MARINE SPATIAL PLANNING BILL, 2017 MARINE SPATIAL PLANNING BILL, 2017 comments & responses MARINE SPATIAL PLANNING BILL, 2017 PORTFOLIO COMMITTEE 2017 PORTFOLIO COMMITTEE SEP 2017

SECTOR LEGISLATION ALIGNMENT Bill does not deal with alignment with sector legislation such as National Environmental Management: Integrated Coastal Management Act 24 of 2008, Mineral And Petroleum Resources Act, Marine Living Resources Act etc. The Bill should not undermine other pieces of legislation which have been put into place for the protection of the South African people such as the constitution. The Bill does not remove existing mandates in sector legislation. Mandates must be exercised according to final marine area plans. Departments must adhere - amendment proposed to strengthen compliance – see new clause 13

CONFLICT WITH OTHER LAWS Clause 4 states that where there is conflict with other legislation, this act will prevail. Accordingly, this 2017 Bill may undermine the mandate OTHER SECTOR LAWS This is not what clause 4 intends. This is a standard clause that appears in all legislation - only prevails over any other law on Marine Spatial Planning. It does not replace any other sector laws.

NEED FOR OCEANS ACT / NEMO IGNORED There is a need for an Oceans Act which is critical to environmental legislation and to support ocean governance and Marine Spatial Planning. Without the NEMO enacted, the MSP Bill is inadequate as a proxy Ocean management regulatory framework exists in several SEMAs already, for example, National Environmental Management Biodiversity Act, 2004 (Act NO. 10 of 2004) and its associated list of Marine Species that are Threatened or Protected, published in GNR 476 of 30 May 2017; National Environmental Protected Area Act, 2003 (Act No. 57 of 2003) and the various sets of regulations declaring and regulating Marine Protected Areas; The National Environmental Management, Integrated Coastal Management Act, 2008 (Act No. 24 of 2008) and its associated regulations which include the Dumping at Sea Regulations published under GNR 711 of 21 July 2017; and The overarching National Environmental Management Act itself, (Act 107 of 1998), which provides guiding provisions and principles applicable to all the SEMAs including Ocean and coastal related issues. NEMO is given effect to through the SEMAs and the MSP governance framework which seeks to balance all the competing factors to ensure sustainable growth

INCLUSION OF MUNICIPALITIES AND COASTAL PLANNING BODIES Local government and provincial coastal committees should be involved in MSP and Integrated coastal management planning issues must be addressed. Suggestion for representation on the MSP Institutional Structures These matters addressed in the National Environmental Management: Integrated Coastal Management Act 24 of 2008 (sector law) Inappropriate to conflate planning structure – bloated decision-making bodies MSP is not intended to focus on near-shore planning or local government matters in general, however, in the unlikely event of an overlap in planning activities, the Bill seeks to achieve alignment through engagement and consultation (clause 8 (1) (c)). With the relevant planning bodies

INCLUSION OF CIVIL SOCIETY AND PUBLIC The Institutional structures of the Bill must include civil society and the public The principle of institutionalised stakeholder forums with civil society is WORKS IN THEORY BUT NOT PRACTICE. Interests too diverse and can lead to deadlock. Civil society to be engaged and interests of all will be balanced in accordance with the principles in the legislation. The ultimate responsibility therefore has to lie with the regulators, to consult with their stakeholder groups and feed this information into the MSP structures. Government’s obligation is to take the - No limitation to form of stakeholder forums

ECONOMICS VS ECOYSYSTEM PROTECTION The basis of decision making should be science and not Economics the Bill seeks to balance both objectives. Proposed an amendment to strengthen the principle of the precautionary approach which should be an overarching principle. Clause 5 – “The following principles apply to marine spatial planning and should be applied and considered having regard to the precautionary approach:”……

RELATION TO SPLUMA Clarity is sought regarding the salient difference between Spatial Planning Management Act, No 16 of 2013 (“SPLUMA”) and the 2017 Bill and how these are interlinked, if at all. SPLUMA is primarily concerned with terrestrial planning which is contextually and substantially different from marine / ocean planning. They operate in different spaces, paradigms and completely different environments. SPLUMA up to high water-mark - MPS is from the high water-mark 200nm out to sea. In the unlikely event of overlaps alignment will take place through intergovernmental consultation and cooperation as decision-making takes place at the highest political level.

INTERNATIONAL AGREEMENTS There is no provision in the Bill on how it relates to International and Regional Agreements. - UNCLOS, CBD, Benguela Current Convention and Convention on Biological Diversity. Compliance with South Africa’s international obligations are one of the principles of MSP in the Bill. International Agreements are usually implemented by sector laws

APPEALS There is no structure responsible for appeal processes Administrative/internal appeals are usually done at the highest level of an organisation/department to ensure impartiality i.e. by the Minister of a Department MSP decision is taken by a group of Ministers akin to a committee of Cabinet. Internal appeals to a Minister is therefore not possible and similarly an independent tribunal which is usually appointed by a Minister cannot review a decision of a Ministerial committee. In the interest of impartiality and fairness judicial review in a court is the most appropriate measure

NON-COMPLIANCE What should happen when one of the sector oceans of state is not complying with the MSP or any decision taken my the Ministerial committee? AND there is no provision in this bill indicating penalties for non-compliant users. The bill must clearly indicate that any Marine Spatial plan that is inconsistence with the Marine Spatial Planning Framework and marine sector plan cannot be adopted. Will the bill condone non-compliance or non-alignment?

NON-COMPLIANCE Old clause in the previous version of the bill published for comment had a clause which explicitly required organs of state to comply with the marine area plans. There have been requests to include this clause again. Amendment proposed to include a similar clause but worded differently to make it clear that sector laws must be exercised in line with any marine area plan including amendment and cancellation of authorisations

NEW CLAUSE 13 13. Authorisations (1) Any right granted or permit, permission, licence or other authorisation issued in terms of any other law must be aligned with the marine area plans or any final decision of the Ministerial Committee on Marine Spatial Planning; or (2) Any right, licence, permission, permit or other authorisation under any other law existing at the time of commencement of this Act, must where applicable, be withdrawn, amended or modified to align with the marine area plans or any final decision of the Ministerial Committee on Marine Spatial Planning.

MINOR AMENDMENTS Definition of “marine area plan”- confusion between the geographic area and the actual planning so proposal to separate definitions of what a marine area is. New definition of marine area inserted ‘‘marine area’’ means a bio-geographic area that will serve as a planning unit for a marine area plan

MINOR AMENDMENTS Some punctuation, cross-references and some slight rewording to align with other sections were also suggested and have been implemented.

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