MEMORANDUM ON THE OBJECTS OF THE NATIONAL ENVIRONNMENTAL MANAGEMENT: INTEGRATED COASTAL MANAGEMENT BILL, 2007

1. BACKGROUND

1.1 The National Environmental Management: Integrated Coastal Management Bill, (“the Bill”) has been designed to fulfil the State’s duty under section 24 of the Constitution in relation to the coast (the environmental right) and to implement existing national government policy as reflected in the White Paper on Sustainable Coastal Management for South Africa (which was endorsed by Cabinet in 2000). Our coast is a rich national heritage contributing enormous benefits to the people of South Africa providing opportunities for future economic and social development. The coast is also a distinctive, complex and interconnected natural system, with resources that are finite and vulnerable to overuse and degradation, and that pose risks when not well managed. The coast needs to be managed as a system in order to make optimal use of the opportunities and benefits it provides. However, this system–orientated approach has failed to materialize to date and various sectors of government continue to adopt a management approach focusing on their specific sectors such as land-use planning, agriculture, water affairs, nature conservation and others. This Bill promotes a holistic way of thinking by promoting co-ordinated and integrated coastal management, which views the coast as a system and emphasizes the importance of managing it as such. Maintaining the diversity, health and productivity of our coast is central to realising and sustaining the economic and social benefits it provides.

1.2 In the past, the value of coastal ecosystems as a cornerstone for development was not sufficiently acknowledged in decision-making in South Africa. The White Paper highlights the importance of recognising the value of the coast. The value of the direct benefits obtained from coastal “goods and services” was estimated in 1998 to be about R168 billion annually, which was equivalent to about 35% of our annual Gross Domestic Product. Much of the wealth locked up in our coast continues to be wasted due to environmentally insensitive development and activities. Economic and social opportunities for wealth creation and equity are being missed and coastal ecosystems are being degraded. The White Paper also emphasizes the importance of facilitating coastal development which is sustainable. This requires development to be ecologically, socially and economically sustainable. For coastal development to be ecologically sustainable, it should involve protection of coastal ecosystems and sustainable use of marine and coastal resources. For coastal development to be socially sustainable, it should emphasise public awareness and shared responsibility, empowering disadvantaged individuals and communities, including women and the poor. For coastal development to be economically sustainable it should diversify opportunities, provide jobs and facilitate access to productive resources. The Bill seeks to amongst others, address these objectives in an integrated way. It proposes a shift from managing the coastal zone on a sectoral basis by different organs of state towards a coordinated management by all spheres of government in accordance with the principles of cooperative governance. The Bill seeks to build partnerships between government, the private sector and civil society in order to foster co-responsibility for coastal management.

2. OBJECTS OF BILL

2.1 The Bill sets out a new approach to managing the nation’s coastal resources to promote social equity and make best economic use of coastal resources, whilst protecting the natural environment. The purpose of the Bill is to:

· Provide a legal and administrative framework that will promote cooperative, coordinated and integrated coastal development;

· Preserve, protect and enhance the status of the coastal environment as the heritage of all;

· Ensure coastal resources are managed in the interests of the whole community;

· Ensure there is equitable access to the opportunities and benefits derived from the coast; and

· To give effect to certain of South Africa’s international law obligations.

2.2 The Integrated Coastal Management Bill comprises twelve chapters, the main features of which are outlined below.

Chapter 1: Interpretation, objectives and application of act

This chapter defines key words and phrases; sets out the objectives in order to guide the interpretation and application of the Bill; clarifies the role of the State in relation to the coastal environment, indicates to whom and where the Bill applies and explains that the Bill must be read in conjunction with the National Environmental Management Act and explains how to reconcile conflicts with other legislation.

Chapter 2: The coastal zone

This chapter defines the extent and legal status of the coastal zone and different areas therein. The coastal zone is illustrated in Annexure 1. It further defines coastal public property as the property of all South Africans that is held in trust by the state on their behalf, and provides for improved protection of, and access to, these public assets.

At the heart of the coastal zone is an area of land and water defined as coastal public property, which is the common property of the people of South Africa (clause 7). This contrasts with the current situation under the Sea-shore Act where the seashore and sea are owned by the President on behalf of the people. In order to protect and effectively regulate coastal public property, it is necessary to impose controls and restrictions on certain areas adjacent to coastal public property that form part of coastal ecosystems. Restricting or controlling developments in these areas is also essential to take account of the dynamic nature of the coast and to protect people and property from harm from natural causes such as coastline erosion and flooding, or new threats like sea level rise as a consequence of global warming. The Bill similarly clarifies the consequences of a loss of land as a result of movement of the high water mark due to natural processes (clause 14). The Bill addresses this by creating a coastal protection zone inland of coastal public property (clause 16). In order to secure public access to coastal public property, the Bill requires municipalities to designate coastal access land (see clause 18) and implores municipalities to include consideration of environmental factors. MECs of coastal provinces may declare that protected areas or parts thereof are not part of the protection zone. The reason for this is that some protected areas extend sufficiently far inland so as to make it logical to exclude them from the scope of the Bill (clause 22). Clause 23 provides that special management areas may be declared and clause 24 deals with the management of such areas in order to give effect to the recognition in the White Paper that the diversity of the coast requires different management approaches in different areas. A special management area could be declared for various coastal management purposes, and it is envisaged that these would be established mainly to encourage sustainable development in particular areas, rather than as conservation areas (which in most cases will be dealt with as protected areas). Clause 25 authorises MEC’s to establish coastal set-back lines. Making it necessary to obtain permission for erecting or altering a structure situated seaward of the line. A coastal set-back line may, for example, be established to ensure that the shadows from high buildings do not fall on the beach or in order to take into account possible effects of sea level rise

Chapter 3: Boundaries of coastal areas

This chapter provides procedures for demarcating and adjusting the boundaries of coastal public property, the coastal protection zone, special management areas and coastal access land (clauses 26-29). It also sets out the considerations which must apply in respect of such demarcations and adjustments. Interested and affected parties have an opportunity to contribute to the process of demarcating or adjusting coastal boundaries. Provision is made for marking boundaries on zoning maps and endorsements by the Registrar of Deeds (clauses 31 and 32). Reference is made to ‘coastal boundaries’ throughout this Chapter to make a distinction between these boundaries and zoning municipal or other official territorial boundaries, governed by other legislation and processes.

Chapter 4: Estuaries

This chapter aims to facilitate the efficient and coordinated management of all estuaries by providing that they must be managed in accordance with:

(a) a National Estuarine Management Protocol (see clause 33) approved by the Ministers responsible for the environment and for water affairs; and

(b) estuarine management plans for individual estuaries (see clause 34). The Protocol will provide a national policy for estuary management and guide the development of individual estuarine management plans.

Chapter 5: Institutional arrangements

This chapter establishes a statutory framework for new institutional arrangements to ensure integrated and coordinated coastal management. Clause 35 provides for the establishment of a National Coastal Committee which may be appointed by the Minister (clause 36) Clause 37 provides for the designation and functions of provincial lead agencies which will play the lead role in coastal management at provincial government level. Clause 38 provides for the establishment of Provincial Coastal Committees which will be responsible for coordinating coastal management in each coastal province. Clause 39 authorizes the MEC’s of each province to determine the composition of these Committees. Clause 40 allows for the establishment of Municipal Coastal Committees to provide for an integrated approach across all three spheres of government. Clause 41 authorizes the MEC’s to appoint voluntary coastal officers and define their roles and responsibilities. This provision helps facilitate a new co-operative and participatory approach to managing the coast (see Preamble to Bill) by enhancing the participation of members of the public in coastal management.

Chapter 6: Coastal management

This chapter establishes a system of coastal management programmes within each sphere of government and provides for zoning schemes to ensure that the coastal zone is subject to effective planning and management procedures. It sets out the legal mechanisms for establishing a proactive planning system for coastal areas that integrates coastal concerns (including the marine dimension) into the existing provincial and municipal land-based and economic development planning procedures in a manner that is consistent with the policy goals of the White Paper. The current land-use planning system in South Africa is a land-based system that essentially stops at the high water mark. This Chapter is designed to extend that system across the land/sea interface in order to allow for integrated coastal planning and the proactive control of the use of coastal resources. The Chapter establishes a hierarchy of coastal management programmes (CMPs). At the top of the hierarchy is the national CMP which the Minister must prepare and adopt within four years of the commencement of the National Coastal Management Act (clauses 42-43). The coastal provinces must develop their own provincial CMP’s within four years of the commencement of the Act that are consistent with the national CMP and the National Estuarine Management Protocol (clauses 45-46). The Bill also requires municipalities to develop municipal CMP’s within four years of the Act’s commencement, either as stand alone documents or as part of an integrated development plan (IDP) prepared in accordance with the Municipal Systems Act (clauses 47-48). Clause 50 requires the alignment of certain plans with CMP’s to ensure coordinated coastal management. Similarly clause 51 requires consistency between CMP’s and other statutory plans. Procedures relating to public participation are set out in clauses 52-53, in compliance with section 33 of the Constitution and the Promotion of Administrative Justice Act, 2000

The powers of the Minister and the MEC’s to review provincial and municipal CMP’s respectively are set out in clauses 54-55. Clause 56 gives the various authorities responsible for coastal management (including marine areas) the power to establish zoning schemes. Clause 57 requires land use schemes prepared under other legislation to be consistent with coastal zoning schemes. The coastal resource use planning system established by this Chapter will function as a mechanism for controlling the use of the coastal zone in the same way as the land use planning system is presently used. Importantly, it will provide a mechanism for translating the results of research regarding how coastal resources should be used and the maximum use that should be made of coastal resources, into a legally enforceable system for managing the coastal zone.

Chapter 7: Protection of coastal resources

This chapter provides measures for protecting the coastal environment from activities that may detrimentally affect it and creates procedures for assessing and regulating such activities. Clause 58 requires users of coastal public property, owners and occupiers of land, coastal managers and other responsible persons to take reasonable measures to avoid causing adverse effects on the coastal environment in accordance with section 28 of the National Environmental Management Act (Act No. 107 of 1998), referred to below as NEMA. Clause 59 provides for the Minister or MEC to issue written notices requiring measures to be taken to protect the coastal environment (Coastal protection notices and coastal access notices). Clause 60 authorises the Minister or MEC to issue notices for the repair or removal of structures within the coastal zone. Part 2 (clauses 63) prohibits potentially harmful activities from taking place within the coastal zone unless they have been specifically authorised requiring an integrated environmental authorization before undertaking specified or listed activities within this zone.. The Bill does not seek to introduce new environmental impact assessment procedures. Assessing the environmental impact of and listing those activities which may detrimentally affect the coastal zone will be done in terms of the general environmental impact assessment regulations which were promulgated in terms of NEMA on 21 April 2006. As such a coastal activity which is listed in terms of the NEMA regulations, will require the applicant to undertake the standard environmental assessment processes as prescribed in terms of NEMA, but the competent authority who assesses this application will, in addition to the factors listed in NEMA have to consider the factors specific to coastal activities detailed in the Bill – clause 63. Once this process is completed the applicant will be issued with an integrated environmental authorization by the MEMA competent authority. This section aims to align the Bill with NEMA and integrate and streamline processes within the Department to ensure that only one authorisation is issued.

Part 4 (clauses 65-66) deals with the letting of coastal public property by way of coastal leases and the granting of limited use rights over coastal public property by way of coastal concessions. Part 5 (clauses 67-68) contains general provisions relating to the temporary occupation of land within the coastal zone for specified purposes and the amendment, suspension or cancellation of authorisations. Such amendment, suspension or cancellation is subject to the criteria specified in clause 68.

Chapter 8: Marine pollution control

This chapter establishes an integrated regime for regulating the disposal of effluent and waste into estuaries and the sea, including prohibiting incineration at sea and restricting dumping at sea in accordance with South Africa’s obligations under international law. This chapter establishes integrated procedures for regulating the disposal of effluent and waste into estuaries and the sea. Presently the disposal of effluent through pipelines and the dumping of waste from vessels into estuaries or the sea are controlled under different pieces of legislation by different Departments. The Bill intends to regulate the discharge of effluent into coastal waters from any source on land (clause 69) by requiring permits to authorise such discharges. The Bill also establishes a prohibition of incineration or dumping at sea (clause 70) of waste or other material. This clause proposes prohibition of incineration at sea and restricts dumping at sea in accordance with South Africa’s obligations under international law. The Bill provides procedures relating to both discharge and dumping permits (see also Schedule 2). The Bill authorises the Minister to dispense with prescribed procedure in respect of dumping in emergencies (clause 72). For example, vessels in distress due to mechanical failure may need to urgently dump cargo overboard. The Bill requires the Minister to develop a national action list to screen waste and other material on the basis of their potential effect on human health and the marine environment (clause 73).

Chapter 9: Appeals

This chapter sets out the procedures to be followed when appealing against coastal protection or repair and removal notices or in connection with the granting or refusal of an authorisation under the Bill (clause 74). It empowers the Minister or MEC either to consider the appeal personally. This section is similarly aligned with NEMA and makes it clear that any appeal with regard to an integrated environmental authorization must proceed in terms of the appeal provisions in NEMA. Pending the determination of an appeal, the Minister or MEC may make an interim order considered necessary to achieve the purposes of the Bill (clause 75).

Chapter 10: Enforcement

This chapter establishes certain offences (clause 77), determines penalties in respect of offences (clause 78), provides for offences under the Act to be prosecuted in the magistrate’s court (clause 79) and gives the Minister, an MEC or a municipality the power to institute legal proceedings or take other measures in relation to coastal public property or the coastal environment (clause 80).

Chapter 11: General ministerial powers and duties

This chapter sets out the powers and responsibilities of the Minister and the MEC's. Part 1 deals with the powers of the Minister and of MEC’s to make regulations to promote the Act’s implementation and prescribes the consultative process that is to be followed when making regulations. Part 2 describes the powers to be exercised by the Minister and MEC. Clause 85 grants the Minister the power to exercise certain functions normally exercised by the MEC if specific circumstances apply. Clause 86 authorises the MEC to issue directives to municipalities. Part 3 deals with delegations. Clause 87 deals with delegations of powers or duties by the Minister. Clause 88 authorises the Minister to exercise certain duties and powers normally exercised by the MEC under certain circumstances. Clause 89 deals with the MEC’s powers to delegate powers or duties assigned to the MEC.

Part 4 deals with certain General matters. Clause 90 is a general emergency clause which allows the Minister to take steps in an emergency to achieve the objects of the bill. Clause 91 deals with Information and reporting on coastal matters. The Minister must make certain information concerning the protection and management of the coastal zone available to the public. The responsibilities of the Minister and MEC’s to prepare reports on the state of the coastal environment are also set out. Clause 92 requires the co-ordination of actions between provinces and municipalities

Chapter 12: Miscellaneous matters

This chapter deals with various transitional and other matters that are not addressed elsewhere in the Bill, provides for the repeal of the Seashore Act, 1935 (Act No. No. 21 of 1935) and of the Control of Dumping at Sea Act, 1980 (Act No. 73 of 1980) This chapter deals with a variety of matters in order to facilitate a smooth transition from the previous management system to the one proposed by the Bill. These include provisions dealing with the continuation of existing leases on, or rights to, coastal public property (clause 93), the procedures for dealing with unlawful structures on coastal public property (clause 94), and the continuation of existing lawful activities in the coastal protection zone that were lawful before the commencement of the Act but that after its commencement may only be conducted with a permit (clause 95). It also deals with other matters such as the repeal and amendment of other laws (clause 96).

3. DEPARTMENTS/BODIES/PERSONS CONSULTED

A wide range of stakeholders was involved in the compilation of the draft Integrated Coastal Management Bill. The following specific parties were consulted as per the attached stakeholders list:

· Provinces

· Key national departments, through the Committee for Environmental Coordination (CEC) and either directly or indirectly:

· Department of Land Affairs

· Department of Agriculture

· Department of Housing

· Department of Trade and Industry

· Department of Water Affairs & Forestry

· Department of Transport

· Department of Defence

· Department of Minerals & Energy

· Department of Health

· Department of Labour

· Department of Public Works

· Department of Public Enterprises

· Department of Finance

· MINMEC Environment

South African National Parks (SANParks) was also consulted.

In addition a comprehensive communications strategy for the Bill has been developed and implemented in consultation with the relevant coastal provincial authorities, GCIS and other relevant national and municipal departments.

4. IMPLICATIONS FOR VULNERABLE GROUPS

Women, children and disabled persons who are members of historically disadvantaged and poor communities are particularly vulnerable. Better management of coastal resources can play a significant role in combating poverty and inequity in South Africa. The Bill’s enactment and implementation will therefore benefit vulnerable groups

5. FINANCIAL IMPLICATIONS FOR STATE

The implementation of the Act will involve some additional costs to organs of State within the national, provincial and local spheres of government. These will be primarily related to the new function of preparing comprehensive coastal management programmes (i.e. proactive coastal resource use planning and management). However these costs should be dwarfed by the benefits derived from improved allocation of coastal resources and streamlined management systems.

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6. PARLIAMENTARY PROCEDURE

6.1 The State Law Advisers and the Department of Environmental Affairs and Tourism are of the opinion that the proposed Bill falls within the ambit of section 76(3) of the Constitution as it deals with a functional area listed in Schedule 4. As such the Bill must be dealt with in accordance with the procedure established in terms of section 76 (1) or (2) of the Constitution.

6.2 The State Law Advisers are of the opinion that it is not necessary to refer this Bill to the National House of Traditional Leaders in terms of section 18(1)(a) of the Traditional Leadership and Governance Framework Act, 2003 (Act No. 41 of 2003), since it does not contain provisions pertaining to customary law or customs of traditional communities.