COMMENTS TO THE APPROACH TO A SPATIAL MANAGEMENT SYSTEM FOR SOUTH AFRICA’S MARINE PLANNING AREAS
This is a potentially significant document with far-reaching ramifications unless it is to exist within a legislative structure that properly acknowledges the needs of protected marine areas. It is especially vital considering that the sea is a space largely uninhabited by humans and there is minimal awareness or visibility of damage. Marine spaces should accordingly be subject to stricter controls.
Our primary areas of concern are as follows:
- 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 Environment, Forestry and Fisheries (DEFF) should implement the Green Paper on the National Environmental Management of the Ocean (as proposed by DEA in 2012). Declining ocean health will eventually lead to a collapse 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.
2. Socio-Economic Impact Assessment (SEIA)
a) Has a Socio-Economic Impact Assessment of ‘unlocking the Ocean economy’ been undertaken and has provision been made for such an assessment to be undertaken on a continual basis?
b) 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 advise which agency / consultant conducted the SEIA
3.1. Unlocking the ocean economy.
a) The term ‘ocean economy’ needs to be defined.
b) If a desired outcome of the Marine Spatial Planning process governing offshore oil and gas development is job creation and poverty alleviation, this will need review based on contemporary research such as The Economic Contribution of the Ocean Sector in South Africa (Hosking et al 2014) as well as the Review of Ocean Economy Activities within the South African Exclusive Economic Zone with Particular Reference to the Offshore Oil and Gas, Fishing and Mining Sectors (Ken Findlay; CPUT Research Chair: Oceans Economy, July 2018). These studies find flaws with the valuation of the oil and gas sector by Operation Phakisa consultancy firm, McKinsey, presented in the Phakisa Document (Offshore Oil and Gas Exploration: Final Lab Report for Operation Phakisa.)[i].
c) Will the carbon-emission-cuts target set by the Paris Agreement to Combat Climate Change (2015) not be adversely affected by this proposed system, regard being had to the objectives of this system as an ‘ocean economy’ with an offshore oil and gas development stream?
d) This system poses a threat to the Intergovernmental Panel on Climate Change (IPPC) climate goals of limiting global warming to well below 1.5°C, to prevent a catastrophic and irreversible climate change. The DEFF has the legislative duty to take climate action yet its strategic objective is to develop and support an oil-based offshore economy in South Africa. In doing so, DEFF supports a contention that allows the burning of all of South Africa’s oil reserves and any additional reserves which may in the future be discovered. The report under discussion needs to show how these offshore objectives, with the proposed extraction of fossil fuels, are measured for their increase in greenhouse emissions and acceleration of global climate impact.
3.2. Engaging with the ocean
a) Considering that the South African coastal area has a high amenity value, transparency is needed with regards to a detailed Contingency Plan for Subsea and Surface Release in the Offshore Oil and Gas sector. Oil Spill Response, Planning and Capacity necessary for public health and welfare as well as that of the marine and coastal environment must be made public for proper stakeholder and I&AP engagement. The citizens of South Africa need assurance that incident management is fully informed and has capacity to deal with the latest technology, practices and risks associated with, and due to, the different geological and ocean environments being explored, prior to commencement of off-shore drilling.
b) The frequency at which accidental discharges of both waste and hydrocarbons occur in offshore waters suggests that they can be expected during “typical” operations[ii]. A cost benefit analysis has not been undertaken for offshore oil and gas applications and no explanation for this oversight has been provided. The proximity of reconnaissance, exploration, extraction operations to South Africa’s environmentally significant areas poses a great risk to its marine commons and heritage, the economic importance of our fisheries and leisure and tourism industries dependent on functional healthy oceans.
i) The consequences of a blow-out on the tourism, recreation and leisure industries may be significant and consideration of compensation to these sectors needs to be made.
3.3. Ensuring healthy marine ecosystems
a) The term ‘biodiversity objectives’ needs to be defined.
4. Strategic Environmental Assessment (SEA)
It can reasonably be argued that much contemporary environmental baseline information for the Spatial Management System Report remains unavailable. Accordingly it cannot be said that context has been properly established for “protecting, conserving and restoring South Africa‘s rich marine biodiversity” and nor can a context against which the impact of the system be weighed. There is a need for planned, coherent, and consistent ecological data to inform this Spatial Management System to develop robust physical and biological baselines. Consistent environmental monitoring is a critical next step.
a) As aforesaid, no independent and objective Strategic Environmental Assessment (SEA) has been conducted for offshore oil and gas development. Negative impacts of the offshore oil and gas sector to biodiversity (ie oil spills and pollution) are well documented and have massive health, wildlife, economic and societal consequences. It is imperative that an independent SEA is conducted for this entire sector (reconnaissance, exploration, production and distribution and decommissioning), in order to inform the formulation and implementation of all government policies and programmes (especially Operation Phakisa), taking into consideration the regional ocean systems.
b) Explanation is needed to explain how “the reduction of the cumulative effects of human activities on marine ecosystems” as a goal will be managed when there is a drive for growth in offshore oil and gas development. Currently massive acreage /hundreds of square kilometres of the ocean is designated for multi-client seismic surveys, with risks associated with compounded animal behavioural disturbance. Chronically-present and recurring sound could constitute a threat to populations by changing behaviour and distribution at critical times and in critical areas. Continued offshore oil and gas reconnaissance, plus exploration and extraction, is inconsistent with this advocated goal
i) Cumulative acoustic limits should be established. These limits should be appropriately matched to the spatio-temporal scale and exposure rate of the risks to individuals and populations. Measurement of noise budget, such as those under consideration under the EU Marine Strategy Framework Directive (Tasker et al. 2010), should lead to limits on the source levels that are introduced on a regional scale, especially in areas where noise pollution is increasing. Survey planning involving large sound sources should consider whether there are other vessels using similar sources along the coast, making it hard for animals to avoid exposure.
ii) Studies show that fish catch rates are significantly lowered by noise from air guns indicating that increasing levels of human-produced noise in the ocean can significantly and adversely impact the food supply, employment and economies of a nation. A study commissioned by the Namibian government revealed that an 84% decline in tuna catches (650 tonnes in 2013 from 4,046 tonnes in 2011) was a result of an increase in seismic activity from oil and gas in the Orange River Basin driving tuna from their normal migratory routes[iii]. McCauley, Fewtrell and Popper (2003) found that the ears of fish exposed to an operating air-gun sustained extensive damage to their auditory hair cells (sensory epithelia). The damage was severe, with no hair cell regeneration 58 days after air-gun exposure. This damage was seen at exposure levels that might occur several kilometres away from the air-guns.
5. 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 was a notice inviting applications. In the light of “improved transparency in permit and licensing procedures for ocean resources”:
a) Who identified the offshore oil and gas license block selection?
b) How was this primary zoning /marine spatial plan decided?
c) What authorities were involved in this process?
d) What public participation process was there in the allocation of the marine commons to the oil and gas sector and mining?
6. The Spatial Management System
a) General development guidelines
For “all developmental proposals to be treated with fairness and in a transparent manner when decisions are being made in the Marine Area Plans” the flawed and prejudiced regulatory framework governing the oil and gas sector needs addressing:
i) Petroleum Agency South Africa’s dichotomous role in making recommendations to the Minister of Mineral Resources on decisions relating to permits for mining and/or exploration whilst simultaneously promoting the use and mining of oil and gas is discriminatory and unjust. The people of South Africa are increasingly demanding a fair and just system that gives due regard to the environmental concerns raised by Interested and Affected Parties. It is accordingly necessary that an independent regulator is appointed to ensure that there is objective and independent scrutiny in weighing up environmental interests versus exploitation and use of fossil fuels.
ii) The approving authority for oil and gas environmental authorization applications sits with the Department of Mineral Resources and Energy (DMRE) instead of the Department of Environment, Forestry and Fisheries (DEFF) as prescribed by the Constitution. Environmental authorities are more appropriately placed to consider, issue and ensure compliance with environmental authorisations for mining activities than the DMRE (CER et al. 2013). This requires review to ensure that the relevant government department’s constitutionally prescribed mandates are not undermined in the interests of expedience or profit by DMRE’s obligations to promote mining, at the cost of sound environmental management.
iii) Oil “reconnaissance“ and other activities relating to mineral exploration are no longer included in the list of activities in the schedules to the Environmental Impact Assessment regulations promulgated in terms of the National Environmental Management Act 107 of 1998 (NEMA). Furthermore, since the repeal of Section 39 of the Minerals and Petroleum Resources Development Act (MPRDA), there is no legislative oversight for such proposed activities. There is accordingly a gap in South African environmental legislation regulating oil and gas exploration.
b) With regard to the following guideline “Sustainable development and use which provide strong economic and social benefit to the South African people are favoured”:
i) There is a risk that the use of the term ‘sustainable development and use’ could mask the real, substantive environmental governance issues of the system. 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 therefore unsustainable. Since the system will be required to align with MRPDA 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. The various definitions of ‘sustainable use’ in the Constitution and other legislation, and its interpretation by the courts (for example, the Constitutional Court’s decision in the Fuel Retailers case, 2007, the Appeal Court decision in Sasol Oil case, 2006) supports the contention that sustainable use as the main criterion in environmental legislation is ambiguous and hopelessly flawed. Sustainability is a value laden concept which needs to be given normative/value content and a clearer overall governance criterion providing for auditing of indicators and targets.
ii) What is the standard by which sustainable development will be measured?
c) Development and use of the marine environment must:
i) comply with legal requirements for marine protected areas and protected species; and
ii) not result in significant impact on key biodiversity features.
Noncompliance with environmental regulations threatens not only the environment, but also social and economic prosperity. How do you propose that this system will provide capacity, expertise and enactment of compliance with legislation?
d) “Proposals which enable coexistence with other sectors and activities in the marine area are favoured.”
i) How will this be regulated?
ii) There is an overwhelming, pre-existing, 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 report envisage the co-existence of mining and any other uses?
McKinsey has been implicated in corruption scandals in South Africa, severely undermining its credibility. See http://www.corruptionwatch.org.za/tag/mckinsey/ ; https://ewn.co.za/2018/07/09/mckinsey-s-new-boss-apologises-to-south-africans-over-corruption-scandal ; https://www.huffingtonpost.co.za/2018/05/02/mckinsey-execs-will-personally-pay-back-eskoms-money_a_23425865/; https://www.biznews.com/global-citizen/2017/12/26/mckinsey-sa-gupta-graft-scandal
Fuel Retailers Assoc of SA v D-G: Environmental Management, Dept. of Agriculture, Conservation & Environment, Mpumalanga Prov 2007 (6) SA 4 (CC)
MEC for Agriculture, Conservation, Environment & Land Affairs v Sasol Oil (Pty) Ltd 2006 (5) SA 483 (SCA)
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[iii]Shinovene I (2013) Govt fears tuna depletion as oil and gas exploration chase fish away, The Nambian, Nambia (25 November 2013) at: http://www.namibian.com.na/indexx.php?archive_id=116959&page_type=archive_story_detail&page =1
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