Oceans Not Oil tackles Marine Spatial Planning Bill

Janet Solomon posed pertinent questions and comments to the Portfolio Committee on the Marine Spatial Planning Bill. It is clear that the Bill is of value and importance to the blue economy of South Africa, but the Bill requires a lot of work before it can be enacted. ONO will be posting the Portfolio Committee response in audio form so please watch for it on the Oceans Not Oil Facebook page and other social media.

Presentation given to Portfolio Committee:
Thank you for allowing us the opportunity to review and comment on the Marine Spatial Planning Bill. This is potentially significant legislation with far-reaching ramifications. It is especially vital considering that the sea is a space largely uninhabited by humans, and there is minimal awareness or visibility of damage. It should accordingly be subject to stricter control. Our primary areas of concern and questions are as follows:

Socio-Economic Impact Assessment
Since October 2015, the Cabinet of South Africa has required a Socio-Economic Impact Assessment (SEIAs) to be conducted whenever Cabinet approval is required for draft policies, bills or regulations.

• Has a Socio-Economic Impact Assessment been undertaken for the Marine Spatial Planning Bill and has provision been made for such an assessment to be undertaken on a continual basis?
• If this has taken place please could you furnish us with a copy of the report and make it available to the public. Please could you also inform us as to which agency conducted the SEIA.

Site Selection and Prior Zoning of the EEZ for Oil and Gas Development
90% of our ocean has already been assigned to marine mining and offshore oil and gas development. The only public information concerning the allocation of these Licence Blocks is a notice inviting applications.

• Please can you clarify who identified the site selection?
• How was this key marine spatial plan decided?
• What authorities were involved in the consenting process?
• What public participation process was there in the allocation of this marine commons to the mining and oil and gas sector?
• There is an overwhelming territorial bias towards marine mining and offshore oil and gas development. Unlike all other sectors, mining and extraction does not require the ocean to maintain its natural function and integrity. Use of the same marine area after mining operations is extremely limited . How does the Bill envisage the co-existence of mining and any other uses?
  Oceans Act
• At present, South Africa’s Marine Protected Areas and Marine Spatial Planning are being developed without an overarching ocean governance framework, and this is problematic. The Department of Environmental Affairs should be given the necessary support to implement the Green Paper on the National Environmental Management of the Ocean. Declining ocean health will eventually lead to collapses in economic sectors that depend on these ecosystems. The integrated ocean management approach and legal framework of the Ocean Policy would ensure a balancing of provision of ocean ecosystem services without compromising the ecological integrity of our marine ecosystems on which such services depend.

Objects of Act
Will the carbon-emission-cuts target set by the Paris Agreement to Combat Climate Change (2015) not be adversely affected by this bill, regard being had to the objectives of this bill as an ‘ocean economy’ with an offshore oil and gas development stream?

Application of Act
3.2. What happens to any pre-existing right, permit, permission, licence or any other authorisation?

Conflicts with other legislation
Section 4 of the MSP bill states that In the event of any conflict between the provisions of this Act and other legislation specifically relating to marine spatial planning, the provisions of this Act prevail. Please could you explain this section in the light of the fact that the Constitution is the supreme law of the Republic and any law or conduct inconsistent with it is invalid, as is the National Environmental Management Act (NEMA) supreme law as far as environmental legislation is concerned.
Biodiversity
Reference is not made to biodiversity in the bill at all.

• How will the bill deal with biodiversity as defined by the National Environmental Management: Biodiversity Act (NEMBA)?
• The bill presupposes that conflict scenarios will exist between various sectors and / or users of the ocean. What happens in a situation where there is conflict between a sector or user, and ocean life or the marine environment?

Compliance
Noncompliance with environmental regulations threatens not only the environment, but also social and economic prosperity. How do you propose that this bill will provide capacity, expertise and enactment of compliance with legislation?

Principles and criteria for marine spatial planning
The sustainable use, growth and management of the ocean and its resources:

There is a risk that the use of the term ‘sustainable use’ stated section 5(1) (a) could mask the real, substantive environmental governance issues of the MSP Bill. Currently the Mineral and Petroleum Resources Development Act (MPRDA) refers to ‘ecologically sustainable development’ of mineral and petroleum resources, but mining and extraction, by its very nature, depletes natural resources and is therefor unsustainable. Since the MSP Bill will be required to align with the Mineral and Petroleum Resources Development Act in the management of offshore mining and oil and gas development, better legislative drafting is needed to guide future macro-scale environmental governance of the ocean. What is the standard by which sustainable use will be measured?

Marine spatial planning system
6. The marine spatial planning system is an iterative, phased process consisting of the following steps:

If this bill is in support of Operation Phakisa, and Operation Phakisa is by definition happening sooner rather than later, is there not a conflict between Operation Phakisa’s drive for hurried economic growth and the gradual, incremental delivery that Marine spatial planning system affirms?

Knowledge and information system
7. (1) (a) to (f)
How is it proposed that the Minister will be in a position to adequately guard against bias in the establishment of the knowledge and information system referred to in section 7?

Please could you account for the omission of the following Departments from both the National Working Group and Directors-General Committee
The departments of Women, Sport and Recreation, Justice and Constitutional Development, Labour, Small Business Development, Social Development, Trade and Industry and the Department of Traditional Affairs

Public Participation
There is no provision for public participation and representation by relevant stakeholders in the development of any of the draft marine plans by the National Working Group, nor by the Directors-General Committee, nor by the Ministerial Committee, nor is provison made for public comment before the Minister publishes the marine spatial framework or area plans through notification in the gazette
Oceans Not Oil recommends greater inclusiveness of effective civil society contributions to the marine spatial planning. There is a role for civil society to provide information, feedback and data; to suggest legislative and regulatory improvements; to motivate for accountability, transparency and access to information; to appeal any inadequate decision-making and to provide support

10. (3) The Director-General is the chairperson and convener of the Directors-General Committee and in his or her absence, the Director-General responsible for planning, monitoring and evaluation must act as the chairperson of the Directors-General Committee:

It appears that the process provided for in the proposed bill is dependent upon the decision of the Department of Environmental Affairs. In the event that the latter department is not available, then the Department of Planning, Monitoring and Evaluation steps in. Considering both these departments’ association with the promotion of the oil and gas development stream of Operation Phakisa (see the memorandum on the objects of the Marine Spatial Planning bill, attached to the bill) we submit that this process denies the application of Section 24 of the Constitution which enshrines the right to an environment without pollution, ecological degradation which is protected for the benefit of present and future generations.

Thank you for your attention and we look forward to your response
#oceansnotoil