating the national, provincial and local coastal management committees to  ensure that they were fully representative.

Mr Mokoena said that when it came to local authorities, the wording of the Bill should not state "may" set up Councils or Committees, but rather that it should reflect that they were under an obligation to do so.

Mr Malan answered that the Department would confer with the State Law Advisors  on this point.

Mr Mokoena cited an example from two years ago, when some of the Members visited the O R Tambo municipality, and found “elite foreigners" squatting on the beach in illegal chalets that they had built. The municipality was powerless to do anything about the situation as there was no legislation in place to aid  removal of these people. He then emphasised that having the local government setting up a council would help in situations like this.

Ms Yako said that in the past it was a long and slow process trying to prosecute people who had built property illegally, but with this legislation the process would be much easier.

Ms Razak added that the Bill provided for removal notices. Where there was illegal activity they would be able to take swift action.

Mr Malan said that the Department also had a database of illegal cottages, and was keeping track of them.  To date about 50 structures had been demolished, although these cases were taking considerable time to conclude.

Ms M Ntuli (ANC) asked if the Department could elaborate on the term “erosion-proof”. She asked how coastal erosion affected the dunes.

Mr Malan said most of the South African coast was in fact eroding. This erosion would occur even more with global climate change and sea level rise as well as increased storm frequency. The damage to the dunes could occur through either physical damage or biological protection of certain plants and nesting areas for turtles. It could be predicted where erosion was likely to occur.

Ms Ntuli also asked if some people who had private property on the coast allowed the public access to their property.

Ms R Ndzanga (ANC) referred to the pipelines of a fish factory that released its waste into the sea, which was similar to abattoirs in Gauteng that released blood into the river. She wondered why the Bill was only dealing with coastal areas, and not inland water areas.

Ms Yako responded that land-based waste or pollution was dealt with in terms of the Waste Bill. 

Mr Malan added that the waste legislation that was presently in the process would deal with most land-based waste. In this Bill a provision was made to prevent people from pumping fresh water into the sea as fresh water was a scarce resource in this country.
Mr Morgan pointed out that the Bill had received much coverage in the KZN media. He said that landowners were unable to defend their property from the sea, or reclaim it if it was lost to sea action or extreme weather conditions.

Ms Razak said that this was not a case of the State taking land away but rather an unfortunate consequence of poor planning in the past. Developments were often built so close to the sea that they were simply not practical or safe. The Department was now aiming, through the Bill, also to mitigate this type of loss to individual and communities along the coast.

Mr Morgan also asked if it was possible to conduct land swaps.

Ms Razak said that the Bill made provision for land swaps where DEAT could exchange or expropriate land.

Mr Morgan asked if the Department of Minerals and Energy (DME) had any thoughts on this Bill, as the mining of dunes and biodiversity were important issues.

Ms Yako said that DEAT did not regulate mining, even on coastal property. A previous version of the Bill had included some provisions with regards to mining but DME stated that it would prefer to deal with the matter in its own legislation. DEAT did not regulate existing mines but future mines would have to follow a different approach, especially if the area was in a CPZ.

Mr Maluleka asked if the Bill would be doing anything towards transformation of communities. He wondered what the possibility was of there being a mechanism built into the Bill to conscientise local authorities, so that any future development would have to integrate lower, middle and upper income groups.

Mr Maluleka also asked what kind of response was received to the Bill.

Mr Malan said that there had been 350 pages of submissions, some of which were duplicated comments, in response to the Bill.

Mr Maluleka then asked what the process would be if there was an application to release waste into the sea, and whether the responsible body was required to undertake any neutralising processes, or have a permit for the pipes.

Mr Malan said that the Bill did have processes for permits and applications to deal with sea outfalls.

Ms Chalmers referred to the area of St Francis where the dunes in front of the seafront houses had been eroded so much that it had placed the residents in a dangerous situation. A solution had been proposed of building a reef out at sea, which was supposed to break the force of the waves, but this was likely to be a very costly process. She asked what would be the responsibility of DEAT in assisting the residents.

Mr Malan said that what was happening in St Francis Bay was as a result of mistakes made thirty years ago.

Ms Chalmers referred to waste water pipelines and asked if there was an alternative to running them into the sea.

Mr Malan answered that storm water drains were very difficult thing to control, but in the Bill a provision was made for the Minister to issue regulations controlling storm water.

Mr Mokoena asked who the implementing agent of the Bill would be.

Mr Malan replied that the mandate of the Bill lay with DEAT, and this Department would be able to override any other contradictory legislation insofar as it might relate to the management of the coastal zone.

The Chairperson asked what the difference was between Coastal Protection Zone (CPZ) and a Coastal Zone (CZ).

Ms Razak said that a CZ referred to an entire area including the CPZ and CPP.

Ms Chalmers asked how would the public know that an area was a Coastal Protected Zone. This question was not specifically answered.

The Chairperson asked what was meant by “wide representivity”.

Ms Razak said that the Bill prescribed who needed to be on the committees, and there would be municipal and provincial representatives on the national committee, to ensure continuity and effective communication.

The meeting was adjourned.