MEMORANDUM ON THE OBJECTS OF THE NATIONAL ENVIRONNMENTAL MANAGEMENT: INTEGRATED COASTAL MANAGEMENT BILL, 2007
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
1.2 In the
past, the value of coastal ecosystems as a cornerstone for development was not
sufficiently acknowledged in decision-making in
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
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.
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
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
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
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
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:
· 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
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.
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.