Integrated Coastal Management Amendment Bill - Public Hearings

2. NATIONAL ENVIRONMENTAL MANAGEMENT: INTEGRATED COASTAL MANAGEMENT AMENDMENT BILL PCWEA PUBLIC HEARINGS 23 JULY 2013

3. TALK OUTLINE • Process • Over-view of amendments • Overview of proposed changes to key definitions • Overview or key proposed amendments, following the format: • Problem • Solution

4. PROCESS • Published – public comment 25 Nov 2011 – end 31 Jan 2012 • 330 comments • Organs of state, NGOs, academic institutions, individuals. • Special stakeholder workshop ‘high-water mark’ • Surveyor General, experts provinces – 26 July 2012 • Revised Draft Cabinet approval 7 NOV 2012 • Certified State Law Advisers 18 Mar 2013

5. OVERVIEW OF AMENDMENTS (1 of 3) • A number of definitions are amended to: • clarify language; • broaden terms; or • insert definitions which were previously omitted • Predominantly un-contentious definitions – mostly technical improvements • A few textual amendments / corrections due to errors: • Incorrect cross-references; • Typos during Parliamentary printing process

6. OVERVIEW OF AMENDMENTS (2 of 3) • Alignment with NEMA • Extend the powers, including delegation powers, of MECs • Clarify composition and ownership of coastal public property • Ensure that coastal public property does not impact on the ownership of assets and operations of other organs of state • Clarify and expand provisions on reclamation

7. OVERVIEW OF AMENDMENTS (3 of 3) • Simplify the administration of coastal access fee approvals • Simplify and amend powers relating to coastal leases and authorisations • Abolish the National Coastal Committee • Revise offences and penalties • Provide for exemptions

8. KEY DEFINITIONS Key definitions proposed for amendment: • “coastal waters”; • “estuary”; • “high water mark”

9. “coastal waters” • “ “coastal waters” means− • [marine waters that form part of ]the internal waters,[or] territorial waters or exclusive economic zone of the Republic referred to in sections 3, [and] 4 and 7 of the Maritime Zones Act, 1994 (Act No.15 of 1994), respectively; and • subject to section 26 of this Act, [any] an estuary;”;

10. ‘coastal waters’ Problem and Proposed Solution PROBLEM: The current wording was confusing: • Marine waters was not defined - raised in comments • Coastal public property (part of coastal waters) included resources within EEZ but not EEZ itself. SOLUTION: • Remove reference to marine waters • Clarify the inclusion of EEZ not just resources

11. PROPOSED WORDING “estuary” “estuary” means a body of surface water— (a) [that is part of a water course] that is permanently or periodically open to the sea; (b) in which a rise and fall of the water level as a result of the tides is measurable at spring tides when the water course is open to the sea; [ or] and (c) in respect of which the salinity is [measurably] higherthan fresh water as a result of the influence of the sea[;], and where there is a salinity gradient between the tidal reach andthe mouth of the body of surface water;”;

12. “estuary” Problem and proposed solution PROBLEM: • “water course” not defined - raised in comments • Certain canal systems need to be included in estuaries – influence of the sea SOLUTION: • Remove reference to water course • Make definition scientifically wide enough to cover only the canal systems that are influenced by the sea – must meet all 3 scientific criteria

13. “high-water mark” “high-water mark” means the highest line reached by coastal waters, but excluding any line reached as a result of— (a) exceptional or abnormal [floods or stormsthat occur no more than once in ten years] weather or sea conditions; or (b) an estuary being closed to the sea;”;

14. “high-water mark” Problem PROBLEM: • Current wording incorporates reference to 1: 10 year flood line. • Floods and storms too restrictive • 1:10 yr flood line problem • (when does 10 yr start? • could be more than one storm in 10 yr period • HWM can only be determined after extensive mathematical modelling every six months – especially for sandy coastlines; • Any fixed line rather than natural boundary rejected by SG and majority of experts

15. Proposed Solution SOLUTION: • Amend definition wording by removal of reference to 1: 10 yr flood line revert back to wording similar to the previous Sea Shore Act (with improvements) • Not broken don’t fix it!

16. “Coastal Public Property” - S 7 PROBLEM: CPP cannot be owned – s 11 vests ownership in the citizens to be held in trust by the state • Section 7 confusing • Large area – certain exclusions. Not clear what was in and what out • Not exclude buildings and structures below the HWM (also error in text (h) (iii) • Transnet – believed that all buildings etc. within ports now became part of CPP and therefore they are disowned by s11 and wanted exclusion from CPP – Problem (see slides) • Section 11 not commenced pending an amendment to clarify CPP and ownership irtTransnet

17. “coastal public property”Cl 4, PROPOSED SOLUTION • Separate clause clarifying exclusions • Clearly exclude exclude buildings and structures below the HWM (2) Notwithstanding the provisions of subsection (1), coastal public property does not include− (a) any immovable structure, or part of an immovable structure, including harbour installations and infrastructure, whether located on land or the seabed lawfully constructed by an organ of State; • Transnet believes this does not go far enough

18. RECLAMATION - Cl 5 S7A PROBLEM: • Currently reclamation is in S 27 - was inserted late during the parliamentary process to address ad hoc concerns • Inappropriately placed • Current S 27(6) is inadequate. SOLUTION: • New clause drafted and more appropriately placed • Established criteria • More comprehensive

19. Position of HWM – Current • Properties with curvilinear boundary/ stated distance HWM – substitute for fixed • Agreement LSAct – Minister real rights holder • If HWM moves inland – 2yrs > SG may make new boundary line • Agreement LSAct Min, municipality, owner and real rights holder • If HWM moves inland of the boundary line – erosion etc – 3yrs – Owner loses ownership

20. “Position of high-water mark” s14 Problem • Implementation challenges; • Allows owners to change their moveable boundary to fixed boundaries, that will: • Cut off public access along the coast; and • Could lead to abandoned structures below HWM • 2 and 3 yr periods arbitrary - many complaints

21. “Position of high-water mark” Cl19 Proposed Solution • Simplifying procedures; • Retaining the owners property rights as per their title deed; and • Removing the option to fix boundaries, • Allowing natural movement of the coast

22. Example of coastal erosion

23. Exclusion from CPP Cl 18 PROPOSED SOLUTION • Clarified ownership of Transnet assets in S 7 • Delete provision allowing for exclusion from CPP in S 27 • Reverse Parliamentary exclusions of all port footprints Cl 59; S 97A • Dealt with the issue in a different way

24. ABOLISH NCCREPEAL S35-39; Cl 20-24 PROBLEM: • Duplication of function IGRF Act SOLUTION: • Decision to use existing functioning inter-governmental forums – (MINMEC/ MINTEC) to perform the functions

25. LEASES ON CPP CL34, 35; S65, 66 PROBLEM: • Any activity on CPP requires a lease or concession - organs of state and anyone present in the sea or sea-shore needs lease or concession from the Minister • Environmental value questionable already regulatory systems in place SOLUTION: • Only regulate activities where legal gap – via published lists

26. Transitional Provisions Cl 56; S 95 • No need to keep ALL existing leases alive, but require ALL holders of existing leases to submit copies: • To have a complete inventory • To inform listing of activities for coastal use permits • Identify cases where stricter control might be required

27. OFFENCES AND PENALTIESCl 43 - 45, S 79 -81 PROBLEM: • Complaints that sentencing is inadequate and there are gaps in the law (penalties for subsequent offences inconsistent) SOLUTION: • Offences and penalties tightened up: • Now only two categories of offences instead of 3 • Sentences for category two offences have been increased (R500 000 to R2 m)

28. THANK YOU