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 mana