Comments on the Marine Spatial Planning Bill

From: Coastwatch KZN | P.O. Box 1586 | Ballito 4420 | 28 August 2018

To: The Environmental Affairs Portfolio Committee Kwazulu-Natal Legislature.

Attention: Mr Themba Magwaza

Dear Sirs


Coastwatch KZN  is an NGO formed by volunteers and operating with support of people interested and/or affected by issues relating to the Marine environment. Having read through the MSP Bill we welcome it with reservations; there is most certainly a need for better management of our natural resources. That is especially true for the marine areas, which have been largely neglected. However, this bill appears to focus not on management, but on consolidating the system for permitting maritime activities.

Therefore, we are seriously concerned that this Bill has inherent inadequacies. It conspicuously lacks sufficient checks and balances as would ensure that best practises are implemented by all the stakeholders and beneficiaries. It might even be utilised to bypass provisions in existing legislation which underpin sustainable and effective management.

We would strongly recommend that Section 2 be rearranged to emphasise the natural progression of priorities: Conserving the resource; International obligations; Knowledge base; Responsible use, Promotion of opportunities; Developing plans to support the foregoing objectives. The latter, which places first in the bill, is not a primarily an objective but is the means to achieve all the other objectives.

The objective in Section 2(e) appears to be restricted to assembling an archive of currently available data. This is confirmed in Section 7. However, since the available data may be inadequate for reliable assessment of the marine environment, the Bill needs to also specifically provide for data collection by recognised professionals in the relevant fields. Likewise, the bill needs to make provision for local expertise to be acquired and incorporated in its knowledge base.

  • This bill would also benefit by listing and prioritising the diverse ecological benefits which need to be conserved, protected, and promoted: Conservation; heritage; tourism; food supply; transport; communications; mineral resources. (The latter comes last because it is not sustainable). Prioritisation would need to reflect real cost-benefit relationships.
  • Although Sections 3 and 4 do not specifically override other legislation, they could be misconstrued to override NEMA and its associated legislation, particularly the Marine Living Resources Act; there is therefore need for a sub-Section which explicitly requires that the Marine Spatial Plans must be subject to, and consistent with, the principles and regulations in the NEMA portfolio, that the MSP’s must support conservation priorities and principles already established, and that existing and currently proposed marine protected areas are recognised as having priority and may not be reduced or in any way degraded.
  • The principles and criteria listed in Section 5 are comprehensive, but it needs to be made clear that they are not individual alternatives; not only must proposals seek to meet the majority of these criteria, but also each principle should represent a veto for proposals which would impact negatively on the sustainability of the resource.
  • The opening statement of Section 5, the principles and criteria, refers to the “precautionary approach”; this term needs to be defined, so as to ensure its interpretation is consistent with the objectives of NEMA and the context from which it derives; it is fundamental to the understanding of the section, but appears to be only vaguely comprehended and accepted by some people. It would also be of value to ensure that all the specialised terms used in this section are adequately defined so as to facilitate wider understanding and consistent application.
  • Whilst all the principles in Section 5 may be important and of value, we believe that there would be significant value in prioritising them in accordance with the concept of firstly protecting the resource, secondly promoting good management, and lastly developing and exploiting the resource. Whilst the latter may be an economic priority, the fundamental necessity of protecting the resource needed for sustainable economic benefits must be acknowledged and supported as a cardinal principle.
  • Section 5(h) “Reliance on the best available scientific information” is an important principle, however, it is widely recognised that our marine knowledge base is generally inadequate. This sub-section therefore needs to also establish the principle that where the knowledge base is insufficient to allow scientifically justifiable assessment of impacts the precautionary approach mandates that only activities without foreseeable negative impacts can be considered.
  • Section 8(e) refers to representative organisations. This phrase must be clearly defined, as it might be interpreted as requiring that only a selection of organisations need be consulted, and other organisations representing similar groups of stakeholders could be excluded. 
  • Most maritime activities cannot be undertaken in isolation from terrestrial infrastructure. It is therefore essential that impacts on the adjacent coastline contribute to the management context. This requires that terrestrial stakeholders are also involved in the process, including both local government and civil society.
  • Section 9 refers to “competent officials”. Whilst we would hope that all officials are competent, in this Bill the term needs to be defined as officials who have “adequate and relevant qualifications and experience and the expertise to understand and evaluate the information listed in Section 9(2)(b)”.
  • We would strongly recommend rethinking the use of the loophole “may appoint” in Section 9(5), which would enable the group of department representatives to make recommendations without seeking advice from any peer-recognised experts in the specific, affected spheres of interest. This would seriously undermine the stipulated “Precautionary Approach” which has to be based on the best available knowledge.
  • The emphasis on “consensus” is also worrying in a body representing so many different interests, most of whom are not overly concerned about the impact of their activities on other stakeholders, let alone the environment. Political “horse-trading” for the benefit of specific interests has always been the nemesis of sound government for the benefit of the broader community. This term needs to be defined and constrained.
  • There should also be a Section requiring recognition of and compliance with internationally established and/or recommended best practice.
  • The provision for public participation appears to be limited, which is regrettable. Consultation needs to include not only the framework and plans, but also Sect. 9(3), and any other undertaken by the National Working Group. Furthermore, provision for public participation in any distribution of operating rights also needs to be specified.
  • For all three tiers of governance, NWG, D-GC, and Ministerial Committee, the bill needs to provide for alternates, and to specify conditions for being quorate. A quorum must include all four key role-players: DEA; DAFF; DST; and DPME.

We thank you for allowing us the opportunity to comment on the Marine Spatial Planning Bill.

Yours faithfully